FTR, this does not involve me, a friend, a “friend” or anyone I know, I read this is in the police blotter in yesterdays paper.
I can’t find the blotter online, but here’s the gist of it.
My question is:
How can you be charged with posession of a controlled substance when the police are not sure what the substance is?
I’ve had a green leafy substance in my pockets…after I trimmed the hedges.
I’ve had white powder all over me…after visiting a ceramics factory
There’s probably a legal reson for doing this, but to me, it sounds like “we’ll arrest you now, and find some evidence later.”
“You see officer, I work at this here pizza parlour and then we were suddenly all out of Basil, so I had to rush out and get some you see? So that’s what it is. Yeah, these zip-lock bags are really cool, they keep the flavor so good, you see?”
The police need probable cause to believe a crime was committed before arrest and charging. They do not have to know for absolute certainty what the substance is before they can arrest and charge you with possession of a controlled substance, just probable cause. The basis for that probable cause can come from a wide variety of places, but most often it is a matter of:
Packaging - i/e in an unmarked plastic baggie or vial
Appearance - Based on the officers training and experience, it appeared to be a controlled substance.
Actions - if the person attempted to flee, or hide the material, or denied what it is.
Paraphernalia - if there is a pipe, rolling papers, etc. accompanying the material.
And, in a majority of cases, the substance is subjected to a “field test”. Generally these are quick, easy color tests that show whether a substance is a controlled substance.
One, all, or some of these facts may lead to probable cause.
The substance is sent on to the lab for more expansive, more admissible testing by forensic scientists. And they’re not “finding some evidence later”, they’re merely analyzing evidence they already have.
Thanks for the info Hamlet, what was odd was this was the first time I’ve seen the notice not mention the name of the controlled substance.
Usually, the notices have the name of the substance in the writeup, ie:
Simple posession of marijuana
Posession of marijuana with intent to distribute
Posession of crack cocaine
etc.
I knew they police had field test kits, just the way the notice was written made it seem like they knew it was a controlled substance, but the police had no idea of what controlled substance it was.
The paper must have had a substitute writer that day, because the next notice involved the report of a stolen firearm, and the notice was written in way that made it seem like the police asked the complainant to get the serial number off the stolen firearm.
I never meant to imply any wrongdoing on the part of the police, it just seemed odd to arrest someone for having an unknown controlled substance, if its unknown, they how do you know its controlled?
I am not a lawyer, but I have been arrested, albeit it for being in an anti-WTO protest, but in my opinion, it is perfectly probably for them to pull arrest a teenager with a small Ziploc filled with some unknown substance on their person. The zip lock actually contained powdered coloring for some artistic project, and not drugs. Depending upon the age of the suspect, and the attitude of the cops, they might treat him horribly, threaten him and then release hymn with a warning, or in the case of some but not all small town cops, apologize to him and release him.
In a vast majority of cases, the officers “know” which substance it is. White, rocklike substance — crack cocaine. Green, leafy substance ---- marijuana. Sheet of paper with small racing cars — LSD, tan, powdery substance — heroin, etc.
There are some cases where the police may not know, what a substance is, or whether or not a substance is a controlled substance. For example, the Oregon Supreme Court held that the seizure of “white pills” was illegal and stated:
The court laid out some factors to help determine whether the police officers had the right to seize an unknown substance. In some cases, it is not appropriate for the police to seize or arrest a person without having probable cause what the substance is.
Also, I actually did a case where on of the issues was whether the officer knew that the substance (labelled ketamine) was a controlled substance.
Many chemicals, including many controlled substances, are white powders, so I can see how someone could be arrested for possessing an unknown controlled substance if they were found with a bag of white powder. (Actually, almost all of the controlled substances themselves would be white powders if they were pure. Or transparent crystals of various types, but drug labs rarely take the time to recrystallize.) In this case, it’s a ‘green leafy substance’ – it’s pretty obvious what that is. Perhaps they weren’t able to sufficiently characterize it as marijuana, so they had to arrest the suspect on the assumption that bags of leafy green substances are usually marijuana. I imagine it was quite obvious that the substance was not basil, oregano, or parsley.
About the field kits – while they might seem technologically advanced, the tests they use come from chemistry’s distant past. They were widely used before the invention of spectral analysis, but are not commonly used now. The field kits consist of a number of chemicals that will produce a marked color change upon reaction with chemicals of certain classes.
For example, one test used to identify cocaine results in a color change upon reaction with secondary amines (compounds containing a nitrogen atom bound to two other groups and hydrogen). When this test was used to identify chemicals in the lab, it would have provided only a small amount of information about the chemical, and extensive further testing would’ve been required to have any idea at all which secondary amine the sample was. For law enforcement purposes, though, the only compound likely to give a positive result is cocaine. (There are innumerable secondary amines that are not cocaine, including some controlled substances. Usually, more than one test is needed to identify a suspicious substance.) A modern drug testing lab, of course, has extensive equipment for determining with certainty exactly what a substance is.
