Amy B. McGrath

5. The Respondent, Police Officer Amy B. McGrath, Star No. 14907, charged herein, is guilty of violating Rule 1, Rule 2, and Rule 6 in that the Superintendent proved by a preponderance of the evidence the following charges:
On or about March 9, 2015, Officer Amy B. McGrath reported to the Chicago Police Department’s Random Drug Testing Unit at or about 3510 South Michigan Avenue, Chicago, and submitted a urine specimen under Control Number DA157091A, which subsequently tested positive for 6-Acetylmorphine, a heroin metabolite. Officer McGrath thereby violated:

a. Rule 1, which prohibits violation of any law or ordinance, by violating section 402 of the Illinois Controlled Substances Act (720 ILCS 570/402) when she knowingly possessed heroin, a controlled substance, on and/or prior to March 9, 2015;

b. Rule 2, which prohibits any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department; and

c. Rule 6, which prohibits disobedience of an order or directive, whether written or oral, when she disobeyed Chicago Police Department Employee Resource E01-09, Section II-B, which prohibits the use of illegal drugs, cannabis, or non-prescribed controlled substances or the abuse of legally prescribed drugs or controlled substances by a Department member.

See the findings set forth in paragraph no. 4 above, which are incorporated here by reference.

Respondent does not dispute the accuracy of Quest’s urinalysis testing of her March 9, 2015, urine sample, which shows that she tested positive for 6-Acetylmorphine. Nonetheless, Respondent asserts that she is not guilty of these charges for four reasons.

First, Respondent argues that all charges against her should be dismissed because the Department lacked just cause to subject her to the February 26 and March 9, 2015 drug tests. The Board rejects this argument. Even presuming that the anonymous calls received by the Bureau of Internal Affairs did not provide “just cause” to subject Respondent to the drug tests, the exclusionary rule that bars the use of evidence obtained in violation of a defendant’s Fourth Amendment rights in criminal proceedings does not apply in disciplinary proceedings before the Police Board. See In re: Klincevic, 13 PB 2846, at 1-2 (May 19, 2016), aff’d, Klincevic v. McCarthy, No. 16 CH 8322, Memorandum Opinion and Order (Ill.Cir.Ct. Aug. 28, 2017), aff’d, 2018 IL App (1st) 172298-U (2018).5 Consequently, Respondent (who did not file a formal motion to dismiss) has failed to carry her burden of establishing that the charges against her should be dismissed for this reason.

Second, Respondent denies that she has ever used or ingested heroin. However, the Board finds that Respondent’s denial of heroin use is not credible. For the reasons discussed in detail above in paragraph no. 4, Dr. Conibear concluded to a reasonable degree of medical certainty that Respondent used heroin prior to her March 9, 2015, urine sample based on the presence on 6-Acetylmorphine in the sample. Since 6 Acetylmorphine (the first metabolite of heroin metabolite) is produced only by heroin, the only possible way that Respondent could have 6-Acetylmorphine in her urine is if she had recently ingested heroin.

Third, Respondent hypothesizes that her positive test for 6-Acetylmorphine could be explained by the possibility that one or more of the prescription opioid medications that she was taking incorporated a heroin metabolite as “filler” and she faults the Superintendent for failing to test her opioid medications to ensure that they were pure and free from heroin. Respondent’s hypothesis is refuted by Dr. Conibear’s testimony. Dr. Conibear testified to a reasonable degree of medical certainty that the opioids (namely, hydrocodone, oxycodone, norco, and tramadol) and the other pain-relief medications that Respondent was taking were as pure as the USP (United States Pharmacopeia) requires them to be.6 In light of Dr. Conibear’s testimony, the Board rejects the assertion that Superintendent needed to test Respondent’s medication to prove their purity, and the Board gives no weight to Respondent’s speculative hypothesis that the prescription opioid medications that she was taking were adulterated with heroin.

Finally, Respondent asserts that the Illinois Controlled Substances Act, 720 ILCS 570/402, requires proof that she knowingly possessed heroin and that the Superintendent has failed to meet its burden of proof because there is no evidence that anyone observed her consume heroin and no heroin was found in her possession. Regardless of whether such proof may be required to obtain a guilty verdict in a criminal prosecution, the Appellate Court has repeatedly held that a positive finding for a prohibited substance after a urinalysis test is sufficient to prove knowing possession of the prohibited substance under the preponderance-of-the-evidence burden of proof applicable in Police Board disciplinary proceedings. See, e.g., Schlobohm v. Rice, 157 Ill.App.3d 90, 96-97 (1st Dist. 1987); Brock v. Police Board of City of Chicago, 205 Ill.App.3d 1034, 1042 (1st Dist. 1990); Washington v. Police Board of City of Chicago, 257 Ill.App.3d 936, 941 (1st Dist. 1994).

In Schlobohm, the Appellate Court addressed this issue as follows:
All the charged violations rely entirely upon the results of plaintiff’s urinalysis to prove his knowing possession of cocaine. Plaintiff asserts that the test results alone were incapable supporting a finding that he knowingly possessed cocaine. He urges that the results of a drug screening test, standing alone, are never sufficient support for finding knowing possession of a controlled substance, even when, as in the case sub judice, the requisite burden of proof is merely that of a preponderance of the evidence.

The criminal offense of possession of a controlled substance incorporates not only actual or constructive physical possession of the substance by the accused, but also includes an element of knowing possession. . . . Frequently, the element of knowledge is not susceptible of direct proof and may be proved by circumstantial evidence from which an inference of knowing possession may be reasonably and fairly drawn. . . . Here, plaintiff contends, no proof of such knowledge was offered and therefore no inference thereof may be drawn without at least some circumstantial underpinning. Accordingly, he argues, the element was unproved and the Board’s finding was against the manifest weight of the evidence.

