No, I'm Not Using Slang. It Really Is Tea.

Jacob Sullum | March 4, 2009

According to a new report (PDF) sponsored by the Marijuana Policy Project, field tests commonly used by police to identify marijuana and other drugs yield false positives in response to a variety of legal substances, resulting in the arrest and detention of innocent people. Worse, "millions of people have been, and continue to be, prosecuted and convicted of marijuana charges without proof that they possessed marijuana." The author, forensic drug expert John Kelly, says an investigation he conducted in collaboration with former FBI scientist Frederic Whitehurst "reveals a drug testing regime of fraudulent forensics used by police, prosecutors, and judges which abrogates every American's Constitutional rights."

Some of the cases Kelly cites may ring a bell. In April 2007, for instance, the NarcoPouch 928 drug test kit falsely fingered Don Bolles, drummer for the punk band The Germs, for GHB possession, reacting to a sample of Dr. Bronner's Magic Soap. "Subsequent testing," Kelly notes, "found that a wide variety of natural soaps as well as soy milk test positive for GHB." In August 2008, Ron Obadia and Nadine Artemis were detained at Toronto International Airport en route to the U.S. because the Duquenois-Levine color chemical test indicated that the raw chocolate they carried contained hashish. "Subsequent lab testing proved there was no hashish in the chocolate," Kelly writes. "They were released but stuck with a $20,000 legal bill." The same thing happened again the following month.

According to Kelly, "millions of people have been arrested, prosecuted, and convicted of marijuana charges on the basis of the Duquenois-Levine (D-L) color chemical test, both with and without a microscopic exam." Experiments with the D-L test described at the end of the report found that "patchouli, spearmint, and eucalyptus tested positive for marijuana, while lavender, cypress, and oregano (which previous studies showed produced false positives with the D-L test) gave inconclusive results." In tests using just the NarcoPouch KN Reagent kit, 33 of 42 substances—including vanilla, anise, chicory, and peppermint—tested positive for cannabis.

Nick Gillespie noted the Bolles case in 2007.

Comments

Sal Paradise|3.4.09 @ 3:27PM|#

"Experiments with the D-L test described at the end of the report found that "patchouli, spearmint, and eucalyptus tested positive for marijuana,"

In all fairness, patchouli users should be arrested for something.

|3.4.09 @ 3:29PM|#

They were released but stuck with a $20,000 legal bill.

This is the worst part. You've done nothing wrong and still pay out the ass for it. Can they sue the producer of the test that falsely accused them? Can they get restitution from the prosecuting government (yeah, right)?

BakedPenguin|3.4.09 @ 3:37PM|#

...there was no hashish in the chocolate

Wow. If it ever becomes legal, there's a great idea for a product - sort of like Reese's, only better.

|3.4.09 @ 3:38PM|#

Nick, they were undoubtedly guilty of something.

Elemenope|3.4.09 @ 3:42PM|#

Wow. If it ever becomes legal, there's a great idea for a product - sort of like Reese's, only better.

Yeah but unless the manufacturers have a trick up their sleeves, it's gonna taste terrible.

Neu Mejican|3.4.09 @ 3:44PM|#

drug test kit falsely fingered Don Bolles, drummer for the punk band The Germs, for GHB possession, reacting to a sample of Dr. Bronner's Magic Soap.

And they totally missed the possession of GBH.

http://www.njhindl1.demon.co.uk/gbh/index.htm

JB|3.4.09 @ 3:49PM|#

Government is deaf, dumb, and retarded.

|3.4.09 @ 3:51PM|#

reacting to a sample of Dr. Bronner's Magic Soap

This is particularly chilling as, years ago, I used to use Dr. Bronner's all the time.

Never, never try to use it in seawater, though. It won't come out of your hair and you look like a jerk.

|3.4.09 @ 3:52PM|#

This dovetails nicely with Radley Balko's NAS forensics piece from last week.

|3.4.09 @ 3:52PM|#

These results aren't surprising. Why would they want a field test kit that might say someone is innocent? You're not going to rack up convictions with one of those.

JB|3.4.09 @ 3:53PM|#

"Can they get restitution from the prosecuting government?"

