United States Court of Appeals

For the Eighth Circuit

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No. 16-2284

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Darrell Gene Andersen

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa, Waterloo

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 Submitted: January 9, 2017

 Filed: February 17, 2017

[Unpublished] 

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Before COLLOTON, MURPHY, and MELLOY, Circuit Judges.

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PER CURIAM.

Darrell Andersen was on supervised release when a sweat patch he wore to

detect drug use showed positive for cocaine and cocaine metabolite. After a hearing
the district court determined that Andersen had violated the conditions of his release

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and sentenced him to seven months imprisonment. Andersen appeals, and we affirm.

I.

In May 2004 Darrell Andersen wassentenced to 150 months imprisonment and

eight years of supervised release for drug related offenses. Andersen completed his

term of imprisonment and began supervised release in February 2014. A condition

of Andersen's release was that he refrain from the use of controlled substances. In

March 2016 the United States Probation Office began monitoring Andersen's

compliance with this condition through the use of sweat patches which capture the

wearer's sweat over a period of time. Sweat absorbed by the patch can then be tested

for the presence of controlled substances and their metabolites. 

In April 2016 a sweat patch that Andersen had been wearing for a week was

removed and tested. In an initial test Andersen's patch tested positive for cocaine

metabolite. The presence of cocaine metabolite "indicatesthat the wearer's body has

broken down cocaine" and is a basis for a conclusion that the wearer has actually used

cocaine. United States v. Meyer, 483 F.3d 865, 867 (8th Cir. 2007). A subsequent

test confirmed that cocaine metabolite was present in the sample. The confirmation

test also revealed that the sample tested positive for cocaine. When asked about the

results of the sweat patch tests, Andersen denied using cocaine. He further stated that

while he was wearing the patch he had engaged in sexual intercourse with a woman

who had been using crack cocaine. Andersen suggested that the woman's sweat had

contaminated his patch and caused the positive tests. 

After Andersen's sweat patch tested positive for cocaine and cocaine

metabolite, the government filed a petition to revoke his supervised release. The

The Honorable Linda R. Reade, Chief United States District Judge for the

1

Northern District of Iowa.

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district court held a hearing at which a probation officer testified about sweat patch

procedures and the specific results in Andersen's case. Andersen denied that he had

used cocaine and again offered his "sweaty sex" explanation for the positive tests. 

The district court determined that the government had established by a preponderance

of evidence that Andersen had violated the terms of his supervised release by using

cocaine. The district court sentenced Andersen to seven months imprisonment and

four years of supervised release. Andersen appeals.

II.

We review a district court's revocation of supervised release for abuse of

discretion "and its underlying factual findings as to whether a violation occurred for

clear error." United States v. Rhone, 647 F.3d 777, 779 (8th Cir. 2011) (internal

quotation marks omitted). We will find that a district court committed clear error

"only if we have a definite and firm conviction that the district court was mistaken."

Id. (internal quotation marks omitted). 

Andersen argues that the district court clearly erred in finding that he had

violated the conditions of his supervised release. Andersen points to two facts in

support of his argument. First, Andersen notes that the confirmation test performed

on his sweat patch indicated merely that cocaine metabolite was "present." Notations

on the test resultsseem to indicate that there is a difference between a "present" result

and a "positive" result, and that the latter indicates a higher concentration of cocaine

metabolite than the former. Andersen suggests that the lower amount of cocaine

metabolite indicated in the "present" confirmation test result supports his contention

that his patch was contaminated during his sexual activity with a woman who had

been using crack cocaine. Second, Andersen notes that the confirmation test results

indicate that there was significantly more cocaine than cocaine metabolite in the

sample tested. Andersen argues that the ratio of cocaine to cocaine metabolite in his

test results also supports his environmental contamination argument. Andersen

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argues that these facts should have led the district court to conclude that the

government had failed to establish by a preponderance of the evidence that he had

used cocaine.

We have repeatedly noted that "sweat patch results are a generally reliable

method of determining whether an offender has violated a condition of his or her

probation." Meyer, 483 F.3d at 869; see, e.g., United States v. Tolliver, 637 F. App'x

245, 245 (8th Cir. 2016) (per curiam). We have also noted, however, that "[t]here

may well be certain instances where offenders offer compelling reasons to believe

that positive test results from sweat patches are erroneous." Meyer, 483 F.3d at 869. 

We must therefore determine whether the evidence and explanations offered by

Andersen are compelling enough to call into question the reliability of the sweat

patch test results in this case. We conclude that they are not.

With respect to Andersen's first argument, we note that he focuses his attention

entirely upon the second test performed on his sweat patch sample, which he alleges

indicated that cocaine metabolite was merely present. The laboratory also performed

an initial test on Andersen's sweat patch, however, which reflected a "positive" result

for cocaine metabolite. Andersen has given no reason to call into question the

reliability of the first test and its positive result, which would seem to undermine his

contention that a "present" instead of "positive" result on the second testsupports his

view that his sweat patch was subject to environmental contamination. 

Even if we were also to focus exclusively on the results of the second test,

however, we would not find the "present" result sufficient to undermine the district

court's determination that the government had proven the supervised release violation

it alleged. A probation officer testified at Andersen's supervised release revocation

hearing that the results of the second test were "a representation confirming that

[cocaine metabolite] was present and it met or was above the threshold" for

establishing a positive test. Andersen offered no evidence to the contrary. Under

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these circumstances, the district court did not clearly err when it relied on the test

results and supporting testimony to conclude that the government had proven by a

preponderance of the evidence that Andersen had violated the conditions of his

supervised release by using cocaine.

Andersen's second argument also fails to establish clear error by the district

court. In support of his argument that the ratio of cocaine to cocaine metabolite

suggests environmental contamination rather than direct consumption, Andersen cites

expert testimony given in Meyer, 483 F.3d at 867. The expert in that case said that

seeing a "certain relative ratio" of controlled substance to metabolite can allow one

to "feel more confident that those test results, in fact, are reflective of actual use of

the drug." Merely pointing out that a certain ratio of controlled substance to

metabolite might mean that it is less likely that a defendant personally used a

controlled substance does not establish that the ratio in this case supports such a

conclusion, however. To the contrary, the laboratory that tested Andersen's sweat

patch concluded that both the first and second tests were positive. We therefore

cannot say that the district court clearly erred when it determined that a

preponderance of the evidence supported the government's contention that Andersen

had violated the conditions of his supervised release by using cocaine.

Accordingly, we affirm the judgment of the district court.

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