STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF DUPLIN 05 DOJ 1406

______________________________________________________________________________

JEFFREY MICHAEL QUINN, )

Petitioner, )

)

v. ) DECISION

)

NORTH CAROLINA CRIMINAL JUSTICE )

TRAINING STANDARDS COMMISSION, )

Respondent. )

______________________________________________________________________________

THIS MATTER came on for hearing before the undersigned Administrative Law Judge, Augustus B. Elkins II, on March 14, 2006, in Bolivia, North Carolina. This case was heard after Respondent requested, pursuant to N.C.G.S. § 150B-40(e), designation of an Administrative Law Judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes. This hearing was held jointly with 05 OSP 1012 involving a personnel action against the same Petitioner.

APPEARANCES

For Petitioner: J. Michael McGuiness, Attorney at Law

For Respondent: John J. Aldridge, III, Special Deputy Attorney General, for Respondent Criminal Justice Commission

(Joseph P. Dugdale, General Counsel, for Respondent Crime Control,

represented a separate client in this joint DOJ/OSP hearing)

ISSUE

Is the Petitioner’s certification from the Criminal Justice Commission subject to suspension based on the Petitioner’s positive urinalysis test result for amphetamines and methamphetamines?

This issue includes analyzing: (1) whether Jeffrey Michael Quinn knowingly and willfully ingested illegal drugs so as to constitute a basis for suspending Petitioner’s law enforcement certification; and, (2) whether there was properly admissible evidence of reasonable suspicion to administer a drug test to Petitioner.

EXHIBITS

For Petitioner: Exhibit one (1)

For Respondent: Exhibits one (1) through twenty (20);

Exhibits twenty-two (22) through thirty A and B (30A & 30B);

Exhibits thirty-one (31) through thirty-nine (39).

WITNESSES

Called by Petitioner:

1. Petitioner Jeffrey Michael Quinn

2. Gary Sholar

Called by Respondent:

1. DEA Special Agent Hal Jordan

2. Captain Ken Castelloe

3. Petitioner Jeffrey Michael Quinn

4. Thomas Junior Bell

5. Dr. Thomas Griggs, M.D.

6. SBI Special Agent Ann C. Hamlin

7. Richard Squires

FINDINGS OF FACT

Stipulated Facts (Joint Exhibit 1)

1. On February 25, 2005, the Petitioner deposited a urine sample with the North Carolina State Highway Patrol Medical Office in Raleigh, North Carolina as part of an employment drug screen with the North Carolina State Highway Patrol. This untampered sample was delivered to Laboratory Corporation of America in Research Triangle Park, North Carolina, for testing on February 26, 2005. The chain of custody for this urine sample was untainted and untampered.

2. Laboratory Corporation of America in Research Triangle Park, North Carolina, reported the Petitioner’s urine sample to be positive for the presence of amphetamines and methamphetamines on February 28, 2005. The Petitioner produced a positive result on a drug screen for amphetamines and methamphetamines administered in accordance with the procedures authorized and mandated by the United States Department of Health and Human Services for Federal Workplace Drug Testing Programs. This positive result for amphetamines and methamphetamines revealed a level of amphetamines and methamphetamines above the threshold established for a screen and confirmation test conducted in accordance with the standards established by the United States Department of Health and Human Services for Federal Workplace Drug Testing Programs.

3. The Petitioner’s drug test consisted of an initial screening test using an immunoassay method and a confirmatory test on the initial positive result using a gas chromatography/mass spectrometry (GC/MS).

4. The chain of custody on Petitioner’s urine sample has been maintained from collection to the present.

5. The drugs tested for included cannabis, cocaine, phencyclidine (PCP), opiates and amphetamines or their metabolites.

6. The test threshold values used were those established by the Department of Health and Human Services for Federal Workplace Drug Testing Programs.

7. The confirmation cutoff for amphetamines and methamphetamines is 500 ng/ml. The Petitioner’s urine sample tested positive for amphetamines at a level of 990 ng/mL and methamphetamines at a level of 2236 ng/mL.

8. Laboratory Corporations of America is a laboratory certified for Federal Workplace Drug Testing Programs. Dr. Thomas Griggs was under contract with the North Carolina State Highway Patrol to conduct medical review officer functions on urine samples reported as positive by Laboratory Corporation of America. Dr. Griggs determined the Petitioner’s positive drug screen was proper in form and testing procedures and was not related to a medically indicated cause.