Yes, but not necessarily legally. I would file a redress of grievance, give them a month, then start generating my own restitution at various residences. You want a cushy government job? Be ready to face the consequences for your ineptness.

|3.4.09 @ 4:55PM|#

B.A.C machines have also been shown to have wide variations in accuracy to the tune of plus OR minus 20 percent.Of course roadside tests are a complete fraud.The drug and D.U.I. warriors do not care that millions are arrested each year and have done no harm or posed a danger.

|3.4.09 @ 5:24PM|#

just for the record... i've used these kits dozens of times, and the kits are merely "presumptive evidence"

furthermore, imo arresting MERELY on the basis of a field test kit is wrong. arrests should be made on the totality of the circs, iow if ALL you have is the presumptive test, it's not enough.

otoh, if the presumptive test says "thc y0"

AND it looks like mj, AND smells like MJ, i'd say that's much better

in my jurisdiction, mj has been effectively (in reality, not de jure) decrim'd ANYWAY, but you get my point

|3.4.09 @ 5:28PM|#

if ALL you have is the presumptive test, it's not enough

"Presumptive" means that, unless there is something else that affirmatively refutes the test's conclusion, it is legally sufficient for an arrest.

Sucks, but there it is.

|3.4.09 @ 5:54PM|#

that may be true, but just because something technically meets the bare minimum PC requirements, does NOT mean it's prudent to make an arrest based on that.

and if somebody claimed it was not MJ, and all i had was a presumptive test, that wouldn't be enough for ME.

Taktix®|3.4.09 @ 6:48PM|#

Anise is the funniest of all spices...

|3.4.09 @ 7:21PM|#

"...there was no hashish in the chocolate

Wow. If it ever becomes legal, there's a great idea for a product - sort of like Reese's, only better."

It's a good idea for a product anyway, which means someone's making it as we speak. Bon Appetite.

|3.4.09 @ 7:25PM|#

"two great tastes that taste great together"

|3.4.09 @ 7:32PM|#

Further proof that oregano is a gateway drug.

After all, most users of marijuana and other hard drugs, first try oregano. Some even have tried it when they were kids!

|3.4.09 @ 7:44PM|#

Dunphy,

If (hypothetically) 90% of police don't care about the constitutional rights (of suspects), won't inaccurate tests (such as these) help 'em threaten, browbeat, manipulate, arrest, & imprison innocent people? If we assume most police lack good judgment, shouldn't we want to ban these kits?

A field test that gives many false positives unjustly increases the officers' situational bargining power, IMO.

Dr. Stoner\'s Peppermint Oil|3.4.09 @ 7:50PM|#

Whoah!

It's like... Jeez, why quit if you're gonna get slammed anyway?

Like... Whoah!

Jeez!

|3.4.09 @ 7:54PM|#

"If (hypothetically) 90% of police don't care about the constitutional rights (of suspects), won't inaccurate tests (such as these) help 'em threaten, browbeat, manipulate, arrest, & imprison innocent people? If we assume most police lack good judgment, shouldn't we want to ban these kits?"

i'm not going to accept absurd hypotheticals.

what needs to be improved is training, such that people realize that presumptive tests are just that - merely presumptive.

fwiw, i can say from personal experience, that drugs that tested positive were later confirmed to be the underlying drug in at least 95% of cases.

that is certainly MUCH higher than "probable" cause, which is the standard for arrest.

probable means more likely than not. 95% is much higher than that.

|3.4.09 @ 8:16PM|#

"i'm not going to accept absurd hypotheticals."

Your view presupposes that the majority of police are just & reasonable. That may be true or false - I'm sure we could have an intelligent, data-driven, non-ancedotal debate on that topic. But if an individual, for whatever reason, does not agree that narco police are, in the main, reasonable, sensible, and endowed with good judgment, can you see why these faulty tests would give him or her cause for concern?

If all cops were good, we would not need the various legal mechanisms we've created to stem the abuse of police power. If all cops were good, they'd still err on from time to time, but most folks would happily accept the occasional honest mistake as a cheap price to pay for safety and security.

