The $2 Chemist Rule

It’s given the name “probable cause” even though it’s neither probable nor cause. The law likes to do that, because it lets good people sleep at night believing that there is a viable system in place that both protects them from the bad guys and preserves their freedom.  Yay, law!

But probable cause is a rhetorical trick. Doggie sniffs, which are basically coin tosses with cute puppies who, when ordered, will bite your head off, continue to impose their tyranny on the public because judges aren’t cat people. When there’s no doggie to be had, what’s a cop to do?

When officers tested the powder using a $2 narcotics identification kit, it was identified as a controlled substance.

The only problem with the $2 testing kit, available at a K-Mart near you, is that it’s prone to false results. This isn’t a secret. So why use it? Did you not read that it only costs $2? The government has a duty to protect the public fisc. That’s your taxpayer money they’re spending, you know. And besides, they’re out there doing god’s work nailing criminals, and of all the things not worthy of your hard-earned tax dollars, who is worse than criminals?

Except that $2 test kits suck at catching criminals, because they suck at doing their job of determining whether a substance is a drug or, say, baking soda.

Gale Griffin and her husband, Wendell Harvey, haul cargo for the U.S. military. They were delivering a load in May, when guards at Fort Chaffee, an Army National Guard installation, conducted a routine search of their truck.

During the search, the guards found several baggies containing a white powdery substance, which Griffin explained was baking soda that she was using to treat an upset stomach. Unconvinced, the guards notified local police.

It’s hard to blame the guards for doing as ordered, assuming that’s what they were ordered to do and just didn’t watch too many “see something, say something” commercials on the tube. After all the Griffins were truckers, nice to see a married couple living and working together, and truckers are known to enjoy the occasional toot to keep them doggies rolling. 10-4, good buddy.

So the cops applied $2 science.

The officer said, “’You have over $300,000 in cocaine,’” Griffin told KUTV News. “I told him, ‘I never had two nickels to rub together. Are you crazy?’ He said, ‘I’ve never had two nickels to rub together either, but now I’m the owner of your truck.’”

Unable to afford bail, the couple stayed behind bars until mid-July, when a lab analysis found that the substance was, in fact, baking soda and contained no illicit substances.

When you’re rolling with over $300,000 (?) in coke, expect bail to be high. Whether the Griffins could have made lower bail is unclear, but they surely couldn’t make drug kingpin level bail. And so they sat.

There was a judge who set that bail, whose preliminary duty was to determine whether there was probable cause for arrest, and then what was needed to make sure these coke folk returned to court to meet their future. No doubt the judge was informed by the prosecutor that the trustworthy and unimpeachable officers of the law conducted a field test, and that test showed that these two were deep into cocaine, which is a gateway drug forced down the nostrils of our delightful children, leading to murder and rape.

Was the judge unaware of the $2 test? Possibly, because there is no requirement that a judge not be a blithering idiot as long as he has enough moisture on his tongue to lick stamps at the local party boss’ office, but not likely. This is a well-known thing, and most judges stay abreast of basic developments in science because they’re deeply concerned with what passes Daubert, even if their only interest in Frye is that it tastes good. Ah, science.

But the judge is in a difficult situation. The $2 test is what the cop is given to use, and if the judge holds, as integrity would demand, that it’s woefully insufficient to establish probable cause because the test is worthless garbage masquerading as science in Aisle 7 of K-Mart, he could be turning these trucking drug kingpins loose on society and be responsible for millions of your kids not getting into Yale because they were too high to do well on the SATs. His constituents would be sad and elect someone else to wear the robe, meaning he would have to work for a living.

So, a quick bang of the gavel, the utterance of a number with lots of zeroes, and society is protected as he kicks the can down the road.

We’re not chemists, and we don’t roll with a chemistry set in the back of a police car,” Fort Chaffee Police Chief Chuck Bowen explained when Little Rock’s KATV News asked about the mistake.

