Coming Clean

As a defendant walks before an arraigning judge for the first time on a drug charge, there is one crucial detail that’s simply assumed: the substance at issue is drugs.  Assuming a quick plea doesn’t dispose of the case, the substance will eventually be tested in a laboratory, and assuming the lab tech doesn’t lie, screw it up or cross-contaminate it, there will be a definitive answer as to whether it’s drugs or, say, soap.

In the case of Annadel Cruz and Alexander Bernstein, it turned out to be soap.  They only spent a month in jail awaiting that conclusion.

A state trooper pulled the couple over Nov. 13 on Interstate 78 in Lehigh County, Pennsylvania, for driving 5 mph over the speed limit and hugging the side of the lane.

The trooper said he smelled marijuana, and the driver, 26-year-old Annadel Cruz, admitted that she’d smoked pot before leaving New York City.

Cruz consented to a search of the new Mercedes-Benz, and the trooper found two brick-size packages covered in clear plastic wrap and red tape in a bag stowed in the trunk.

The driver said the packages contained soap she’d made herself, but the trooper performed a field test that showed the presence of cocaine and arrested Cruz and her passenger, 30-year-old Alexander Bernstein.

There is a ton of weird packed into this story. That someone driving 5 mph over the speed limit was stopped is weird, and perhaps it had something to do with a Hispanic female driving a Mercedes Benz on I78, a drug route out of New York.

That the trooper smelled marijuana is such a familiar, and impossible to test, claim, but Cruz admitted to smoking pot before leaving New York, and had a small stash in her bra.  Did the odor of weed linger a couple of hours later?

Cruz consented to a search of her car, a perpetually bad idea, but given that she was operating under the belief that there was nothing to be found and she would be on her way, not surprising.

That there were “two brick-size packages covered in clear plastic wrap and red tape in a bag stowed in the trunk” is where things get really interesting.  For anyone unaware, this is how cocaine is packaged. I can hear the trooper yell, “we got it, cuff ’em.”

The driver said the packages contained soap she’d made herself, but the trooper performed a field test that showed the presence of cocaine and arrested Cruz and her passenger, 30-year-old Alexander Bernstein.

Soap? Packaged like bricks of coke, hidden in a compartment in the trunk of a Mercedes Benz?  Seriously?  Well, as it turns out, seriously.

There is ample room to speculate that these bricks might have been intended to scam a cocaine buyer, on the off-chance someone sophisticated enough to purchase two bricks (which were apparently greater than a kilo apiece in weight, although different weights are given in different posts) wouldn’t give it a knowledgeable toot before handing over about $60 grand.

But then, that’s completely speculative. If Cruz says she just likes making soap, and packaging it like bricks of coke, she’s allowed.

The fact that the trooper claims to have field tested the soap and come up positive for cocaine is another matter. Not only does it reveal the worth of field tests in determining that a substance is drugs, but its mere incantation was sufficient to persuade a judge to impose some serious bail:

Bernstein was sent to Lehigh County Prison under $500,000 bail and Cruz under $250,000 bail by District Judge Jacob Hammond.

They remained in jail until last week, when the Lehigh County district attorney’s office dropped the charges after a state police lab tested the packages and found they did not contain cocaine, only soap.

Had the crime lab been busier, perhaps they wouldn’t have gotten around to testing the substance for a few months, during which Cruz would have remained in a cell. Bernstein, as it happened, was bailed out right before the test results became known.

Much of the discussion around this case was ambivalent, given the way the soap was packaged, with many people left unsympathetic toward the pair under the belief that they were up to no good.  If they were out to beat a drug dealer, then screw ’em.

And the fact that Cruz consented to the search evokes little sympathy, since everybody on the internet knows that one should never consent to a search.  Of course, it’s a lot easier to say this on the internet than to turn down a Pennsylvania State Trooper on I78. Reality has a nasty way of making easy answers more difficult.

And yet, had this happened under somewhat different circumstances, without the ironic packaging or had consent been claimed by the cops but denied by the driver, the pair would still have spent a month in jail for the crime of transporting soap. Or any other substance that didn’t, upon real testing, turn out to be drugs.

Maybe it will be Jolly Ranchers mistaken for meth or breath mints mistaken for Ecstasy.  The problem arises at that first meeting between defendant and judge, where everyone in the courtroom, save the defendant and the defense lawyer usually, blindly assumes that if a cop says it’s drugs, it’s drugs.

For a brief and shining moment in the late 1980’s, the fallacy was revealed following a brief New York Court of Appeals decision in People v. Dumas.

In each case the complaint contains a conclusory statement that the defendant sold marihuana, but in neither case is this supported by evidentiary facts showing the basis for the conclusion that the substance sold was actually marihuana. There is, for instance, no allegation that the police officer is an expert in identifying marihuana (cf. People v Kenny, 30 N.Y.2d 154), nor any allegation that the defendant represented the substance as being marihuana. Neither are any additional facts provided by the supporting depositions in which the undercover police officer merely adopts the statements alleged in the complaints.

The typical allegation in a complaint was that the cop would allege, “based on my training and experience as a police officer,” the substance was whatever he said it was.  But as soon as arraigning judges started cutting every drug defendant loose because there would never be anything of an evidentiary nature to satisfy the law, Dumas essentially disappeared, as if it never happened, and the assumption that the substance was whatever the cop said it was returned to fashion.

After all, you can’t have accused drug dealers running free, even if that stuff in the trunk gussied up like bricks of cocaine turns out to be soap.