BASED UPON careful consideration of the stipulations of fact, sworn testimony of the witnesses presented at the hearing, the documents and exhibits received and admitted into evidence, and the entire record in this proceeding, the Undersigned makes the following findings of fact. In making the findings of fact, the Undersigned has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including but not limited to the demeanor of the witness, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable, and whether the testimony is consistent with all other believable evidence in the case.

Adjudicated Findings of Fact

1. All parties are properly before the Undersigned, in that jurisdiction and venue are proper, that all parties received notice of hearing, and that the Petitioner received by certified mail the proposed suspension of justice officer’s certification letter mailed by Respondent Criminal Justice Commission on August 8, 2005.

2. Pursuant to 12 NCAC 9A .0204(b)(13), the Respondent Criminal Justice Commission may suspend, revoke, or deny the certification of a criminal justice officer when the Commission finds that the applicant for certification or the certified officer has produced a positive result on a drug screen reported to the Commission as specified in 12 NCAC 9C .0310, where the positive result cannot be explained to the Commission’s satisfaction.

3. The Petitioner was appointed as a patrolman with the North Carolina State Highway Patrol on October 27, 2000. Based on this appointment, the Petitioner received general certification as a law enforcement officer through the Respondent Criminal Justice Commission on February 7, 2001. (Respondent’s Exhibit 33, 34) The Petitioner was dismissed from the service of the North Carolina State Highway Patrol on April 6, 2005 and the agency indicated that it would not recommend employment elsewhere as a criminal justice officer. The Criminal Justice Standards Division staff received information subsequently that this dismissal was due to a positive urinalysis test. (Respondent’s exhibit 35, Tp. 272)

4. Pursuant to 12 NCAC 9C .0310(b), each agency, if it conducts an in-service drug screen for an officer, shall report in writing positive results to the Criminal Justice Standards Division unless the positive result has been explained to the satisfaction of the agency’s medical review officer who shall be a licensed physician, to the extent the drug screen conformed to the specifications of 12 NCAC 9B .0101(5)(a), (b), (c), (d), and (f).

5. By a memorandum dated July 28, 2005, Investigator Richard Squires from the Respondent Criminal Justice Commission requested from the Colonel of the North Carolina State Highway Patrol a certified copy of the Petitioner’s urinalysis results. (Respondent’s Exhibit 36, Tp. 273)

6. By memorandum dated July 13, 2005, Lieutenant C. E. Lockley forwarded to the Director of the Criminal Justice Standards Division a result of a drug screen on the urine of the Petitioner which showed a positive result for amphetamines and methamphetamines. This memorandum indicated that Petitioner declined to have a second test performed on a split sample. The memorandum also referenced that the Petitioner was given a reasonable suspicion drug screen. (Respondent’s Exhibit 37, 38, Tpp. 273-274)

7. As a result of this information, the Director of the Respondent Criminal Justice Commission forwarded a proposed suspension of law enforcement officer certification letter to the Petitioner on August 8, 2005. (Respondent’s Exhibit 39, Tpp. 274-275)

8. Harold Jordan is a Special Agent (SA) with the United States Drug Enforcement Administration (DEA). He has been so employed for approximately 15 years. He has been stationed in the Wilmington, N.C. office since 1997. He has previously had the occasion to use information from an informant named Thomas Junior Bell. Mr. Bell had previously provided credible information to the DEA, but his contract as an informant was terminated in July 2001, when it was discovered that he was again using methamphetamine. (T. p 46). Mr. Bell is currently confined by the Federal Bureau of Prisons at the Low Level Security Correctional Institution, in Butner, North Carolina. Each time that SA Jordan used Bell as an informant, Bell provided him with credible information.

9. On or about February 2003, Bell was suspected of operating a methamphetamine laboratory in Cumberland County, North Carolina. He was believed to be manufacturing methamphetamine and selling it to truck drivers in and around this area. (Tpp. 30-32)

