Saturday, August 5, 2017

The New Trace Case Policy

The Harris County District Attorney's Office under Kim Ogg has finally rolled out the "No Trace Case" policy that many of us have been expecting since she took office on January 1st of this year.

The policy dictates that the Office will no longer file State Jail Felony Possession of a Controlled Substance charges on cases where only residue or "trace" amounts of the drug are recovered when a person is arrested.  These types of cases are most commonly filed when a person is arrested still carrying a crack pipe, but the crack has long since been smoked.  Under the law, felony charges may be brought if there is a detectable (as opposed to usable) amount of drugs such as heroin, cocaine, or meth recovered.  As a matter of contrast, for a person to be charged with the misdemeanor charge of Possession of Marijuana, there must be a usable amount recovered.  There is no such requirement for the "harder" drugs that fall in the felony level, and it is not unusual to see charges found on drug cases where the amount in question is .001 grams.

The decision of whether or not to file Trace Cases is a controversial one.

The arguments in favor of filing them typically come from police officers who rightfully point out that residue cases are evidence of larger amounts of the drugs that have already been consumed.  The police further believe that the cases help keep those troublesome junkies off the streets, which will trickle down into a reduction in burglaries, rapes, and other violent crimes.  They also point out that drug addicts use the drugs almost immediately upon acquiring them, making it virtually impossible to catch them with their usable amounts.

I've gone on record before as being against the filing of Trace Cases.  (From the Intellectual Honesty Department, I supported my arch-nemesis Pat Lykos' policy when she stopped filing them in December of 2009.)  It isn't that I'm in favor of smoking crack.  I've never tried it myself.  For me, it is an issue of manpower and resources.  I remember that shortly before the Lykos policy, I was driving on Beltway 8 with my oldest son when a car sideswiped the rear panel of my 4-Runner and kept on trucking.  I got a license plate number and called the police.  It was the middle of the afternoon on a weekday, but no officer was called out or responded.  About six hours later, the police called back to ask if I was still at the scene.

But, the crack pipe cases were still being filed wild fire.  I just believe it is a better use of resources to focus on other crimes than these.  I know a lot of people in law enforcement read this blog and are going to disagree with me on this.  I'm bracing myself for the backlash.

On a lighter note, I do think that it is rather amusing that the notice of the new policy did not come in the form of a press release or email to All Prosecutors.  Apparently the Ogg Administration was doing a "soft roll out" by just leaving notes for the prosecutors working intake.

"Due to budget cuts, we are using new methods 
of sharing officewide memos."

Expect there to be a lot of complaining from the police unions and Ogg opponents who will make the argument that Ogg is "legalizing drugs."  Don't buy into that argument.  Police officers have the absolute right to arrest someone for possessing a crack pipe (or other residue holding item) and file a Class C Misdemeanor of Possession of Drug Paraphernalia case.  

It's still a crime, just not a felony.  

14 comments:

Anonymous said...

The problem we've always had concerning trace cases was that in the vast majority of cases we couldn't have the evidence independently tested and verified by an outside lab. When it was discovered that Jonathan Salvador was faking test results which resulted in untold thousands of false convictions it didn't surprise any defense attorney. Any attorney who handled these cases knew it had to be occurring, and there is no doubt its still continuing across the country in most of the state-run labs. And then there are those officers who plant drugs. And please don't say that practice isn't rampant because I've spoken with too many defendants who would never have dropped a rock or forgotten a pill in the places where officers supposedly found them. Here's a couple of recent cases where the officers were caught planting drugs: http://www.nbcnews.com/news/us-news/another-baltimore-police-body-cam-video-shows-officers-plant-drugs-n789396.

Anonymous said...

Ogg met with the city police union (HPOU?) the other day to discuss it before going public, both sides hashing out concerns, no pun intended. In a perfect world, the public and its representatives would support wide-scale treatment programs for those clearly hooked on hard drugs, the savings put back into the system to help more people. The hand wringing crowd just won't allow it since the recidivism rate for the better programs remains less than 100% (they want immediate and near perfect results or they're not interested). By charging suspects with a felony crime, there was at least some chance the person would get treatment, dropping it down to a Class C misdemeanor will erase that likelihood in most cases. Personally, I'd rather we dial up the attention on the behaviors of drug addicts we don't want, robbery, burglary, and other crimes to support their habits, instead of the possession aspect but few others seem to care.

Anon 11:08, while there may be a small number of officers that engage in such behaviors as planting evidence, relying solely on the word of those caught in the commission of a felony seems naive at best, especially given you go on to paint with such a broad brush. Whatever misgivings we might have with those tasked to enforce our sometimes crazy laws, your approach throws the baby out with the bathwater, the most common claim from someone incarcerated is "I didn't do it", no matter that they were caught red handed, in front of cameras, and with scores of witnesses and physical evidence. The solution to the crime lab problem is to completely break them away from control of police, prosecutors, and defense attorney's and place them in the hands of scientists. That would mean better funding and better policies to prevent shenanigans or mistakes but locally, we've seen what low budgets do to results, poor training combined with indifferent management wreaking havoc.

