KEVIN BLANCHARD, Appellant, v. NEW JERSEY DEPARTMENT OF CORRECTIONS, Respondent.
DOCKET NO. A-3834-17T4
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
October 29, 2019
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION October 29, 2019 APPELLATE DIVISION
Before Judges Ostrer, Vernoia and Susswein.
On appeal from the New Jersey Department of Corrections.
Kevin Blanchard, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for respondent (Melissa Dutton Schaffer, Assistant Attorney General, of counsel; Tasha Marie Bradt, Deputy Attorney General, on the brief).
The opinion of the court was delivered by
OSTRER, J.A.D.
In this Department of Corrections disciplinary appeal, we hold that the Department acted arbitrarily, capriciously or unreasonably in denying a
I.
During a search of inmate Kevin Blanchard‘s property, a corrections officer discovered a white powdery substance in a folded or rolled piece of paper that was tucked in a paperback book. According to a special custody report, an investigator “field tested the substance which tested positive for cocaine.” The test kit used was manufactured by Sirchie and labeled “07 Scott Reagent (Modified) A test for cocaine, HCl & cocaine base.” A senior investigator separately wrote that “[t]he CDS is being sent to the New Jersey State Police Forensic Laboratory for conformation [sic],” but that evidently did not happen. The record contains no results or other indication of a confirmatory test.
On the basis of the field test, Blanchard was charged with asterisk offense *.203, “possession or introduction of any prohibited substances such as
The hearing officer found the violation based on the field test results. In his administrative appeal, Blanchard insisted the field test result was a false positive. He wrote that the white powder was a generic coffee sweetener. A fellow inmate gave him the sweetener, which he poured into a cup that had remnants of Tang powder. He retained the sweetener for future use. He explained that the sweetener was sold at the canteen, but he could not easily afford it, as he earned $17 a month and received no financial help from others. Blanchard said he asked the hearing officer to send the powder to the State Police Laboratory, but the request was denied.1
In his pro se brief, Blanchard contends the Assistant Superintendent‘s finding lacked substantial credible evidence, because the Department had not established the field test‘s reliability. He contends the Department adopted a policy of laboratory testing urine specimens and seized narcotics because of the field test‘s lack of reliability. He argues that the refusal to subject the powder to confirmatory testing in his case violated departmental policy; and denied him his due process right to present exculpatory evidence. He also contends the Assistant Superintendent‘s decision was arbitrary, capricious and unreasonable.
The Department responds that the policy of confirmatory testing applies only to urine specimen testing, and Blanchard presented only “self-serving testimony” that the field test was unreliable. The Department argues that the field test constituted substantial credible evidence of the violation.
A.
Our standard of review is well-settled. We will disturb an agency‘s adjudicatory decision only upon a finding that the decision is “arbitrary, capricious or unreasonable,” or is unsupported “by substantial credible evidence in the record as a whole.” Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). In determining whether an agency action is arbitrary, capricious, or unreasonable, a reviewing court must examine:
(1) [W]hether the agency‘s action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[In re Carter, 191 N.J. 474, 482 (2007) (quoting Mazza v. Bd. of Tr., 143 N.J. 22, 25 (1995)).]
Substantial evidence has been defined alternately as “such evidence as a reasonable mind might accept as adequate to support a conclusion,” and “evidence furnishing a reasonable basis for the agency‘s action.” Figueroa v. N.J. Dep‘t of Corr., 414 N.J. Super. 186, 192 (App. Div. 2010) (citations omitted); see also
We recognize that “[p]risons are dangerous places, and the courts must afford appropriate deference and flexibility to administrators trying to manage this volatile environment.” Russo v. N.J. Dep‘t of Corr., 324 N.J. Super. 576, 584 (App. Div. 1999). In particular, inmates’ unauthorized narcotics use and possession seriously threaten prison safety and security. Hamilton v. N.J. Dep‘t of Corr., 366 N.J. Super. 284, 289 (App. Div. 2004). A reviewing court “may not substitute its own judgment for the agency‘s, even though the court might have reached a different result.” In re Stallworth, 208 N.J. 182, 194 (2011) (quoting Carter, 191 N.J. at 483).
Yet, our review is not “perfunctory,” nor is “our function . . . merely [to] rubberstamp an agency‘s decision[.]” Figueroa, 414 N.J. Super. at 191. “We are constrained to engage in a ‘careful and principled consideration of the agency record and findings.‘” Williams v. Dep‘t of Corr., 330 N.J. Super. 197, 204 (App. Div. 2000) (quoting Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). We cannot exercise this function unless the agency provides a reasonable record and statement of its findings. Balagun v. N.J. Dep‘t of Corr., 361 N.J. Super. 199, 203 (App. Div. 2003); Blyther v. N.J. Dep‘t of Corr., 322 N.J. Super. 56, 63 (App. Div. 1999).