10. Bell was taken into custody in February 2003 on State drug violation charges. After the arrest of Bell, North Carolina State Bureau of Investigation SA Mitch Diever and Sergeant Terry Ray of the Cumberland County Bureau of Narcotics, spoke with him. Information received from Bell included allegations that Bell had previously been to the Duplin County area of North Carolina and used methamphetamine with a North Carolina State Trooper in his patrol car. That information was placed in a report which was reviewed later by SA Jordan. Bell was eventually brought from State custody to Federal custody where SA Jordan charged him on federal charges of manufacturing methamphetamine and possession of a firearm. He pled guilty to conspiracy to distribute and manufacture methamphetamine and carrying a gun during a drug deal on March 15, 2004. As a part of Thomas Bell’s plea agreement, there was a cooperation agreement, which required complete cooperation with the government. The cooperation agreement allowed for an opportunity for Bell to cut his potential sentence. The sentence imposed on Thomas Bell was between eight and ten years. Mr. Bell was exposed to a much greater prison sentence than eight to ten years. (Tpp. 50-52) The State criminal charges were dropped. (Tpp. 32-34)

11. After Bell became SA Jordan’s defendant and under an agreement with the US Attorney’s office, SA Jordan interviewed Bell with regard to his allegations of using methamphetamine with a North Carolina State Trooper. Bell reaffirmed these allegations. As a result, SA Jordan contacted Captain Castelloe of the North Carolina State Highway Patrol. Captain Castelloe and SA Jordan met with Bell on or about May 2004.

12. Bell told Captain Castelloe and SA Jordan details of his trip to Duplin County in the winter of 2002 where he met a truck driver by the name of Dwain (the brother of the trooper) and Jerome Thigpen, another truck driver. Bell provided accurate physical descriptions of Petitioner’s brother, Dwain, and his friend, Jerome. (T p 36-40, 70-75) Bell said he, Dwain, Thigpen, and Dwain’s brother (the North Carolina State Highway Trooper) got into the patrolman’s assigned patrol car, which was parked next to the trooper’s house, and used methamphetamine. He told SA Jordan and Captain Castelloe that they used the trooper’s metal ticket book for a hard surface on which to use the methamphetamine. The methamphetamine was cut into individual lines which were in turn snorted by each of the four individuals. He stated that the trooper, to show his particular fondness for the drug, licked his fingers and slid them across the ticket book in order to get the last of the methamphetamine. Bell stated that the reason they were in his patrol car using methamphetamine is because the trooper’s wife would not have approved of this behavior in the home. (Tpp. 34-38)

13. During the course of the interview, Captain Castelloe showed Bell a metal ticket book, of the type normally used by a State Highway Patrolman. Bell thought that it was the actual, original book that he had used drugs off of with the trooper. (Tp. 37)

14. Following their interview, SA Jordan followed the directions given by Bell as to where the trooper lived and they had used methamphetamine. Following these directions led SA Jordan down Highway 258 South towards Jacksonville and then west on Highway 41 towards the Potter’s Hill loop road area of Duplin County. On this loop road, he observed a house that fit the description given by Bell. Next to this house, he observed a North Carolina State Highway Patrol car which was identified as the patrol car belonging to the Petitioner based on its unique identifying number. (Tpp. 38-42)

15. Captain Ken Castelloe is currently employed as the Unit Commander of the Inspections and Internal Affairs Unit within the N.C. State Highway Patrol. He confirmed in testimony that in approximately March of 2004, he received a telephone call from SA Jordan who told him a person identified as Thomas Junior Bell was involved in the use of methamphetamines and had implicated a state trooper in its use. Capt. Castelloe was able to determine that the unidentified trooper had to be assigned to the Duplin and Pender County area. Captain Castelloe therefore showed Thomas Junior Bell a series of photographs of state troopers from the various annuals from Duplin and Pender Counties. Bell identified a number of troopers that looked like the person that he had used methamphetamine with. Mr. Castelloe testified that Mr. Bell described the trooper in question “as being kinda of fat faced, short haired.” Mr. Castelloe then explained that “Michael Quinn...is not fat faced...” Mr. Bell could not positively identify the Petitioner at that time as the same trooper he had used methamphetamine with because, in the words of Bell, they all look alike in their hats and uniforms. (Tpp. 65-76)

16. At that point in time, no charges were brought against the Petitioner because Captain Castelloe wanted to give him benefit of the doubt. His inquiry into the allegations was left open in the event additional information was received implicating Petitioner. (Tpp. 76-77)

17. On or about February 20, 2005, internet postings on the website, , came to the attention of Captain Castelloe. These internet postings discussed North Carolina State Trooper, Michael Quinn, as buying and using methamphetamine on numerous occasions. Postings on this website were specific concerning the Petitioner and the particular drug he was alleged to have used, i.e. methamphetamine. The postings also stated that “Sheriff troopers” and “sheriffs” were using methamphetamine in Kenansville, North Carolina. (Respondent Exhibit 1) Captain Castelloe testified that information on the website posting could not be confirmed because the Patrol never could interview the author. (Tp. 91)

