Dean v. Gober , 272 Ga. 20 ( 1999 )

CARLEY, Justice,

concurring in part and dissenting in part.

I entirely agree with Divisions 2 and 3 of the majority opinion, but not with Divisions 1 and 4. Therefore, I concur in part and dissent in part as to the direct appeal, and fully concur as to the cross-appeal.

As the majority states, Gober sought the destruction of all controlled substances held by the Gwinnett County Police Department for use in “reverse sting” operations. The trial court granted this requested relief by requiring the Police Department to destroy or dispose of all controlled substances which are within its possession and are not evidence in a pending criminal matter, but made no exception for contraband held for use in reverse stings. By affirming this order, the majority has departed from the terms of the Georgia Controlled Substances Act by placing an unwarranted limitation on the ability of law enforcement officers to engage in legal reverse sting operations.

Even where, as here, the property at issue has been forfeited, OCGA § 16-13-49 (u) (1) does not automatically require destruction or disposal. One must read that statute in conjunction with OCGA § 16-13-35 (c) (4), which provides that officers of a political subdivision of this state “may lawfully possess controlled substances . . . while acting in the course of their official duties.” This court has a duty to reconcile, if possible, the potential conflict between these two “ ‘different sections of the same statute, so as to make them consistent and harmonious.’ ” Sikes v. State, 268 Ga. 19, 21 (2) (485 SE2d 206) (1997). The majority ignores OCGA § 16-13-35 (c) (4) and very broadly construes OCGA § 16-13-49 (u) (1) so as to permit police officers to possess summarily forfeited controlled substances only for the purpose of disposing of them. However, by specifying that certain persons may legally possess controlled substances, OCGA § 16-13-35 prevents the Georgia Controlled Substances Act from being construed in an illogical or overbroad manner. Windfaire v. Busbee, 523 FSupp. 868, 871 (3) (N.D. Ga. 1981). Furthermore, OCGA § 16-13-49 (u) (1) applies only to property “which is required by law to be destroyed or which is harmful to the public. . . .” Because a law enforcement officer’s possession of contraband while acting in the course of his official duties is expressly lawful under OCGA § 16-13-35 (c) (4), the law does not require the destruction of such contraband, nor can it be considered harmful to the public. When a police officer’s possession of controlled substances is part of a reverse sting operation, that possession is in reasonable fulfillment of his duties as a police officer and, thus, is lawful. Curtis v. State, 172 Ga. App. 473, 475 (5) (323 SE2d 684) (1984). See also Givens v. State, 211 Ga. App. 290, 292 (2) (439 SE2d 22) (1993); Guzman v. State, 206 Ga. App. 170 (1) (424 SE2d 849) (1992). And contraband which a police officer lawfully possesses in furtherance of his public duties cannot be deemed harmful to the public.

The majority has effectively prevented law enforcement agencies which, like the Police Department here, possess only summarily-forfeited controlled substances from engaging in legal reverse sting operations. I acknowledge that the majority opinion permits reverse stings utilizing non-Schedule I controlled substances where the owner is known. Hopefully, every law enforcement agency in Georgia will implement procedures for identifying, to the extent possible, the source of drugs in its possession. The majority’s recognition of this narrow exception, however, does not justify its adoption of an extreme and unreasonable statutory construction, especially when there is a consistent and harmonious alternative. In my opinion, therefore, the trial court erred in ordering the Police Department to destroy or dispose of all controlled substances in its possession, regardless of whether the Department was holding any contraband for use in its reverse sting operations. Thus, I believe that the trial court’s judgment should be wholly reversed in Case No. S99A0691, but affirmed in Case No. S99X0692.

I am authorized to state that Justice Hunstein joins in this opinion. Decided December 16, 1999 Reconsideration denied January 28, 2000. Kristina H. Blum, Karen G. Thomas, Melinda K Wells, for appellant. Peevy & Lancaster, Gregory W. Lancaster, Chandler & Britt, Walter M. Britt, Deborah F. Weiss, for appellee.