B.
Applying these principles, we are persuaded that the Department‘s refusal to procure a laboratory test was arbitrary, capricious, or unreasonable. As a result, so is the order affirming the *.203 violation.
Before discussing the basis for that holding, we highlight what we do not decide. We do not ground our decision in federal constitutional guarantees of due process. Nor do we find that existing regulations entitled Blanchard to a confirmatory laboratory test. Nor do we hold that the field test does not suffice as substantial evidence of guilt. Avant v. Clifford, 67 N.J. 496, 530 (1975).
We reach our conclusion without addressing Blanchard‘s argument that constitutional due process entitled him to a confirmatory lab test, since we shall not reach a constitutional issue “unless absolutely imperative” to resolve the case. See Donadio v. Cunningham, 58 N.J. 309, 325-26 (1971) (citation omitted). Prisoners have a limited due process right “to call witnesses and present documentary evidence in their defense when such procedure will not
These standards apply to “disciplinary matters which may subject an individual to ‘grievous loss’ by way of punishment for serious misconduct.” Avant, 67 N.J. at 519 (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
The New Jersey Supreme Court derived these standards not only from federal constitutional notions of due process, but also the Court‘s inherent power “to strike down arbitrary action and administrative abuse and to insure procedural fairness in the administrative process.” Id. at 520.4 However, it is not essential that we decide the extent to which the constitutional due process right entitles a prisoner to procure forensic analysis of evidence. But see Engel v. N.J. Dep‘t of Corr., 270 N.J. Super. 176, 180 (App. Div. 1994) (holding that “considerations of minimal due process” entitled prisoner to
We also assume, for the purposes of this decision, that agency regulations do not entitle Blanchard to a confirmatory test. Prison officials are authorized to test inmates for prohibited substances.
C.
To determine that the agency acted arbitrarily, capriciously, or unreasonably, we are guided by the principle enunciated in Ramirez v. Department of Corrections, 382 N.J. Super. 18, 24 (App. Div. 2005), that an inmate may be entitled to the creation of forensic evidence to assure the “fundamental fairness” of the proceeding. In Ramirez, we addressed whether a prison official arbitrarily denied a request for a polygraph. We recognized that a prisoner did not have an unqualified right to a polygraph. Id. at 23 (citing Johnson v. N.J. Dep‘t of Corr., 298 N.J. Super. 79, 83 (App. Div. 1997)). Consistent with
We identified various factors that would tend to show the impairment or preservation of such fundamental fairness. “Impairment may be evidenced by inconsistencies in the [corrections officer‘s] statement or some other extrinsic evidence involving credibility, whether documentary or testimonial, such as a statement by another inmate or staff member on the inmate‘s behalf.” Ibid. On the other hand, a polygraph would not be required to assure fundamental fairness “when there is sufficient corroborating evidence presented to negate any serious question of credibility.” Ibid.
In assessing the fundamental fairness of a proceeding to determine unauthorized narcotics possession without a confirmatory test – a proceeding that may result in such “grievous loss,” see Avant, 67 N.J. at 519, as the substantial loss of commutation time and other serious sanctions – it is appropriate to consider the initial field test‘s reliability; the presence or absence of other direct or circumstantial evidence to corroborate the field test; the availability of a confirmatory testing regime; the reasons, if any, the Department may provide for denying a confirmatory test under the circumstances; and any other relevant factors.
We turn first to the field test‘s reliability. If the test were proved to be scientifically reliable and rarely susceptible to false positives, then that would reduce or obviate the need for confirmatory testing. The proponent of scientific testing bears the burden to establish its general acceptance. State v. Cassidy, 235 N.J. 482, 492 (2018). The issue is not the admissibility of the field test results; the Rules of Evidence do not apply in a Corrections disciplinary hearing.
We are unaware of any published authority of our courts – and the agency provides none – that the reagent field drug test used in this case is generally accepted in the scientific community as a reliable indicator of the presence of cocaine.6 Rather, there is persuasive authority in other jurisdictions that, as a condition of admissibility, a drug field test must satisfy the applicable standard for scientific reliability. See Commonwealth v. Fernandez, 934 N.E.2d 810, 820-21 (Mass. 2010) (affirming decision to admit
Other courts have accepted a field test to establish a presumption that drugs are present, or that there is probable cause to arrest, but not, by itself, to establish actual possession because of reliability concerns.8 In a violation-of-
(continued) horizontal gaze nystagmus test did not yet pass muster under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), although it could be used to establish probable cause to arrest). We recognize that the Supreme Court has molded the test for admissibility of scientific tests in civil proceedings, drawing principles from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In re Accutane Litigation, 234 N.J. 340, 387 (2018).