No. No you’re not. Nor is the judge. Nor is the person who came up with the thrifty idea of putting people’s lives at risk based on whatever was on sale at K-Mart. But then, this has nothing to do with cops being chemists. It’s about putting people’s constitutional rights, their lives, at risk based upon a test that comes nowhere near probable cause.

And even if the test was close enough to reliability to justify its $2 pricetag, the substance could have been brought over to the Annie Doukhan Memorial Lab for analysis, where there are chemists and they have the whole chemistry set. So it’s too much to ask that you not screw with nice, hard-working folks like the Griffins in the first place? So it’s cool with everybody that a few people here and there have the lives up-ended for the sake of our good night’s sleep?

Fair enough. So then go from the worthless doggie hit $2 drug testing kit that fits neatly next to the Glock on their Batman belt to the serious lab where they keep all the beakers and funny colored liquids that every judge is certain is “real” science that’s totally reliable and run a good test. If it turns out that the roadside test was goofy, shuffle your feet, say sorry, then cut them loose and give them their truck back so they can get on the road again.

After all, they could have cute puppies at home, and it’s beyond a reasonable doubt they’ll be dead by the time the labs get back. That would be totally unacceptable.

26 thoughts on “The $2 Chemist Rule

  1. Al Wagner

    I admire your ability to explain this without melting down. Or if you do, getting back up and finishing the job.

    Sharing this with my passionate but tiny band of liberty advocates…


  2. Billy Bob

    Where’s the link to Annie Doukhan? We happen to know who she is/was, since the so-called lab is in our home state of Mass. She’s a doozer, unwittingly throwing thousands of drug convictions here into question, if not disarray.

    This here story would be funny if it were not so tragic. We hate it when these mistakes occur. Naturally, all the players have “qualified immunity” since they were just doing their jobs, without malice aforethought. We hope the Griffins get some form of restituition.

    1. SHG Post author

      By my unscientific calculations, this post includes 127 hidden cultural/legal references. Dookhan is one of the more obvious. If I made it too easy for readers, they wouldn’t feel special.

  3. Chris Halkides

    What reform would be effective? Should this reform be extended to other areas of testing, such as blood, saliva, and semen, that also involve both presumptive and confirmatory stages of testing?

    1. SHG Post author

      It’s not that junk science reforms haven’t been discussed here in a great many posts at significant depth, and this post isn’t about “other areas of testing,” or that there is a “reform,” aside from the rigorous use of Daubert, and that your comment goes orthogonal to this post rather than come close to staying on topic. Oh wait. It is.

      1. Chris Halkides

        I respectfully disagree with characterizing this test as junk science. Everything I that I have been able to find suggests that it is a perfectly good presumptive test.

        1. SHG Post author

          I’ll let the Griffins you said so. I’m sure they’ll feel better about the ruination of their life when the learn it was a perfectly good presumptive test.

        2. Agammamon

          Have you seen the false positive rate? False positives are as bad (and in the case of depriving people of property, liberty, even life even worse) as false negatives.

          Is the scourge of drugs so bad, so scary, that we should tolerate even *one* false positive because it makes life easier for the cops? Or because it saves a bit of the budget – to be spent on covering the city’s public pension obligations maybe?

          1. Chris Halkides

            Perhaps you misunderstand my point. Presumptive tests are supposed to minimize the chance of false negatives at the price of having some false positives. In addition, they are generally inexpensive and fast. Confirmatory tests are supposed to minimize the chances of a false negative. I admit that the word “presumptive” is imperfect. Presumptive tests show the possibility of the presence of a particular substance, but only confirmatory test gives a positive identification. If Griffin and Harvey had gone to trial, any competent forensic scientist could have been called as an expert witness to explain this. I don’t see any practical alternative to presumptive tests. That having been said, I don’t believe that these two individuals should have even been arrested on the basis of the positive result of one of them.

            1. SHG Post author

              This makes perfect sense in some alternate universe. The problem is we’re working in ours, which is why this is getting so much resistance. Sure, they might get a correct analysis, provided the “competent forensic scientist” isn’t Annie Dookhan, but trial won’t be for two to three years down the road. These guys were lucky it was only two months, and still it destroyed their life.

