photo by: Journal-World File Photo

A forensic scientist at KBI headquarters in Topeka prepares to weigh a sample of what was thought to be crack cocaine gathered by the Lawrence Police Department in this Journal-World file photo.

When law enforcement pulls you over and finds what appears to be a half pound of fentanyl, a half pound of heroin and three and a half pounds of methamphetamine in your vehicle, you go to jail.

Indeed, Ricky Lincoln and Keven Ernest Jones, both of Tucson, Arizona, did get booked in the Douglas County Jail when the Kansas Highway Patrol pulled them over last month in North Lawrence and found what appeared to be those large quantities of drugs.

The fact they went to jail isn’t the surprising part. The surprising part is how quickly they got out.

After two days in jail, both men were released. Neither had been charged, and neither had to post any bond before being released.

photo by: Arizona Department of Corrections

Ricky Lincoln, left, and Keven E. Jones

Officials with local law enforcement and the Douglas County District Attorney’s Office aren’t saying much about why the two men never got charged, which allowed them to leave without posting bond. Whether the men have ever been picked up again — perhaps by federal officials — is unclear.

What is clear is that law enforcement suspected the two men had a lot of drugs. But law enforcement didn’t know that for sure. In Douglas County, you don’t know for sure if a substance is a drug or just some harmless powder until you send it off and get the test results back from the Kansas Bureau of Investigation’s drug lab in Topeka.

That can be a problem — unless you are two fellows sitting in jail for no other reason than suspicion of drug possession.

That’s because the KBI says its average wait time for chemical testing of dangerous drugs is 80 days, which means prosecutors may have to wait that long before charging a suspected drug dealer with a crime.

When the Journal-World asked the DA’s office about the charges or lack thereof, the office said that it hadn’t received any investigative material at all and that the KHP may be sending that material to prosecutors in the federal court system. A spokesperson with the KHP said that the “filing of formal charges will be up to prosecutorial authorities” but did not specify what authority that was and said that it was an ongoing investigation and that they could not release any additional information.

The Douglas County DA’s office has said that it waits for lab test results from the KBI to file charges against suspected drug distributors unless there is probable cause to believe that suspect has committed another crime — meaning that if a suspected drug dealer is caught only with a possible illegal substance and doesn’t have a firearm or have not committed another crime, then they may be released without being charged.

“We typically do not charge until we receive results from the lab,” said spokesperson for the DA’s office Cheryl Cadue. “Whenever our attorneys make charging decisions, they exercise prosecutorial discretion. Many factors must be taken into account, including availability of admissible evidence.”

If prosecutors charge the case too soon they risk violating Kansas speedy trial laws, which require a case to be brought to trial within 150 days from the time a person is arraigned on the charges for a person in jail or 180 days for a person on bond. If the state fails to bring the case to trial within that time, the charges are supposed to be dismissed. If prosecutors charge the crime and the test results take too long, then the state risks going to trial without solid evidence.

The long wait time for testing can be attributed to the number of submissions received from across the state, the variety of substances requiring testing in a case, the complexity of samples, and that technicians may be out of office to testify about their findings, said KBI Communications Director Melissa Underwood in an email to the Journal-World. In addition to the testing itself, each case must go through a peer review process to verify the findings, she said.

“If the customer submitting the evidence to the laboratory indicates there is a public safety concern that necessitates expedited testing, we prioritize testing in that case, but, as you can imagine, knowing the results of each of these submissions is important,” Underwood said.

The KBI is not the only law enforcement agency in the state with a laboratory, but it is the only lab used by Douglas County law enforcement.

Nearby Johnson County has had a lab for forensic testing since 1974, the Sheriff’s Office Criminalistics Laboratory, according to its website. That lab has been accredited by the American Society of Crime Laboratory Directors’ Laboratory Accreditation Board since 1999. The lab services multiple jurisdictions in the Kansas City, Kansas, area, according to its website.

Cadue said that the DA’s office has no “official policy” about when to charge a person and that, since every case is different, using prosecutorial discretion in each instance was the best practice.

