Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Another example of how the war on drugs screws over innocent people. A birdwatcher with sage in her fanny pack was arrested for marijuana possession after the sage tested positive for marijuana on the officer's field kit. So the officer searches her car, finds more sage, and sends it all in to be tested. Three months later, the police come to arrest her at work. And this is where the story takes an even more bizarre twist:
"They arrested me in front of my customers, my boss, my co-workers," Brown said. She later was subjected to a body cavity search, a strip search and an overnight stay in jail.A month later, Brown's attorney discovered that the sage had never been tested at the Broward Sheriff's Office crime lab.
That's right. They never even tested it in the crime lab but they issued the arrest warrant anyway.
"When I found out they didn't do a lab test, I was outraged," said her Miami attorney, Bill Ullman. "I raised hell about that."On July 23, 2009, Ullman demanded that the sage be tested.
The lab test concluded that the dried sage was not marijuana at all.
The criminal charges were dropped.
And get ready for the understatement of the year:
"Our policy is to make sure the evidence is tested at the very least before trial," said Ron Ishoy, spokesman for the Broward State Attorney's Office. "Looking back now at this specific police report, it would have been the better practice to test the evidence before filing a formal charge."
In this specific case? How about in every case you should test the evidence before you arrest someone and subject them to a trial? Field drug kits are notorious for giving off false positives. Balko gives a list of the other items, including chocolate chip cookies, that have been found to trigger false positives on field testing kits.
And this will come as no surprise to my readers: Her lawsuit was dismissed because of prosecutorial immunity.
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Comments
For crying out loud! Sage does not look like marijuana! And furthermore, it smells like sage! I'm so glad that the police are out there protecting us from cooking herbs. Someone might be transporting basil next. Better be careful.
Posted by: Ellie | June 6, 2011 9:35 AM
Note how he takes care to limit his statement to this specific case, lest he give the impression there would now be something like an actual policy of looking at the evidence before filing charges in future.
Posted by: Phillip IV | June 6, 2011 9:38 AM
Has pot changed that much since I was in school? The article says that she burned some sage in a pot, not how I remember marijuana being used. Also the sage was bundled to form a smudge only time I've seen pot used like that was a Cheech and Chong movie. Basically she had some green dry leafy matter on her person. Whats next SWAT raids on Pampered Chef parties.
Posted by: Mr Ed | June 6, 2011 9:43 AM
I put a herb garden in this spring. Not only do I have sage and basil, I have rosemary too.
Posted by: Owen | June 6, 2011 9:46 AM
Ed, I have to ask: have you ever heard of a prosecutor who *was* charged, never mind convicted, for professional misconduct (criminal or otherwise)? I mean, how far would you have to go: kill the body that you plant as evidence? I think we've covered sleeping with the defendant's wife; molesting the defendant's father? Being a Democrat? What does it take?
Posted by: James Baker | June 6, 2011 9:49 AM
Anyone here remember the scene in "The Boys in the Band"?
http://www.imdb.com/title/tt0065488/quotes?qt=qt0422248
Posted by: Jim Ramsey | June 6, 2011 9:55 AM
That might just be enough to override the immunity and subject them to civil liability....
I wish I were joking.
I'm of two minds about prosecutorial/sovereign immunity. I absolutely agree as a matter of policy that it basically encourages bad behavior because there are powerful incentives to convict and no consequences for unethical behavior in doing so.
On the other hand, the Courts have a legal point. At common law sovereign immunity was absolute, "you cannot try the king in his own court." Where exceptions have been created, they've mostly been created by statute. It's one of those things virtually every judge is going to say "it's not my place to make the call on that." If you really want to make a move limiting prosecutorial immunity you need to get a statute on it passed somewhere. If you can't convince anyone of the need for such a statute, it might be worth thinking about why.
Posted by: Ben P | June 6, 2011 10:03 AM
James Baker,
There was that Assistant DA who was stalking the gay guy in Michigan (as I remember--I could be wrong), who was fired. I'm pretty sure that never went to trial. If there were a sexual harassment charge filed by a coworker, that might do it. But yeah, your point is still valid.
Posted by: Shawn Smith | June 6, 2011 10:09 AM
Ben P: There's allot of space between "trying the king in his own court" and trying an officer of the government for misconduct in a courtroom. I mean, we have laws against misconduct, abuse of office, corruption, and official fraud; it is rather ludicrous to say that those who wrote those laws never intended them to be enforced because it would create conflict with some unwritten common law maxim regarding heads of state, or that our founders never intended such laws to be applicable under our system of government.
