Sunday, February 13, 2011

Session #2 Interview With Atty Dr. Fredric Whitehurst, On Forensic Identification Of Cannabis

Today Dr Whitehurst and I are going to go into some detail about marijuana odor perception. 

KB - There is a common misconception that for the most part all marijuana smells the same, but those of us who actually smoke can tell the differences between strains. There are some similarities of course, yet there is definitely a distinction between them.

Dr. Whitehurst - As a scientist I am aware of how often the "common sense" of people who have a great deal of personal knowledge about something is so often dismissed by scientists as unfounded.  If scientists have not studied something then at times they have a tendency to dismiss folk knowledge.  One of the issues that fits this is the odor of marijuana.
I have had the occasion to smell what was presented to me as marijuana on quite a number of occasions, first as a law enforcement officer and then as an analytical chemist.  I can not say that marijuana has a particular singular odor.  I know that law enforcement officers "smell" marijuana but what is the basis for that?  Folks who have grown and/or possessed marijuana may also believe that marijuana (whatever that means) has a particular odor.  As a chemist I ask for the foundation of that belief.
I browse the marijuana sales sites on the net and see that the product is sold based upon its appearance, effect and odor.  So different varieties must have different odors.  Is that sales talk or is that real knowledge among people who deal with marijuana every day.
When I talk with Mahmud El-Sohly, who raises marijuana for the government, he tells me that the odor is characteristic.  What does that mean?  What are we detecting?  He has daily access to the plants that he is raising.  But of what variety are those?  Has he actually conducted experiments in detection of volatile organic compounds from cannabis sativa of different varieties?  What are the compounds that we are detecting and how does our olfactory sense function to detect those odors.  Are these questions answered by scientific research?
The law enforcement officer who "smells" marijuana can never be examined because there is nothing in the way of evidence for him to bring forward except his demand that he be believed, his badge, his gun, his uniform and his given authority.  He escapes the protections built into our Constitution by simply declaring himself to be correct and giving defendants in courts of law nothing to review.  That may be fine for folks who just want to be left alone (unless they are themselves charged with crime) but it does not answer the scientific question of whether that officer can in fact smell marijuana and identify the smell of marijuana to the exclusion of all other smells.
    To go further with this question one might refer to the journal article Topics in Heterocyclic Chemistry, 2007 10: 1-42 in which we find that there are 120 terpenoid type compounds which give rise to the odor of marijuana.
Imagine these then in a graph depicting on the "x" axis the compounds 1 through 120 and on the "y" axis the amount of material present.  The envelope formed by a line drawn through the xy coordinates then might be considered as the odor envelope formed by an examination of the quantitative amount of each compound that is present in one particular variety of marijuana and possibly in one plant of marijuana.  Do we know that that envelope does not dramatically change with environmental impact?  We do know that the THC content changes dramatically with weather, soil, and light conditions.  So what about the odor compounds?  Has anyone actually conducted that research?  I have not seen it.  If it does not exist and the folks who know (the individuals who come into contact with marijuana on a daily basis) believe that the marijuana varieties have different odors then who can deny that knowledge?
We might resort to personal attack, calling these users and producers childish names or casting doubt about their genetic lineage, however that does not answer the question posed.  We might ask whether we can trust a man in a uniform with a badge, a gun and a law enforcement demeanor over trusting an individual who smokes marijuana daily, raises the plants and is among them on a regular basis, wearing blue jeans, a T-shirt, long hair and having a cannabis demeanor (whatever that is)?  Though distracting the answers to that question do not tell us whether marijuana actually has different odors.
    The difficulty with raising any of these questions is that marijuana is illegal and we can not conduct experiments and report our results without exposing ourselves to incarceration.  We can not provide our knowledge to courts of law without providing the pedigree for that knowledge and therefore risking incarceration.  The government refuses to allow us to determine the truth here, whatever that truth is. So we can not control the variables; we can not conduct experiments; we can not determine the truth; we can not present a defense in court.  (So much for drug use being a victimless crime).  And do we have law enforcement officers who are not scientists making "scientific" statements in courts of law and denying citizens the right to defend themselves by making the material they have been accused of having inaccessible for scientific review and study. 

KB - I recently wrote an editorial about a drug task force raiding a home in Canada their probable cause for this raid was law enforcements perception of smelling cannabis supposedly being grown at the residence. To their surprise it turned out that the residence had a skunk under their front porch.

