NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3834-17T4
KEVIN BLANCHARD,
Appellant, APPROVED FOR PUBLICATION
October 29, 2019 v. APPELLATE DIVISION NEW JERSEY DEPARTMENT OF CORRECTIONS,
Respondent. ____________________________
Submitted September 23, 2019 – Decided October 29, 2019
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 confirmatory laboratory test of a powder, seized from the inmate, which a field
test indicated contained cocaine. We reach this conclusion in light of the field
test's inherent limitations; the lack of other direct or circumstantial evidence
that the inmate possessed drugs; the department's regulation compelling
routine confirmatory tests of drug specimens; and the absence of any reasoned
explanation for the Department's refusal to subject the seized powder to a
confirmatory laboratory test.
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 evident ly 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
A-3834-17T4 2 drugs, intoxicants or related paraphernalia not prescribed for the inmate by the
medical or dental staff." See N.J.A.C. 10A:4-5.1(o)(1). Prison officials found
no other evidence of drug possession. A strip search of Blanchard conducted
immediately after officials seized the powder uncovered no contraband. Urine
specimens he produced the day before and shortly after the seizure also yielded
negative results. Officials found no contraband upon searching Blanchard's
cell.
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
1 The adjudication form that the hearing officer prepared noted that Blanchard did not request the production of any witnesses, and presented no documents. Blanchard's counsel substitute acknowledged that on the form. However, Blanchard's request for a confirmatory test was a request to create evidence that did not yet exist.
A-3834-17T4 3 The Assistant Superintendent affirmed the hearing officer's decision that
Blanchard violated *.203 and upheld the recommended sanction. Blanchard
lost 120 days of commutation time and thirty days of recreation privileges; and
received 120 days of administrative segregation. The Assistant Superintendent
cited only the field test for evidential support, and did not address the lack of
confirmatory laboratory test results. This appeal followed.
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-3834-17T4 4 II.
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 N.J.A.C. 10A:4-9.15(a) (stating that "[a] finding of guilt at a
A-3834-17T4 5 disciplinary hearing shall be based upon substantial evidence that the inmate
has committed a prohibited act"). 2
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.
2 To satisfy minimum federal due process requirements, a reviewing court need only determine that there was "some evidence" supporting a disciplinary decision to revoke good time credits. Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985). That is less demanding than the "substantial evidence" standard of review. Henderson v. Carlson, 812 F.2d 874, 879 (3d Cir. 1987).
A-3834-17T4 6 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
A-3834-17T4 7 be unduly hazardous to institutional safety or correctional goals." See Avant,
67 N.J. at 529; see also McDonald v. Pinchak, 139 N.J. 188, 196 (1995). 3
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
3 Consistent with these principles, agency regulations recognize a prisoner's right to call "fact witness(es) . . . and present documentary evidence" subject to enumerated exceptions. N.J.A.C. 10A:4-9.13(a). A "fact witness" is someone with personal knowledge of "the incident or aspects thereof" including an officer "who administers a test for prohibited substances" if a dispute arises about the test. N.J.A.C. 10A:4-1.3. Rather than present a document or call a witness, Blanchard asked the agency to create a document – a confirmatory laboratory report – and a fact witness – the lab technician. 4 In view of that dual source, New Jersey procedural standards may be more expansive than those the United States Supreme Court grounded solely in the constitutional Due Process Clause of the Fourteenth Amendment in Wolff v. McDonnell, 418 U.S. 539 (1974).
A-3834-17T4 8 polygraph test where informant against him was given one with a positive
result). Rather, we apply our authority to correct arbitrary action and "to
insure procedural fairness in the administrative process." Avant, 67 N.J. at
520.
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. N.J.A.C. 10A:3-5.10. "If
the initial test result is positive, the specimen shall be subject to a confirmation
test of equal or greater sensitivity than the initial test." N.J.A.C. 10A:3-
5.11(d). The Department therefore lacks textual support for its argument that
this provision applies only to urine testing. Yet, we presume the regulation is
nonetheless limited to "specimens" drawn from an inmate's body, such as
urine, blood, or saliva, and not substances the inmate actually or constructively
possesses.5
5 The regulation previously referred solely to the "[c]ollection, storage and analysis of urine samples." See 29 N.J.R. 362 (Jan. 21, 1997). The Department broadened testing to cover "specimens," explaining that "[t]he deletion of certain references to 'urine' represents the intent of the Department to conduct testing on other types of specimens as new technologies make advanced testing available." See 31 N.J.R. 3577(a) (Nov. 15, 1999); see also 32 N.J.R. 303 (Jan. 18, 2000) (adoption of regulation). However, as we discuss below, the presence of a confirmatory testing regime supports our conclusion that it was arbitrary, capricious or unreasonable to deny such testing under the circumstances.
A-3834-17T4 9 We also do not decide in this case whether a field test alone would
constitute substantial evidence of a violation. A fair proceeding is a
prerequisite to determining whether substantial evidence supports the agency's
decision. As we held in Jones v. Department of Corrections, 359 N.J. Super.
70, 75 (App. Div. 2003), "Application of the substantial evidence rule
presupposes an adequate opportunity by the party against whom a decision has
been rendered to have marshalled and offered evidence." The sole issue is
whether, in a case with a single positive field test of unproved reliability, and
no other corroborating evidence, procedural fairness compels a second,
confirmatory test, to assure that the field test did not produce a false positive.
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 N.J.A.C. 10A:3-7.1, the decision to order a polygraph is
A-3834-17T4 10 within an administrator's discretion. Id. at 24. Nonetheless, that "discretion
must be guided by whether the request for a polygraph if denied will impair
the fundamental fairness of the disciplinary proceeding." Ibid.
