An Orlando police officer recently used a Q-Tip to test a motorist for drugs based solely on the hunch that the man had drugs. An internal affairs investigation found that the police officer did not have consent from the driver nor did the officer have probable cause to search the driver and the swab test should not have been completed.
When an illegal test is run or illegal questioning takes place after an Orlando-area individual is stopped on suspicion of breaking the law, a Florida drug crime defense lawyer will work to keep any improperly acquired information out of evidence. Limits on police officers are intended to protect the constitutional rights of all people; your Orlando criminal defense attorney can further answer any questions related to your rights during a stop.
According to the report, the officer stopped the driver on suspicion of cocaine possession after seeing him speak to alleged drug dealers. The driver allowed the officer to search his vehicle stating he had nothing to hide. The officer found nothing, grabbed a Q-Tip and swabbed the driver's mouth, tongue and cheeks. The officer explained to the stopped individual that he was making sure that, "you didn't eat any drugs." The swab was negative.
An Unreasonable Search? What is a Florida Swab Test?
Generally swab tests are used by employers to test for drugs. Swab kits collect saliva and then measure whether drugs are present. Swab drug tests can be quite accurate because the mucous membranes of the mouth are highly absorbent.
Most swab kits test for drugs listed on the Florida controlled substances list, including amphetamines, methamphetamine, cocaine, opiates, THC (marijuana-type drugs), phencyclidine, benzodiazepines and methadone. The test may also indicate the presence of a parent drug, such as opium rather than heroine.
Swab test samples can be collected "on the spot" and eliminate issues related to switching, diluting or tampering with the sample. The test will only indicate whether there was recent drug use, within the last 24 to 48 hours.
Florida Law Enforcement Is Not Yet Widely Using Swab Testing
Currently, Michigan is the only state considering using swab tests to fight impaired driving. Legislation is under consideration by the Michigan House Judiciary Committee.
When any kind of field testing is completed, the training manuals for Florida law enforcement require that officers conduct sanitary searches with sterilized gloves. The agency issues tongue depressors and swabs. The Orlando police officer in this instance used neither sterilized gloves nor agency-issued swabs. The officer simply purchased Q-tips from a pharmacy. The officer was given a warning after the internal review.
A swab test may constitute an unreasonable search that violates an individual's constitutional rights, particularly if an officer performs the swab test solely based on a "hunch." At this point, Florida law does not require you to submit to a swab test at the request of law enforcement.
If you have been stopped for impaired driving, contact a Florida criminal defense attorney to discuss what defenses may be available.
