DRUG ARREST CAN MEAN END TO HOUSING HELP

Union agency wants to stop assistance even if charges are dropped.

UNION - The Housing Authority of Union believes it can end all assistance
to low-income housing residents who are arrested on drug charges - even if
the charges are dropped.

The agency believes this despite being forced to reverse itself earlier
this month and reinstate housing assistance to Jackie Lynn Garrett after a
drug charge against Garrett was dismissed at a preliminary hearing in April.

"The U.S. Supreme Court says one strike and you're out," declared Housing
Authority Executive Director Dennis C. Russell. "That does not necessarily
mean that that person has to be convicted."

Russell said the Supreme Court has given federal housing assistance
providers the green light to terminate assistance to low-income housing
residents who are arrested on drug charges if there is a "preponderance of
evidence" that the residents are guilty.

In Garrett's case, Russell said, Housing Authority officials were convinced
of her guilt after talking to Union police and to "other people that were
in the neighborhood" at the time of the alleged offense in December.

"We're always going to get as much information as possible before we make a
decision separating anyone from the program," Russell said.

All of this leaves Garrett's court-appointed attorney, Tom Moses, shaking
his head in disbelief.

"Unbelievable," an incredulous Moses said. "Not only was there not a
preponderance of evidence against Jackie, but the court couldn't even find
probable cause to move forward with the case. Even if there had been strong
evidence, she hadn't been proven guilty of anything yet."

Moses said there is nothing in the Supreme Court's ruling (in the case of
Department of Housing and Urban Development vs. Rucker, etal.) that says
housing assistance can be terminated solely on the basis of an arrest.

"Whatever happened to you're innocent until proven guilty?" he said.
"Cutting someone's housing assistance off just because they are accused of
a crime by law enforcement is a clear violation of the Due Process clause
of the U.S. Constitution."

Union attorney Thomas H. White IV, who represented the Housing Authority in
the dispute over Garrett, disagreed with Moses' interpretation of HUD vs.
Rucker.

"The Supreme Court said the evictions in that case were proper," White
said. "There's nothing in there that says there has to be a conviction."
The case

On Dec. 26, 2001, an undercover confidential informant equipped with a
bodybug transmitter, digital recorder and cash called Roderick D. Kelly at
Garrett's residence at 605 Monarch Highway in Union.

"The C/I had a conversation with Kelly about purchasing some morphine," a
Union police report states. "Shortly after the conversation, Jackie Garrett
drove Kelly to the C/I's residence. While at the residence Kelly sold the
C/I 10 red and yellow capsules believed to be morphine for $25."

The arrest warrant charging Garrett with conspiracy to distribute a
controlled substance states that she "did directly participate" in the
alleged drug deal by driving Kelly to meet the informant.

But Moses said he has seen the evidence, and nothing directly implicates
Garrett in any crime.

"If you listen to the phone tap tape of the call, you never hear Jackie's
voice anywhere except when she answered the phone," he said. "Kelly turns
to someone at the residence, we don't know who, and asks if any of that
type of pills is around. You never hear any audible response from anyone.

"Jackie did drive Kelly to the confidential informant's house, but she
wasn't present for any exchange of money and drugs. There was no evidence
that she knew a drug transaction was even taking place or that she received
any of the marked cash from the transaction. No statements were taken from
anyone implicating her in any crime. As far as she knew, she was giving
Kelly a ride to his friend's house."

Police Investigator Brian Bailey, who made the case against Garrett, says
he would have been ready if the case had gone to trial.

Bailey acknowledged that Garrett's voice isn't heard on any tapes in direct
connection to drug activity, and he gave the Herald-Journal access to the
tapes. He further acknowledged that Garrett didn't participate in any
exchange of money for drugs.

But Bailey said the same confidential informant would have testified that
he had worked with Garrett on other occasions to facilitate drug deals with
Kelly. He said police had been investigating alleged drug activity by
Garrett and Kelly for at least two months.

