Cops make crack in California – Orange County, California’s reverse-sting operation – Cover Story
When Orange County went bankrupt, it made national news, but what you haven’t heard about may disturb you more. For nearly two years the Orange County sheriff’s department has been quietly manufacturing crack cocaine at the behest of the Santa Ana Police Department. The sheriff’s department hands the publicly produced rocks over to the police, who use them in undercover operations targeting certain neighborhoods. One heavily targeted area is the largely Hispanic neighborhood surrounding an intermediate school in Santa Ana.
To date this “reverse-sting” program has yielded more than 400 arrests for possession of crack cocaine. Most of the people arrested had no prior record for drug possession.
Orange County is not the first purveyor of government-issue crack. Police departments in Florida were busy making rocks, until the Florida Supreme Court outlawed the practice. The court found that law enforcement’s manufacture of crack cocaine for use in reverse sting operations “shocked the conscience,” and violated the due process clause of the state constitution. “It is incredible that law enforcement’s manufacture of an inherently dangerous controlled substance, like crack cocaine, can ever be for the public safety,” the court ruled, as it reversed hundreds of drug convictions. But the Florida ruling didn’t slow things down in Santa Ana.
Lieutenant Robert Helton says the department has carefully examined the liability issues, and deems its operation safe. One of the reasons the police decided to “rock up” cocaine themselves was “to make it as safe as they could,” Helton says. Never mind that crack is perhaps the most dangerous and addictive form of cocaine: the police are ensuring that impurities have been removed from their product before it hits the street. Helton also says that although the undercover cops are selling crack one block from the Willard Intermediate School, they conduct their sales mostly in the evening or when the kids are in classes.
The district attorney has established written guidelines for the police that include selling drugs for cash only and not exchanging the drugs for property that might be stolen. Other rules prohibit selling drugs to people in cars and chasing suspects in cars. Police are also discouraged from selling drugs to minors.
Back in October of 1994, an electronic bulletin board for members of the California Association of Criminalists was all abuzz with news of Santa Ana’s conversion program. Most forensic scientists on the Net were dramatically opposed to the process. “People were in an uproar,” says Roger Ely, who works in the Drug Enforcement Agency lab in San Francisco.
“It’s outrageous,” says Pete Barnett, a forensic scientist in Oakland, California. “The idea of law enforcement is to minimize the unsavory activity in neighborhoods, not to engender it.” Even if the police retrieve most of the crack, says Barnett, if any gets back into the community, that’s bad. He compares this program to firing a gun into a crowded room.
Although so-called reverse-sting operations have been popular for quite some time, the common police practice has been to snare leaders of major drug cartels by setting up elaborate schemes where large quantities of narcotics are flashed. In Orange County itself for the past ten years, the district attorney’s office had a policy of requiring a five-kilogram minimum for use in reverse-sting investigations.
What makes this operation particularly controversial, says Wayne Schmidt, director of the Chicago-based Americans for Effective Law Enforcement, is that law-enforcement officers are actually cooking up the drugs and selling small amounts to small-time users on the streets, not major drug dealers.
Here’s how Orange County’s crack operation works. The police obtain powder cocaine seized in other drug busts. Then they take it to the Orange County Sheriff’s crime lab, where chemists convert it from cocaine salt to cocaine base, or crack. Equipped with their newly minted crack, video cameras, and the usual arsenal of police weaponry, undercover officers posing as drug dealers stand on street corners and sell $10 and $20 rocks to unsuspecting buyers. Most buyers are immediately arrested.
According to Frank Fitzpatrick, the sheriff’s department’s director of forensic-science services, the manufacturing of crack is a fairly straightforward chemical process. The powder is heated to remove hydrochloride and other impurities. The resulting rocks are then coated with quinine, which rubs off on anyone handling the drug. When sprayed with lemon juice and illuminated under an ultraviolet light, any body part that touches the drug will glow. This coating makes it easy for police to identify suspects who attempt to dispose of the drug, for instance, by dropping or swallowing it.
The conversion process, minus the quinine, is “what they’re doing on the street,” says Paul Sedgwick, the department’s supervisor of the controlled-substance section. In the beginning there was some difficulty with the recipe, Sedgwick says: “We didn’t know how to do it, but then we got it down. The chemistry of it takes less than half an hour.” The first efforts produced a product that was “too good-looking, too pure,” says Fitzpatrick. The police changed the proportions, making the drug more like street stuff, so prospective buyers wouldn’t be suspicious.
Many law-enforcement officials outside Orange County take a dim view of the Santa Ana police department’s crack production. “Wow! I’d hate to be in the department that permits this to happen, and it turns out that somebody overdoses or has a heart attack after swallowing this stuff,” says Gerald Arenberg, executive director of the National Association of Police Chiefs. Arenberg thinks the Santa Ana police department is in “dreamland” as far as the liability issues go.
