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macckone
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Quote: Originally posted by Etaoin Shrdlu  |
You're right, it was a field test reading back. But are you kidding me asking for evidence that they tested other than their records? Are you kidding
me saying they should assume their confirmatory test is bogus? Why do you think it was bogus when she did have marijuana in the house? If I'm
carrying cocaine but also perfume that tests positive for cocaine because of methyl benzoate, I don't get to say "But officer I'm certain the dog gave
a false positive because of my perfume, please throw the case out."
How about evidence the raids were random. Because these are pretty decent results for "random." You really think there are enough people setting up to
grow pot that "random" raids will consistently get them? |
The test they used is not a confirmatory test. Read the article I posted.
It is a preliminary test, or should be because of the many thousands
of things that can cause a false positive. Including sucrets for example.
I don't think the raids were random. They obviously weren't.
The results they obtained were actually worse than random.
If 30% of households have marijuana (not necessarily growing it),
then only getting 18% from the raids in question is not very good.
The fact they actually did catch 1 grower with a substantial
number of plants and 209kg of pot, means they had ONE good
raid out of the 15 or so they actually got results off of.
My guess is there were another 60 or so that turned up nothing
but angry people given an 18% rate of finding illegal activity.
Most of those 60 will never make the news because they
don't want their bosses knowing they got raided regardless
of the outcome.
And the police will often claim they weren't even there in
these 'botched' raids. Because it is necessary for the home
owner to positively identify the officers involved, most of these
things never go to trial because the officers refuse to identify
themselves 'for their own protection'. Ie. you can't sue the
police department unless you can identify the officers who
are all wearing masks.
There is generally no recourse unless you are arrested and then
one officers name appears on the arrest paperwork.
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Etaoin Shrdlu
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This woman's entire defense is predicated on the raids being essentially "random" with no evidence but "unknown purchases." If you don't believe the
raids were random, there is no defense. What are we arguing about?
"The raid was a culmination of a MONTH long stake out..." Looks to me like the DEA was doing due diligence. No, they weren't doing this to snag
some poor girl with less than an ounce of weed despite what libertarian blogs might say.
A person doesn't get to argue that there was no cause for suspicion just because they happened to have both illegal stuff and legal stuff
that would give a false positive at the same time. Again, why should we assume the test was bogus whe she did have marijuana in the
house?
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Chemosynthesis
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| Quote: Originally posted by Etaoin Shrdlu |
A person doesn't get to argue that there was no cause for suspicion just because they happened to have both illegal stuff and legal stuff
that would give a false positive at the same time. Again, why should we assume the test was bogus whe she did have marijuana in the
house? |
Actually, that's often the easiest way to get a case thrown out without having to call in expert witnesses, which are expensive. Just get your lawyer
to convince a judge to throw out charges early on, you have no need to hire people or drag out costly trial time.
I also see no problem being scientifically sceptical of simple reagent tests in lieu of actual analytical techniques. I work in pharmacology and when
drug testing, we require confirmatory mass spec for most illicit identifications, and often STD-NMR for publication of drug-receptor interactions, and
this is with peer review or chain of evidence. If we are held to this standard, so should any other lab be.
Presumptive tests, such as ninhydrin, luminol, or the Kastle–Meyer test can have positives due to protein, iron, or oxidizers, respectively. These
tests are some of the gold standards in presumptive testing. They are only used because they are inexpensive, portable, and rapid. They require
confirmation due to their false positives. Generally, they are best relied upon for ruling out the presence of possible blood, not confirming its
presence.
The same can be applied to Marquis (which has a DOJ standard prep), Mecke, and Simon's reagents, which can be tricky to analyze.
Pharmacotherapy. 2003 Oct;23(10):1238-44.
"RESULTS: The Marquis, Mecke, and Simon's reagents did not differentiate pure MDMA from adulterated forms. They lacked both sensitivity and
specificity for the purpose of MDMA identification when tested by persons unfamiliar with these reagents. <b>Also, experienced toxicologists
using this unfamiliar procedure generated false-positive results.</b> "
Edit- grammar.
[Edited on 13-4-2014 by Chemosynthesis]
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S.C. Wack
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You have to admit that DEA is not supposed to be involved in such small matters. What you don't understand is, this happens all the time. Buying H2O2
or other chemicals from a hydroponics store really can result in a raid because it really is a presumption of guilt. Here I think is a better example
than the first.
http://www.kansascity.com/2013/05/03/4217089/records-leawood...
http://www.kctv5.com/story/23951053/leawood-family-seeks-7-m...
http://www.washingtonpost.com/news/the-watch/wp/2014/02/20/w...
