COURT RULES POLICE CAN'T USE DRUGS TO CATCH SUSPECT

Police appear to have lost a key weapon in their war on drugs--the
confiscated drugs they use in "reverse sting" arrests. In a ruling Monday,
the Georgia Supreme Court directed state law enforcement to destroy seized
drugs held by police once they are no longer needed for evidentiary or
authorized medical purposes.

The court, in a 5-2 ruling written by Chief Justice Robert Benham, said
state law specifies how forfeited drugs must be disposed of--and this
doesn't include being used by police in reverse stings. If the Legislature
wants to make an exception and let seized drugs be used that way, it should
change the law, Benham wrote. In "reverse stings," undercover police pose
as dealers and sell previously seized drugs to suspects, who are arrested
after the deals are transacted. The drugs involved in the undercover
operations have to be real; otherwise the targets often get suspicious and
shy away.

Writing in dissent, Justice George Carley called court majority's
construction of the law "extreme and unreasonable." He was joined by
Justice Carol Hunstein.

"This ruling effectively negates reverse stings," Gwinnett District
Attorney Danny Porter said. "I think it's an incorrect reading of the
statute. But these are valuable tools that the police use a lot, so I hope
the General Assembly moves quickly to fix the problem."

The Prosecuting Attorneys Council introduced a bill last session to resolve
the potential problem, but the legislation stalled, Porter noted.

The ruling stems from the case of Jerry Thomas Gober, who was convicted in
Gwinnett County for buying 1 ounce of methamphetamine from an undercover
officer.

His lawyer, Walt Britt of Buford, said he expects Gober's conviction to be
set aside.

This should hold true for any other criminal defendant in the state who was
arrested in a reverse sting and who filed proper objections to police using
confiscated drugs, he said.

"You cannot be convicted on the illegal acts of police misconduct," Britt
said. "I think they should walk."

Atlanta criminal defense attorney Bruce Harvey said he has filed similar
objections in reverse sting cases DeKalb and Gwinnett counties. Each case
involves 2-kilogram buys of cocaine, he said.

The Supreme Court's decision did not directly address Gober's conviction.
After his arrest, Gober filed a civil lawsuit asking a judge to force
Gwinnett police to destroy all its confiscated drugs. His appeal stemmed
from that suit.

Benham, writing for the majority, said controlled substances "are summarily
forfeited upon their seizure by law enforcement officers." The police must
dispose of the confiscated drugs once they are no longer needed as
evidence, Benham said.

Benham noted, "This opinion does not concern the legality of reverse stings
or even the legality of the possession of controlled substances by law
enforcement officers and agencies in the course of official duties."

Still, Porter said, the writing is on the wall.

"The question now is how do police legally obtain drugs for reverse
stings?" the district attorney asked. "That's something we're going to have
to look into."