If we had only good cops, we would not need the probable cause standard at all. Perhaps we don't need it. In my (admittedly limited) experience, we need it.

|3.4.09 @ 8:26PM|#

"Your view presupposes that the majority of police are just & reasonable. That may be true or false - I'm sure we could have an intelligent, data-driven, non-ancedotal debate on that topic. But if an individual, for whatever reason, does not agree that narco police are, in the main, reasonable, sensible, and endowed with good judgment, can you see why these faulty tests would give him or her cause for concern?"

my view is based on experience. regardless, i didn;t say SOME cops don't really care about const. rights etc. i disputed the "90%" claim as a ridiculous hypothetical.

if you said "assume that 90% of defense attorneys routinely suborn perjury" i would call bull on that, too.

"If all cops were good, we would not need the various legal mechanisms we've created to stem the abuse of police power. If all cops were good, they'd still err on from time to time, but most folks would happily accept the occasional honest mistake as a cheap price to pay for safety and security."

no group of people is "all good". and many of the mechanisms (whether or not constitutionally required based on a strict reading of the constitution e.g. exclusionary rule) work pretty well.

also, the reality is that what is and what isn't a "mistake" often can't get agreed on by a court full of legal scholars who have the benefit of hindsight, as any # of 5/4 decisions shows. iow, there is a fair amount of grey. that's why we have case law and judicial review.

even if all cops were good, we still need PC standard. even good people need rulesets to follow to determine whether or not to do something.

we could change the arrest standard to a higher or lower standard (many countries have a lower standard for instance), but either way - it's about tradeoffs - to what extent do we want to protect innocents from custodial arrest vs. how many guilties are we willing to see go without arrest.

it's always about tradeoffs when it comes to stuff like this.

for example, if reasonable suspicion was the standard for search warrants (vs. PC), we would undeniably catch a lot more bad guys, but also a lot more innocent people would get searched too.

that's true regardless of the goodness of cops. cops have to operate within a ruleset and it is the job of legislators , within the bound of the constitution, and citizens (via initiatives) to decide what the ruleset is.

|3.4.09 @ 8:44PM|#

"that's true regardless of the goodness of cops. cops have to operate within a ruleset and it is the job of legislators , within the bound of the constitution, and citizens (via initiatives) to decide what the ruleset is."

I get what your saying. What I think you mighta missed is that some folks honestly beleive cops dont & wont follow the rules. They figure the cops pay lip service to the rules, but actually think: "It's better to ask forgiveness than permission. Ill just arrest 'probable' scumbags and, if I occasionally net a decent person, the system will sort it out."

If we want the law to honor and include the perspective of people who think that cops' actions cannot be proscribed in advance - we must have a potent a system of remedies in place to address & redress abuses after the fact. We must give defendants more bargining power to enforce their rights.

If one believes cops regularly exercise bad judgment (which is not necessarily an insane view) he or she should rationally favor to binding the cops' hands more.

|3.4.09 @ 8:51PM|#

"I get what your saying. What I think you mighta missed is that some folks honestly beleive cops dont & wont follow the rules. They figure the cops pay lip service to the rules, but actually think: "It's better to ask forgiveness than permission. Ill just arrest 'probable' scumbags and, if I occasionally net a decent person, the system will sort it out."

except that IS the ruleset. the standard IS probable cause. the legislature is free to change it (for example) "near certain", which would be much higher. less innocents WOULD get arrested, and more guilty would go free

tradeoffs.

the only crimes where i am MANDATED to arrest (in a PC situations where i would say "this PC is too weak, and im not going to arrest) are domestic violence crimes.

the "war on DV" has resulted in TONS of arrests of innocents, because it not only authorizes, but in many cases REQUIRES an arrest based on PC.

for example, with rare exceptions, i am not going to arrest on a misdemeanor based solely on he said/she said PC. but legislators have ruled, i MUST make an arrest in those cases where the participants have a domestic relationship.

that's our ruleset. does it result in more innocents being arrested than if it WASN'T mandatory? of course.

and of course, some cops don't like the rules. i certainly don't agree with all of them. i don't like the war on drugs either. and i have some discretion with misdemeanors. but if i find a guy with 1/2 lb of cocaine, i don't have the discretion to issue a warning, even though i think the war on drugs is stupid

|3.4.09 @ 8:57PM|#

"the "war on DV" has resulted in TONS of arrests of innocents, because it not only authorizes, but in many cases REQUIRES an arrest based on PC."