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.
A-3834-17T4 11 1.
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. N.J.R.E. 101(a)(3). But, the test's reliability is pertinent
to whether the agency has provided a fundamentally fair hearing, and met its
burden of proof. See Avant, 67 N.J. at 540 (recognizing that the agency bears
the burden of proof).
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 sati sfy
the applicable standard for scientific reliability. See Commonwealth v.
Fernandez, 934 N.E.2d 810, 820-21 (Mass. 2010) (affirming decision to admit
6 We address the reliability of the specific test used here. Presumably, no t all field tests are created equal. Some may be more accurate and reliable than others.
A-3834-17T4 12 results of field test for cocaine where State presented evidence of scientific
reliability, albeit "weak," particularly where trial judge instructed jury about
risk of false positives) 7; Commonwealth v. Rodriguez, 94 N.E.3d 861 (Mass.
App. Ct. 2018) (holding it was error to admit results of field test for heroin
absent proponent establishing scientific reliability); In re Angel A., 704 N.E.2d
554, 556-57 (N.Y. 1998) (holding, in juvenile delinquency case, the presenting
agency could rely on a reagent test for heroin in a preliminary proceeding, but
general acceptance within the scientific community would have to be shown at
trial); State v. Tate, 265 S.E.2d 223, 226 (N.C. 1980) (affirming exclusion of
results of Duequenois-Levine color test for marijuana where trial judge found
it was not "scientifically accepted, reliable or accurate" because it also
produced positive reactions to coffee and aspirin).
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-
7 For the reliability standard, the court referred to Commonwealth v. Lanigan, 641 N.E.2d 1342, 1349 (Mass. 1994), which accepted the standard in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). 8 In another context, we have distinguished between a scientific test that may be admissible to establish probable cause, but, absent satisfaction of the Frye standard, is inadmissible as substantive proof. See State v. Doriguzzi, 334 N.J. Super. 530, 546 (App. Div. 2000) (reversing DWI conviction because (continued)
A-3834-17T4 13 probation case, Connecticut's appellate court held "there were facts to support
probable cause," but the court rejected the State's position that "the officer's
field test . . . was sufficient proof by a preponderance of the evidence that the
substance contained illegal narcotics." State v. Singleton, 840 A.2d 36, 40
(Conn. App. Ct. 2004), vacated on other grounds, 876 A.2d 1 (2005). The
appellate court noted there was no evidence presented as to reliability of the
test, or the training of the officer who administered the field test. Id. at 39-40.
The Connecticut Supreme Court held that the field test, plus other
circumstantial evidence – the defendant possessed multiple cell phones and
secreted the substance in his buttocks – was sufficient to support finding the
substance was cocaine. Singleton, 876 A.2d at 9. The court declined to decide
"[w]hether a field test alone would be sufficient to establish, beyond a
reasonable doubt, that the substance tested was crack cocaine." 9 Id. at 10.
(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). 9 We are unpersuaded by the Connecticut Supreme Court's reasoning that the other evidence was also sufficient to establish the field test was reliable. Singleton, 876 A.2d at 10. The corroborating evidence may demonstrate that (continued)
A-3834-17T4 14 Other courts have recognized limitations in the reagent test for cocaine
and other field tests. See e.g., L.R. v. State, 557 So.2d 121 (Fla. Dist. Ct. App.
1990) (holding that positive field test and officer's testimony based on his
experience that the substance was cocaine was insufficient to support
adjudication of delinquency where the state presented no laboratory report or
chemist's testimony). New York's highest court determined that a reagent test
for heroin provided a sufficient evidentiary basis for a grand jury to return an
indictment, but stated, "we do not hold that a defendant may be proven guilty
beyond a reasonable doubt based solely on the results of a NIK field test."
People v. Swamp, 646 N.E.2d 774, 778 (N.Y. 1995).
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.
A-3834-17T4 15 the time of trial." Id. at 949. The drug activity was corroborated by evidence
of controlled buys by a police informant. Ibid.; see also People v. Gaston, 334
N.E.2d 823, 825 (Ill. App. Ct. 1975) (holding that unidentified cocaine field
test along with observation of drug transactions proved by a preponderance of
evidence that substance was a narcotic in violation of probation proceeding).
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.
A-3834-17T4 16 In sum, the unproven reliability of the reagent test used here, plus the
absence of evidence of the training or experience of the officer who performed
it, support our conclusion that a confirmatory test was required to assure a
fundamentally fair hearing.
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.
A-3834-17T4 17 As noted above, urine specimens that Blanchard gave before and after
officials seized the powder from his property produced negative results for
narcotics use. Although Blanchard was not charged with use, his non-use is
circumstantial evidence he did not possess narcotics.
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
A-3834-17T4 18 confirmed. However, the record does not indicate that the testing occurred,
and its result.
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
A-3834-17T4 19 corrections staff." McDonald, 139 N.J. at 194. However, we discern no
degradation of safety by requiring, under the circumstances presented here, a
confirmatory test that is routinely ordered in similar cases involving
specimens. In sum, we conclude that denying Blanchard a confirmatory test
was arbitrary, capricious or unreasonable, and deprived him of a
fundamentally fair proceeding under the circumstances. We reverse the
disciplinary finding and sanction, and we remand for a new hearing only if the
agency preserved the powder and submits it for a confirmatory laboratory test.
Reversed and remanded. We do not retain jurisdiction.
A-3834-17T4 20