Anonymous said...

Heck why not give the staff Kim Ogg secret society decoder rings to decipher Kimbra's secret message of the week. LOL

Anonymous said...

Forget re-testing the residue although that could be fun with an order to preserve the chemicals used to do the first test and having the whole mess sent off to a certified lab. The best reason for not taking the residue cases is ethical.
As a wise retired district judge once told me, the state can never make the "knowing" possession. If the guy thought he had cocaine, he would have smoked it.
It's been a while but I remember getting a boatload of appointed cases in which the cops would approach a group of people (bet you can't bet what race) standing around talking, demand identification and when they didn't produce it, bust them for failure to ID and sure as heck, when they searched them at least one would have a dirty crack pipe.
It took me years to convince the DA's office that Houston Police don't have the right to go up to anyone they please and demand identification. The law requires a lawful arrest or lawful detention and there are two US Supreme Court cases in point -- including one from El Paso.
In any case, another wise retired district judge called those dirty crack pipe bust as grabbing the low hanging fruit.

Anonymous said...

Anon 12:47, and as a wise, retired member of society once said, "Low hanging fruit is still fruit to be picked."

Anonymous said...

The purpose of making it illegal to possess drugs is to prevent using drugs. No harm is done by possessing drugs but harm is done by using them. The legislature could not make it illegal to use drugs since seldom any way to ever prove someone used them so next best method to stop the use is to stop the possession.

So it makes no difference how small the amount may be if the purpose is to stop usage. Residue and small amounts indicate the defendant used some unknown amount of drugs and society needs that to stop.

TriggerMortis said...

" and society needs that to stop. "

Its obvious our drug policies over the past 60+ years haven't accomplished anything near that and in fact we currently find ourselves in the midst of an opioid epidemic unlike anything we've seen before and that is showing absolutely no signs of abating. Perhaps its time we re-evaluate how we approach the subject of drug use rather than endorse the same old tired and ineffective ideas that have proven to be more harmful to society as a whole than if we simply ended prohibition.

I think the success of legalized pot in several states has already proven that drugs can be regulated without the harmful side effects many claimed it would cause. Furthermore, I believe that fact has caused significant worry to those whose livelihoods depend on the arrest and incarceration of users and that rather than acknowledging this authorities would seek to ratchet up the drug war in an attempt to prevent a new approach from being widely known and accepted. I applaud the district attorney's new policy and am glad she took the initiative regardless of its unpopularity with law enforcement.

Anonymous said...

As a law enforcement administrator I have two complaints with the Ogg aminstration, one specific to this policy and the other more just in general with the way they seem to roll out new policies.

1. It seems that every policy change they have implemented has been last minute and via an email sent at 5 or 5:30 PM that goes into effect within the next 48 hours. These policies, whether I agree with them or not, have an operational impact on our organizations and take time to disseminate and to modify our polices/procedures to implement. Some of these policies have implications that have not been considered by the DA (or her staff) and then we are working after the fact to try and make changes when they could have been done if there would have been some dialogue beforehand.

2. As a general rule, I believe that trace cases are a waste of law enforcement resources, which I know is counter to the opinion of many law enforcement officers. I do believe there should be very limited execptions to the policy though for cases where a person may be a suspect in a more serious violent felony. The individual DA's should have the ability to screen a case and in very limited circumstances have the ability to accept a trace case charge as part of a larger investigations.

Anonymous said...


At every department in the US, let alone Harris county, there are a healthy number of officers who know how to play the game. With 20 years on the job, they still want me to work a 4-12 in a high crime area on patrol?

OK. Around 6pm, after dinner is settled, I will pull over the most likely candidate to have a roach in the ashtray and will spend the rest of my shift writing it up.

Hey Sarge, you want me to just toss it out? Can you give me that illegal order on bodycam?

Lot more going on here than the prosecution side of things.

Anonymous said...

Anon 5:28, that's an interesting observation because in over 35 years of experience, I've seen precious few senior officers looking to score minor drug cases. As a percentage, I'd informally estimate that rookies with under 5 years in patrol on the department make over 90% of those cases. Sure, there may be a crusader or two out there but as a rule of thumb, trace cases and arrests for small amounts of pot are made by the youthful. To go further than that, officers with 20 years on the force or more only work the areas they want to work if they are still in patrol, further working the shifts and days they want in most cases too.

Anon 3:48, well said. Many more officers agree with you on part 2 of your comment than love trace cases, the cluster under the Ogg administration due to the lack of truly managing a large organization by her and all of her chief staff. Even Denny failed as a mid level manager, his dictating from above proving to be a constant source of aggravation to those higher up the food chain as well as below.

Anonymous said...

Anon of 12:57

That comes from 20 years of law enforcement and my new life in criminal defense. I do not make that charge lightly as i still have blue blood in my veins.

