Colorado Court of Appeals Reverses Drug Conviction Based on Insufficient Chain of Custody

Similar to its federal counterpart, Colorado Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Typically, with drug evidence, the State satisfies the authentication requirement through chain of custody logs, i.e., documentation detailing every State agent who handled drugs taken from the defendant. Small problems with the chain of custody will usually not prevent the admission of drug evidence, but bigger problems create a barrier to admissibility. The recent opinion of the Colorado Court of Appeals, Division V in People v. Rodriguez, 2022 WL 120784 (Colo.App. 2022), falls into that latter category.

In Rodriguez, Pedro Rodriguez was convicted of possession with intent to distribute a controlled substance and obstruction of a peace officer. According to the State,

At some point during [a traffic] stop [by officer Chase Gardner], Rodriguez jumped out of the car and ran along the side of the highway. By then, two other officers had arrived to assist with the stop. Officer Gardner and another officer gave chase, and, during the pursuit, Rodriguez threw down a small plastic bag containing a white powdery substance. The officers quickly caught up to Rodriguez and, after they arrested him, Officer Gardner recovered the bag Rodriguez had discarded.

After Rodriguez was convicted, he appealed, claiming that the State failed to properly authenticate Exhibit 1 -- the bag of drugs. The court turned aside the State's first argument as follows:

The People say that Officer Gardner properly authenticated Exhibit 1 by identifying it as the substance that was in the plastic bag that Rodriguez threw on the ground. True, some evidence may be authenticated by testimony that the object is what its proponent claims. When the proffered evidence is “unique, readily identifiable and relatively resistant to change,” a witness can authenticate it by identifying the evidence as the item in question. Cardenas, 864 F.2d at 1531; see also Edward J. Imwinkelried, Evidentiary Foundations § 4.08 (11th ed. 2020) (“If the [evidence] has a unique, one-of-a-kind characteristic or combination of characteristics,” the witness can authenticate the evidence by testifying that he “previously observed the characteristic and presently recalls the characteristic.”)....

White powder is not unique, readily identifiable, or resistant to change. Thus, even acknowledging Rule 901’s “flexible standard,” Gonzales, ¶ 44, Officer Gardner's testimony was not sufficient to support a finding that Exhibit 1 was what the prosecution claimed - the bag of white powder recovered during the traffic stop.

The court then noted that drug evidence is typically authenticated through chain of custody. But the court the found that

The only evidence concerning chain of custody was the following:

 

• On September 5, 2017, Officer Gardner picked up a bag of white powder from the side of the highway. He handed it to Sergeant Manzanilla and, according to his testimony, he “never saw it from there.”

 

• Sometime later, in response to a request for analysis from the district attorney's office, the police chemist picked up a CSPD evidence bag marked Exhibit 1 from the evidence room, tested the substance contained inside it, and determined that the substance was cocaine. Exhibit 1 was sealed when the chemist received it, but he had no knowledge of the circumstances under which Exhibit 1 was created, including who had previously handled the substance in Exhibit 1 or who had prepared and sealed the exhibit bag.

Finding this to be insufficient evidence of authentication, the court reversed Rodriguez's drug conviction.

-CM