Deputy thought herb was marijuana; State Attorney's Office ordered arrest without lab test
She prayed for peace that day.
But the sage that Robin Brown carried on a bird-watching outing in Weston landed her in jail on felony charges of marijuana possession.
Now she is suing over the wrongful arrest.
"I'm not out for revenge," said Brown, 49, a soft-spoken woman from Montana who moved to Hollywood in 2007. "I'm trying to bring information to light so that it doesn't happen to anyone else."
Sheriff's Deputy Dominic Raimondi, 51, mistook Brown's sage for marijuana, then searched her car and found more. His field kit said the sage — purchased at an airport gift shop in Albuquerque, N.M. — tested positive for marijuana.
He did not arrest her that day in March 2009, but sent the 50 grams of "contraband" to the crime lab for a more definitive test.
Assistant State Attorney Mark Horn ordered Brown's arrest without having the sage tested, court records show.
Three months later, Raimondi showed up at the Massage Envy in Weston where Brown works and took her away in handcuffs.
"They arrested me in front of my customers, my boss, my co-workers," Brown said. She later was subjected to a body cavity search, a strip search and an overnight stay in jail.
A month later, Brown's attorney discovered that the sage had never been tested at the Broward Sheriff's Office crime lab.
"When I found out they didn't do a lab test, I was outraged," said her Miami attorney, Bill Ullman. "I raised hell about that."
On July 23, 2009, Ullman demanded that the sage be tested.
The lab test concluded that the dried sage was not marijuana at all.
The criminal charges were dropped.
Ullman said one apologetic prosecutor called him to say it was "scary" someone could be arrested under such circumstances.
"Our policy is to make sure the evidence is tested at the very least before trial," said Ron Ishoy, spokesman for the Broward State Attorney's Office. "Looking back now at this specific police report, it would have been the better practice to test the evidence before filing a formal charge."
Field tests are unreliable and can give a false positive, said John Kelly, a forensic drug test expert based in Washington, D.C.
Brown filed a civil lawsuit claiming public humiliation, mental pain and suffering. The suit accuses the Broward State Attorney's Office of negligence and malicious prosecution.
Circuit Judge John Bowman dismissed the case in January, saying prosecutors are given immunity from lawsuits in the course of doing their jobs.
Brown is appealing to the 4th District Court of Appeal in hopes she will be granted the right to a jury trial.
"We just want a chance to go to trial and let a jury decide if the prosecution should have immunity," she said. "We are appealing to a higher court so my case can be heard."
Ullman argues that, in this case, the prosecutor should not have immunity.
"They said if we allow people to sue prosecutors for mistakes they would be afraid to do their jobs," Ullman said. "In this case, the prosecutor should be sued because he filed a false statement swearing she had marijuana. And she didn't."
Brown was birdwatching that day in the woods off U.S. Highway 27.
An avid bird-watcher, Brown brought her sage along for smudging, a purification ritual popular among Native American tribes and spiritual groups. Brown believes the smoke from the sage helps clear negative energy and also helps take your prayers to heaven.
Before heading back to her car, Brown burned the sage in a clay pot to give thanks for the wildlife she had seen that day.
"Smudging is a way for me to give thanks and express my gratitude," she said. "That day, I was using it to carry my prayers to heaven."
When Brown returned to her car, a deputy and officer with the Florida Fish and Wildlife Conservation Commission were waiting. They asked what she was doing there.
Bird-watching, she told them. When they continued to question her, she opened her backpack to show them her binoculars and bird book.
That's when the deputy spotted her sage and the smudging bowl with burned ashes.
Three months later, she found herself in jail.
"I tried to look tough, but inside I was quaking," she said. "I didn't know how long I would be there. All I knew was that something had gone terribly wrong. A few months had gone by. I thought I was in the clear."
After her fiance posted $1,000 bail, she was released at 4 a.m. in Pompano Beach.
Brown says she has learned her lesson. She leaves the sage at home these days.
May 30, 2011
Dear Drugs-Forum readers: We are a small non-profit that runs one of the most read drug information & addiction help websites in the world. We serve over 4 million readers per month, and have costs like all popular websites: servers, hosting, licenses and software. To protect our independence we do not run ads. We take no government funds. We run on donations which average $25. If everyone reading this would donate $5 then this fund raiser would be done in an hour. If Drugs-Forum is useful to you, take one minute to keep it online another year by donating whatever you can today. Donations are currently not sufficient to pay our bills and keep the site up. Your help is most welcome. Thank you.