In fact, I served quite a bit of time doing Red Team assessments of law enforcement operations and found the same consistent pattern many times over.

I did not invent the term "Retired on Duty".

Anonymous said...

Anon 4:12/5:28, locally, it is my understanding that someone retired on duty would be much less likely to look for an arrest than to grab a report call to milk past a certain point in the shift. Having supervised long enough to see patterns myself, those with sufficient time on seem to avoid as much contact with people as possible, a public information request might prove where the bulk of minor drug arrests came from if worded correctly.

Anonymous said...

Re: Anon 8/7 at 5:14 comment on low hanging fruit

To be sure, the low-hanging fruit is fruit that can easily be pluck. The question is, who benefits from harvesting said fruit, society or the officer's arrest and conviction metrics? I suggest that the purpose is to benefit the latter, not the former.

To anyone with eyes to see, the War on (some) Drugs is a colossal failure. it has failed in its purported mission, i.e. reducing drug use. Not only have time and resources been diverted from dealing with more serious crimes, it had degraded the protections stated in the Bill of Rights, particularly the 4th Amendment, but it isn't limited to that.

Consider the case of "drug-sniffing" dogs. A study done in Florida, where at a drug checkpoint, a vehicle where such a dog produced a "hit" was sent to another dog team in a different team for a check. Or maybe all vehicles were tested twice, it's been years. As i recall, said system produced false positives at something like an 80% rate. If that study was done correctly, a fail rate of over 50% demonstrates that the dogs aren't reliable enough for the stated purpose. Worse, that doesn't include unsupervised officers making traffic stops and deliberately causing false hits. In these cases, the effect is that the officer doing this effectively sets aside the 4th Amendment in favor of "I'm searching your car because i want to. Don't like it? Tough noogies." Included in this is the policy of asset forfeiture, which in many, if not most cases, the intent is not to impact drug use, but to gain external funding for the Department.

The crux of this is that officers are normal people, not special people. They are as lazy and as likely to half-ass things as anyone else. Petty drug busts are a safe, easy way to improve their metrics, so that happens quite a bit in this nation. In this sense, officers plucking the low-hanging fruit do so for the benefit of themselves, to the detriment of society. That alone is reason enough to stop taking residue cases.

I suppose i must gertrude a bit, and say that I'm not in favor of use of hard, dangerous drugs, but IMO it's useful to keep in mind that banning something that people want seldom works. Prohibition's an obvious one, but far from the only example. That drive the drinking rate /up/, not down.

Additionally, for further reading, I suggest looking up the late Jerry Pournell's Iron Law. It explains much about organizations, and the exceptions to it are just that, far removed from the rule itself.

This was probably a waste of pixels, but if the host chooses to allow it, I thank you.

Anonymous said...

Re: Anon 8/7 at 5:14 comment on low hanging fruit

To be sure, the low-hanging fruit is fruit that can easily be plucked. The question is, who benefits from harvesting said fruit, society or the officer's arrest and conviction metrics? I suggest that the purpose is to benefit the latter, not the former.

To anyone with eyes to see, the War on (some) Drugs is a colossal failure. it has failed in its purported mission, i.e. reducing drug use. Not only have time and resources been diverted from dealing with more serious crimes, it had degraded the protections stated in the Bill of Rights, particularly the 4th Amendment, but it isn't limited to that.

Consider the case of "drug-sniffing" dogs. A study done in Florida, where at a drug checkpoint, a vehicle where such a dog produced a "hit" was sent to another dog team in a different team for a check. Or maybe all vehicles were tested twice, it's been years. As i recall, said system produced false positives at something like an 80% rate. If that study was done correctly, a fail rate of over 50% demonstrates that the dogs aren't reliable enough for the stated purpose. Worse, that doesn't include unsupervised officers making traffic stops and deliberately causing false hits. In these cases, the effect is that the officer doing this effectively sets aside the 4th Amendment in favor of "I'm searching your car because i want to. Don't like it? Tough noogies." Included in this is the policy of asset forfeiture, which in many, if not most cases, the intent is not to impact drug use, but to gain external funding for the Department.

The crux of this is that officers are normal people, not special people. They are as lazy and as likely to half-ass things as anyone else. Petty drug busts are a safe, easy way to improve their metrics, so that happens quite a bit in this nation. In this sense, officers plucking the low-hanging fruit do so for the benefit of themselves, to the detriment of society. That alone is reason enough to stop taking residue cases.

I suppose i must gertrude a bit, and say that I'm not in favor of use of hard, dangerous drugs, but IMO it's useful to keep in mind that banning something that people want seldom works. Prohibition's an obvious one, but far from the only example. That drive the drinking rate /up/, not down.

Additionally, for further reading, I suggest looking up the late Jerry Pournell's Iron Law. It explains much about organizations, and the exceptions to it are just that, far removed from the rule itself.

This was probably a waste of pixels, but if the host chooses to allow it, I thank you.