This caused the family a lot of grief having to be subjugated to intense scrutiny, and embarrassment for the drug task force which was unable to determine the difference in odor perception between a marijuana plant and a skunk.

Since not all varieties of marijuana do not smell the same, how does a scientist use marijuana odor perception to address that issue?  

Dr. Whitehurst - The only studies that address this issue have been conducted by Dr. Richard Doty.  His paper is available on the web and can be found by simply Googling his name.  He directs the paper toward the smell detection of marijuana basis for probable cause to search and or arrest.

KB - Considering that law enforcement consistently uses marijuana odor perception techniques to determine if someone is possessing cannabis, such as sticking their face up to a cars window to smell inside a vehicle, should this technique be scrutinized when it comes to determining probable cause to search a persons vehicle, or home?

 Dr. Whitehurst - Again, Dr. Richard Doty's paper will surprise you.  Be sure to access it on the web.

KB -  I found the link to Dr. Richard Doty's report "Law and Human Behavior, Vol. 28, No. 2, April 2004"
"These studies are the first to examine the ability of humans to detect marijuana in simulated real-life situations encountered by law enforcement officials, and are particularly relevant to the issue of probable cause."
Dr. Richard Doty "Marijuana Odor Study" 

KB - So now lets say the police think they smell marijuana, so they call in the drug sniffing dogs to validate their suspicions. Since they already believe the person has marijuana, due to their own sense of smell, and possible influence of their handlers the dogs are alerted to the presence of marijuana, should a search be invalidated if a dog's handler is misleading their dogs by their own sense of odor perception?

Dr. Whitehurst - What is it that the dog is smelling?  If an officer works with and around controlled substances every day does he contaminate a place that he is searching with residues from other searches.  Imagine that the dog handler has just been to another marijuana growing site or found a cache of marijuana and processed it.  The residues will be all over him and possibly his dog.  When they come to the new "crime scene" do they, in touching items put the residues on the items they touch without even knowing it?

KB - I recently found this article.

University of Minnesota. "New DNA 'Fingerprinting' Technique Separates Hemp From Marijuana." Science Daily 23 March 2006.

Considering they have the technology to change the DNA of a marijuana plant to look completely different than it normally does, and the ability to take THC in or out of it's DNA structure to possibly design strains of cannabis for industrial purposes, Do you think someone could possibly restructure the DNA of cannabis to look like a completely different species of plant? 

If so, would a new strain of marijuana still be under the same general guidelines of prohibition enforcement if it was to be combined with say a dandelion?

Dr. Whitehurst - What happens when we see transgenic mutations in which common weed plants are mutated to produce THC?.  This happening will result in the end of prohibition of marijuana.

Sunday, February 6, 2011

Session #1 Interview With Atty Dr. Frederic Whitehurst, On Forensic Identification of Cannabis

First off, I would like to thank Dr. Whitehurst for taking the time to explain his research with us.

 Frederic Whitehurst was a Supervisory Special Agent in the Federal Bureau of Investigation Laboratory from 1986 to 1998, where he went public as a  whistle blower to bring attention to procedural errors and misconduct.

FBI career

Dr. Whitehurst received a Ph.D. in chemistry from Duke University, a J.D. from Georgetown University and joined the FBI in 1982 and served as a Supervisory Special Agent in the FBI crime lab from 1986-1998.
While employed by the Federal Bureau of Investigation Laboratory, the FBI officially rated Dr. Whitehurst as the leading national and international expert in the science of explosives and explosives residue. He investigated, uncovered and reported scientific misconduct which forced the FBI crime lab to agree to forty major reforms, including undergoing an accreditation process. During this period, Whitehurst was forced to defend himself from retaliation by the FBI by hiring Kohn, Kohn & Colapinto, a Washington, D.C. law firm specializing in defending whistleblowers.

I am going to start off very basic, and eventually everything will tie in and hopefully you will see the bigger picture that we are trying to put out there.

KB - Dr. Whitehurst, is marijuana a plant?

Dr Whitehurst - Yes, 
This appears to be one of those "duh" questions, however we should start from the basics.

KB - What is a plant?

Dr. Whitehurst -  According to the American Heritage Dictionary of the English Language, American Heritage Publishing Company, Inc. 1975.
"Any organism of the vegetable kingdom, characteristically having cellulose cell walls, growing
by synthesis of inorganic substances, and lacking the power of locomotion."