I certainly agree with you there. Any kind of "zero tolerance" policy mandating arrest is idiotic.

And I agree that the war drugs is stupid too.

Be careful out there.

|3.5.09 @ 3:11AM|#

I hear it's amazing when the famous purple stuffed worm in flap-jaw space with the tuning fork- does a raw blink on Hara-kiri Rock. I need scissors! 61!

Abdul|3.5.09 @ 7:43AM|#

As I recall, in Philadelphia, field tests were used by cops to get enough evidence to hold someone over for a preliminary arraignment. All seized substances were then sent to a lab for conclusive testing.

I see this as more important for pills and powders, where eyeballs alone can't tell the difference between vitamin pills and oxycotin or flour and cocaine. But with marijuana? Why on earth would anyone be carrying chicory in a tightly wrapped plastic baggie?

|3.5.09 @ 9:48AM|#

The GHB thing with Dr. Bronner's Magic Soap. bothers me. I travle quite a bit for work, don't check any luggage, and usually have 2 or 3 travel bottles (in my quart sized ziplock bag) of the Peppermint Doc Bronners. I can't wait to miss a business meeting on suspicsion on drug charges, while trying to convince them that despite the mohawk, piercings, and bag full of anti-government stickers and t-shirts (Bureaucrash Swag) I really am the market research manager for you multi-million dollar company, not some stoner college kid.

The medic|3.5.09 @ 12:48PM|#

money money money....
Its all about the money. I want to know..who is getting kickbacks from this faulty test?

|3.5.09 @ 2:11PM|#

"I see this as more important for pills and powders, where eyeballs alone can't tell the difference between vitamin pills and oxycotin or flour and cocaine. But with marijuana? Why on earth would anyone be carrying chicory in a tightly wrapped plastic baggie?"

most pills are pharma manufactured, which means you just need to look at the #'s stamped on them.

homemades, like ecstacy (which is actually a variant of meth) require test kits.

tBoy|3.12.09 @ 3:00AM|#

dunphy,

I know this is a side note, but it caught my interest. Could you provide a source that says MDMA is a variant of meth and not just a drug related to both mescaline and amphetamine?

|3.15.09 @ 10:02AM|#

"Ill just arrest 'probable' scumbags and, if I occasionally net a decent person, the system will sort it out."

I actually had a prosecutor TELL me that it's ok arrest these people and seize their property because "you know their guilty". This prosecutor actually eventually got nailed himself, sadly not for behavior like above, but for tax fraud and corruption.

|3.15.09 @ 11:06AM|#

to view over 1500 pages of crimes committed by FBI agents see

http://www.forums.signonsandiego.com/showthread.php?t=59139

Salt Lake City attorney Jesse Trentadue won a lawnsuit against the FBI.
He obtained FBI documents through court discovery that shows FBI agents were handling timothy McVeigh before the Oklahoma City bombing.

google
nichols potts trentadue

to view over 15 pages of pedophile crimes committed by FBI agents see

http://www.campusactivism.org/phpBB3/viewforum.php?f=29

Dunc|3.17.09 @ 12:53PM|#

"But with marijuana? Why on earth would anyone be carrying chicory in a tightly wrapped plastic baggie?""

Well, one of the substances which will test positive as marijuana is hops - they're very closely related. The usual retail packaging for raw hops these days is in vacuum-packed mylar bags, although they are still available in other packaging (or in bulk). Once opened, they need to be kept in tightly wrapped sealed bags to prevent oxidation (and also to prevent them from stinking up your fridge or freezer). To the untrained eye and nose, hops both look and smell very much like marijuana.

I'm a fairly serious craft brewer - I usually have several kilos of assorted hops in tightly wrapped plastic bags in my freezer. I also have scales accurate to 0.1g for measuring out hops, water treatment salts, and the small quantities of malt sugars used for priming or yeast propagation, and those scales are doubtless heavily contaminated with lupulin (the resin found in hops, which is chemically similar to THC).

So I'm pretty much boned...