Synthetic drugs make field testing dicey for officers

A couple of recent drug possession cases highlighted a growing officer safety concern as more and more fentanyl and carfentanil make it into the Lewiston-Clarkston Valley.

Fentanyl and carfentanil are both powerful synthetic opioid drugs that present a life-threatening danger to police officers, first responders and anyone who comes into contact with them, especially if the drugs are airborne. The drugs are responsible for thousands of overdose deaths across the country.

Fentanyl is 50 to 100 times more powerful than morphine and often used to treat pain in cancer patients, according to the Centers for Disease Control. Carfentanil is 10,000 times more potent than morphine. The drugs are sometimes ground up into powder and mixed with heroin or sold as heroin on the street. They are also mixed with other illegal drugs as well.

Police often come into contact with unknown substances during traffic stops and other contacts. Officers will often employ a Narcotics Identification Kit (NIK) to test the substance to receive a presumptive positive for various illegal drugs. The test produces a color reaction when integrated with illegal drugs such as cocaine, marijuana, heroin, methamphetamine, amphetamine, LSD, opiates, barbiturates, psilocybin and other substances, Idaho State Police Region 2 Capt. Richard Adamson said.

“It is important to understand that the results are only presumptive,” Adamson said. “The potential problem with field testing any substance (is that it) increases the chances of the trooper being exposed to fentanyl.”

Exposure to fentanyl or carfentanil, even in small amounts, could result in an overdose, Adamson said.

“An opiate overdose can produce serious adverse effects and life-threatening symptoms, such as causing a person’s breathing to slow or stop,” Adamson said.

Lack of oxygen could lead to coma, permanent brain damage or death, he said. ISP troopers carry Naloxone, an antidote that reverses the effects of an opioid overdose.

Officers have to remove a small quantity of the potentially illegal substance and insert it in the NIK pouch for testing, which poses potential safety hazards like breathing in the drug.

“The safest method of testing controlled substances is by forensic scientists with the proper equipment in a controlled environment such as the ISP Forensic Lab,” Adamson said.

The Idaho State Police Forensic Services Laboratory in Meridian, along with other agencies, have issued safety bulletins about the drugs to officers in the field. The ISP lab reminds officers not to field test unknown substances if they believe they may be fentanyl or carfentanil, and instead send the substances into the laboratory, ISP Director of Forensic Services Matthew Gamette said.

“We have hoods and PPE that make it safer to test with us,” Gamette said. “There are safety issues, we urge them to glove up and not aerosolize the substance.”

Having a presumptive positive from a NIK test helps police and prosecutors establish probable cause in court, which in Idaho means if a judge finds probable cause, the suspect can remain in custody as they await preliminary hearings and trial.

Without a finding of probable cause from a judge, the suspect is released on their own recognizance from jail. The charges remain against the suspect, and state lab tests confirming the substance found was an illegal drug are typically ready before a preliminary hearing where a judge decides whether to bind a case over to district court.

Nez Perce Magistrate Judge Michelle Evans did not find probable cause in two drug possession cases this fall where officers did not NIK test the substance. Evans and fellow Magistrate Judge Karin Seubert released the defendants on their own recognizance.

Courtney N. Devorak, 23, of Clarkston, was arrested in October on a felony possession of methamphetamine charge by Nez Perce County Patrol Deputy Robert Roberts. No NIK test was performed and Devorak was released on the case, but she was also being held on felony aggravated assault and malicious injury to property charges. Dvorak’s methamphetamine possession case was bound over to district court earlier this month and a status conference is scheduled for Dec. 31 in the case.

Marcasa A. Seats, 31, of Pomeroy, was arrested by ISP Trooper Tauna Davis in October where troopers found a white, crystalline substance in a bag during a traffic stop for speeding on U.S. Highway 95.

“Due to the increased use of fentanyl in drugs today and its extremely high potency for overdose in extremely low quantities, especially when aspirated, for my safety I did not NIK test the suspected methamphetamine,” Davis wrote in the affidavit of probable cause in the Seats case. “I will send the suspected methamphetamine to the forensics laboratory for tests to determine what it is.”

