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Ion Swabs and Ion Scanners[1] are mainstream forensic science equipment used by law enforcement. You see them firsthand every day at airports when someone gets a random hand or luggage swab. Ion Scanners are cheap compared to other alternatives, can be handheld, and very little training is needed to use them. These are some of the reasons why government agencies are adopting this technology to assist criminal investigations. Ion Scanners are used to detect illegal substances, explosives, hazardous chemicals, and chemical weapons. The Ion Scanners in use now are highly sensitive and can detect trace amount of substances as low as .01 nanograms, an amount smaller than the finest grain of sugar and unnoticeable to the naked eye. However, the science may not be so reliable.

Commonly, the police use this technology to test an inanimate object like a doorknob. The belief is that if a doorknob tests positive for drugs then there must be drugs behind the door. However, this belief is farfetched when looking at the potential false positive rates and analyzing the risk of incidental or secondary transfers. Looking at an example situation points out the major issues with Ion Scanners and Ion-Mobility Spectrometry. Think of an apartment building that has a shared hallway and there are ten apartments connected to that hallway. While in this hallway a police officer takes an Ion Swab of Apartment 1’s door handle. The Ion Swab was then run through an Ion Scanner and there was a positive result for cocaine. After receiving this information, the police officer assumes that there is cocaine in Apartment 1. So, the police officer gets a search warrant for Apartment 1 and after ransacking the apartment found no drugs.

How can that be if the Ion Scanner detected cocaine on the door handle?

First, the Ion Scanners are very sensitive and detect trace amounts down to .01 nanograms, Second, the Scanners cannot determine when the cocaine traces were placed on the door handle or even how the cocaine got there. Anybody who used the hallway could have transferred the trace amounts of cocaine to the door handle. Not just the residents of the nine other apartments, but also any visitors that traveled down the shared hallway. Those people would need some trace of cocaine on their hands to transfer it to the door handle.

Consider the results of an experiment in the 1990s by members of the Addiction Research Center in Baltimore, Maryland.[2] The experiment tested a collection of single dollar bills from 14 different cities in the United States for trace amounts of cocaine. What the experiment found was that 79% of the dollar bills had trace amounts of cocaine on them, even though the likelihood those specific bills were involved in any sort of drug deal was very low. The experimenters concluded that the reason for the cocaine is due to cross-contamination from one contaminated bill to another or from contaminated money-counting machines. That same study concluded that once a dollar bill become contaminated it would likely remain contaminated.

Add the results of this experiment to our apartment example and our pool of potential cocaine contaminators increases. Instead of just cocaine users who used the hallway, anybody that handled cash and used the hallway could have contaminated the door handle with cocaine. All the Ion Swab and Ion Scanner really proved is a small amount of cocaine was present on the door handle; and anyone who uses cash could have transferred it there. A search warrant then becomes much harder to obtain and the likelihood of finding cocaine inside apartment one is quite low.

This is not the only problem that has occurred with Ion Swabs and Ion Scanners. The United States and Canada have both had problems with false positive results during prison visitations. In the 1990s, Ion Scanners were introduced in many prisons around the United States to reduce drugs being brought into the prison. However, lawsuits by both visitors and guards erupted since claiming that false positives have led to unjustifiable strip searches and the suspension of visitation privileges. The claim was the Ion Scanners were detecting components of illegal substances that were also found in legal products like medication, perfume, hand sanitizer, and even poppy seeds. The situation with false positives got to be so severe that in 2009 the Federal Bureau of Prisons discontinued the use of Ion Scanners until accuracy and reliability standards could be met.

What does this all mean and how does this information help me in a criminal case?

Unfortunately, Minnesota case law does not help to answer this question. The Minnesota Supreme Court and the Minnesota Court of Appeals have not decided any cases that relate to Ion Swabs and Ion Scanners use in criminal cases. There are district court decisions that state a search warrant is needed to obtain an Ion Swab. Based on the limited information Ion Scanners provide, the problems with secondhand contamination, and the risk of false positives there is a strong argument that the results of any Ion Scanner are very unreliable. Certainly, Ion Scanners have a role in the protection of airports and explosives. But more justification is needed to enter the privacy of someone’s home and infringe one’s Constitutional Rights. A showing of .01 nanograms of an illegal substance is not conclusive of anything, especially if the illegal substance is cocaine.

Benjamin W. Koll is an associate attorney at Ambrose Law Firm, PLLC in Minneapolis, Minnesota. Before joining the firm, he graduated from Mitchell Hamline School of Law and clerked for a Ramsey County District Court Judge. Minnesota Criminal Appeals Attorney; Minnesota Criminal Defense Lawyer; and Criminal Defense Attorney Woodbury MN.

[1] Ion Swabs and Ion Scanners are pieces of equipment used in Ion-Mobility Spectrometry. Ion-Mobility Spectrometry is the use of electric fields and ionization to determine if certain chemicals or substances are present. Specifically, a sample would be taken with an Ion Swab, a wand, or the machine itself. That sample then would travel through the scanner device and the device analyzes what substances are in the sample based upon the rate of speed the particles or ions move. Ion-Mobility Spectrometry is not new technology. It was developed originally in the 1950s and 1960s, but it wasn’t until the 1990s that this technology started to play a role in people’s everyday lives.

[2] Jonathan Oyler, William D. Darwin, and Edward J. Cone, Cocaine Contamination of United States Paper Currency, Journal of Analytical Technology Vol. 20 July/August 1996.

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