“They are not a scientific-level test,” said veteran drug cop, Phil Price, who is head of the Cherokee County Multi-Agency Narcotics Squad. “Our policy is we would not use that as the sole evidence for an arrest.”
The Georgia Bureau of Investigation, which does lab tests for police around the state, couldn’t provide statistics on exactly how often the tests, the Nark II roadside analysis kits, malfunction. Even the manufacturer, Sirchie Acquisition Company of Youngsville, N.C., couldn’t give an accuracy rate.
Many factors, including cold temperatures and officer training, can contribute to incorrect results, according to an expansive 2016 ProPublica-New York Times report. The investigation found the roadside tests, combined with poor training, had contributed to 15 false accusations of drug possession in a span of seven months in Hillsborough County, Fla.
When a kit fails, people can end up jailed until they post bond or a lab test contradicts the kit’s results. In some cases, ProPublica and the Times reported, people simply plead guilty to end the ordeal.
Test maker Sirchie and the Monroe County attorney, Ben Vaughn, didn't respond to requests for comment on Fincher's suit, filed in Middle Georgia U.S. District Court. John Cary Bittick, who left his post as Monroe sheriff this year to accept an appointment by President Donald Trump as Middle Georgia's U.S. Marshal, declined to comment. Current Monroe Sheriff Brad Freeman said he could't speak on pending litigation, but he did signal plans to investigate the kits, which are still being used by Monroe deputies.
“Anytime a product or something like that fails,” Freeman said, “you certainly need to look into it.”
But the case also raises other questions: Why was Fincher, who struggles financially, given a $1 million bond? Why was she indicted before the GBI’s lab results were returned? Why did it take almost three months for the lab results to exonerate her? Why did it then take another 13 days for her to get out of jail?
“What happened in this case was a complete failure of the system in every regard,” said Stephen Bright, a Georgia State University professor who spent nearly 25 years as director of Southern Center for Human Rights in Atlanta. “To take three months of anyone’s liberty is an extraordinary thing.”
‘Are you kidding me?’
Monroe deputies Cody Maples and Kevin Williams pulled over the old grey Toyota Corolla on Ga. 19 near Forsyth around 3 p.m. Dec. 31. Maples initially thought the window tint was too dark, he wrote in a report.
Then deputies discovered Fincher’s boyfriend, David Morris Jr., who isn’t involved in the suit, was driving with a suspended license. They asked the couple to consent to a search, which Fincher and Morris did. Dashcam video provided to The Atlanta Journal-Constitution by Fincher’s lawyer James Freeman shows one deputy pull a bag from the floorboard that was transparent with a crusty blue mass inside.
Fincher told the lawmen it was cotton candy. Both deputies opened the bag and sniffed.
The deputies brought out the Nark II roadside test kit, the suit said. To use the kit, officers drop a suspected drug into a clear liquid, and if the liquid turns purple it’s a positive result for meth. If it turns red, it’s negative.
In this case, it turned purple.
Fincher grew concerned. “Are you kidding me?” she recalls saying.
There on the roadside, things could’ve gone differently. Because the tests are known to fail, the deputies could’ve confiscated the suspected drugs, let the couple go and arrested them later if a lab test confirmed the reading, said Marietta attorney Ashleigh Merchant, who isn’t involved in the case. Or, she added, the suspects could have been given a lower bond they could pay.
Price, the Cherokee County narcotics squad commander, said the tests are best used as an indicator, not evidence.
But Monroe deputies relied on the findings of the roadside test and clicked on the cuffs.
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Fincher and her boyfriend had both been convicted of drug charges more than a decade ago, which lawyers said the deputies could have seen when they ran their names, though it’s not clear if they did. For Morris, it was possession of meth and a subsequent escape. For Fincher, it was having marijuana growing in her bedroom. She pleaded guilty under the First Offender Act, did two years on probation and the charge is no longer on her record, according to the Jones County Clerk of Superior Court’s Office.
Tommy Wilson, the chief Superior Court judge for the Towaliga Judicial Circuit, gave both suspects a $1 million cash bond, meaning they’d have to put up the full amount to get out. The judge didn’t respond to a request for comment.
Fincher’s bond, which was far higher than some murder suspects get in Georgia, was plainly “excessive,” said Bright.
Another curious arrest
While Fincher was in jail, the mother of three longed for her family and missed several milestones, including the birth of twin grandsons and her daughter’s miscarriage. Fincher kept calling her 18-month-old granddaughter, fearful little Aniyah would forget her.
Fincher said she woke up every morning thinking today would be the day everyone realized they’d made a grave error. But it kept getting worse.
She’d been looking forward to witnessing the birth of her twin grandsons. Instead, her son had to bring the babies to the jail to introduce her. It could’ve been a nice enough moment. But within seconds, her son was also arrested, told he had a bench warrant, according to the lawsuit.
Fincher was so frustrated she punched a wall, breaking her hand. She said she was seen by a doctor, who recommended a full cast and physical therapy. Her lawsuit alleges she never received treatment for her hand.
The next day, Fincher’s son, who isn’t involved in her lawsuit, was released and told his arrest had been a mistake, the suit said.
When Fincher’s daughter had a miscarriage, the mother hurt for not being there to comfort her.
“I lost a lot that I can never get back,” Fincher said.
On March 15, a grand jury indicted Fincher for trafficking meth, though the GBI hadn’t returned lab results.
Delays at the GBI’s labs have been well-known in recent years, as the already-busy agency has taken on more work, such as tests resulting from the opioid epidemic, a huge backlog of unexamined rape kits and more police shooting investigations.
On March 22, the GBI issued its report, saying the bag taken from Fincher’s car contained no controlled substances.
But that was not the morning when she woke up and realized it was all over. Nor was the next day, or the next. It was 13 days before she was released from jail, still facing the same charges. She left simply by signing her name, without posting the $1 million bond. The reason for her delayed release is unknown. Monroe’s interim DA Elizabeth Bobbitt didn’t respond to an email for comment.
On April 18, Fincher appeared for her arraignment and the charges were dismissed.
Since her release, she’s relished being back with family. But she said the ordeal still haunts her life. The charge shows up on background checks, the suit said. She lives with trauma. When she sees a cop behind her, she gets nervous.
Her first thought is to check the floorboard.