Probable Cause for Drug Crime Arrest Absent Field Testing

Drug crime arrests in the age of the opioid crisis have proven to pose a dilemma for law enforcement, district attorneys, and criminal defense attorneys. With the opioid epidemic and the dangers of drugs such as fentanyl, different agencies have changed their policies regarding drug field testing. This blog explores probable cause to arrest a suspect for drug crimes in light of the concerns regarding officer safety and field testing.

To date, there have been no documented nor confirmed cases of overdoses among first responders in North Carolina as a result of handling fentanyl or other drugs as a part of their jobs. However, out of an abundance of caution, authorities have raised concern over officer safety regarding substances suspected to contain fentanyl.

Fentanyl and the Opioid Epidemic 

Let’s start with an overview of the problem. Everyone is aware by now that this country is facing an opioid crisis. By now, most people have probably heard of the drug fentanyl. Fentanyl is an extremely potent opioid that is used for pain relief. It is said to have the potential to be 30-40 times more powerful than heroin (another opioid). Accordingly, very small doses of fentanyl may be fatal.

Note that fentanyl can be ingested orally, inhaled, or absorbed through the skin or eyes. Accordingly, due to the dangers of handling fentanyl, the issue of officer safety regarding field testing white powdery substances has become a concern for authorities.

Fentanyl often presents as white powder, making it difficult to distinguish from other substances that present as a while powder. As such, to properly identify a white powder, it is necessary to perform chemical testing. The question becomes, is field testing necessary to establish probable cause to arrest for a drug crime?

Possession of fentanyl is a drug crime in North Carolina.

Probable Cause

Whether probable cause exists for a drug crime (or any other offense) depends on the totality of the circumstances. A positive field test can help to establish probable cause that a substance is contraband. However, the absence of a positive filed test does not necessarily mean that probable cause does not exist. Other circumstances should be considered. These circumstances include but are not limited to: the packaging of the substance; where the substance is located; the presence of large amounts of cash; the presence of other drug paraphernalia; and the defendant’s statements about the identity of the substance (click here to read our blog on talking to the police and how your statements can be used against you).

If other there are no other circumstances suggesting that a substance is a controlled substance, then field testing may be required.

Can a magistrate find probable cause for a drug crime involving a white powder without a field test?

Yes. If the totality of the circumstances provides reason to believe that the powder is a controlled substance, a magistrate can find probable cause of a drug crime.

Probable cause versus “beyond a reasonable doubt”

Please note that this blog explored the question of probable cause, not the burden of the State to prove all elements of a crime beyond a reasonable doubt. While chemical testing may not be required to give rise to probable cause of a drug crime, it is required to prove that a substance is contraband for purposes of proving the guilt of a criminal defendant beyond a reasonable doubt.

If you have been charged with a drug crime or any other crime in North Carolina or South Carolina, contact a criminal defense attorney to discuss your options. Gilles Law has criminal defense lawyers licensed in both North Carolina and South Carolina, practicing both state criminal defense and federal criminal defense.