157 So. 3d 370
Fla. Dist. Ct. App.2015Background
- Appellant Kyle R. Queior was on probation for four counts of second-degree arson when his probation officer alleged a probation violation after a urine sample taken on January 7, 2013 tested presumptively positive for opiates on an office field test and a subsequent outside lab report indicated hydromorphone.
- Conditions alleged violated forbade possession/use of drugs not prescribed and unlawful visiting/use of places where drugs are sold or used.
- Probation officer Gregory Miller performed the Drug Check Dip field test and testified about administering and reading results; he had online certificates and testified he performs many such tests but could not identify the chemical reagents or explain the scientific basis of the test.
- Miller introduced a computer printout of the field test and an Alere Toxicology lab faxed report; Miller could not explain Alere’s testing methods and had previously observed inconsistencies between field and lab tests.
- Defense objected that the field test testimony lacked proper scientific predicate and that the lab report was hearsay; the trial court overruled and revoked probation based on the positive tests.
- The Second District reversed, holding the State failed to present competent, nonhearsay evidence of drug use sufficient to revoke probation and certified conflict with the Fifth District’s Terry decision.
Issues
| Issue | State's Argument | Queior's Argument | Held |
|---|---|---|---|
| Whether probation may be revoked based on probation officer’s testimony about a positive field urine test alone | Field-test testimony (officer’s experience and certification) is competent nonhearsay evidence of drug use | Field-test testimony lacked scientific predicate; officer couldn’t explain how test worked and had seen false positives | Reversed — field-test testimony alone was not competent nonhearsay evidence to support revocation |
| Admissibility / sufficiency of out-of-lab lab report introduced by officer | Lab report corroborated field test and was admissible hearsay in revocation proceedings | Lab report was hearsay and officer lacked foundation to interpret or vouch for lab methods/results | Lab report was hearsay and, without foundation or independent testimony from lab, did not constitute competent evidence |
| Reliance on anonymous tip to justify testing or corroborate results | Tip justified testing and can supplement competent evidence | Anonymous tip is hearsay and uncorroborated; insufficient to prove violation | Anonymous tip was hearsay and insufficient to establish violation |
| Whether Terry v. State controls allowing field-test testimony as sufficient | Terry supports that officer’s field-test testimony can suffice | Other decisions (Carter, Bray, Starling) limit sufficiency where officer lacks scientific knowledge | Court rejected Terry’s reasoning, followed Carter/Bray/Starling — conflict certified |
Key Cases Cited
- Terry v. State, 777 So. 2d 1093 (Fla. 5th DCA 2001) (held probation officer’s field-test testimony supported revocation)
- Carter v. State, 82 So. 3d 993 (Fla. 1st DCA 2011) (field test insufficient when officer lacked knowledge of test and prior inaccuracies existed)
- Bray v. State, 75 So. 3d 749 (Fla. 1st DCA 2011) (hearsay may supplement but not be sole basis for revocation; officer testimony about hundreds of tests insufficient to establish expertise)
- Starling v. State, 110 So. 3d 542 (Fla. 1st DCA 2013) (probation officer’s field-test testimony inadequate to sustain revocation for cocaine possession)
- Chavous v. State, 597 So. 2d 943 (Fla. 2d DCA 1992) (lab reports are hearsay in revocation proceedings and require foundation)