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Giraldo v. State

Police are authorized to retain non-Schedule I drugs confiscated in previous investigations and use them in reverse-sting operations so long as the origin of the drugs has been documented and forfeiture proceedings have not commenced.

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Giraldo and Brutus were indicted for trafficking in cocaine more than 400 grams and possessing cocaine with intent to distribute, arising out of a “reverse sting” operation.1 The issue in this case is whether the court erred in not dismissing the indictments or suppressing the contraband where the cocaine used for the “reverse sting” operation came from the State crime lab where records were kept of its origin and owners.

Giraldo and Brutus do not argue that the reverse-sting operation itself violated their rights. Rather, in eight separate enumerations, they contend that the cocaine used in the operation was illegal because it should have been earlier destroyed pursuant to OCGA § 16-13-49 y2 and OCGA § 16-13-49 u 1.3 They rely upon the recent case of Dean v. Gober,4 a civil mandamus action, which held that where no forfeiture proceeding has been commenced against them, non-Schedule I controlled substances without a known owner are summarily forfeited to the State and must be destroyed.5 Accordingly, Giraldo and Brutus contend that their indictments should be dismissed and/or all evidence of cocaine suppressed because use of the illegally stockpiled cocaine constitutes outrageous government conduct.6

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