“In a perfect world, we would be able to file charges immediately upon arrest if charges were warranted. However, we are aware of the practical realities of criminal investigations and we do our best to adapt accordingly,” Cadue said.

The arresting law enforcement agency is responsible for collecting a suspected drug and sending it off for testing, and the results of those tests are presented to the DA’s office as investigative material — so it isn’t necessarily that the prosecutor is specifically waiting for the lab results but rather waiting for the whole investigation by law enforcement to be completed.

“While it takes time to properly conduct necessary testing, any delay can diminish the effectiveness of witness testimony, as memory does not tend to get better as we are further removed from the relevant event,” Cadue said.

While lab testing is the gold standard, prosecutors can move forward with charging a suspect with field tests, Cadue said, but those tests might be considered inferential evidence that only shows that a substance might be illegal. By waiting for lab results the DA’s office can be sure it is charging people accurately.

“Since we almost always wait for a lab test, we are charging the right thing 99% of the time. Sometimes drugs are also drug analogs, which are still illegal. For instance, someone might have counterfeit Xanax that doesn’t test for Xanax but tests for an analog. This is still a crime,” Cadue said. Drug analogs, sometimes referred to as “designer drugs,” are chemically similar to other illegal substances such as heroin.

The field tests the Douglas County Sheriff’s Office and the Lawrence Police Department use are called the Sirchie II and they both send their suspected drugs to the KBI lab in Topeka.

“We’re able to test for a variety of drugs to include heroin, opium, methamphetamine, amphetamine, MDMA, cocaine, psilocybin mushrooms and marijuana,” said Laura McCabe, spokesperson for the Lawrence Police Department.

The website for Sirchie states on each of its field testing products that the tests are “merely presumptive” and that “all test results must be confirmed by an approved analytical laboratory”

This warning is attached in the description of Sirchie II field testing kits on its website:

NOTE: ALL TEST RESULTS MUST BE CONFIRMED BY AN APPROVED ANALYTICAL LABORATORY! The results of this test are merely presumptive. NARK® only tests for the possible presence of certain chemical compounds. Reactions may occur with, and such compounds can be found in, both legal and illegal products. This test must be administered following its specific instructions and may be used in conjunction with other reagents in the NARK® II Sequential Testing System.

While the testing kits are admissible evidence to establish probable cause at a preliminary hearing, according to Kansas Law, a presumptive test is not likely to establish guilt beyond a reasonable doubt, which is the burden of proof required in a criminal trial.

The DEA has set forth recommendations for first responders that anyone who suspects that they have encountered pills or powders that could contain fentanyl should immediately take safety precautions and wear protective equipment including gloves, eye protection and a respirator. The recommendations indicate that the greatest threat from fentanyl is when it becomes airborne as a powder and that skin contact is not likely to produce a harmful effect.

“Deputies have safety protocols and procedures in place for certain powdered substances, such as suspected fentanyl. Anything to address lab times would benefit law enforcement agencies investigating these types of cases,” said spokesperson for the sheriff’s office, George Diepenbrock.

“Traditionally, the items (suspected drugs) will be collected at the scene but will be tested at the station in our evidence area. This promotes officer and public safety. They may not know what substance they are dealing with on scene nor the danger that substances may pose to the officer or people in the area. It is much safer to conduct the tests in a controlled environment,” McCabe said.

The Lawrence Police Department echoed the DA’s office in regard to the need for solid evidence in a case, and McCabe said “it is our duty to protect people’s rights and we do not suggest charges unless we have solid evidence.”

After testing is completed and charges against suspects are filed, law enforcement is then tasked with serving warrants on suspects and arresting them for a second time.

“Police work is dangerous. It just is. Thankfully, we have people willing to take those risks” McCabe said. “Remember, that not too long ago an officer in North Kansas City lost his life on a simple traffic stop. So, while serving a warrant may pose dangers, it’s part of the job, and ensuring we protect people’s rights by waiting for solid evidence is just a matter of doing business at LKPD. Officers at LKPD are well-trained in how to safely execute a warrant.”