Besides, let's be honest here, it isn't as if Scalia and his ilk within the judiciary have made any secret of their reasons for supporting these sorts of policies. They say flat-out that they're judicial and prosecutorial absolutists, and they justify these sorts of decisions by arguing that any other interpretation of the relevant statues makes the jobs of police and prosecutors "too difficult". Where in any Federal or State Constitution does it say convicting someone of a crime should be easy?
Posted by: Julian | June 6, 2011 10:15 AM
And in other news, Cypress Hill and Simon & Garfunkel announce a world tour...
Posted by: Ashley Moore | June 6, 2011 10:27 AM
So, there is no longer a "wrongful arrest" ever?
Posted by: Mark Holcombe | June 6, 2011 10:30 AM
Prosecutorial immunity is not typically a defense against prosecutions by the state, it is a civil liability defense. To use the old language, there's nothing stopping the king from trying his own servants. That was equally true under common law. (our federal system confuses the issue some as it may also protect certain federal->state or state->federal prosecutions)
If you think the government is usually reticent to subject its own people to criminal liability you're absolutely correct, but that's a completely different issue from the doctrine that people have no legal recourse against government agents unless the government allows them to do so.
I was making a strictly legal point, and it stands. At common law sovereign immunity was absolute. Almost every exception to sovereign immunity is statutory. It's just not the kind of area where you rationally expect a judge to just decide it won't apply.
Posted by: Ben P | June 6, 2011 10:31 AM
@Mark Holcombe:
Oh, by no means! If Assistant State Attorney Mark Horn were arrested, I'm certain that would qualify as a wrongful arrest. :)
Posted by: Imrryr | June 6, 2011 10:41 AM
There is....so long as the person you're trying to sue is not a government official.
If they are a government official, you have to fit within certain exceptions. Section 1983 (28 USC 1983) creates civil liability for government agents who knowingly violate someone's civil rights.
On the other hand, specialized forms of sovereign immunity, such as legislative immunity and prosecutorial immunity were not addressed by the statute. The Supreme Court has held on a couple occasions that the general language could not be interpreted to abrogate all forms of prior governmental immunity, but was rather to be read in light of the prior law.
Which goes back to my point. I agree prosecutorial immunity creates enormous problems, but the solution to those is a statute limiting it. Expecting judges to independently act to abrogate it is going to be near fruitless.
Posted by: Ben P | June 6, 2011 10:42 AM
Ellie #1 wrote:
Let's hope they never find out about marjoram. It will confuse them even more.
Posted by: Sastra | June 6, 2011 10:49 AM
@ Owen
What about the parsley and thyme?
Posted by: Fifth Dentist | June 6, 2011 10:52 AM
The real problem here is an idiot Deputy who can’t tell pot from sage. Prosecutors generally have to assume a base level of competence from the arresting officer in order to get anything done. Again, not defending it – just saying I can see how it happened.
“Why” is easy. 1) The public likes Tough On Crime rhetoric, and thinks prosecutorial misconduct only happens to other people. 2) The people who write the laws are mostly lawyers, who are hesitant to regulate their own unless forced to by outside forces. (Same reason tort reform is so hard, despite widespread public support for it.)Posted by: WScott | June 6, 2011 11:31 AM
Will no one think about the rosemary?
Seriously, it may be time to link back to Mr Brayton's post about the ex-police officer talking about the damage done by the War on Drugs(http://scienceblogs.com/dispatches/2011/06/arrested_for_burning_sage.php)
This is quite insane. Being "subjected to a body cavity search, a strip search and an overnight stay in jail" for having sage?
And you wonder why a lot of people outside "The Last Great Hope for Mankind" think you are all mad?
Posted by: MacTurk | June 6, 2011 11:42 AM
MacTurk, #18: This is quite insane. Being "subjected to a body cavity search, a strip search and an overnight stay in jail" for having sage?
One argument I hear from law and order types in cases like this is:
well, she probably did something illegal somewhere at sometime.
Posted by: Chiroptera | June 6, 2011 11:45 AM
Hey, leave Canada out of this!
Posted by: Imrryr | June 6, 2011 12:08 PM
Prosecutors suffer from the same sense of grandiosity that cops do - they see themselves as the only defence against the evils of society even as they fake evidence and encourage perjury in order to get fake convictions.
Posted by: Rob Jase | June 6, 2011 12:30 PM
Years ago I was asked by Illinois and Indiana forensic labs as a botanical expert if certain anatomical features were conclusive proof identifying marijuana, but the answer was no because Cannabis' closest relative (Humulus, hops) also had the same feature. Then i was asked if a color change from a particular reagent was a definitive test for cannabis, and I didn't know. But I sent them a baggy of dried, crumbled up hops and said if this reacts positively with your reagent then the answer is no. Never did find out the results, but I'm betting hos tested positive. Moral of the story: don't carry baggies of hops around.