The police admit that it is not uncommon for someone to swallow drugs upon being threatened with arrest, and that it has happened in Santa Ana. But they maintain that crack cocaine is not water soluble and that the small amounts they are selling would pass through a person’s system, if swallowed, without doing harm. While crack cocaine is insoluble in water and will not break down in a person’s mouth, Jim Norris, San Francisco Police criminalist, points out that if the drug is actually swallowed, stomach acids will convert it back to cocaine salt. The type of damage it might do depends on the amount swallowed.
San Francisco has never considered manufacturing its own crack for undercover operations. “It doesn’t seem necessary for law-enforcement purposes,” says Norris. He suggests that all police need to make arrests is sell bunk and if they need to show drugs to a buyer, they can use confiscated drugs. Norris says he doesn’t understand why Santa Ana is manufacturing its own crack.
For the most part, members of the community that are affected by this reverse-sting operation do not share the outrage of the scientific community, or the concerns of most law-enforcement agencies. To the drug-weary residents of Santa Ana, the undercover operation offers a glimmer of hope that something will be done to rid their streets of crack. Robert Butchard, principal of Willard Intermediate School, supports the police efforts for the sake of his students’ safety. “I can think of no alternatives,” says Butchard. “It has made a difference in the community, like when they do a sweep, the area is cleaned up for a while.”
Others in the neighborhood believe the police should uphold a higher moral standard than the drug peddlers, however, and that the business community and residents of Santa Ana have been sold a bill of goods. Although the police may target an area for a while and make several hundred arrests, all it really accomplishes, at best, is to move the drug trade to a different location.
That may be enough for Carl Armbrust, Santa Ana deputy district attorney for narcotics enforcement. Armbrust is downright proud of the program. “It’s the most successful program ever,” he says, and quickly adds that there have been more than 400 arrests of which only four cases have gone to trial. The rest ended either in guilty pleas or referrals to drug counseling.
One case that went to trial did result in an acquittal. A videotape showed the defendant putting his hands up in the air and the undercover cop running after him trying to sell him crack. But overall, Armbrust says that there is no defense to these cases. People are caught through the magic of videotape making the buy and have marks on their body from the quinine-coated crack. In Armbrust’s opinion, “it means we’re cleaning up the neighborhood.”
Defense attorneys question whether the high number of arrests and the low number of trials mean the police are really “cleaning up the neighborhood,” or just padding their arrest statistics and creating the impression of doing more to fight crime. Robert Knox, a deputy public defender in Santa Ana, doesn’t think this is an effective way of reducing crime. “There is no diminution in drug sales in the area. It reinforces the idea that this is where you go to buy drugs.”
The police contend that the people who have been arrested under this program are mostly “white, Anglo-Saxon kids” from more affluent surrounding areas. That’s “a stretch,” says deputy public defender Anthony Mesa, who works in the arraignment court where defendants make their first appearance. “Ninety-nine percent are public-defender-appointed cases,” he says.
Kevin Phillips, a deputy public defender who drafted an unsuccessful legal challenge to the reverse-sting program, believes that the police are manufacturing their own crack to ensure easy felony convictions and perhaps receive more funding from the city council. The police and the district-attorney’s office don’t deny that they are using real crack to make felony convictions easier. “We are trying to send the strongest message possible,” says Lieutenant Helton.
Everyone agrees that drugs are a problem in the community, but the police focus on recreational drug users seems misguided. For most people who are caught, this is their first felony arrest. Most go through a drug-diversion program where criminal charges are suspended to let the offender participate in a drug-counseling program.
The fact that many are first-time buyers raises the question of whether the drugs would have been available if not for the police supply. And what about people who find abandoned drugs? Deputy district attorney Carl Armbrust readily admits that sometimes drugs get away into the community, but that doesn’t bother him. “Anyone finding an escaped rock needs to know how to smoke it,” he says. “And if they know how, they’d get it from somewhere else anyway.”
Before embarking on the manufacture of crack, Armbrust put together a legal packet for Superior Court Judge Michael Brenner explaining why the program was necessary. Though Armbrust believes that this program is legal, he initially felt that in order to put cocaine into the community he should get authorization from a higher authority. Judge Brenner signed numerous orders authorizing the release of specified quantities of cocaine to the sheriffs lab for conversion to crack. The program is now in jeopardy though, because the supply has run dry. All the authorized cocaine has been used up.
According to the district-attorney’s office, the newly assigned superior-court judge is not as keen on the idea of a government crack lab. So far, no new orders have been signed. Another serious obstacle for the police is the sheriff’s unwillingness to continue the experiment. “We are now out of the crack business,” says Frank Fitzpatrick of the sheriff’s department. The department has reconsidered its participation. “It’s a matter of not believing that you have to commit a crime to catch criminals,” says Fitzpatrick. “The sheriff chooses not to do reverse-stings.”
It will be a fitting irony if the police program ends due to the sheriff s refusal to manufacture crack for the force. The police have no means of manufacturing crack themselves because their crime lab was shut down a number of years ago due to financial constraints. So in the end, the goal of getting at least some crack off the streets will be accomplished because the undercover sellers will be out of business.
Bobbie Stein is a professor at the New College School of Law in San Francisco and is the director of the school’s in-house criminal defense clinic.
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