              We get what you’re saying, but law happens in the streets and courtrooms, not under sanitary lab conditions where everyone is competent and truthful and nobody’s life gets destroyed while waiting for that correct result. That’s the part you’re not hearing.

  4. Norahc

    ….”The government has a duty to protect the public fisc. That’s your taxpayer money they’re spending, you know.”

    I’m willing to bet that the taxpayers wished they would extend that same sense of fiscal duty to things like not violating the rights of people so they wouldn’t have to pay out as much in lawsuits and insurance.

    1. Chris Halkides

      The use of a presumptive test to screen out negatives is a reasonable idea. If you sent all samples directly to a lab for confirmatory testing, the cost of each test would be far greater than $2. Doing the confirmatory testing late in the game or not doing it at all is another matter.

      1. SHG Post author

        This is true, but the sort of comment that tends to infuriate lawyers because of its science-y naivete. Yes, screening out negatives would be a reasonable idea, but it never, ever, ever, ever, EVER, turns out that way, which is why we don’t mention it because it seems wonderfully reasonable, but it never, ever, ever, ever, EVER, turns out that way, and instead ends up with innocent people in jail or prison. Which should never happen if they limited its use to screening negatives, but, well, that’s not how it ever turns out.

        1. Dave

          You are correct that, given any degree of discretion to law enforcement, it never turns out that way (and I did not really need to say that, except as a preface to this): Pass a law. That law covers ALL screening tests done on the scene. The laws provisions, section One: Where such a test is used, if it turns up negative, the stop ends immediately, the police are required to apoligize and send the people on their way. No further questions or search is permitted. If it turns up positive, it is, by law, insufficient probable cause for an arrest or even any further searching, nor may it be used as part of a probable cause analysis for any other reasons the police might want to use to justify the stop. And the positive test is inadmissible against the defendant in court. The police are only allowed to get contact information for the person stopped and take a small sample of the substance for further testing in a real lab. Later, after a real, expensive, positive test (if the police bother to do it) they can then track that person down and arrest them. The law would, of course, give no discretion to the police.

          The provision of the law authorizing rainbows and unicorns is in section two.

          1. SHG Post author

            Or maybe even pass a Constitution that included a Fourth Amendment in its Bill of Rights? And then pass a law requiring judge to, you know, follow it.

            1. Dave

              Baby steps. Judges have this nasty habit of taking general constitutional rules meant to protect our rights and driving freight trains through them with “exceptions” and so forth, and probable cause has been turned into a laughably easy bar to meet. But hey, appoint me to the Supreme Court and I will see what I can do. (I hear there is an opening).

            2. SHG Post author

              Exceptions? I’ve heard that word before, but it would be really helpful to me if you could explain it in small words.

  5. Agammamon

    “then . . . give them their truck back so they can get on the road again.”

    Whoah, whoah, whoah chief. Let’s not go off half-cocked here. I mean, maybe they used the truck running drugs other times. Maybe they bought the truck with drug money. Maybe the truck was running drugs on the side.

    The truck stays.

  6. Charles

    One seller of these tests claims: “Using state-of-the-art wet chemistry, the system presumptively identifies the most commonly encountered narcotic and street drugs.”

    Presumptively identifies? So if not sure, assume drugs? And judges accept this?

    1. zoe

      Rarely does it make it to the judge. The false positives are used by Prosecutors to encourage plea deals. Most of the time the defendant doesn’t even know they have fake drugs, and accept the plea (and the request for lab testing gets shuffled to the bottom of the large pile of requests. No need to rush testing for the presumed guilty.)

      See how much time and money is saved by avoiding additional scientific testing and lengthy trials?

      1. SHG Post author

        Even when the deft knows he had no drugs, the threat of a gazillion years combined with the pressure of a lawyer who tells him he’s going down no matter what is hard to resist. And the plea offer is now or never, so labs be damned.

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