18. Based upon these internet postings, and in considering previous statements provided by Thomas Junior Bell, Captain Castelloe recommended to Colonel W. Fletcher Clay of the State Highway Patrol that the Petitioner submit to a drug urine test in order to confirm or deny the numerous allegations of methamphetamine use. Colonel Clay concurred with this recommendation on February 25, 2005. (Tpp. 79-80)

19. On February 25, 2005, the Petitioner did in fact submit to a reasonable suspicion drug test. This test was analyzed by LabCorp and the results were reported to Dr. Thomas Griggs, Medical Review Officer for the State Highway Patrol, on February 28, 2005. (Tpp. 79-80) The test revealed a positive result for amphetamines and methamphetamines. (Stipulation of Facts)

20. In furtherance of the internal affairs investigation of the Petitioner subsequent to his positive urinalysis test, the Petitioner provided a written statement, dated March 4, 2005. In this statement, Petitioner said that on Thursday, February 24, 2005, he met with his brother, Dwain, in Warsaw, North Carolina in the parking lot of the Wilco station. The Petitioner stated that he had just learned on March 3, 2005 that the bottle of water that he had gotten from his brother had drugs in it. He stated that is why he believed he tested positive for amphetamines and methamphetamines. He further stated that his brother Dwain had come to his house the previous night and told him about this drugged water. (Respondent’s Exhibit 7)

21. In an interview with Lieutenant Schmolke of the Internal Affairs Section of the North Carolina State Highway Patrol on March 4, 2005, Petitioner also told her that he had met his brother in Warsaw on February 24, 2005. The Petitioner, however, told Captain Castelloe, on the day of the urine test, that he had met his brother Dwain earlier in the week. Petitioner also told L. T. Schmolke he found out for the first time the previous night (March 3, 2005) that his brother Dwain was a methamphetamine user. The Petitioner, however, told Captain Castelloe on the day of the urine test, that his brother Dwain was a “meth head”. In his March 4, 2005 interview, the Petitioner for the first time, mentioned drinking from a tainted water bottle. (Respondent’s Exhibit 8, Tpp. 126-127)

22. During the interview with Lieutenant Schmolke, the Petitioner told her that he and his brother had sat in Petitioner’s patrol car when they met on February 24, 2005. Petitioner told Castelloe, however, they sat in his brother’s truck when they met. Petitioner told Lieutenant Schmolke he had spoken to his brother shortly after the February 25, 2005 drug test and told him that he had been drug tested. The Petitioner stated that his brother Dwain did not make any mention at that time of his methamphetamine use or the spiked water bottle. The Petitioner also told Lieutenant Schmolke that he remembered telling his brother about Thomas Junior Bell but he does not remember what his brother told him in response to this. (Respondent Exhibit 8)

23. The Petitioner told Lieutenant Schmolke on March 4, 2005 that the water bottle received from his brother, that he (Petitioner) drank from, had no unusual taste to it. The Petitioner denied feeling any adverse affects from drinking the water. (Respondent’s Exhibit 8, Tpp. 130-131)

24. Captain Castelloe met the Petitioner on February 25, 2005 at the Highway Patrol’s Medical Office to serve him with a memorandum requesting he submit to a drug test for methamphetamines. While still seated in the vehicle, Capt. Castelloe showed him a copy of the internet posting accusing him of using methamphetamine and also described, in detail, the allegations that were made against him by Bell. (T. pp 210-11) The Petitioner was emotional with tears in his eyes. At that time, the Petitioner told Captain Castelloe that his brother and his sister were “meth heads”. Petitioner also told Captain Castelloe that earlier in the week, he had met his brother at a convenience store in the Warsaw area and that he sat in his brother’s truck. Petitioner never told Captain Castelloe that he and his brother sat in the Petitioner’s patrol car. Petitioner also never told Captain Castelloe about sharing a bottle of water with his brother. Captain Castelloe questioned the Petitioner about any knowledge he had of Thomas Junior Bell. The Petitioner denied knowing Bell and denied ingesting methamphetamine in his patrol car. After he gave his urine sample, the Petitioner told Captain Castelloe that, with everything going on with his brother being hooked on methamphetamine that this action was going to “kill his mom and dad”. (Tpp. 116,208-214)

