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Two Superior Court judges consider identical evidence on the same motion and come up with contradictory rulings. Whose should stand? Atlanta sole practitioner Brian Steel hopes it’s Superior Court Judge Bensonetta Tipton Lane of Fulton County, Ga., who ruled in favor of Steel’s motion to suppress evidence. Two days earlier, Lane’s colleague Elizabeth E. Long ruled against it. Steel has asked the Georgia Court of Appeals to resolve the matter. It’s the first time the court has been asked to resolve such an issue, he says. Professor Donald E. Wilkes Jr., who teaches criminal procedure at the University of Georgia School of Law, says the case is unusual, particularly because it relies on two judges from the same court using exactly the same material. “It probably has happened before, but I haven’t heard of it happening in any jurisdiction,” Wilkes says. The contradiction arose in the course of arguing identical motions to quash a “no-knock” warrant in the drug trafficking and forfeiture cases against Steel’s client, Lloyd Dorsey. Police discovered drugs and guns at Dorsey’s College Park residence after they entered it under authority of the warrant. Lane ruled the warrant invalid May 7, following a February forfeiture proceeding. She excluded evidence seized by the police from Dorsey’s home and ordered police to return some $20,000 in cash and possessions. State v. $19,175, No. 1999CV17688 (Fult. Super. April l2, 2000). Rather than repeat the evidentiary marathon in the criminal trial, on March 3 Judge Elizabeth E. Long adopted the entire record of the hearing before Lane. However, on March 9, she ruled the warrant would stand, and admitted the evidence. State v. Dorsey, No. Y24060 (Fult. Super.Dec. 3 1999). Steel says Long’s ruling should have been moot on the grounds of former jeopardy. Lane issued a judgment in the civil forfeiture case April 12, and the district attorney’s office never appealed, he says. “Hence, Judge Lane’s April 12, 2000 order is the law of the case and cannot be challenged,” Steel wrote in his subsequent plea of former jeopardy before Long. The warrant should be quashed, he says, the evidence should be excluded, and the case against his client tossed out. “Now it’s complete,” he says, “It is per se correct. The state’s criminal trafficking case must not go forward under double jeopardy.” Wilkes says that the jeopardy issue might be hard to pursue, but Steel also may have a valid complaint through another avenue. “The proper question, it seems to me, is whether they have a res judicata issue here,” he says. “It would certainly seem to me that it would apply here.” That the ruling came from two different proceedings, Wilkes says, should make no difference. The rules governing the validity of “no-knock” warrants should be uniform, he says. Robert C. McBurney, the prosecutor who argued against Steel’s motion in the criminal case, says that the contradictory rulings are certainly unusual. “We have co-equals duking it out,” he says. “Only in Fulton County, is all I can say.” McBurney, who is no longer working on the case, notes that the two rulings involve two separate sets of Dorsey’s rights. The civil motion was to protect his property, he says, and the criminal motion is to preserve his freedom. Prosecutor Myrlin D. Earle, who now has the criminal case, says the disparity is simply the result of how the system works. “In the judicial system this sometimes happens,” he says. NO-KNOCK WARRANT Steel’s motions stem from a “no-knock” warrant issued for Dorsey’s College Park residence, based on two drug buys by a confidential informant. On both buys, the informant, fitted with a remote listening device, entered the house with marked cash and returned with crack cocaine, which she then turned over to police, according to Lane’s order. Dorsey challenged the warrant, claiming it failed to present evidence of the informant’s reliability and failed to establish a basis for the warrant’s no-knock provision. Both judges ruled that the police were familiar enough with the informant to establish a basis for a warrant. On the issue of the “no-knock” provision, however, they differed. Relying on Richards v. Wisconsin 520 U.S. 385 (1997), Lane noted that the Supreme Court requires police to show a reasonable suspicion that by knocking and announcing their presence they would endanger themselves or jeopardize the investigation of a crime. During the motion hearing, the officer testified he asked for a “no-knock” provision because the house’s long driveway would give the occupants time to see officers coming and dispose of the drugs. The large number of people in the house also might enable them to overcome the smaller law enforcement squad, the officer said. And he cited that drug dealers are dangerous. However, Lane noted that nothing in the warrant affidavit addresses the driveway, the suspects’ superior numbers or weapons or the officers’ fear of personal harm. “He further testified that he had no evidence that Mr. Dorsey or other occupants of the subject property had or would destroy evidence,” Lane wrote. According to Long, however, the issue was whether officers would likely find narcotics in the residence, and whether Dorsey could discard them quickly. In her order the judge relied on Brannon v. State 220 Ga. App. 572 (1996); Jones v. State 127 Ga. App. 137 (1972); and Scull v. State 122 Ga. App. 696 (1970), which, the judge writes, “all uphold no-knock provisions in search warrants under facts similar to these facts.” “The magistrate in this case determined that the facts and circumstances justified a no-knock provision. This Court will not disturb that finding,” she wrote. But in his plea of former jeopardy, Steel notes that a court had already disturbed the finding. Double jeopardy should apply through the doctrine of collateral estoppel, Dorsey wrote, by barring more argument on facts established in another proceeding. “The state did it,” he says. “I didn’t ask them to bring a civil forfeiture case — but it turned out to be wonderful.” Now that Lane has entered a final judgment in the forfeiture, Steel says, his client should be off the hook. “They have zero evidence except for what they seized from entering that home,” he says. “They will have no case.”

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