The Seats case is still in Nez Perce County Magistrate Court. A Preliminary hearing scheduled for this week was vacated and rescheduled for Dec. 16 in the case.

Drug possession cases can be lost if prosecutors cannot produce the evidence in preliminary hearings.

“We have seen occasions where a case does not go forward or is initially dismissed due to lack of field testing,” Adamson said. “Our primary concern is the health and safety of our troopers and the preference for testing suspected substances is through the ISP laboratory in a controlled setting.”

ISP Forensic Services have an average turnaround time on testing substances of 11 days from submission, Gamette said. The lab prioritizes cases where the suspect is in custody because preliminary hearings have to be set earlier on the calendar for those in custody, than those who are released from custody.

“Not finding probable cause, in other words, a lack of substantial evidence that there is a factual basis for the information furnished, does not result in dismissal of the charge,” Evans said. “It merely goes to whether or not the defendant is retained in custody, ordered into custody, if not already in custody or released on his or her own recognizance.”

Lewiston police patrol Cpl. Cody Bloomsburg worked several years as a narcotics officer with LPD and the Quad Cities Drug Task Force. Police are always adapting to a changing environment in order to “do the job we swore we would,” he said.

In 2016, heroin users were also using methamphetamine and vice-versa. Dealers were also selling both drugs and some of the heroin coming into the valley was mixed with fentanyl.

“My major concern wasn’t direct skin contact, I didn’t want it in my eyes or my nose,” Bloomsburg said. “We did change how we were doing things.”

He was wary of any powder that could go airborne. Police weren’t opening baggies if they suspected fentanyl. When they ran into some cases where judges were not finding probable cause because the drugs were not being field tested, Bloomsburg and other officers adapted to the situation. At times, that meant not making custodial arrests in suspected illegal drug cases. Instead, police would send the substance to the state lab and wait for confirmation of what the substance was before seeking an arrest warrant, Bloomsburg said.

“The situation limited custodial arrest decisions while I was working in narcotics,” he said. “We wouldn’t make an arrest on the subject until we had an arrest warrant — if we could find them again.”

Finding probable cause is a low standard to meet, Nez Perce County Prosecutor Justin Coleman said. Many facts in a case can be used that would lead a judge to find probable cause beyond field-testing the substance.

“Other types of evidence together can get us there though, such as: the officer’s training to recognize drugs, a defendant’s admission that the substance is drugs, a drug dog’s alert and/or drug paraphernalia to name a few,” Coleman said. “And we have had judges find probable cause in cases without NIK tests many times.”

There is not an easy definition of what the court looks for in finding probable cause, Evans said.

“(Probable cause) is analyzed on a case-by-case basis depending on the facts presented in the officer’s affidavit,” she said. “It certainly is possible to find probable cause to support (possession of a controlled substance) without a NIK test.”

Evans considers several factors in determining if probable cause exists. In drug cases, those factors include the type of alleged substance, how it is packaged, the presence of paraphernalia near the substance, defendant admissions and those of others at the scene, the odor, and whether a K-9 unit had a positive response, she said.

A NIK test is not a determining factor in finding probable cause but it can be one factor she considers.

Courts in Idaho view NIK tests differently, Gamette said. Some courts don’t allow them at all and courts in other areas of the state accept the presumptive positives produced by the field test, he said.

“The field test is one small piece of the puzzle when it comes to meeting the elements of any controlled substance case,” Adamson said. “When a case such as this does not go forward initially because of a lack of a field test, it can be refiled at a later time when the laboratory results confirm the illegal substance.”

The Nez Perce County Prosecutor’s Office does training with law enforcement on issues of probable cause, report writing and understanding changes in the law, Coleman said.

“We also review cases for filing to make sure there is enough evidence for probable cause before they are taken to a judge,” Coleman said. “In the instances where we do not believe there is enough in the reports, we either work with the officers to include additional evidence, if there is any, or we decline to prosecute if the evidence doesn’t support probable cause.”

In some cases, prosecutors wait for state lab results before filing the cases, he said.

Wells may be contacted at mwells@lmtribune.com or (208) 848-2275.