25. Thomas Junior Bell testified that he is currently an inmate at a Butner federal prison. He stated that on February 19, 2003 he was arrested for manufacturing methamphetamine and pled guilty to this offense. He received 120 months in prison as a result of this conviction. He first began using methamphetamine around 1994 or 1995 when he was 15 years of age. He stated that he had sold methamphetamine since he was 16 years of age. Mr. Bell is currently 26 years of age. (Tpp. 143-145)

26. Mr. Bell testified that he met Jerome Thigpen in the year 2000. He knew Thigpen as he had sold methamphetamine to him. He knows the Petitioner’s brother, Dwain Quinn, through Thigpen. He has been to Dwain Quinn’s home on a couple of occasions on Potters Loop Road in Duplin County. (Tpp. 145-147)

27. Mr. Bell stated that during the winter of 2002, he had just finished making a batch of methamphetamine and went to Dwain’s home in Duplin County. He went there with his wife and child. He stayed in Duplin County over night. He met Dwain’s brother, a State Highway Patrol Trooper the following day. He was introduced to this trooper by Dwain. He was nervous about meeting a state trooper given his dealing in drugs. (Tpp. 147-149)

28. Mr. Bell stated that he, Dwain, Thigpen, and the state trooper laid out several “lines” of methamphetamine on the trooper’s aluminum clipboard in the trooper’s patrol car. He stated that the trooper was in the driver’s seat, with his brother Dwain in the seat next to him. He stated that he and Thigpen were in the backseat with Bell seated behind the trooper. He stated that all four of the individuals inhaled the methamphetamine. The trooper was not in uniform at this time. (Tpp. 149-153)

29. Mr. Bell testified that he used methamphetamine on a daily basis prior to his most recent arrest and incarceration. He stated that the effects of methamphetamine make you feel like you can “do anything”. Mr. Bell testified that he is familiar with a method of using methamphetamine by mixing it in liquid and drinking it. He stated, it “gets you off better.” He stated that while he has ingested methamphetamine mixed in a liquid, it tastes “awful”. (Tpp. 174-181)

30. Mr. Bell was unable to identify the Petitioner from a photographic array of state troopers in uniform with their hats on. Mr. Bell testified, however that the photographs appeared to be the same “because I remember the one that I picked...” (Tp. 152) The Undersigned inquired about whether Mr. Bell said he picked somebody out of the group and Mr. Bell responded that yes, he did. The Undersigned observed that the record would reflect that Mr. Bell was pointing to the second to the bottom row, the fifth one. (Tp. 153) Mr. Bell identified the Petitioner in civilian cloths in open court as the individual with whom he had previously used methamphetamine in the patrol car. (Tpp. 153-154) At the conclusion of Petitioner Quinn’s testimony, Petitioner placed an objection on the record. The Undersigned takes official notice of the fact that Thomas Junior Bell was brought into the courtroom during Petitioner Quinn’s testimony approximately 15 or 20 minutes before the conclusion of his testimony whereby Mr. Bell had an opportunity to observe Mr. Quinn. (Tpp. 140-142)

31. Pursuant to an agreement with the U.S. Attorney, Bell is required to cooperate with the government. This includes an obligation to reveal any matters known to him involving other persons who may be engaged in criminal activity and testifying truthfully at trial. No promises or deals were made in exchange for his cooperation in this particular case. Furthermore, Bell has provided information to the D.E.A. since the time of his plea agreement which has proven to be credible. (T pp. 44-53, 61) There was no evidence which shows that Bell had or has provided false or fabricated information or testified falsely in any case. The testimony of Thomas Junior Bell is deemed to be credible insofar as his detailed description of using methamphetamines with the Petitioner is consistent with all other facts and circumstances of the case.

32. As a result of the internal affairs investigation, Captain Castelloe on March 18, 2005, recommended that the Petitioner be dismissed for misconduct, unlawful use of drugs, to Colonel Fletcher Clay. (Respondent’s Exhibit 10) By memorandum dated March 18, 2005, Colonel Clay concurred with Captain Castelloe’s recommendation and instructed Captain Castelloe to schedule and conduct a pre-dismissal conference with the Petitioner. By memorandum dated March 23, 2005, Captain Castelloe notified the Petitioner that the pre-dismissal conference would be conducted on Thursday, March 31, 2005 at 10:00 o’clock a.m. The Petitioner signed for this memorandum on March 30, 2005. (Respondent’s Exhibit 11 and 12) Petitioner Quinn explained the pre dismissal conference by recalling that he had less than 24 hours of notice and did not have time to prepare anything. Petitioner was instructed not to talk to anyone without the permission from internal affairs or the Colonel. (Tp. 134)