Other courts have accepted reliance on field tests, without confirmatory tests, but other corroborating evidence of a violation was presented. For example, in Cook v. Edgewood Management Corp., 825 A.2d 939 (D.C. 2003), the court affirmed an eviction based on the tenant‘s drug activity. The court held that the trial court properly admitted the results of a color reagent test, which local police widely used to establish probable cause. Id. at 952. The court noted that the investigator who performed the field test was “trained and certified to conduct field tests, and . . . had performed over 500 field tests by
(continued) the test was accurate in a particular case; but that does not establish that the test is reliable in cases generally.
Here, the test‘s own manufacturer, Sirchie, noted in its product literature the test may be used to establish probable cause, but “[a] forensic laboratory is required to qualitatively identify an unknown substance.” Singleton, 840 A.2d at 40 (quoting Sirchie Finer Print Laboratories On-Line Catalog). The manufacturer‘s warning is consistent with standards for color test reagents, like the one used here, issued by the National Institute of Justice (NIJ) of the United States Department of Justice. See Nat‘l Inst. of Justice, Law Enforcement and Corrections Standards and Testing Program, Color Test Reagents/Kits for Preliminary Identification of Drugs of Abuse, NIJ Standard-0604.01 (July 2000). The federal standard refers to such reagents as tests “for the preliminary identification of drugs of abuse.” Id. at 1. The standard requires tests to include “[a] statement that the kit is intended to be used for presumptive identification purposes only, and that all substances tested should be subjected to more definitive examination by qualified scientists in a properly equipped crime laboratory.” Id. at 7.
2.
The absence of corroborating evidence of narcotics possession also tends to justify a confirmatory test.
The Department did not produce direct or circumstantial evidence of drug possession to supplement the field test result. Searches of Blanchard‘s person and his cell were fruitless. The Department presented no other witnesses who observed transactions or other indicia of drug possession. Unlike in the Connecticut case, Singleton, there was no evidence that Blanchard secreted the substance in a body orifice, which would bespeak drug possession. Although Blanchard did store the powder in folded or rolled magazine paper inside a book, he apparently possessed the book while in the mailroom, rather than secrete it where it was less susceptible to discovery. Blanchard made no self-incriminating statements. Also, the Department evidently did not attempt to identify and interview the person who, Blanchard said, gave him what he said was coffee sweetener.
In sum, the Department‘s exclusive reliance on the positive field test, and the absence of any other evidence of guilt, support a confirmatory test to assure fundamental fairness.
3.
The presence of a confirmatory testing regime also tends to support the conclusion that fundamental fairness requires confirmatory testing in this case. Two inferences may be drawn from the regulatory mandate to confirm the results of initial tests of specimens. First, the Department evidently recognizes the limitation of field tests. Second, confirmatory tests are not unduly burdensome. Otherwise, we presume the Department would not routinely compel them in any case of a positive specimen test, regardless of the surrounding circumstances.
Furthermore, the record in this case reflects that at least one official in the Department intended to submit the seized powder to a laboratory for confirmatory testing. That official evidently thought the initial test should be
4.
Due process and fundamental fairness require the decision-maker to set forth his or her reasoning. Avant, 67 N.J. at 524, 531-32. In finding a *.203 violation based solely on the field test results, the Assistant Superintendent provided no reasons for denying a confirmatory test in this case. As we observed in another Department of Corrections disciplinary case, essential to our deference to the agency‘s exercise of its expertise is a reasoned explanation for its decision. Balagun, 361 N.J. Super. at 202-03. In short, “[t]he agency is ‘obliged . . . to tell us why‘” it reached its result. Id. at 203 (quoting In re Valley Hosp., 240 N.J. Super. 301, 306 (App. Div. 1990)). The Assistant Superintendent provided no basis for concluding that a confirmatory laboratory test in Blanchard‘s case would be unduly burdensome, or would undermine security or safety. Nor has the Assistant Superintendent provided any defense of the field test‘s reliability, or rationale for providing confirmatory tests of specimens, but not of suspected contraband.
D.
We recognize that “a court must weigh any expansion or refinement” of an inmate‘s procedural rights “against the safety of all the prisoners and of the
Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION