Because of increased risks of exposure to fentanyl and other airborne or transdermal narcotics, the Highway Patrol has informed law enforcement agencies that it will no longer conduct field testing for illegal substances during police raids and traffic stops. The policy change went into effect at the end of 2017.
“In order to protect our Troopers from the potential lethal risks associated with exposure to fentanyl and fentanyl-related components, the Patrol is no longer performing field tests,” said Highway Patrol Capt. John Hotz, Director of the Patrol’s Public Information and Education Division. “The Patrol has put protocols in place for limited rapid testing in a laboratory setting when necessary for prosecution or continuation of an investigation. The Patrol continues to evaluate the tasks we perform to protect our troopers as well as maintaining public safety.”
Field testing provides prosecuting attorneys with evidence that suspect substances seized by police — such as methamphetamine, marijuana and heroin — are indeed illegal. This testing allows prosecutors to establish probable cause to file charges. Without quick testing, substances must be sent to a state lab, which means prosecutors can not file charges until they get the results.
“The Highway Patrol may no longer be performing these initial tests and that will lead to a delay of 6-8 months to even file charges — months of delay where a dealer could be locked up, months of delay that addicts won’t be compelled to seek treatment, months of delay in utilizing confidential informants successfully and so on,” said Marion County Prosecutor David Clayton, whose office prosecutes crimes from seven different law enforcement agencies.
Prosecutors now must look for ways to work around the policy to secure justice in a timely manner.
“I am currently exploring with the Highway Patrol other options to establish probable cause,” said Talley Kendrick, prosecutor in rural Monroe County. “I recognize the serious risk that fentanyl poses to officers because it is transdermal — it can be absorbed through the skin. I think we will have to find ways to balance that risk against the serious risk posed to the community by a catch-and-release policy for serious street drugs like methamphetamine and heroin. That is what will happen if we are forced to wait months for lab results before we can charge suspects.”
Prosecutors have traditionally relied on field drug testing at the onset of a criminal case. Normally, Kendrick said, once officers arrest someone on suspicion of felony possession of a controlled substance, the state is required to file charges within 24 hours and the judge sets a bond and bond conditions. Alleged offenders must post bond or remain in jail until at least a preliminary hearing.
For example, on Sept. 30, 2017, Monroe County Sheriff David Hoffman led a drug raid on a property about five miles outside Paris, Mo., with his deputies, members of the Ralls County Sheriff’s Department, the Eastern Missouri Drug Task Force and the Highway Patrol. Based on the evidence seized in the raid and field testing, Kendrick was able to file charges by mid-afternoon the same day.
Without a field drug test, prosecutors will not have immediate probable cause. To file charges, prosecutors do not need to prove their cases; rather they must show a judge there is enough evidence to sustain a charges
For an actual trial, Kendrick said the state will have a lab test result that’s been administered by a criminalist at the Highway Patrol, which often takes several months to obtain. If a case goes to trial, the specialists from the Highway Patrol lab often testify.
Impact on other law enforcement agencies
Some law enforcement agencies have declined to comment on the Highway Patrol’s change in policy. Many local agencies will continue to conduct their own field tests. Highway Patrol Troop B Public Information Officer Sgt. Eric Brown said troopers rarely performed field tests for other law enforcement agencies in the past.
In sparely-populated Monroe and Ralls Counties, various police departments have taken different approaches to field testing.
In tiny Center, Mo., Police Chief David Ray decided to discontinue using field tests for suspected narcotics. Ray said department officers, of which there are two, will no longer use field test kits, noting that an amount of fentanyl the size of a pencil point could kill an emergency responder through skin contact. As a result, if he or a fellow officer encounters what is believed to be a narcotic, the substance is secured and submitted to the East Central Missouri Task Force, an agency under the umbrella of the Highway Patrol.
Monroe City Police Chief Tyler Wheeler said his department will conduct its own field testing with an abundance of safety checks.
“The Highway Patrol informed of their policy last fall in an email,” Wheeler said.
The Hannibal Police Department, which arguably handles the largest volume of drug cases in Northeast Missouri, will also conduct its own field tests. But Lt. John Zerbonia said the department is reviewing its procedures on the use of field testing in relation to officer safety.
While some law enforcement agencies were aware of the Highway Patrol’s policy change, others — including the Marion County Sheriff’s Department and Hannibal Police Department — said they hadn’t received notification from the Highway Patrol.
But local law enforcement officials insist that the Highway Patrol’s decision to cease field drug testing won’t impact how drug crimes are investigated locally.
“It doesn’t affect us whether they (Highway Patrol) field test or not,” Zerbonia said.
Ray, the Chief in Center, agreed.
“None of the ancillary tests should have anything to do with an arrest being made or not,” he said.
Although field tests help establish probable cause quickly, all substances are still sent to a state lab for testing.
“The laboratory provides a much safer environment for those tests to be done by trained professionals with the proper safety equipment,” Brown said.
In the past, Highway Patrol troopers would conduct on-site tests in which the officers would have to handle a suspect substance for an extended period of time. For example, Brown explained, a suspect powder could be dipped into a liquid to test for methamphetamine. If the liquid turned a particular color when in contact with the powder, that would indicate a positive test for meth.
Now troopers, using masks and gloves, safely secure a substance and immediately store it away to be sent to a lab.
Particularly dangerous is fentanyl, a powerful synthetic opioid used to treat severe pain, such as that experienced by cancer patients. It is often administered via a patch.
What concerns law enforcement is the illegally-obtained raw fentanyl powder that frequently comes from labs in Mexico. It is often sold as heroin but with far more danger to drug abusers, or it is mixed — called cut — with heroin to make for a more powerful high.
Just coming into contact with the raw powder is dangerous. There have been several reports around the nation of officers needing doses of Narcan, a drug overdose inhibitor, after being exposed to fentanyl.
Ray said EMTs and other first responders have been trained that fentanyl is a sign that times have changed, and safety is vital for the ability to provide quality care.
“It’s clearly stated through training that you absolutely do not touch anything you find on scene,” he said.
“Fentanyl is not only dangerous for the drug’s users, but for law enforcement, public health workers and first responders who could unknowingly come into contact with it in its different forms,” the U.S. Drug Enforcement Administration warned in a 2015 notice. “Fentanyl can be absorbed through the skin or accidental inhalation of airborne powder can also occur. DEA is concerned about law enforcement coming in contact with fentanyl on the streets during the course of enforcement, such as a buy-walk, or buy-bust operation. Just touching fentanyl or accidentally inhaling the substance during enforcement activity or field testing the substance can result in absorption through the skin and that is one of the biggest dangers with fentanyl. The onset of adverse health effects, such as disorientation, coughing, sedation, respiratory distress or cardiac arrest is very rapid and profound, usually occurring within minutes of exposure. Canine units are particularly at risk of immediate death from inhaling fentanyl.”
Brown encouraged anyone seeing or coming into contact with a suspect substance to immediately report it to law enforcement.
“Try not to disturb it, as particles can become airborne and you accidentally inhale it,” he said.
By Eric Dundon, Hannibal Courier-Post, and Forrest Gossett, Salt River Journal. Trevor McDonald contributed to this report.