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A 2-year-old debate over police use of seized and stockpiled drugs to conduct reverse sting operations could continue in Georgia’s appellate courts. In late March, the Georgia Court of Appeals, in two full-court decisions, refused to overturn a Gwinnett County conviction or to suppress two DeKalb County indictments. All involved reverse stings — arrests made when undercover officers sell drugs, which have been seized in prior cases, to unsuspecting buyers. At issue were two statutes: one, O.C.G.A. Section 16-13-35 (c) (4), authorizes police to possess controlled substances in the course of their official duties; the other, O.C.G.A. Section 16-13-49 (u) (1) requires them to destroy forfeited drugs when they are no longer needed for evidentiary purposes. The Court of Appeals concluded there was nothing wrong with police using drugs from prior investigations in reverse stings as long as police keep careful records on the drugs’ ownership and as long as forfeiture proceedings on the contraband have not begun. “If proper procedure is followed in record-keeping,” wrote Judge M. Yvette Miller in Gober v. State, No. A00A2482 (Ct. App. Ga. March 30, 2001), the Gwinnett case, “then the police are free to use those drugs in law enforcement efforts.” But one judge, in a special concurrence, wrote that he saw nothing in the statutes that authorizes police to use seized drugs for reverse stings. “While the statute provides that these drugs must be preserved if they are needed as evidence in a criminal proceeding, it does not provide that the drugs can then be recycled to create new criminal proceedings,” wrote Presiding Judge Marion T. Pope Jr. Defense lawyers in the DeKalb case say that Pope was on target. “He got the facts right and we felt that he got the law right,” says Decatur, Ga., sole practitioner Stephen T. Maples, who handled the case with Bernard Knight, also of Decatur. Maples and Knight hope to get the Georgia Supreme Court to take a look at the issue, for the second time. The justices, in a 5-2 decision in 1999 that upset police and prosecutors around the state, held that the law required police to destroy seized drugs once they were no longer needed for evidence in the case in which they were seized. But the high court later vacated that opinion and issued another in its place, which said only certain Schedule I drugs, such as heroin or LSD, need be destroyed, not other drugs such as cocaine and marijuana, which are typically the ones used in reverse stings. Dean v. Gober, 272 Ga. 20 (2000). Jerry Gober, whose mandamus against Gwinnett County police prompted the 1999 supreme court decision, was subsequently convicted of unlawful possession of methamphetamine after buying an ounce from an undercover officer in Buford, Ga. He appealed his conviction to the Georgia Court of Appeals, again raising the issue of whether police were obligated to have destroyed the drugs that were sold to him. Citing the 1999 supreme court case, Miller found that police conduct in using the drugs was not so outrageous as to violate Gober’s due process rights. While the statute required that the owner of the drugs be known to law enforcement, Miller noted that, due to poor record-keeping, Gwinnett police could not identify the owner of the methamphetamine used in the sting against Gober. “The moral of the story is that police departments in possession of illegal drugs from prior investigations must maintain careful records as to the owners (i.e., the original and custody) of those drugs; otherwise, they are summarily forfeited and must be destroyed,” Miller wrote. Pope, however, argued that the supreme court never addressed the issue before the Court of Appeals: whether drugs that are subject to forfeiture and mandatory destruction can be legally used in a reverse sting. Drugs whose evidentiary use is exhausted should be destroyed, not used in further prosecutions, he wrote in his special concurrence in Gober. In the DeKalb case, issued the same day, Pope expanded on his views. The supreme court, he wrote, never said that proper record-keeping would authorize police to stockpile drugs. The drugs in the DeKalb cases were what is known as “boat cocaine,” illegally manufactured cocaine smuggled into the U.S., he wrote, adding that because the drugs were illegally manufactured, “no person has a property right in them; they can have no owner.” Giraldo v. State, Brutus v. State, Nos. A00A2037, A00A2308 (Ct. App. Ga. March 30, 2001). The majority called Pope’s arguments “an esoteric analysis” that missed the mark, since police are authorized to possess controlled substances in the performance of their duties. They also said his “absurd” analysis would require police to use taxpayer money to buy drugs from a legally registered manufacturer to conduct reverse stings, while simultaneously destroying seized drugs. Gober’s attorney, Gregory Wayne Lancaster of Lawrenceville, Ga.’s Peevy & Lancaster, says he also will ask the supreme court to consider his client’s case.

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