Proving a Drug is a Drug

Let’s assume that a police officer spots someone with a bag full of pills. The pills are of different shapes, colors, and sizes. But, based on various information – maybe a confidential tip – the police officer concludes they are controlled substances (drugs) and that the person ought to be arrested for drug possession.

A police officer can arrest on relatively thin evidence – tips, observations, smells, sounds. The police officer’s burden is called “probable cause” which is basically enough evidence – specific observations and facts – to conclude that it’s more probable than not that a crime has occurred.

But in order to convict the person, the prosecutor who gets the case must prove the case beyond a reasonable doubt – so that a jury is entirely convinced and full satisfied that every element has been proven.

How can the police officer, therefore, prove that the pills were in fact controlled substances, and not entirely legal medicines.

Until recently in North Carolina, a police officer would send the pills off to an agency such as the State Bureau of Investigation for examination. Perhaps the SBI agent would test some of the pills to find out whether they were in fact illegal drugs. But in many cases, the SBI agent would use something called the Micromedex, a database containing information about the look, size, and markings on pills.

By matching up the shape of the pills with the identifiers in the Micromedex, the agent could then testify in court as to his “expert” opinion with respect to the kinds of the drugs found on the defendant.

Until recently…

In 2010, the North Carolina Supreme Court rejected this type of expert testimony in State v. Ward. The NC Supreme Court majority opinion stated:

Because the method of proof at issue is not sufficiently reliable for criminal prosecutions, we cannot conclude, as the State argues, that the deficiencies of Special Agent Allcox’s visual identification process only affect the amount of weight the jury assigns to his testimony. Adopting that view would circumvent the fundamental issue at stake, that is, the reliability of the evidence, and would risk a greater number of false positive identifications.

and concluded that:

For the foregoing reasons we conclude that, as the proponent of Special Agent Allcox’s expert witness testimony, the State has not carried its burden of demonstrating the sufficient reliability of his visual inspection methodology. Therefore, the trial court abused its discretion by permitting Special 748*748 Agent Allcox to identify certain evidence as controlled substances based merely on visual inspection as a method of proof. We affirm the Court of Appeals as to the issue before us and remand to that court for further remand to the trial court for additional proceedings not inconsistent with this opinion.

What does this mean in drug cases? It means that the state must show a proper analysis – which in many cases will be a chemical analysis – of the alleged drugs to prove, in fact, that they are drugs. However, North Carolina courts have carved out an exception with regard to marijuana. With regard to marijuana, the distinctive smell and look permits an agent or even a police officer to identify the substance as marijuana to a jury.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.