Government's Memorandum Regarding Sweat Patches -- United States v. Aticha Jittaphol, a/k/a "Lily"

Summary

The Government's Memorandum Regarding Sweat Patches in United States v. Aticha Jittaphol, No. 1:21-cr-10270-MLW, in the U.S. District Court for the District of Massachusetts, filed April 4, 2022 as Document 65. The government submits it in response to the Court's request, made at the defendant's April 1, 2022 revocation hearing, for legal authorities on the reliability and acceptance of sweat patch results. It cites United States v. Meyer, 483 F.3d 865 (8th Cir. 2007), and United States v. Jones (7th Cir. 2017), and notes that courts evaluate such results case by case. It also discusses United States v. Alfonso, 284 F. Supp. 2d 193 (D. Mass. 2003), and United States v. Foley, 2008 WL 4787546, where courts found sweat patch results reliable enough to weigh in revocation. The three-page filing is signed by an Assistant United States Attorney.

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          Case 1:21-cr-10270-MLW         Document 65        Filed 04/04/22      Page 1 of 3




                            UNITED STATES DISTRICT COURT
                             DISTRICT OF MASSACHUSETTS


 UNITED STATES OF AMERICA

                                                    CRIMINAL No. 21-cr-10270-MLW
          v.

 ATICHA JITTAPHOL,

           Defendant


          GOVERNMENT'S MEMORANDUM REGARDING SWEAT PATCHES

          The government submits this memorandum in response to the Court’s request to

provide citation to legal authorities discussing the reliability and acceptance of sweat patch

results in court proceedings. As the Court stated at the defendant’s April 1, 2022 revocation

hearing, federal courts generally find sweat patch testing to be a reliable indicator of drug use,

citing United States v. Meyer, 483 F.3d 865 (8th Cir. 2007) (collecting cases). See also, e.g., United

States v. Jones, 861 F.3d 687-691 (7th Cir. 2017) (stating that courts “generally consider sweat

patch results to be a reliable method of detecting the presence of drugs”) (citing Meyer, 483

F.3d at 869). However, because “there may well be certain instances where offenders offer

compelling reasons to believe that positive test results from sweat patches are erroneous,”

courts should evaluate the reliability of such results on a case-by-case basis. Meyer, 483 F.3d

at 869.

          While the First Circuit does not appear to have rendered an opinion on the reliability

of sweat patch results, other courts in this District have had occasion to address the issue. In

United States v. Alfonso, 284 F. Supp. 2d 193 (D. Mass. 2003), and United States v. Foley, No.

07-cr-10390-RGS, 2008 WL 4787546 (D. Mass. 2008), the courts acknowledged the use and
       Case 1:21-cr-10270-MLW         Document 65       Filed 04/04/22       Page 2 of 3




acceptance of sweat patch testing by numerous courts and discussed possible external factors

that might undermine the reliability of the results. In both cases, the courts ultimately found

the sweat patch results sufficiently reliable—and evidence of external contamination or

manipulation unfounded or incredible—to serve as a factor in deciding whether to revoke the

defendant’s supervised release. Notably, in Foley, the defendant, like here, presented with a

combination of negative urine tests and positive sweat patch results. After an evidentiary

hearing, the court found, among other things, that the defendant had “become aware of just

how much cocaine he can take and not excrete a urine that will test positive for cocaine,”

something he could not do when the sweat patch test was used. Foley, 2008 WL 4787546, at

*3. The court also rejected the notion of residual environmental contamination and noted that

the defendant’s admitted prior regular use of cocaine, combined with the multiple positive

sweat patch results, suggested that he had knowingly used cocaine while on supervised

release. Id. The Alfonso court reached similar conclusions, rejecting the defendant’s claim of

environmental contamination and improper application of all but one of the patches and

finding that the aggregate of positive results provided probable cause to believe the defendant

used cocaine while on supervised release. Alfonso, 284 F. Supp. 2d at 204.

       In sum, courts have consistently found sweat patch results sufficiently reliable

indicators of drug use. To the extent there are claims of environmental contamination or

improper application, courts evaluate such evidence on a case-by-case basis.


                                           Respectfully submitted,

                                           RACHAEL S. ROLLINS
                                           United States Attorney

                                    By:    /s/ Kelly Begg Lawrence
                                           KELLY BEGG LAWRENCE
                                           Assistant United States Attorney
                                              2
       Case 1:21-cr-10270-MLW         Document 65       Filed 04/04/22     Page 3 of 3




                               CERTIFICATE OF SERVICE


I hereby certify that this document filed through the ECF system will be sent electronically to
the registered participants as identified on the Notice of Electronic Filing (NEF).

                                            /s/ Kelly Begg Lawrence
                                           Kelly Begg Lawrence
                                           Assistant United States Attorney


Date: April 4, 2022




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