33. The Policies and Procedures Manual of the State Highway Patrol provides that a trooper be provided as much time as is practical under the circumstances to prepare for a pre-dismissal conference. Captain Castelloe stated that, in light of the straightforward facts and short investigation, 24 hours notice of the pre-dismissal conference was a reasonable period of time for the Petitioner. (Tpp. 215-238, 262-263)

34. On March 31, 2005, Captain Castelloe conducted a pre-dismissal conference with the Petitioner. The Petitioner showed up for the pre-dismissal conference wearing a T-shirt and slacks. When the Petitioner was given the opportunity to produce additional evidence, refute any evidence and provide information for the Colonel’s consideration, the Petitioner stated, “I have nothing to say.” (Respondent’s Exhibit 13) The Petitioner at no point in time requested a continuance of the pre-dismissal conference in order to further prepare his presentation. (Tp. 230) Captain Castelloe did not review Trooper Quinn’s performance and conduct evaluations and his 360s. To his knowledge, Colonel Clay did not review Trooper Quinn’s performance evaluations and 360s. (Tp. 82) Mr. Castelloe acknowledged that Trooper Quinn’s transcribed internal interview was not provided to the Colonel at the time of the decision to terminate. At the time the Colonel made his decision to impose the disciplinary action that he did, he had not had an opportunity to review the transcript of Trooper Quinn’s interview. (Tp. 252)

35. On April 5, 2005, the Petitioner was dismissed from the North Carolina State Highway Patrol for violation of State Highway Patrol Directive H.1, § XII (Use of Drugs). The Petitioner refused to be served with this personnel charge sheet on April 5, 2005. The Petitioner appealed the dismissal to the Secretary of Crime Control and Public Safety. On May 23, 2005, Secretary Bryan E. Beatty upheld the Petitioner’s dismissal. (Respondent’s Exhibits 15 and 16)

36. The Petitioner’s prior disciplinary history with the State Highway Patrol consists of a sustained allegation from August 30, 2004 that he had had an extramarital affair with a civilian while off duty. It was also sustained that the Petitioner was insubordinate in that he failed to obey the lawful orders of a superior officer to immediately cease all contact with the civilian with whom he was having the extramarital affair. For these actions, the Petitioner received a 5% demotion in pay. (Respondent’s Exhibit 17)

37. The Petitioner is 29 years of age and lives on Potter’s Hill Road in Duplin County, North Carolina. He has been married since 1998. The Petitioner denied ever using methamphetamine. (Tpp. 304-343)

38. Following high school, Petitioner Quinn pursued further education in the criminal justice field at James Sprunt Community College and he completed basic law enforcement training in 1996. Quinn has been continuously certified by the Commission. There has never been any adverse action against his certification. He has never had any record of criminal convictions other than minor speeding charges. (Tp. 306)

39. Petitioner Quinn previously served with the Wallace Police Department from 1997 until 2000. He did not have any significant disciplinary action taken against him there. There is no allegation against Petitioner Quinn of improper drug use while at the Wallace Police Department. Petitioner Quinn left employment with the Wallace Police Department because he accepted employment with the Highway Patrol. Petitioner Quinn had to take previous drug tests and there has never been a positive finding of illegal drugs previously. (Tp. 308-310) Petitioner testified that he did not know Mr. Bell and had never used drugs with him. Petitioner Quinn also explained how the ticket book that Captain Castelloe used as a demonstration is not issued by the Highway Patrol to the 103 Basic School.

40. The Petitioner testified that, prior to his drug test on February 25, 2005, he had met his brother at a Wilco station in Warsaw, North Carolina. His brother was a long haul truck driver. He stated that he initially sat in his brother’s truck and then they moved to his patrol car. The Petitioner stated that his brother brought a water bottle to his patrol car with him. (Tpp. 304-343)

41. Petitioner testified he talked to his brother about the drug test after he gave the sample and his brother never told him anything about the spiked water. Petitioner said he was only told this by his brother the day before he spoke to internal affairs. (Tpp. 312-313)

