Sweat Patch Testing on Supervised Release: Examining U.S. v. Bonaparte

United States v. Bonaparte, 23-2543

Frank Bonaparte’s appeal in a drug-related case raises critical questions about the reliability of different drug testing methods in the legal system. Facing allegations of cocaine use while on supervised release, Bonaparte’s case pivoted on conflicting evidence from sweat patch tests and urinalysis. The Eighth Circuit’s decision to deny a plain-error review, citing Bonaparte’s previous admissions about the validity of sweat patch testing, highlights the nuanced challenges in balancing forensic science with legal standards.

Frank Bonaparte was serving three years of supervised release. In 2022, he admitted to violating several conditions of his release, including possessing and using cocaine. In light of his admissions, the district court found that he had violated the conditions of supervised release. However, Bonaparte requested that the district court take the matter under advisement and defer imposing a revocation sentence, and the court obliged.

While the matter was under advisement, the probation office submitted supplemental reports alleging that Bonaparte’s sweat patches were positive for cocaine on six different occasions. In 2023, the court conducted a final revocation hearing, at which Bonaparte denied cocaine use and presented eleven urinalysis tests (“UAs”) from the same period, all of which were negative.

Bonaparte argued that the negative UAs called the reliability of the sweat patches into question. His probation officer testified that sweat patches and urinalyses have different “cutoff levels.” The district court sentenced Bonaparte to six months’ imprisonment and another year of supervised release, noting that the UAs did not call into question the accuracy of the sweat patches because “there could simply be a different cutoff.”

Bonaparte appealed. He argued that “in light of his negative urinalysis tests, the Government’s submission of the sweat patches without additional evidence of their reliability was insufficient proof of the additional drug use violations.” Because Bonaparte failed to object to the evidence regarding the sweat patches, the Eighth Circuit noted that a plain-error review applied. It went on to find that Bonaparte invited the error by acknowledging that the sweat patches tested positive for cocaine, agreeing that sweat patch testing is valid and has a different “cutoff point” than UAs, agreeing that he had no evidence to test the sweat patches’ validity or accuracy, and admitting that his negative UAs “h[e]ld no weight.” Accordingly, the Eighth Circuit concluded that Bonaparte “thus invited any error by the court in relying on the sweat patches[,]” and because Bonaparte invited the error, he was not entitled to a plain-error review.

In the second footnote, the Eighth Circuit noted, “Even if Bonapart did not invite the alleged error, we find no plain error here. Bonaparte admitted to six violations of his supervised release at the first revocation hearing. As the district court noted, it could have reached the same decision on revocation based on those violations alone.” (Internal citations omitted.) Had Bonaparte not invited the error, his burden would have been to show a “reasonable probability” of a different result absent the alleged error.

While Bonaparte’s appeal was unsuccessful, the Eighth Circuit’s opinion raises an interesting question. If Bonaparte had not had the prior violations, and had not admitted to the validity of sweat patch testing, etc., could he have convinced the Eighth Circuit that there was a “reasonable probability” of a different result absent their introduction into evidence? It appears that the Eighth Circuit is at least open to such an argument.

Read the opinion here.