St. Louis Criminal Defense Attorney W. Scott Rose recently won a dismissal of a felony drug case in Franklin County, Missouri, based on the Franklin County Sheriff’s Department’s use of a machine called the TruNarc Analyzer. The TruNarc Analyzer is a handheld device that some law enforcement officers keep in their patrol vehicles, and it is used to test for suspected narcotics “in the field” or at a police station, rather than a laboratory. The device is manufactured by Thermo Fisher Scientific.
Thermo Fisher Scientific appears to have enjoyed a special relationship with the Franklin County Sheriff’s Department and Franklin County Prosecuting Attorney’s Office. The company has posted a “case study” to its website in which it touts the “overwhelming success” of its product in Franklin County. The “case study” twice boasts that “the circuit court system” in Franklin County has accepted TruNarc test results in grand jury proceedings and preliminary hearings. The “case study” contains several quotations from Lt. Jason Grellner of the Franklin County Sheriff’s Department and former Prosecuting Attorney Robert Parks. The “Acknowledgments” section at the end states:
We thank Lt. Jason Grellner and his colleagues from the Multi-County Narcotics and Violent Crimes Enforcement Unit, based in Franklin County, MO, for their contribution to this case study. We also thank Robert Parks, the elected prosecuting attorney in Franklin County, for his comments.
The “case study” does not mention any possible downsides to use of the TruNarc analyzer in legal proceedings.
There are several problems with the use of the TruNarc handheld device in legal proceedings. First, a TruNarc Analyzer’s report is hearsay, as the report is being offered for the truth of the matter asserted, and the report is based on programming instructions created by an unknown person not in the courtroom. This person is not subject to cross-examination, so the person’s methodology cannot be scrutinized. Second, typically the State attempts to introduce the report through a law enforcement officer who cannot explain how a TruNarc Analyzer works and whether its results are reliable. The Missouri General Assembly recently enacted legislation making it more difficult for expert opinion testimony to be admitted into evidence, and unless the State (at a minimum) puts a qualified scientist on the witness stand to describe how the TruNarc Analyzer works and why its results are reliable, the new standard is not met.
But the key objection to the use of the TruNarc Analyzer in legal proceedings is that Raman spectroscopy, standing alone, is not sufficiently scientifically reliable to be admitted into evidence. The lodestar for drug identification evidence is the 2016 Scientific Working Group for the Analysis of Seized Drugs (SWGDRUG) Recommendations. The report was commissioned by the United States Department of Justice, the Drug Enforcement Administration, the Executive Office of the President, and the Office of National Drug Control Policy.
Pages 14-16 indicate that its purpose is “to recommend minimum standards for the forensic identification of commonly seized drugs.” That section of the report indicates that Raman Spectroscopy is a “Category A” testing method. “When a validated Category A technique is incorporated into an analytical scheme, at least one other technique (from either Category A, B or C) shall be used.” But prosecutors in Franklin County are attempting to introduce the results of the TruNarc Analyzer without any other tests. Furthermore, “All Category A and botanical identifications shall have data that are reviewable,” which prosecutors are not presenting either.
Moreover, any analytical scheme “shall preclude a false positive identification.” Prosecutors are using the results of the TruNarc Analyzer without any evidence about whether the it can produce false positive readings, and if it does, at what rate. This point is crucial because if the TruNarc analyzer produces any percentage of false positives, then the State is charging some people with drug crimes when a proper lab analysis would be exculpatory.
Criminal defense lawyer W. Scott Rose recently made these arguments in Franklin County Circuit Court in Union, MO, and the Court sustained Mr. Rose’s objections and dismissed the case against his client. Thermo Fisher Scientific has not updated its “case study” to reflect the outcome.