42. Dr. Thomas Griggs is a medical doctor employed by the University of North Carolina School of Medicine. He serves as the Medical Review Officer for the State Highway Patrol. Subsequent to the Petitioner’s positive urinalysis test, he had a conversation with the Petitioner on February 28, 2005. The Petitioner informed Dr. Griggs that he had used the substance Tavist-D and Sudafed for allergies. Dr. Griggs stated that neither Tavist-D nor Sudafed would produce a positive result on a drug screen for methamphetamines. Dr. Griggs also told the Petitioner of the split sample and of his rights to have his sample retested. Petitioner decided not to have his split sample retested. Petitioner’s explanation was that he didn’t have the money for the retest. He was then still employed by the State Highway Patrol as a trooper. (Tpp. 124,183-190)

43. Ann Hamlin is an Assistant Special Agent in Charge of the drug chemistry section of the North Carolina State Bureau of Investigation. She was tendered and accepted as an expert in the field of forensic drug chemistry as it relates to controlled substances. Based on her training and experience, given the chemicals and nature in which methamphetamine is manufactured and processed, she would expect that any methamphetamines mixed in a water bottle would have a very bitter taste to it. (Tpp. 191-200) She testified further that somebody that is ingesting methamphetamine for its effects is going to use a quantity that one would expect to have a bitter taste. (T. p 202) Special Agent Hamlin explained that while pseudoephedrine (Sudafed) and methamphetamine are close compounds, there are identifiable differences. Using a Gas Chromatography/Mass Spectrometry machine, Sudafed will not test positive for methamphetamine. (T. pp 200-01) Ms. Hamlin conceded that she did not have “any idea of the quantity” of the methamphetamine quantity that was ingested by Mr. Quinn. (Tp. 202-03)

44. David Sholar testified on behalf of the Petitioner. Mr. Sholar has lived in Duplin County for thirty years. Mr. Sholar and Petitioner Quinn were employed by the Wallace Police Department from 1996 until Mr. Sholar left in 1999. Mr. Sholar testified that other Patrol officers have spoken highly of Petitioner Quinn and that Mr. Sholar had never heard anything derogatory whatsoever about Petitioner Quinn. Mr. Sholar testified that he did not think that Mr. Quinn’s integrity was ever compromised. Mr. Sholar testified that Petitioner Quinn was consistently professional and respectful of his superiors. Mr. Sholar never observed anything about Petitioner Quinn that would have been consistent with any type of drug use. Mr. Sholar has never known Petitioner Quinn to be untruthful. He believes that a sworn officer’s use of unlawful controlled substance is inconsistent with holding that office. (Tpp. 96-103)

45. It is specifically found that the Petitioner’s testimony is not credible. The Petitioner assertion that he inadvertently consumed methamphetamines in a quantity sufficient to test positive on a urinalysis drug screen from a bottle of water without a bitter taste is not plausible. The consistent testimony is that the Petitioner would have tasted this drug in the water bottle and reason leads the Undersigned to find that Petitioner would have halted his drinking of the water or inquired of his brother what was in the water.

46. Further, the Petitioner provided inconsistent versions of how the methamphetamines came to be in his system. When initially discussing the urine test on February 25, 2005 with Captain Castelloe, the Petitioner never told Captain Castelloe about consuming water from a bottle provided to him by his brother. Petitioner first offered this explanation for his positive drug test when he was interviewed by Lieutenant Schmolke. The Petitioner told Captain Castelloe he met his brother the day before the urine test and they sat in his brother’s truck. However, he told Lieutenant Schmolke they sat in his patrol car. At trial, Petitioner said he sat in both vehicles. The Petitioner’s actions on February 25, 2005 in appearing nervous, crying, and disclosing that his brother and sister were methamphetamines users, as well as revealing that these actions were “going to kill” his parents, to Captain Castelloe lead the Undersigned to find that Petitioner knew or suspected that his urine was going to test positive for methamphetamines.

47. The Petitioner’s positive urinalysis test result for amphetamines and methamphetamines is not due to a medically indicated cause.

BASED UPON the foregoing findings of fact and upon the preponderance or greater weight of the evidence in the whole record, the Undersigned makes the following:

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has personal and subject matter jurisdiction over this contested case. The parties received proper notice of the hearing in the matter. To the extent that the findings of fact contain conclusions of law, or that the conclusions of law are findings of fact, they should be so considered without regard to the given labels.