No drugs were found here, and the couple are CIA. The police claim a whole cup of a substance in the trash gave 2 positive tests. They would have
saved those substances then since they were drugs, and arrested the couple at the search. This sample should be made available for testing with the
field test in the presence of attorneys to see if it really tests positive or if the police are liars. Police probably use the test that gives them
the most opportunities to search cars and houses and arrest people though, regardless of whether the substance is actually drugs.
| Quote: Originally posted by Chemosynthesis |
Almost all of it pertinent to the warrant/case has to be released during discovery in courts for a fair trial where the accused can face their
accusor. |
http://www.kshb.com/news/local-news/investigations-extras/di...
"Under the Kansas Open Records Act (KORA), all law enforcement investigative records, probable cause affidavits, search and arrest warrants are closed
records...EDITOR'S NOTE: HB 2555, which would've opened some records to the public, was all but killed the night of March 25, by the Kansas
Legislature."
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Chemosynthesis
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Excellent example of false presumptive drug testing.
The distinction between that example and my post is that the charges were never brought to court, where discovery takes place.
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Etaoin Shrdlu
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Getting a case thrown out is one of the best ways to end legal trouble. Trying to get a case thrown out because you kept compounds which would throw
false positives, therefore you think you can argue a test didn't pick up your illegal compounds, but only your legal ones? Not so much.
She had marijuana in the house. The test came back positive for marijuana. Now, whether or not what they tested was actually a marijuana stem (I'll
take for granted it was probably hibiscus), she's going to have a very difficult time arguing that the existing, actual marijuana she had around
didn't contribute to that positive result.
If a dog sniffs out a cocaine stash that happens to be sitting next to a container of methyl benzoate, the case isn't suddenly invalid because it
turns out the dog was probably smelling the methyl benzoate.
I'm all for analytical tests being held to high standards when they're used as part of a case in court. But for a quick check to bolster other
evidence for a reasonable search I'm personally okay with less stringent field tests, though it does look like the one they use is off the mark.
Problem is, if they really did find marijuana, half the trampling-our-rights camp would just say "well, they used a test method which could throw
false positives, therefore they weren't certain and she wasn't suspicious." And the other half would say "well that was marijuana she was smoking, not
growing, therefore it wasn't what they were looking for and she wasn't suspicious." Along with everything else, it certainly was suspicious. You can
have good cause for suspicion and still accidentally find illegal behavior completely different from what you were looking for.
For the record, I already use way too much electricity. If I also start smoking weed, buying hydroponics supplies, and researching how to grow
marijuana, I won't blame the DEA for dropping by to ask what exactly the heck is up, especially if they're reasonable enough to only charge me with
what I have on hand rather than with some nebulous vision of my future "intent." Maybe others would. To each their own.
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Etaoin Shrdlu
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Yep, this was run by small-time cops who probably had nothing better to do, and strong motivation to try to cover each others' backsides when it
turned out they were wrong. And I'll grant it was beyond ridiculous.
I don't think investigations should be a matter of public record, because that opens potentially innocent suspects up to a major invasion of privacy
from anyone who feels like poking around, but they certainly should be available to the people involved. I'm actually surprised they aren't.
EDIT: Has anyone turned up the actual results of confirmatory testing on the plant they got out of that woman's trash? It was referenced by
someone but I can't locate it.
[Edited on 4-13-2014 by Etaoin Shrdlu]
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Chemosynthesis
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| Quote: Originally posted by Etaoin Shrdlu | | Trying to get a case thrown out because you kept compounds which would throw false positives, therefore you think you can argue a test didn't pick up
your illegal compounds, but only your legal ones? Not so much. |
I don't think anyone is making this argument. The government has the burden of proof in performing adequate, confirmatory testing for the presence of
illicit substances because otherwise, there is reasonable doubt that a presumptive test is accurate enough to confirm guilt.
Not that it matters, but I've actually never even smoked (pot or otherwise), and if the woman was committing a crime, despite what seems like extreme
poor use of taxpayer resources, it is up to the government to convince me, or a court, that the substances are in fact illegal. As of yet, they have
not done so. The government has made a claim of illicit activity, and the burden of proof is on them to substantiate this. A presumptive test simply
is not the scientific standard to be used in court.
