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, www.ripoffreport.com, 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)