At this point one must wonder how a police officer "identifies" marijuana without a forensic lab test.  Law enforcement officers carry guns, not microscopes.  Without a microscope one can not determine if the material has cells.  One can not also determine if the suspected marijuana grows by synthesis of inorganic substances.  Of course it lacks locomotion but so does road kill.  So how is it that an LEO even knows when he is looking at material in a little baggy that it is plant material?

KB -Does marijuana have leaves? If so, describe them?

Dr Whitehurst - The blade of the leaf is relatively thin and the principal veins form prominent ridges on the abaxial surface while the adaxial surface (that part of the leaf away from the central stem) is depressed into a groove above the vein. The cells of the upper epidermis are considerably larger than those of the lower and much more heavily cutinized (coated or impregnated with a waxlike, water-repellent material present in the walls of some plant cells, and forming a cuticle which covers the epidermis).

Stomata (one of the minute pores in the epidermis of a leaf or stem, through which gases and water vapor pass) are infrequent or lacking on the upper epidermis and very numerous in the lower one. Epidermal hairs are produced on both surfaces, being more numerous on the lower, and the large persistent hairs produce basal cystoliths. Glandular hairs also occur in large numbers, these being especially noticeable in the young leaf and less so in the mature blade, since they tend to break off with age.

Dr. Whitehurst- Can the law enforcement officer without a microscope then tell you that the green vegetable material he has is a plant and if he can, then can he describe the leaf structure of that plant as compared to the leaf structure of marijuana?  With so many species of plants on the planet how does he say that what he has is only marijuana and nothing else?  He can't.

Dr. Whitehurst- At this point we should realize that there are over 800,000 arrests per year in the US involving marijuana.  Approximately 80% of those are for possession for use.  Possession for use is not possession of growing plants.  The material that is being sold for use is ground up, not whole leaves, and maybe what some folks would feel are whole buds (flowers).  So, addressing the leaf particles first, can one answer the leaf architectural questions posed above without having whole leaves.  Well, of course not.  What we would be trying to do is akin to paleo-botany, attempting to determine the description/species of a plant from parts of the whole but not necessarily the whole leaf structure present.  Is a guess good enough in court? 

KB - Can we leave our analysis with an hypothesis that we have marijuana or do we need to test that hypothesis? 

Dr Whitehurst - Hopefully we would need to test the hypothesis before finding someone guilty of possession.   With only parts of the plant material present (assuming we have proven it to be plant material) have we got enough material for the law enforcement officer to say that it is marijuana?  
For over 70 years forensic laboratories have had to follow a protocol of microscopic and chemical analysis to "prove" the presence of marijuana.  So how is it that a police office is allowed to ignored that established protocol and simply state that he has marijuana, ignoring all the previous analytical practices.  The only reason I can imagine is that, for the most part, citizens have tired of the law and are ignoring it and creating huge numbers of criminal cases and forensic crime labs can not keep up with the overload.  So the standards have been lowered to the point of simply not carrying the burden of proof.  But that is just my hypothesis.

KillerBud - What about the bud?  Could we identify the marijuana from an analysis of the flowers?

Dr. Whitehurst - To do that we would ask ourselves what is a flower?  What are the parts of a flower?  Stamen, petals, pollen, pistils are all parts of flowers.  Simply purchase a 9th grade biology book from a used book dealer and see the questions that must be asked before one knows that something is a flower.  Try right now to draw a flower, a marijuana flower.  Show the stamen, the petals, the pistil, the anther, the parts of the flower.  Marijuana can be both male and female as well as a cross between the two.  So, officer, show me why you think this material is a marijuana flower.  And do any other plants have flowers that could be mistaken for marijuana flowers?  These are all questions that the normal police officer will probably not be able to answer. 

KB - So why does he think that what he has are marijuana buds? 

Dr Whitehurst- Invariably the answer will be smell.  What does marijuana smell like?  I have smelled a lot of marijuana both as a law enforcement officer and as a criminal defense attorney analyzing the materials found in the possession of my clients.  Who ever said that marijuana has a unique odor.  We'll deal with that at a later date, maybe tomorrow.

Can the law enforcement officer without a microscope then tell you that the green vegetable material he has is a plant and if he can, then can he describe the leaf structure of that plant as compared to the leaf structure of marijuana.  With so many species of plants on the planet how does he say that what he has is only marijuana and nothing else?  He can't. 

KB- Regarding expert witnesses, how would an drug test expert witness utilize forensic information such as this that you are explaining here?

Dr. Whitehurst -Unless you have the materials listed in the discovery request below you will not be able to determine if the testing laboratory work product is valid.  Once you have these materials you will need a drug testing expert to review and explain all of these materials.


