As Howard County Lawyers, the attorneys at Shapiro Zwanetz & Lake (SZL) handle countless cases where individuals are arrested for possession of narcotics and other illegal contraband. Many found substances, which are unidentifiable to the naked eye, are field-tested by police using a KN chemical reagent test. If the color coding indicates an illegal substance then they are seized and the possessor is arrested. However, it has recently been brought to our attention that possession of chocolate, yes CHOCOLATE, could get one arrested and cost them thousands in legal expenses. So can basil, thyme, oregano, and a slew of other harmless and completely legal food, drug, and cosmetic items. Some people have and will find this out the hard way!
Ron Obadia and his partner Nadine Artemis, co-owners of Living Libations Inc., a Canadian organic products business, are not drug traffickers. However, on August 22, 2008, they were handcuffed, searched, arrested, and interrogated for hours at the Toronto Airport after a brick-sized sample of their raw organic chocolate product field-tested positive for THC with the most widely used color reagent test.
A Royal Mounted Police officer accused the couple of attempting to smuggle hashish, which chocolate hardly resembles, into upstate New York. They were locked in separate rooms and their one-year-old baby was taken away from them, which is standard procedure in a drug arrest. The Canadian police Obadia and Artemis were facing life in prison and each was told the other had already confessed (also standard procedure). Both adamantly denied their chocolate contained marijuana.
Eventually, they were released on bond and their child was released to them. “We’re not the kind of people who have a criminal lawyer on speed-dial,” Artemis said.
Still eager to market their products in New York, the couple tried again three weeks later to enter the United States, this time by a car near Buffalo. Agents were waiting with a narcotics K-9, which alerted on a bottle of tea tree oil, an organic plant product used as a natural disinfectant. Incredibly, the oil field tested positive, and knowing that the couple had already been branded as smugglers, ICE decided it was “hash oil.” Of the 40-odd other products in their sample cases, the chocolate again tested positive for THC.
Subsequent lab tests found that none of the products seized contained illicit/illegal drugs. Their two attempts to break into the U.S. market have cost Obadia and Artemins $20,000.00 in legal fees.
WHAT ON EARTH IS GOING ON HERE?
To answer that all-important question, Obadial and Artemis joined forensic science writer John Kelly, chemist Krishna Addanki of Claflin University, and a representative of Dr. Bronner’s Magic Soap Company at a news conference held by the Marijuana Policy Project on March 3, 2009, at the National Press Club in Washington, D.C. The event was the release of Kelly’s Report, False Positives Equal False Justice, with actual demonstrations of drug field testing in order to raise public awareness of the false-positive problem. Kelly claims the widely marketed field test kits are worse than useless, and that even when used properly can cause great harm to innocent people.
According to Kelly’s report, thousands of common foods, over-the-counter drugs, cosmetics, and household products will falsely test positive in police drug field tests because the reagent tests themselves are not drug-specific.
For example, the 70-year-old Duquenois-Levine reagent test – the one that cause the improper arrest of Obadia and Arthemis – is used by nearly every federal, state, and local police agency in the U.S. and the RCMP in Canada. According to tests done by Addanki and his advisor Dr. Omar Bagasra, besides cocoa products, the D-L test also reacts positively to eucalyptus, patchouli, and cypress. Another test, the ODV Inc. KN reagent test, not only reacts positively to cannabis products but also to numerous aromatic herbs and essential oils, including thyme, oregano, anise, vanilla, peppermint, ginseng, and even a simple piece of an unbleached napkin (I saw this with my own eyes at the Bronner’s booth at the 2009 green festival in Washington D.C.).
“No one should be using these faulty tests that we’re experimenting with here today, and the companies producing them should probably be put out of business,” Kampia opined. Until a confirmation test, which could take weeks, proves negative for drugs, “you’re guilty until proven innocent.”
This problem with non-specific field tests has led to their being excluded as evidence at trial; however, there have been very few successful challenges to their use in establishing probable cause to arrest and hold suspects pending trial. More problematic is the backlog in forensic labs in general, which is the only way to get the real test result. The common result of these bogus field tests is that citizens will be forced to pay large sums of cash bonds and attorney fees, or, even more, unfortunately, suspects can be held in jail for months until lab results are returned.
Unfortunately, there is little that can be done about this mounting problem other than to arm yourself with the knowledge necessary to understand how an innocent situation can go awry. If you find yourself the victim of an improper search or seizure contact Shapiro Zwanetz & Lake (SZL) immediately for our swift intervention. Our criminal defense lawyers are ready to help.