Seven little words have likely cause more convictions than anything else in all of criminal law combined: “Based upon my training, knowledge and experience.” Every day, in thousands of courtrooms all across the Untied States this phrase is uttered. It has come to be the sine qua non in all criminal prosecutions. Many times it even trumps common sense or empirical data.
We have blogged on here a lot about the rate of false positives based upon presumptive roadside tests including:
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Roadside screening tests such as the NIK Public Safety Reagent Based Tests Can Provide False Positives
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Marijuana Field Test False Positive Leads to SWAT-style Raid of Innocent Home Owner’s Basement Lawful Tomato Growing
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I know methamphetamine by looking at it: false arrest for drugs
Consider this case out of my home state Pennsylvania (Lehigh County) involving motorists, soap and a Trooper who has no idea about the limitations of his field test:
Drug suspects had soap, not cocaine bricks
Pair spent month in prison before lab results came back.
December 13, 2013|By Manuel Gamiz Jr., Of The Morning Call
When a state trooper pulled the couple over along Interstate 78 last month, he said he stopped them because they were going 5 miles over the speed limit and hugging the side of the lane.
The trooper said he smelled marijuana. The driver of the new Mercedes-Benz, 26-year-old Annadel Cruz, told him she had smoked the drug before she left New York City, but had not done so in the car.
The trooper asked to search the car, and Cruz consented. When the trooper found two plastic-wrapped packages in the trunk of the car, Cruz told him they contained soap she had made herself.
The trooper field-tested them and Cruz and her friend, 30-year-old Alexander Bernstein, spent the next month in Lehigh County Prison after being arrested on cocaine-trafficking charges.
They got out this week after the Lehigh County district attorney’s office dropped the charges because a state police lab tested the packages and found they contained boric acid or soap.
Attorneys for the couple are questioning the investigation, accusing the trooper of profiling the couple and botching the field test.
“I think it is a nice car with out-of-state plates and a Hispanic female behind the wheel” that prompted the traffic stop, said Josh Karoly, who represents Bernstein. “If it was me driving that car, this wouldn’t have happened.”
Cruz’s attorney, Robert Goldman, said, “After this, everyone should pause about jumping to conclusions when a field test is said to be positive by law enforcement. There are people going to jail on high bail amounts based upon these field tests.”
Bernstein was sent to prison under $500,000 bail and Cruz under $250,000 bail by District Judge Jacob Hammond.
Field tests are used by police departments to test substances believed to be drugs at suspected crime scenes. A sample of the substance is mixed with a liquid, causing a reaction and change in color that will indicate if it is an illegal drug, Karoly said.
That substance will then be sent to the state police lab for further analysis and testing.
Karoly said he believes the field test either didn’t happen, it was lied about or something is wrong with how it was done.
“A young man spent a month in jail, spent a substantial amount of money to get out of jail and missed Thanksgiving with his 17-month-old son,” he said. “To do that on a field test, we better be darn sure that these field tests are accurate.”
Bernstein’s bail was posted Tuesday, a day before the district attorney’s office called to let him know they were dropping charges. Cruz, a community college student, was released from prison Wednesday, Goldman said. Goldman said Cruz had no criminal record before the Nov. 13 stop in South Whitehall Township.
While his client is happy to be released, Goldman said it will take time to recover from the stigma of being incarcerated as a drug offender.
“Her name is all over the place, making light of her defense that she was just transporting soap,” he said. “She was labeled online as a drug dealer, she was incarcerated with people who do commit crimes.
“It’s going to take her a good deal of time to get her good name back,” Goldman said.
According to a criminal complaint:
A state trooper stopped Cruz, who was driving a new Mercedes-Benz, on westbound I-78 near the Cedar Crest Boulevard exit because she was approaching 60 mph in a 55 mph zone and was riding a traffic line for about a half-mile.
When questioned, Cruz told the trooper the car was a rental and they were driving from New York to Florida. The trooper told her he smelled marijuana and she said she had smoked earlier in the day, but not in the car. She gave police permission to search the car.
Bernstein told police he had a bag in the trunk and gave police permission to search it. In the bag, the trooper found two brick-size packages, which were covered in clear plastic wrap and red tape.
Cruz told police the packages contained soap she had made, but a field test revealed that the substance was cocaine. The packages weighed 5.2 pounds. Police said they also found a small amount of marijuana in Cruz’s bra.
The couple were charged with possession with intent to deliver cocaine, possession of cocaine, conspiracy and possession of drug paraphernalia. Cruz also was charged with possession of a small amount of marijuana, disregarding traffic lanes and speeding.
The district attorney’s office would only confirm that the state police lab determined the substance found in the car turned out to be soap, leading to the charges being withdrawn Thursday.
Attempts to reach state police Friday were unsuccessful.
Both attorneys accused state police of profiling.
Goldman said police stopped his client for barely going past the speed limit and getting close to the line, something almost every driver on the highway does at some point.
“Anybody who drives under 60 miles an hour on I-78 has the chance of getting rear-ended,” Goldman said. “It was one of the worst probable causes for stopping.”
Goldman said his client was taking the soap to a sister in Florida. He described Bernstein as her friend.
Karoly said this case is an example of rushing to conclusions.
“We are so cynical that we don’t believe people,” Karoly said. “We don’t give people the benefit of the doubt.”
Neither attorney said he has discussed civil litigation.
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Mary Catherine McMurray says:
More than 15 years ago those very words coming out of my mouth to an attorney were what led me to go and do more research into the issue of strict diets, Atkins diets and ketosis. I heard myself and stopped myself and apologized to the attorney and instead went and hit the literature on the subject of severe dieting. I stepped out of just looking at breath alcohol materials and began reading medical literature. Since then more evidence has surfaced supporting ketosis, and ketoacidosis, as problematic in breath alcohol testing. Sadly, the people running the programs are still reluctant to admit or acknowledge the issue. And they will testify based upon their “training, knowledge and experience”.
Justin J. McShane says:
That is a very powerful comment. Whenever I hear those words I cringe. Either the information and the science is there. Appealing to anecdote and the like is an inferior form of proof.
Mehul B. Anjaria says:
It also seems like an attempt to shift responsibility to the forensic scientist’s employer. In other words, if they are not properly qualified it isn’t their fault..the employer simply did not provide adequate training, knowledge, and experience. It also reminds me of the cringe-worthy line you often get at retail stores, “that’s our policy” which very often has nothing to do with what’s right.