                   Labatory Discovery: Controlled Substance

1. Evidence collection forms or logs (description of evidence, packaging, identification of
specimens, identification of individuals collecting samples, sample collection procedures).

2. Chain-of-custody records (field-to-lab transfers, and all transfers of evidence and associated
analytical samples within the laboratory).

3. Laboratory receiving records (records documenting the date, time and condition of receipt of
the evidence in question ; laboratory-assigned identifiers; storage location).

4. Laboratory procedures for subsampling (collection of analytical aliquots) and contamination

5. Copies of technical procedures in effect at the time the subject testing was performed (often
termed Standard Operating Procedures, or SOP’s) for each procedure used during sample
screening and confirmation, including; sample preparation, sample analysis, data reporting, and
instrument operation.

6. Copies of the two bracketing controlled substance proficiency results for each analyst and
technician responsible for preparation or analysis of subject specimens, including: raw data and
reported results, target values and acceptance ranges, performance scores, and all related

7. Copies of traceability documentation for standards and reference materials used during
analysis, including unique identifications, origins, dates of preparation and use, composition and
concentration of prepared materials, certifications or traceability records from suppliers, assigned
shelf lives and storage conditions.

8. Sample preparation records, including dates and conditions of preparation, responsible analyst,
procedural reference, purity, concentration and origins of solvents, reagents, and control
materials prepared and used, samples processed concurrently, extract volume.

9. Copies of bench notes, log books, and any other records pertaining to case samples or
instruments; records documenting observations, notations, or measurements regarding case

10. Instrument run log with identification of all standards, reference materials, sample blanks,
rinses, and controls analyzed during the day/shift with subject samples (as appropriate: run
sequence, origins, times of analysis and aborted run sequences).

11. Record of instrument operating conditions and criteria for variables, including as appropriate:
GC column, instrument file identification, tuning criteria, instrument performance check (e.g ion
abundance criteria), initial calibration, continuing calibration checks, calibration verification.

12. Record of instrument maintenance status and activities for instruments used in subject
testing, documenting routine and as-needed maintenance activities in the weeks surrounding
subject testing.

13. Raw data for the complete measurement sequence (opening and closing quality control
included) that includes the subject samples. For GC-MS analysis, this would include: areas and
retention times, injection volumes, dilution factors, chromatograms and mass spectra. As
prepared and as determined values for all quality control samples.

14. A description of the library used for spectral matches for the purpose of qualitative
identification of controlled substances, including source(s) and number of reference spectra.

15. Copy of records documenting computation of the laboratory’s theoretical production yield,
including the basis for the computation, and the algorithm used, as appropriate.

16. Procedure(s) for operation and calibration checks of analytical balances used to weigh
controlled substances.

17. Results of calibration checks and documentation of mass traceability for gravimetric

18. Results of contamination control surveys for trace level analytes relevant to test methods at
the time of analysis, including sampling design and analytical procedures.

19. Records and results of internal reviews of subject data.

20. Method validation records documenting the laboratory’s performance characteristics for
qualitative identification and quantitative determinations of the controlled substance, to include
data documenting specificity, accuracy, precision, linearity, and method detection limits.

21. Copy of the laboratory’s Quality Manual in effect at the time the subject samples were tested
as well as the laboratory’s most recent Quality Manual (however named; the document that
describes the laboratory’s quality objects and policies).

22. Copy of the laboratory’s technical or operational procedures in effect at the time the subject
samples were tested (often termed Standard Operating Procedures, for analytical laboratory
operations) as well as the laboratory’s most recent technical or operational procedures for
analytes detected in subject samples.

23. Copy of the laboratory’s ASCLD-LAB application for accreditation, and most recent Annual
Accreditation Review Report, as appropriate.

24. Statement of qualifications of each analyst and/or technician responsible for processing case
samples to include all names, locations and jurisdictions of cases in which these personnel
testified concerning the same substances found in the present case.

25. Copy of the laboratory’s ASCLD-LAB on-site inspection report, as appropriate, as well as
any reports of on-site inspections by any other testing laboratory audit organization.

26. Copy of internal audit reports generated during the period subject samples were tested.

27. List of capital instrumentation in the laboratory at the time subject testing was performed,
including manufacturer, model number, and major accessories.

28. Production throughput data for the drug testing section: numbers of tests performed per
month or per year, and the number of Full Time Equivalent personnel in the drug testing section
of the laboratory

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