Gober v. State

566 S.E.2d 317, 275 Ga. 356, 2002 Fulton County D. Rep. 2017, 2002 Ga. LEXIS 538
CourtSupreme Court of Georgia
DecidedJuly 3, 2002
DocketS01G1163; S01G1169
StatusPublished
Cited by1 cases

This text of 566 S.E.2d 317 (Gober v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gober v. State, 566 S.E.2d 317, 275 Ga. 356, 2002 Fulton County D. Rep. 2017, 2002 Ga. LEXIS 538 (Ga. 2002).

Opinion

Hines, Justice.

We granted certiorari to the Court of Appeals in Gober v. State, 249 Ga. App. 168 (547 SE2d 656) (2001), and Giraldo v. State, 249 Ga. App. 178 (547 SE2d 651) (2001), 1 to determine whether the Court of Appeals was correct in holding that the drugs involved in those cases were properly admitted into evidence. Finding that the drugs were properly admitted, we affirm the Court of Appeals in both cases.

Gober and Brutus were arrested in separate “reverse sting” operations in which they bought illegal drugs from undercover police officers. In Case No. S01G1163, Gober was convicted of purchasing one ounce of methamphetamine. The methamphetamine had been seized in a prior case and the police had taken it from their evidence locker for the reverse sting.

Prior to his conviction, Gober filed a petition for a writ of manda[357]*357mus to compel the Chief of the Gwinnett Police Department to destroy all drugs held for reverse stings, including that which was to be used as evidence in his case. As the police had insufficient records to determine the ownership of the drugs held in evidence lockers, the drugs were deemed forfeited to the State, see OCGA § 16-13-49 (y), and the trial court ordered that the police destroy all drugs so held, unless the drugs were evidence in a pending criminal matter. See OCGA § 16-13-49 (u) (1). The Chief of Police appealed, and in Dean v. Gober, 272 Ga. 20 (524 SE2d 722) (1999), this Court affirmed the trial court to the extent that its order held that the police were to destroy those drugs then in their possession that were not needed as evidence, holding that under OCGA § 16-13-49 (u) (1) forfeited drugs must be destroyed “when no longer needed for evidentiary purposes.” The drugs used in Gober’s prosecution were not to be destroyed as they could still be needed for evidentiary purposes; even though Gober had already been convicted for possession of methamphetamine at the time this Court’s opinion was rendered, there was the potential for a retrial. Id. at 23 (3). Gober appealed his conviction to the Court of Appeals, and it is that Court’s affirmance of his conviction that is before us on certiorari.

In Case No. S01G1169, Brutus was indicted for trafficking in cocaine and possessing cocaine with intent to distribute. Brutus moved to dismiss the indictment and was granted an interlocutory appeal from the trial court’s denial of the motion. The Court of Appeals affirmed the denial of the motion, and this Court granted a writ of certiorari.

Case No. S01G1163

1. Gober cites the mandates of OCGA § 16-13-49 (u) (1) and (y) that methamphetamine such as that used in his reverse sting (i.e., whose owners are unknown) must be destroyed, and he notes that this Court recognized in Dean, supra at 22 (1), that the statute so mandates. And he contends that the police, in conducting a reverse sting with methamphetamine that should have previously been destroyed, violated his due process rights. In doing so, he relies upon a statement in United States v. Russell, 411 U. S. 423, 431-432 (93 SC 1637, 36 LE2d 366) (1973). That opinion addressed an entrapment defense, and stated that

While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction [cit.], the instant case is distinctly not of that breed.

[358]*358Id.

Gober urges that his case is “one of that breed.” But as the United States Supreme Court stated when discussing Russell, “[t]he limitations of the Due Process Clause of the Fifth Amendment come into play only when the Government activity in question violates some protected right of the defendant.” (Emphasis in original.) Hampton v. United States, 425 U. S. 484, 490 (96 SC 1646, 48 LE2d 113) (1976). The declaration found in OCGA § 16-13-49 (u) (1) that certain drugs be destroyed does not create any right in the defendant, it only imposes a separate, unrelated obligation on the police. Here, as in Hampton, Gober acted in concert with the police, but the government activity did not create any entrapment, and did not deprive him of any right. Id. at 490-491.

Further, the police can legally possess and use drugs in reverse stings. See Dean, supra at 23-24 (4). The fact that the drugs used by the police had not been previously destroyed as the statute declared does not render the police conduct so fundamentally unfair and shocking so as to violate due process. See Wilcox v. State, 250 Ga. 745, 755 (4) (301 SE2d 251) (1983).

2. To the extent that Gober contends that OCGA § 16-13-49 (u) compels that the methamphetamine be destroyed sometime after its use in the reverse sting, but prior to the prosecution of his case, that argument is foreclosed by this Court’s prior decision in Dean, supra at 23 (3). See OCGA § 16-13-49 (u) (1).

Case No. S01G1169

3. Brutus also urges that the use of the drugs in his reverse sting is a violation of due process. See Division 1, supra. Of course, the drugs used in his prosecution had a different origin, and thus a potentially different disposition under OCGA § 16-13-49. The cocaine used in the reverse sting at issue came from either of two cases dating from 1982 and 1985. Unlike the methamphetamine in Gober’s case, here the trial court found as fact that the State had shown that the owner of the cocaine was known under subsection (y), and the Court of Appeals affirmed that finding. As the owner was known, the cocaine was not summarily forfeited to the State, nor had the State initiated forfeiture proceedings against it. See OCGA § 16-13-49 (x). The cocaine therefore did not need to be destroyed under OCGA § 16-13-49 (u) (1), which provides that forfeited property that is harmful to the public and no longer needed for evidentiary purposes must be destroyed.

Brutus, however, argues that the cocaine, and all other confiscated illegal drugs, could never have an “owner” within the meaning of OCGA § 16-13-49 and must be destroyed.

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Lattimore v. State
638 S.E.2d 848 (Court of Appeals of Georgia, 2006)

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Bluebook (online)
566 S.E.2d 317, 275 Ga. 356, 2002 Fulton County D. Rep. 2017, 2002 Ga. LEXIS 538, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gober-v-state-ga-2002.