Your above quote essentially admits guilt, which I don't see the accused doing. Your phrasing "you can argue a test didn't pick up your illegal
compounds" assumes guilt rather than innocence. That's the opposite of how the legal system is supposed to work. The burden of proof is on the
claim-maker, the accuser, the prosecutor, to show beyond a reasonable doubt that a crime took place. This is very much the way publication is
supposed to work. It would be inappropriate for me to claim cell death via an MTS or MTT assay, without either trypan staining or using a caspase
assay, etc. People try to pull it off past peer review, and sometimes they succeed with ignorant reviewers, but it's intellectually dishonest because
cell death is not distinguishable from dormancy in the former two.
This is analogous to presumptive testing in this example, and no less inappropriate a claim.
Edit- addendum
The case S.C. Wack cited here: http://www.kshb.com/news/local-news/investigations-extras/di...
Here is an example of the police getting a false positive presumptive test. The government is the only party who can provide confirmatory testing
since they confiscate the evidence and keep it under a strict chain of evidence for preservation. If the government had a false positive, as in the
above case, they can simply fail to prosecute. The accused can't get independent testing on something the government controls. It's up to the
government to test, and they are not compelled to do so unless they press charges, where they must release the evidence to a jury, defense attorneys
and the accused. The burden of proof is on the government to convince a jury beyond a reasonable doubt that a crime was committed by the accused, and
they have yet to do so.
If they do end up with evidence of wrongdoing, so be it, and it's up to a jury to determine guilt, and a judge the sentencing. Otherwise, the
government fails its legal and prosecutorial due diligence.
[Edited on 13-4-2014 by Chemosynthesis]
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Etaoin Shrdlu
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She had marijuana in the house, she's as guilty as the hypothetical suspect with crack cocaine sitting next to methyl benzoate. That's not in
question. Her argument isn't that she wasn't doing anything illegal, it's that they shouldn't have found out about it because she thinks she wasn't
suspicious enough (because allegedly the DEA chose to target her based only on making an unknown purchase and the field test could potentially have
been a false positive from the hibiscus, therefore the marijuana in the house which could also have produced a positive result is supposed to be
completely out of the picture somehow).
As I said about that other case, small-time cops with nothing better to do. There's no question what they did was wrong.
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Chemosynthesis
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Where was this confirmed? I have only seen that she had presumed marijuana in the house due to presumptive testing. That's not the same thing at
all. Did I miss a confirmatory test?
Edit- from the original link:
"Another officer conducted a field test on a green plant stem, which allegedly tested positive for marijuana. That was enough for a judge to sign a
warrant.
An application for a search warrant for a different Midwest Hydroganics customer, Tomczak noted, stated that police had found no evidence of marijuana
plant residue in the trash -- and suggested that was evidence a suspect was covering up his marijuana grow."
and "Kirking's alleged marijuana stash was paltry"
The two problems I have with this is that 1) the police had discarded, public-domain test substance... presumed marijuana, available to them for
confirmatory testing. This was instead used for a warrant without confirmation of identity. That is sloppy, just like the tea leave fiasco S.C. Wack
posted.
2) The absence of evidence was used for a second warrant. That's inexcusable. That is a classic Catch-22 scenario; if you test positive on a
presumptive test, you're assumed to grow pot. If you test negative... raid anyway?
[Edited on 13-4-2014 by Chemosynthesis]
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Etaoin Shrdlu
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| Quote: Originally posted by Chemosynthesis |
Where was this confirmed? I have only seen that she had presumed marijuana in the house due to presumptive testing. That's not the same thing at
all. Did I miss a confirmatory test? |
According to the Huffington Post story, they allegedly found 9.3 grams of it in her art room/study. InfoWars states it was marijuana outright. Along
with the glass pipes, scales, and books on growing marijuana, I highly doubt it was actually dried hibiscus or somesuch, but I suppose we'll find out?
If it really was innocuous I take back my confidence that they knew what they were doing in this case, otherwise I don't think all these things lined
up to somehow peg someone looking to start growing marijuana by sheer coincidence.
Ahhh, you guys are murdering my search history. 
EDIT: The "absence of evidence" was not what it's being played as. What actually happened was they suspected him of growing marijuana then
found out that he was dumping his trash somewhere else. That's plenty suspicious.
[Edited on 4-14-2014 by Etaoin Shrdlu]
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Chemosynthesis
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As long as they bring the charges to trial, we will probably find out... assuming parallel construction isn't used to fabricate an evidence trail.
What worries me for hobby chemists is they could be seen to be purchasing chemicals, then disposing of organic or halogenated waste at waste disposal
facilities away from their home labs, which might seem suspicious. Any presumptive tests for explosives or drugs can provide false positives, as I
listed with narcotics above. In the event of a raid, there is already stare decesis that police may be absolved of paying damages to a home lab, and
court costs are expensive. As long as someone has not adequately been shown to commit a crime, this opens a costly and disruptive can of worms on
presumed innocent citizens, which I think should be on the mind of any hobby scientist.
