MEMORANDUM DECISION AND ORDER

           This matter is before the Court on Defendant’s Motion to Dismiss or to Suppress Evidence. After careful consideration, the Court finds the State has not met its burden in the preliminary proof as to the integrity of the evidence required to sustain the charges against the Defendant. Accordingly, Defendant’s Motion to Dismiss or to Suppress Evidence is granted.

FINDINGS OF FACT

1.        Robert Shaw was arrested on or about August 6, 2001, for possession with intent to sell methamphetamine.

2.        Mr. Shaw had a preliminary hearing on November 23, 2004, and was bound over to stand trial on the amended complaint with a single count of possession of methamphetamine.

3.        Mr. Shaw was arrested during a raid based on a search warrant, and executed by Officers Souma, Voigt, Pfortmiller, and several other Topeka Police narcotics officers.

4.        The only item tested for the presence of controlled substances was Item No. KS1 on the “Physical Evidence Custody Receipt” prepared by Officer Souma on August 6, 2001, was described as “methamphetamine in bag 5.10g (w/o bag) verr by: 131.”

5.        At preliminary hearing, Officer Souma testified and described the substance listed as Item No. KS1 as a “white substance.”

6.        Further, at preliminary hearing, Officer Souma testified and identified the substance listed as Item No. KS1 as 5.10 grams of methamphetamines.

7.        Item No. KS2 on the “Physical Evidence Custody Receipt” prepared by Officer Souma was described as a Create-a-Craft tube with a blue cap. Office Souma testified at the preliminary hearing that the methamphetamine listed as Item No. KS1 was in a plastic bag and located inside this Create-a-Craft tube listed as Item No. KS2.

8.        A KBI lab report dated August 17, 2001 and admitted as State’s Exhibit No. 1 at the preliminary hearing describes Item No. KS1 as a “dark substance” and confirms the substance is methamphetamine but describes the evidence as “net weight - 3.30 grams.” This results in a difference in the original net weight while maintained by the Topeka Police Department and the KBI Lab of 1.8 grams, which is nearly two-thirds of the weight initially attributed to the seized evidence coupled with a distinct change of appearance.

9.        At the preliminary hearing Officer Voight could not explain the discrepancy in the weight.

10.      At the hearing on Defendant’s Motion to Dismiss or to Suppress Evidence, Officer Souma’s testimony changed and he stated that when the methamphetamine was seized he saw brown methamphetamine inside the Create-a-Craft tube (not in a bag) and that after removing the substance from the tube he weighed it on a weighing paper.

11.      Officer Souma further testified at the hearing on the Motion to Dismiss that he would normally “tare” out the weight of the paper, meaning he would zero out the scale or subtract for its weight before weighing the evidence; and that he could not recall specifically subtracting or not subtracting the weight of the paper since the evidence was weighed three and half years prior to his testimony. However, he speculated he did not re-zero the scale when weighing the evidence.

12.      Officer Voigt testified at the hearing on the Motion to Dismiss that he doesn’t know when the scale used had been last calibrated prior to the weighing of the evidence; and that he does not recall watching Officer Souma weigh the evidence but was in the room to verify the weight of 5.1 grams.

13.      Agent Crow testified at the hearing on this motion that in his experience a weighing paper will typically weigh approximately 0.9 or 1.0 grams.

DISCUSSION

           Defendant argues there are substantial discrepancies in both the physical description and weight between the collection date and the KBI test results, which calls into question the identity, amount, and chain of custody of the evidence. As noted by Defendant, the general rule is that “a party who offers an object into evidence must show that it is reasonably certain that there have been no material alterations of the object since it was first taken into custody....[t]he preliminary proof of the identity of the object and that the same has not been improperly tampered with, is first to be determined by the trial court.” State v. Steward, 219 Kan. 256, 266, 547 P.2d 773 (1976).

           The State argues that the Defendant must show there has been misconduct for purposes of this motion, and that such has not been shown. The State argues there are explanations to the discrepancies, noting that the color could have changed due to the effects of air or oxidation. The State asserts the evidence could have lost weight due to humidity, and Officer Souma could have forgotten to “tare” the scale prior to weighing the evidence due to the fact he was in training.

           Regardless of the near 35% loss or discrepancy in the reported weight of the substance, the State insists that unless the Defendant can show misconduct by the State or its agents, the evidence must not be suppressed and the State will be able to establish the proper evidentiary chain during trial. Alleged deficiencies in the chain of custody normally affect the weight (relative importance) of the evidence, not its admissibility. State v. Taylor, 231 Kan. 17, 174, 642 P.2d 989 (1982). Here, it is the discrepancy in the weight (numerically, not legally) of the evidence that goes to the preliminary proof of the integrity of the evidence.  

