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Court of Appeal:
Identification of Narcotics by Laser Device Is Inadmissible
Opinion Says Reliability of New Scientific Technique Has Not Been Established
By Kimber Cooley, Staff Writer
Div. Three of the Fourth District Court of Appeal held on Friday that the trial court erred in admitting expert testimony based on a laser narcotics identification test as to the identity of a controlled substance where the prosecution failed to establish that the test sufficiently met the standard for admissibility of a new scientific technique.
The opinion was authored by Justice Eileen C. Moore. It reversed the conviction of Guadalupe Rios by Orange Superior Court Judge Robert A. Knox for simple possession of carisoprodol but upheld his convictions for possession and transportation for sale of methamphetamine, finding the evidentiary error was not prejudicial on those counts.
Acting Presiding Justice William W. Bedsworth and Joanne Motoike joined in the opinion.
White Substance Spotted
Upon looking into the window of a parked SUV in an area of Irvine known for narcotics activity, a police officer observed a baggie with what appeared to be white narcotics residue in the front passenger door pocket. He returned to his vehicle and watched the car, eventually observing Rios approach it and get into the driver’s seat.
He made contact with her and she admitted that there was methamphetamine in the vehicle, before handing the officer a small green box containing a baggie filled with a white crystalline substance. The officer recognized it, from his training and experience, to be methamphetamine.
A baggie with 11 white pills with “DAN” written on one side and “5513” written on the other was found in the passenger door. The officer referred to a public website used to identify medications, which identified the pills as carisoprodol.
Scales and empty boxes, identical to the one Rios had handed him, were subsequently found in the vehicle.
Rios indicated that she had just left a hotel. A room registered in her name at a nearby hotel was searched and there were found more baggies and more white crystalline substances the officer recognized to be methamphetamine. The officer used a TruNarc laser device to test the substances seized from the car and the hotel, and the device indicated that the substances were methamphetamine and carisoprodol.
Reliability Challenged
Prior to jury trial, Rios made an oral motion challenging the reliability of the TruNarc laser device evidence. At a pretrial hearing, the Irvine officer testified as to how the TruNarc device analyzes suspected controlled substances, saying:
“The thermodynamic TruNarc identifier is a handheld electronic device. This device emits a single laser. This laser enables officers to test various substances. And what it does is it excites a bond inside of a molecule. This bond will emit a light that is measurable by the laser. The laser will then analyze the substance, and it stores about 450 different substances in its library, and it comes back with an accurate reading of what the substance is.”
The officer testified that he had been employed with the Irvine Police Department for six years and had used the device more than 300 times since it was purchased by the department, approximately three years before. He had been trained on the device by a sergeant in the special investigative unit in charge of maintaining the device.
Officer Expresses Uncertainty
Upon being questioned about the science behind the device, the officer responded, “I don’t know the exact science behind it” and acknowledged that he did not know if, when the device indicated “methamphetamine,” it could properly distinguish between methamphetamine and other substances containing amphetamine.
He also said that he did not know if it “comes up with the complete chemical breakdown of each substance” or whether it needed to be periodically calibrated.
Rios objected to the officer’s testimony about the TruNarc results being admitted at trial, indicating “there’s a difference between somebody being able to testify to some result that they see” and actual “scientific knowledge.”
Knox ruled that the testimony relating to the device would be admissible, saying:
“I think the objection to both the opinion and the device goes toward the weight of that evidence, not the admissibility.”
Finding that Rios sufficiently preserved the issue on appeal, Moore considered the admissibility of the evidence related to the TruNarc device.
She applied the analysis prescribed by the 1976 California Supreme Court decision in case of People v. Kelly in analyze the admissibility issue, saying:
“Under the Kelly rule, expert testimony based on the application of a new scientific technique is not admissible in a California court unless the proponent of the evidence shows: 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.”
New Scientific Technique
She noted that the California Supreme Court observed in its1989 decision in People v. Stoll that while the rule in Kelly is clear, the definition of “new scientific technique” is not.
Moore noted:
“In our research, we found no California opinions establishing the reliability of the TruNarc identification device. Indeed, when we expanded our search to all state and federal opinions (published and unpublished), we only found 18 cases that included the term ‘TruNarc.’ And in only two of those opinions did the reliability of the TruNarc device appear to be at issue.”
Applying Kelly, Moore wrote that although the officer “appeared fully capable of using the TruNarc device as he was trained,” he could not “possibly testify as to the acceptance of TruNarc test results within the relevant scientific community (nor was he asked).”
She continued:
“And it does not appear the officer was qualified to testify about the underlying scientific principles, which ostensibly involve laser technology.”
Because all three of the Kelly requirements must be met by the prosecution in order to admit the evidence, Moore declared:
“[W]e hold that the trial court erred when it admitted into evidence the testimony of the Irvine police officer regarding the results of the TruNarc test.”
Alternate Evidence
Despite the inadmissibility of the TruNarc evidence, she said that there was sufficient alternate evidence admitted at trial to uphold the methamphetamine convictions based on the officer’s observations, training and experience, coupled with Rios’ admission that the substance in her car was methamphetamine.
Moore said:
“The other circumstantial evidence included: 1) the officer’s immediate identification of the distinctive white crystalline substances as methamphetamine based on his extensive training and experience (prior to the use of the TruNarc device at the police station); 2) the admission by Rios that she, in fact, possessed methamphetamine; 3) the indicia of sales of methamphetamine; and 4) the hotel employee’s immediate suspicion that the white crystals were illegal drugs.”
However, she found that “we cannot make that same finding as to the carisoprodol conviction” where the officer did not immediately recognize the pills to be a controlled substance and had to base his opinion, at least in part, on the results given by a public website “the reliability of which was not established.”
The case is People v. Rios, G061764.
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