Edit- and this is potentially as much of a problem for prosecution as it is the innocent citizen. For example, if sloppy evidence testing is thrown
out of court when the accused actually is guilty, double jeopardy may allow criminals to get out of trouble due solely to the government's missteps.
I find that equally inexcusable.
[Edited on 14-4-2014 by Chemosynthesis]
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Etaoin Shrdlu
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True on the disposal. Since you're not actively hiding all your trash I'd hope it wouldn't be an issue, though.
I just don't see the DEA going to such lengths to bust someone for less than an ounce of weed. I think they had good reason to think something was
going on. Judging from what she had they caught her in the middle of setting up and should have waited another month. She got lucky.
The local police, though? Those can be major trouble because even little busts can be a big deal, so you'll get some who are willing to fabricate
evidence and jump on a suspect with a flimsy excuse for a warrant. That way they don't look like they were wasting time over nothing. Heck, some of
them may genuinely believe there's terrible danger from a hobby chemist and they're helping out the community. I hardly think all LEOs are like this,
but they've seen the worst in people which might not bring out the best in anyone, and there are plenty such cases.
EDIT: I find that concerning as well. I agree there should be better analysis done on suspect materials, or at least better methods developed. Hey, it
means more technical jobs, too.
[Edited on 4-14-2014 by Etaoin Shrdlu]
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Chemosynthesis
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It's not always the police, who are usually not chemically trained. I know one LE officer with a master's in chemistry, and he runs a crime lab.
He's a good guy, but I have heard make subtle errors when discussing prohibited laboratory equipment (his jurisdiction requires the equipment to be
used in a crime, and the equipment itself is not a priori assumption of guilt).
I know a lot of competent employees of various testing agencies, but I've also seen just enough government workers I severely distrust to hope my
legal fate never rests on the roll of the dice in who tests my evidence. You sometimes run into clowns like this:
https://www.prisonlegalnews.org/displayArticle.aspx?articlei...
http://www.huffingtonpost.com/radley-balko/a-massive-mess-of...
http://www.bostonglobe.com/metro/2013/11/22/annie-dookhan-fo...
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Etaoin Shrdlu
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"Police often share their suspicions regarding suspects with lab workers before forensic examinations are performed."
That's just not right on so many levels.
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Texium
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It really isn't. The lab workers should be able to perform their tests from as unbiased of a perspective as possible.
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Chemosynthesis
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| Quote: Originally posted by Etaoin Shrdlu | "Police often share their suspicions regarding suspects with lab workers before forensic examinations are performed."
That's just not right on so many levels. |
Unfortunately, it's difficult to stop. You often have lab techs or CSI types who are not sworn LE taking pictures for the labs, and they are present
during the initial evidence collection. They kind of have to be to ensure the photographs can be vouched for in court.
Other times, I'm told it's idle conversation from bored techs who perform the same analysis over and over again, and have an idea of what is
suspected, or wish they could leave the lab and ask what they consider harmless questions about what's going on "outside."
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macckone
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The thing that troubles me the most about this case is the lack of
any clear evidence to justify a warrant. The three items used to
justify a warrant were:
1) a liquid fertilizer purchase
2) a presumptive test that would not be admissible in court by itself
3) a 'higher than average' electric bill, which the judge questioned
as it was lower than his.
All in all that doesn't add up to a grow operation.
A grow operation uses a LOT of electricity.
That would be sufficient for a warrant if someone is
using 3 or 4 times the average and shopping at a
hydroponics shop. The overall operation seems flawed
since they only caught one significant grow operator.
And given his quantity they would have had better luck
just looking at the electric bills.
Item number 2 should be the biggest concern here since
as others have pointed out, many things can cause
false positives and if they show up at your house the
chances of something showing up positive for some
random test are pretty high.
One example is deicing agents (popular where it snows)
often test positive for nitrates. Going through an airport
when they are deicing results in everyone who gets the
random screening getting 'flagged'. The TSA has
learned this and basically gives everybody a once over
instead of a full scale search. The simply don't have the
resources.
DEA however considers any bust a good one because they
don't get in trouble if they get sued.
Myself, I am not too concerned because I don't deal in
energetics or too many organics. Most of my current work
relates to ferrites and electrochemistry.
However if they come after my tomatoes we are going to
have a problem. In fact one of the other victims of this
operation was growing tomatoes. Maybe I should be worried.
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