Determining Probable Cause for Drug Crimes without Field Tests

Some law enforcement agencies concerned about officers’ exposure to fentanyl have stopped field testing white powders. A question I’ve had several times is whether a magistrate may find probable cause for a drug offense involving a white powder without a field test. The answer to that question is yes, so long as the totality of the circumstances provides reason to believe that the powder in question is a controlled substance. The opioid epidemic and the decline of field testing. Fentanyl is an opioid used for pain relief. Like other opioids, it is also subject to abuse. It is extremely powerful. The DEA states that it may be “30-50 times more potent than heroin,” and a related substance, carfentanil, may be 100 times more potent than fentanyl. Very small doses of fentanyl may be harmful or even fatal. Fentanyl may present as a white powder and so may be visually indistinguishable from other substances, controlled or otherwise, that have a similar appearance. One way to identify a substance that an officer suspects is controlled is to perform a field test. However, authorities have warned law enforcement officers and other first responders of the dangers of handling fentanyl and related substances. For example, the DEA advises as follows: There is a significant threat to law enforcement personnel, and other first responders, who may come in contact with fentanyl and other fentanyl-related substances through routine law enforcement, emergency or life-saving activities. Since fentanyl can be ingested orally, inhaled through the nose or mouth, or [...]