2. "Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause." Alabama v. White, 496 U.S. 325 (1990); Garrison v Dept. of Justice, 72 F. 3d 1569 (Fed. Cir. 1995) (reasonable suspicion existed where petitioner’s mentally ill brother stated he had seen him smoke marijuana several times in last few years); Copeland v Philadelphia Police Department, 840 F.2d 1139 (3d Cir. 1988) (upholding drug-testing based on allegations of police officer's ex-girlfriend, made after a "heated altercation" with him, that he had used illegal drugs in her presence); Everett v. Napper, 833 F.2d 1507 (11th Cir. 1987) (upholding the finding of reasonable suspicion based on drug dealer's identification of plaintiff as one of his customers.

3. Based on the facts known by the Highway Patrol following the interview of Thomas Junior Bell in May, 2004, the Highway Patrol had sufficient reasonable suspicion to require Petitioner to submit to a drug screen for methamphetamine in May, 2002. Accordingly, Respondent had reasonable suspicion to require Petitioner submit to a drug screen in May 2004.

4. On or about February 25, 2005, Capt. Castelloe discovered that an unknown person published a report on an Internet website, , accusing (among others) Trooper Quinn, of Kenansville, of buying and using methamphetamine. The additional allegation published on the public internet web site corroborated and strengthened the reasonable suspicion that already existed based on the information provided by Bell. Accordingly, Respondent had reasonable suspicion to require Petitioner submit to a drug screen at the time the Patrol Commander directed him to do so on February 25, 2005.

5. In accordance with 12 NCAC 09A .0201, if an individual is reported to be or suspected of being in violation of any of the rules in the Chapter, the Commission may take action to correct the violation and to ensure that similar violations do not occur. Before taking action against an individual for a violation, the Standards Division shall investigate the alleged violation and present a report of its findings to the Probable Cause Committee of the Commission. The Probable Cause Committee shall convene prior to the next regular meeting of the Commission, shall consider the report of the Standards Division, and shall make a determination as to whether or not probable cause exists that the Commission's rules have been violated. There was no violation of the rules regarding a probable cause determination in this matter and Petitioner’s due process rights are and have been protected by the OAH hearing in this case.

6. Pursuant to 12 NCAC 9A .0204(b)(13), the Respondent Criminal Justice Commission may suspend the certification of a law enforcement officer when that officer has produced a positive result on a drug screen reported to the Commission as specified in 12 NCAC 9C .0310, and the positive result cannot be explained to the Commission’s satisfaction. The Petitioner’s positive urinalysis drug screen for amphetamines and methamphetamines from February 25, 2005 complies with the requirements set forth in 12 NCAC 9B .0101(5).

7. A preponderance of the evidence exists to conclude the Petitioner knowingly and actively ingested amphetamines and methamphetamines which resulted in a positive urinalysis drug test from the sample he rendered on February 25, 2005. The Respondent Criminal Justice Commission may properly suspend the Petitioner’s law enforcement officer’s certification pursuant to 12 NCAC 9A .0204(b)(13).

POST HEARING MATTERS

On June 8, 2006, the Respondent filed a Motion to Hold Record Open or in the alternative, moved the Undersigned to reopen the record to allow presentation of additional relevant, newly discovered evidence involving the credibility of Petitioner. Petitioner responded in opposition to the Motion, citing that the record was closed, that Respondent’s motion was not supported by any affidavit, and that evidence received after Respondent made its decision could not have been a cause or basis for its decision. After careful consideration of the applicable law, the Undersigned concludes that Respondent’s Motion is denied.

BASED UPON the foregoing Findings of Fact and Conclusions of Law the Undersigned makes the following:

DECISION

There is sufficient evidence in the record to properly and lawfully support the Conclusions of Law cited above. Based on the conclusions above, the Respondent’s proposed action of the suspension of law enforcement officer certification toward Petitioner is supported by a preponderance of the evidence and should proceed.

NOTICE

The agency making the final decision in this contested case is required to give each party an opportunity to file exceptions to this Proposal for Decision, to submit proposed findings of fact and to present oral and written arguments to the agency. N.C.G.S. § 150B-40(e).

The agency that will make the final decision in this contested case is North Carolina Criminal Justice Education and Training Standards Commission.

A copy of the final agency decision or order shall be served upon each party personally or by certified mail addressed to the party at the latest address given by the party to the agency and a copy shall be furnished to any attorney of record. N.C.G.S. § 150B-42(a).

IT IS SO ORDERED.

This the 3rd day of August, 2006.

_____________________________________

Augustus B. Elkins II

Administrative Law Judge

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