"The fact that she drove (Kelly) to (the confidential informant's
residence) makes her an accessory," Bailey said. "With the confidential
informant's testimony, it would have been up to the jury to decide (if
Garrett was a conspirator in the sale of drugs)."

The officer said there is no doubt in his mind that Garrett was the person
to whom Kelly directed his inquiry about the pills.

The cases against Garrett and Kelly were dropped, Bailey said, only because
the pills turned out not to be morphine.

The ruling

In a Jan. 30 letter to Garrett, Russell informed her that her housing
assistance was being terminated because she had violated the terms of her
lease primarily by being "arrested for the drug charge."

In a clause titled "Criminal Activity," the U.S. Department of Housing and
Urban Development lease states that landlords may terminate tenancy if
residents commit "any drug-related criminal activity on or near the premises."

It does not say that housing residents must be convicted of the offenses of
which they are accused, but Moses said the fundamental right to Due Process
obviously pertains.

The Supreme Court's March ruling in HUD vs. Rucker does state that federal
law allows public housing agencies to terminate assistance to residents who
engage in "any drug-related criminal activity."

The ruling also says assistance may be terminated "when a member of the
household or a guest engages in drug-related activity, regardless of
whether the tenant knew, or should have known, of the drug-related activity."

Kelly gave Garrett's address as his own after being arrested. Garrett says
Kelly was not living with her and she doesn't know why he gave her address
to authorities.

The issue apparently was not important enough to prevent the Housing
Authority from reinstating Garrett's benefits and agreeing to pay its
majority portion of her rent to landlord Lofton A. Ivey Sr. retroactive to
January, when the payments were suspended.

Ivey, the owner of the one-story, wood frame mill house in which Garrett
lives, had been allowing her to live there even without the Housing
Authority's $217 payment against her monthly rent of $280.

Bill Faulkenberry, interim executive director of the Spartanburg Housing
Authority, said the Union housing authorities were only acting in
accordance with longstanding HUD policy.

"This is a national issue," Faulkenberry said. "As long as these
HUD-mandated lease provisions have been in effect, we're bound to have done
the same (as the Union Housing Authority in Garrett's case)."

Faulkenberry estimated that the issue arises in his agency fewer than five
times a year.

"The latitude that we have in this system, we exercise," he said. "We
generally allow someone who has been arrested on a drug charge to be taken
off of a lease and everyone else on it to stay - as long as the arrested
person wasn't the head of the household and that person does not visit the
household."

The reversal

At attorney White's request, the Union Housing Authority's reinstatement of
Jackie Garrett's rent payments was contingent upon her agreeing not to sue
the agency.

Russell, the Housing Authority's director, was asked why the agency
reinstated Garrett's assistance if it believes it acted properly in the
first place.

"The charges against her were dropped," he replied. "Plus, the person we
felt was causing a lot of the problems (Kelly) has been convicted (on other
charges) and is in prison."

White said the reinstatement was simply the right thing to do.

"Now that (Kelly) is out of the picture, and (Garrett's) charges have been
dismissed.... The safety and security of the Union Housing Authority hasn't
been compromised," he said.

Garrett, who is unemployed and disabled, says she is relieved that the
imbroglio with the Housing Authority is finally over.

"It's taken a toll on me," she said. "If it wasn't for my church and the
support of my family, I don't think I could have gotten through this."

Moses said the Housing Authority may be setting itself up for more trouble
with other residents if it continues to believe it can terminate assistance
with nothing more than allegations of drug activity.

"They think they can terminate your assistance unless the U.S. Supreme
Court specifically says they cannot," he said. "I'm saying they can't
terminate anyone's assistance merely because that person is accused of drug
activity unless the Supreme Court specifically says they can -and the court
didn't say that."

Garrett agrees.

"They don't care whether you're innocent or guilty; they just throw you
out," she said.