18 thoughts on “Coming Clean

  1. RKTlaw

    At the District Ct. level (misdemeanor) here, they don’t even bother to get a lab test on the pot or bring it to court. The cop testifies upon his/her “training and experience”. And virtually every judge is just fine with it. The only recourse is then to appeal it to Superior Ct. for a jury trial, where you might find some citizens skeptical of such practice. Of course, you won’t get in front of that jury for about a year and a half. Even if they do a test, unless Defense objects in writing, they don’t have to put the analyst on the stand, they can just introduce the test. Arguments concerning shifting the burden of proof are met with blank stares.

    1. SHG Post author

      But your honor, the defendant obviously knows it’s coke because he’s a drug dealer and it’s his coke. Why waste everyone’s time?

  2. BkPD

    Dumas had a much better run than you give it credit for- it wasn’t until 2009 that the Court of Appeals killed it in P. v. Kalin – now you can proceed with misdemeanor charges without a lab or field test all the way until trial.

    1. SHG Post author

      I don’t know if you were there or remember, but for about a month after Dumas, the judges were tossing drug cases right and left at arraignment. The prosecution then started throwing in empty language, like “special training” (which was the same training as before but with the word “special” added) and maybe a bit about the color or packaging, and, ta da, all was right again in the world of arraignments. That’s the Dumas I’m talking about.

    1. SHG Post author

      Well, since that was both a humorous and relevant video, I’ve left it in. You have an “unusual” sense of humor.

  3. Thomas R. Griffith

    Sir, darn it! Just when I got used to frisking any & all humans I allow into my vehicles, this Post has me thinking about the following. Would it be a good idea to consider running any new / used / leased / rented / borrowed vehicles (the ones with motors and / or tires) through the nearest police dept sally port immediately (on the way home) for a complimentary drug dog sniff and compartment check (and, maybe calling ahead? Wondering due to buying a new one last month but, never thought about how much ‘soap’, ‘sheet-rock’ or hay packaged by coked up artist is just waiting to be located by Barney. It’s probably asking too much to expect the Carfax report to indicate the vehicle was checked by a former specially trained – drug runner & receive a window decal proclaiming – “No Dope or Soapy Dope On Board”.TM.

    Gotta go check a trunk or two, you never know. Thanks for keeping it clean.

      1. Thomas R. Griffith

        Sir, good one. As, I overlooked dairy products and burps that lead to a wave of eww that smell searches. the thought of illegal produce and possible bone fragments are now a concern. Damn you CSI.

        The Cops Re-loaded clips will now include – Road side check points that begin with, *Do you have anything that’s going to get my hands all sticky, stinky & slippery? Now’s a good time to come clean. If the test turns black it’s salmonella & someones going down. Thanks.

  4. Alex Bunin

    It is amazing how often we get called by the DA’s Office to do writs in cases where the “drugs” come back negative from the lab. This is after folks (not previously our clients) have spent time in jail or prison. That is also not counting the cases where a lab analyst faked the results, a completely separate scandal.

    1. SHG Post author

      Better safe than sorry, you know. At least, safe for the cops, sorry for the defendant. This is the price we pay for safety, and is it too much to ask the innocent person to take one for the team?

  5. Marc R

    I’ve seen video (not dashcam but a passenger) of a FTP transaction: the officer puts the baggie on the trunk of the client’s vehicle, he goes to his trunk and pulls out a kiddie chem kit. The officer opens a little test-tube looking device and with a medicine dropper he dabs a few drops of this brownish-colored liquid into the opened bag. He didn’t take the substance out of the bag and put the drops on that; rather the substance and the bottom of the inside of the bag was tested.

    After determining the substance wasn’t cocaine, but because the bag OBVIOUSLY had cocaine residue, the charges filed at arraignment (the officer just filed cocaine possession) were cocaine possession and counterfeit pharmaceuticals. Of course there was no allegation as to what was counterfeited; viagara, oxycontin, paxil, who knows?

    Fortunately the client easily posted bail because this particular judge sticks with $3K bail for drug counts so $600 to a bondsmen isn’t the end of the world for a college-aged kid. I file a motion to dismiss essentially arguing the above, the state files a traverse that the drugs were counterfeit pain medicine (no clue how they picked that versus counterfeit diet pills, other than pain pills have more stigma here) and the judge lets case proceed.

    Only after intervention with a higher ranking prosecutor was the case nolle prossed.

    1) Cops having training in narcotics is an actual joke. There’s literally no science involved and their methods of testing are beyond absurd and violate the tenets of any scientific method.
    2) Even if the test results are mixed, there is no further testing unless the state knows they are real drugs and then they want purity levels or they want to re-weigh the compound.
    3) Judges give the police more credence to their science than the defense attorney’s explanation of the same science just because the state asserts the officer was trained.
    4) I used to think telling clients “don’t drive with drugs” was enough to allay their fears of being arrested transporting drugs, but it’s clearly not. It should be modified to “don’t drive with plastic bags or anything unlabeled by a major corporation.”

      1. Marc R

        Sorry Scott, the soap story triggered the horror reminding me of the case with organic bar shampoo that nearly ruined somebody’s life. I guess it’s all too common when it should be a scary coincidence.

        1. SHG Post author

          It was a good and relevant story. I only bring it up because once one guy tells a war story, others feel empowered to tell theirs, and it goes downhill fast. There is nothing lawyers love more than to tell war stories.

    1. Frank

      I’ve read that the “field” test kits for drugs have a 50% false positive rate. If that is truly the case it is a crime itself that judges are allowing this to be considered PC. I believe it is more likely that officers have found a way to make any test come up positive, regardless of the actual substance, but you never know.

      Also, I have read about cases where the substance in question is professionally labeled, yet unfamiliar to the arresting officer.

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