Posted by: The Phytophactor | June 6, 2011 1:25 PM
Being a home brewer is dangerous. I've heard (indirectly) of people being harassed because they had a counter-flow chiller setup. These are made of coils of copper and look very much like part of a still.
Posted by: ArtK | June 6, 2011 1:31 PM
Well, I suppose, there must be some set of concentrations and volumes wherein sage and marijuana are equally dangerous....
Posted by: amphiox | June 6, 2011 2:35 PM
I wonder, can prosecutors get disbarred, and can victims lobby for this to happen?
Posted by: Nick (Matzke) | June 6, 2011 2:38 PM
If Jack Web were alive he would be seriously considering slapping the shit out of these bad cops.
America's law enforcement culture has gone from the high road portrayed in Dragnet to the ethically bankrupt method of policing shown in the FX TV show; The Shield.
How many cops watched the Vic Mackey or Andy Sipowicz characters beat a confession out of a 'skel' on TV and thought it was a training film? Too many it seems.
(Can we still say "cops" or is it discriminatory against police officers?)
Law enforcement in the US is looking more and more like what Aleksandr Solzhenitsyn described in his The Gulag Archipelago books.
To all the men & women (and dogs) who do good police work; thank you. To the rapidly multiplying bad apples, your actions may come around and bite you in the arse.
Posted by: Pinky | June 6, 2011 3:28 PM
Wait! You're missing some important information here. Where in the name of all that's good, kind and righteous do you have to go, how many doors do you have to knock, how many calls do you have to make, how many posts, blogs, e-mails and talk show appearances do you have to make to find a cop that can's tell the smell of sage from the smell of Broward County's finest dope? I want to know the name of that presumptive test.
Posted by: raulsanger | June 6, 2011 4:14 PM
I'm with raulsanger on this. It unnerves me that a man issued a deadly weapon can't tell the difference between dope and sage.
Posted by: Max | June 6, 2011 6:05 PM
Upcoming headline on The Onion:
DEA Stages Raid on Scarborough Fair
80 Kilos of Parsley, Sage, Rosemary, and Thyme Seized
Posted by: DaveL | June 6, 2011 6:14 PM
I cannot imagine that there isn't a judge who signed an arrest warrant there who wouldn't be madder than hell to discover the cops lied to him or her, to arrest an innocent botany student.
Of course, lying to a judge would nullify prosecutorial immunity in most jurisdictions -- but the cop who lied would be on the hot seat.
Her lawyer should be looking into personal liability for ultra vires action, and lying to a judge.
Posted by: Ed Darrell | June 6, 2011 9:50 PM
(Can we still say "cops" or is it discriminatory against police officers?)
We can still say it.
I call them pigs. When I'm not calling them fuckers or thugs or fucking thugs.
But then, I lived in L.A., pre Rodney-King and at the height of the Daryl Gates era. You tend not to have a very high opinion of police after witnessing the LAPD in action.
Posted by: Aquaria | June 6, 2011 11:25 PM
An update on Jeremy Marks, the special ed teen jailed for seven months in an adult prison awaiting trial for taking a camera photo of a cop beating another teen in public. He was accused of:
Marks' case; although easily verified as undeserved, example setting cruel punishment, went by without notice by the major media, or as best as I can ascertain through Google, without comment by the leading local media in LA.
Community activism has forced the DA to offer a plea deal. According to City Watch blog; Jeremy Marks Avoids Prison But Was It a Fair Deal :
How long will it be before Jeremy Marks is arrested for violating his parole?
Posted by: Pinky | June 7, 2011 1:34 AM
Chiroptera(no 19), sadly, you will always find some person of little brain who blames the victim.
Imrryr(no 20),I am sorry, but I was under the impression that "The Last Great Hope for Mankind" meant the USA exclusively in the loony-tune universe? If I have in any way offended the inhabitants of what George Bush Snr really meant when he spoke of a "..gentler, kinder America", I am sorry.
The Boston Globe simply said "George, look north. It's called CANADA".
Given the sage case, and the Jeremy Marks case(boy, does his family need a new lawyer), the comment about madness stands
Posted by: MacTurk | June 7, 2011 10:23 AM
"I cannot imagine that there isn't a judge who signed an arrest warrant there who wouldn't be madder than hell to discover the cops lied to him or her, to arrest an innocent botany student."
Change the "innocent botany student" to "a friend of theirs" and you may have it right.
Some might get cheesed off, but many will accede to The Patrician's mode of thought: as long as someone gets punished for the crime, it looks the same as justice and has almost exactly the same effect.
Posted by: Wow | June 7, 2011 10:33 AM