           The State also asserts this matter is not properly before the Court because “when the witnesses were called to testify at preliminary hearing, the State was not on notice that a weight variance would be in issue.” From the outset it must be said that the State had the evidence sheets, police reports, and KBI report in its possession from the beginning of this case with a clear discrepancy in weight and color. There is no better notice that should or could have been required. The Court would further note that it was the Court that brought this matter to the attention of the parties at the preliminary hearing and upon questioning the parties regarding the discrepancy, the State had no answer, which necessitated this matter be briefed. Thus, it is properly before the Court.

           The issue subject to preliminary proof is the integrity of the evidence. This Court inquired into the discrepancies in the color and weight at the preliminary hearing and gave the parties an opportunity to provide evidence on this issue. The State brought forth no answers. In fact, Officer Souma testified differently as to the color of the evidence during the hearing on this matter. In the preliminary hearing he testified the substance found at the scene was “white” and at the hearing on this motion, he testified it was “brown,” consistent with the KBI lab report. In addition, Officer Souma testified at the preliminary hearing that the substance was found “in a bag” inside the Create-a-craft tube, while at the hearing on this motion, he testified it was inside the tube and not in a bag.

           While it is possible that some weight could be lost in evidence, no one asserted they had ever seen narcotic evidence lose over a third of its weight. While there was much testimony about the types of containers (papers, weighing “boats,”etc.) used to weigh evidence, there was no testimony that the paper used to weigh the evidence could have accounted for more that 1.0 gram of the total weight in the event Officer Souma had forgotten to “tare” or “re-zero” the balance on the scale. This does little to explain with any sort of certainty the discrepancy in weight.

           Correspondence received by this Court from the City of Topeka and the Kansas Attorney General’s Office indicate several sheets of paper were weighed as part of an internal investigation into this matter indicating a paper used to weigh the evidence could have accounted for as much as the 1.8 gram discrepancy. Again, this is highly speculative as to what occurred with this evidence to explain the discrepancies, which is necessary to provide preliminary proof of the integrity and credibility of the physical evidence necessary to support criminal charges.

           As a general rule when objects of physical evidence have been kept in police custody the chain of custody must be reasonably complete, although this rule may be relaxed where it is “positively identified at trial and the object remains unaltered.” State v. Nicholson, 225 Kan. 418, 590 P.2d 1069 (1979). While the Court acknowledges the possibilities in this matter, too much uncertainty remains as to this evidence for the Court to come to a firm conclusion it was unaltered.

CONCLUSION:

           The importance of the integrity of the evidence submitted in criminal cases is clear, especially in drug cases involving possession of a controlled substance where the evidence (the substance) becomes the crime. It is untenable to allow a prosecution to be maintained for the possession of a substance when the substance itself is so suspect that it cannot be reasonably ascertained that the evidence originally seized is what it purports to be. Not only is there contradictory testimony by the officer who seized the evidence regarding whether the drug was originally found in a plastic bag; its color; the manner in which it was weighed, and its weight, there was no evidence that the scale utilized to weigh the substance had ever been certified or calibrated to insure its accuracy.

           Officer Voight testified that he had experience with the scale, but that it had been since possibly 1999 that the calibration had been “checked.” This has been the second time in the recent past, in conjunction with other evidence integrity issues, that this Court has reviewed the issue of the accuracy of local law enforcement’s scales in a drug possession case. For reasons stated above, it is most important in cases involving the possession of controlled substances that the tools of law enforcement in accurately describing the evidence (down to the hundredth of a gram) is properly regarded in its importance and is maintained. It goes without saying that the accuracy of “weight measurement” instruments is extremely important to the preservation of the integrity of such evidence. As such, this Court is troubled by the cavalier attitude which the agency seems to have with regard to the importance of the maintenance and calibration of their scales. The failure to satisfactorily address the issue of the accuracy of the scale on which the evidence was weighed diminishes the Court’s confidence in the reliability of the State’s testimony. Imprecise, uncalibrated police laboratory scales cannot be permitted to tilt the scales of justice.

           The Court notes with grave concern the lack of precision and the contradictions displayed in describing the change of weight and the alteration in color of the seized methamphetamine evidence. The State’s so-called “explanations” for the change of color and the decreased weight of the methamphetamine lie closer to speculation and hypothesis than they do to established and admissible fact. As such, they remain unconvincing in accounting for the changes in color and weight of the seized methamphetamine and cast serious doubt on the integrity of the chain of custody of the evidence.

           Due process and right to fair trial requires that decisions of this Court and factfinders be determined by what actually occurred, not by guess work, speculation, or what could have happened. Without confirmation that the evidence originally seized in this case is what it purports to be, to allow this prosecution to continue poses an unacceptable threat to the Defendant’s right to a fair trial.

           To preserve the integrity and credibility of the judicial process, the Court must find the uncertainty of the State’s evidence is insufficient to sustain the charge against the Defendant. Accordingly, Defendant’s motion to dismiss or suppress the evidence is granted.

           IT IS THEREFORE BY THE COURT SO CONSIDERED, ORDERED, ADJUDGED AND DECREED.

Dated this _____ day of February, 2005.

___________________________

                                                                             Eric S. Rosen

                                                                             District Court Judge