The Board could have considered that the presence of a controlled substance in an individual’s body, while not direct evidence of knowing possession, circumstantially gave rise to an implication of prior possession which later resulted in ingestion or injection. . . . [T]he presence of the substance within plaintiff’s body could have been deemed to have carried with it the clear and logical implication of prior knowledgeable possession. . . .

Plaintiff’s reliance upon criminal cases requiring proof beyond a reasonable doubt of knowing possession of a drug is misplaced and those cases are inapplicable to the circumstance of this case. The present Board’s conclusion cannot be viewed as manifestly erroneous. The positive results of plaintiff’s drug tests are sufficient to support the Board’s findings.

Schlobohm, 157 Ill.App.3d at 96-97 (citations omitted). Accordingly, Respondent’s positive test for 6-Acetylmorphine—the presence of which could only be explained by recent heroin usage—is, standing alone, sufficient to prove her knowing possession of heroin.

Footnote: 5 Respondent asserts that the Board cannot rely on Klincevic as guidance in reaching a decision in this case because the Appellate Court issued its ruling in Klincevic as a Supreme Court Rule 23 order, and Rule 23 orders are non-precedential. However, the Board is relying on the precedent created by its own decision in Klincevic, which was affirmed by the Circuit Court and the Appellate Court.
6 The USP establishes documentary and physical standards for medications to ensure that they are of the appropriate identity, strength, quality, purity, and consistency. Prescription and over-the-counter medications in the United States must meet USP standards where such standards exist.

6. The Respondent, Police Officer Amy B. McGrath, Star No. 14907, charged herein, is guilty of violating Rule 1, Rule 2, and Rule 6 in that the Superintendent proved by a preponderance of the evidence the following charges:
On or about March 9, 2015, Officer Amy B. McGrath reported to the Chicago Police Department’s Random Drug Testing Unit at or about 3510 South Michigan Avenue, Chicago, and submitted a urine specimen under Control Number DA157091A, which subsequently tested positive for morphine. Officer McGrath thereby violated:

a. Rule 1, which prohibits violation of any law or ordinance, by violating section 402 of the Illinois Controlled Substances Act (720 ILCS 570/402) when she knowingly possessed morphine, a controlled substance, without a valid prescription on and/or prior to March 9, 2015;

b. Rule 2, which prohibits any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department; and

c. Rule 6, which prohibits disobedience of an order or directive, whether written or oral, when she disobeyed Chicago Police Department Employee Resource E01-09, Section II-B, which prohibits the use of illegal drugs, cannabis, or non-prescribed controlled substances or the abuse of legally prescribed drugs or controlled substances by a Department member.

See the findings set forth in paragraph nos. 4 and 5 above, which are incorporated here by reference.

Respondent (who does not claim that she had a prescription for morphine) repeats the same arguments to defend against the charges concerning morphine as she used to defend against the charges concerning 6-Acetylmorphine and heroin. The Board rejects arguments for the reasons stated above in paragraph no. 5, and finds Respondent guilty of the charges concerning morphine.

7. The Respondent, Police Officer Amy B. McGrath, Star No. 14907, charged herein, is guilty of violating Rule 1, Rule 2, and Rule 6 in that the Superintendent proved by a preponderance of the evidence the following charges:
On or about March 9, 2015, Officer Amy B. McGrath reported to the Chicago Police Department’s Random Drug Testing Unit at or about 3510 South Michigan Avenue, Chicago, and submitted a urine specimen under Control Number DA157091A, which subsequently tested positive for codeine. Officer McGrath thereby violated:

a. Rule 1, which prohibits violation of any law or ordinance, by violating section 402 of the Illinois Controlled Substances Act (720 ILCS 570/402) when she knowingly possessed codeine, a controlled substance, without a valid prescription on and/or prior to March 9, 2015;

b. Rule 2, which prohibits any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department; and

c. Rule 6, which prohibits disobedience of an order or directive, whether written or oral, when she disobeyed Chicago Police Department Employee Resource E01-09, Section II-B, which prohibits the use of illegal drugs, cannabis, or non-prescribed controlled substances or the abuse of legally prescribed drugs or controlled substances by a Department member.

See the findings set forth in paragraph nos. 4 and 5 above, which are incorporated here by reference.

Respondent asserts that she is not guilty of these charges because she had a prescription for cough syrup containing codeine. The Board does not find that Respondent’s testimony on this point is credible. Prior to her interview with Sgt. Tsoukalas, Respondent was informed of the allegation that she tested positive for codeine and she was instructed to bring all documentation concerning any prescription and non-prescription medications that she was taking. Respondent produced to Sgt. Tsoukalas documentation concerning at least 38 different prescription and non-prescription medications (including cough syrup) that she had been taking. Nevertheless, Respondent admitted that she did not bring this alleged prescription for cough medicine with codeine to her Bureau of Internal Affairs interview with Sgt. Tsoukalas and she did not explain why. It defies common sense to believe that Respondent would fail to bring documentation of a prescription that would provide a legitimate medical explanation for the presence of codeine in her urine and clear her of these charges if she in fact had such a prescription. Furthermore, at another point in her testimony, Respondent testified that she brought “everything” concerning her documentation when she met with Sgt. Tsoukalas.

Respondent also relies on the same arguments to defend against the charges concerning codeine as she used to defend against the charges concerning 6-Acetylmorphine and heroin. The Board rejects these arguments for the reasons stated above in paragraph no. 5 and finds Respondent guilty of the charges concerning codeine.