State May Rely Upon Drug Field Test To Establish Probable Cause

State v. Knoch, Minn.Ct.App., 4/20/2010.  Ms. Knoch and Ms. Watson moved to dismiss their drug possession charges, arguing that the field testing of the suspected drugs was not enough to establish probable cause to support the Complaints.  They wanted the appellate court to adopt a bright line rule that required a confirmatory lab test to establish probable cause.  The facts are mostly the same, but let’s start with Ms. Knoch.

Officers executed a search warrant at Ms. Knoch’s apartment, finding some meth, along with a zippered pouch that contained pipes and baggies that contained narcotics residues.  The officers field tested one of the pipes, the Narcotic Identification Kit (NIK) Test U, described as something like a litmus test you’d use in your garden; if it turns blue add nitrogen.  In this case, if the paper turned blue, which it did,  it meant meth.  The officers did no further testing.

Now, Ms. Watson.  Police executed a search warrant at her place, finding some meth, some pipes and an electronic scale.  The officers field tested two of the three pipes, using the same test kit as they had used for Ms. Knoch, getting the same blue result on each.  Again, the officers did no further testing.

The trial court held a joint evidentiary hearing on the motions to dismiss.  Various science types testified to the accuracy of this particular field test.  The defense called a former DEA agent who said that the DEA would not rely only on this field test to identify a controlled substance.  The trial court went with the litmus test and denied the motions to dismiss.  The trial court did, however certify these two questions:

A. Is a positive test result indicating the presence of a secondary amine in a presumptive and not confirmatory test, such as a NIK Test U, sufficient, taken together with other case-specific facts and circumstances, to support a finding of probable cause in a controlled substance prosecution?

B. Assuming a positive preliminary test result, is the State required to obtain a confirmatory test to establish probable cause in a criminal prosecution?

The appellate court spends a good portion of its opinion arguing with itself over the shape and size of the bargaining table.  Neither they nor Ms. Knoch and Ms. Watson liked the questions.  After several pages, the appellate court reduced the two questions to this single one:

In a prosecution for possession of a controlled substance, may the state ever establish probable cause based on evidence of a field test of a substance alleged to be a controlled substance, without evidence of a confirmatory test of the substance?

Now, the defense reminded the appellate court that just this year the supreme court said that the prosecution needed enough evidence to support a conviction in order to defeat a probable cause dismissal motion.  State v. Lopez, 778 N.W.2d 700 (Minn. 2010).  Unfortunately, previous opinions establish that if the identification of the drug is in question, “the sufficiency of the evidence is examined on a case-by-case basis.”  State v. Olhausen, 681 N.W.2d 21 (Minn. 2004).  The defense countered that a defendant can’t be convicted of a drug possession offense unless the state has sufficient scientific evidence to prove the identify of the substance.  State v. Vail, 274 N.W.2d 127 (Minn. 1979).

In the end, none of this mattered.  The appellate court concludes that the trial court properly concluded that the state is not foreclosed from finding probable cause on the basis of a field test.  The state’s evidence at the hearing established that the test in question was sufficiently reliable enough, at least to establish probable  cause.  In a final, parting shot, the appellate court invites a future defendant to get her own confirmatory test that says that a particular substance is not a controlled substance; then, you might win.