Motion to Suppress on Laser Narcotics Identification

It is safe to say that most law schools include a discussion of Frye v. United States (1923) 54 App. D.C. 46 in their evidence class curriculum.  In Frye, the United States Supreme Court held that “the admissibility of expert testimony based on the application of a new scientific technique” requires as showing that: (1) the reliability of the technique is generally accepted in the relevant scientific community; (2) the expert testifying about the technique is properly qualified as a witness on the subject; and (3) the person who performed the test in the particular case used correct scientific procedures. People v. Kelly (1976) 17 Cal. 3d 24, 30-31.

In other words, a judge is supposed to be a “gate keeper” to exclude unreliable scientific evidence.

If one went to law school in California after 1976, one would most likely also have been exposed to Kelly, supra.  Kelly addressed “new, novel or experimental” scientific techniques that can ‘convey a misleading aura of certainty.” People v. Stoll (1989) 49 Cal. 3d 1136, 1155-1156.  Kelly applies to a “limited class” of expert testimony based “on a technique, process, or theory which is new to science, and even more so, to the law.” People v. Cowan (2010) 50 Cal. 4th 401, 470.  Put another way, there must be “solid scientific approval and support of the new methods” for such evidence to be admissible. Kelly, supra, pp. 40-41.

It is against this legal framework that the Fourth Appellate District reviewed an Orange County Superior Court ruling that evidence from a TruNarc identifier device was admissible.

In 2019, at about 8:45 a.m., an Irvine Police Department officer was on patrol in a parking lot in an area known for narcotics activity.  The officer watched a woman, later identified as Guadalupe Rios, enter the parking lot in a Lexus SUV.  Rios parked the SUV and walked towards a store.  The officer got out of his patrol vehicle and looked into the SUV.  The officer saw a plastic baggie with white residue in the front passenger door pocket.  The officer immediately recognized the white residue as narcotics residue.

When Ms. Rios eventually returned to her vehicle, the officer approached Rios and told her what he had seen in her vehicle.  Ms. Rios answered that there was indeed methamphetamine in the vehicle.  She then produced a small green box and handed it to the officer. 

 

The officer opened the small box and saw inside a clear baggie with a white crystalline substance, which the officer recognized as methamphetamine.  The officer then detained Ms. Rios and weighed the baggie with the substance inside.  It was 7.4 grams.  The officer then found three working digital scales in the car.

The officer looked around the car more and found eleven white pills, which the officer believed was (carisoprodol) Soma.  The officer testified later that he verified this by doing a search on a public website used to identify medications.  Ms. Rios did not have a prescription for the pills.

The officer then took the suspected methamphetamine and the pills to the police station and used a TruNarc device to test the substances.  The TruNarc laser device indicated the tested substances were methamphetamine and carisoprodol pills.

The Orange County District Attorney’s Office then prosecuted Ms. Rios for possession for sale of methamphetamine, transportation for sale of methamphetamine and simple possession of carisoprodol.

Prior to trial, Ms. Rios’ counsel made a motion challenging the reliability of the TruNarc laser device evidence.  In a pretrial hearing, the Irvine police officer testified about how the TruNarc device analyzed suspected controlled substances and the judge ruled that the TruNarc evidence was admissible at trial.

Ms. Rios’ counsel then filed an appeal in the Fourth Appellate District Court (in Santa Ana) of the trial court judge’s ruling on the admissibility of the TruNarc evidence because it was based on a new scientific technique and there was no evidence of the technique’s general acceptance in the relevant scientific community.

The Fourth Appellate District agreed and reversed the conviction for simple possession of carisoprodol. 

The Fourth District explained that the conviction for the methamphetamine related offenses was sustained because Ms. Rios literally admitted to the identity of the substance and the officer’s experience in recognizing methamphetamine was sufficient to support the conviction.  However, as to the carisoprodol conviction, the evidence of the substance’s identity relied entirely on the TruNarc device because the officer candidly testified at trial that he did not know what the pills were and so he “confirmed” his suspicions by referring to a public website whose reliability was not established.  More importantly, the Fourth District found that the judge admitted the TruNarc evidence as to carisoprodol by abusing his discretion in not following the Kelly and Frye tests for admissibility of such novel scientific evidence.

The appellate court noted that not a single published decision existed allowing admission of evidence from the TruNarc device, but there were more than one published decisions excluding such evidence.