Kelly v. State, 90-0465
| Decision Date | 03 January 1992 |
| Docket Number | No. 90-0465,90-0465 |
| Citation | 593 So.2d 1060 |
| Parties | Kevin KELLY, Jr., Appellant, v. STATE of Florida, Appellee. 593 So.2d 1060, 17 Fla. L. Week. D154 |
| Court | Florida District Court of Appeals |
The court, sua sponte, voted to consider this appeal and appellant's motion for rehearing en banc. The court having then voted to a six-to-six tie, the cause reverts to the original panel. Fla.R.App.P. 9.331(a).
We grant rehearing and substitute the following for the opinion dated June 19, 1991:
The appellant was arrested for purchasing cocaine within 1000 feet of a school in violation of section 893.13(1)(e), Florida Statutes (1989). After being charged with the crime, the appellant moved to dismiss the charges against him. This appeal followed the trial court's denial of the appellant's motion to dismiss, and is based on two grounds. The first is that he was caught in a reverse sting operation and the second is that the police made, by reconstitution, crack cocaine for use in the operation. The appellant argued on both grounds that his constitutional right to due process of law was violated.
We wish to clarify that in the prior opinion we did not mean to imply that the constitutional implications involved in the reconstitution or manufacture of cocaine into "crack" were decided in State v. Burch, 545 So.2d 279 (Fla. 4th DCA 1989), aff'd, Burch v. State, 558 So.2d 1 (Fla.1990). We only wished to point out that the use of reverse sting operations does not, in and of itself, cause a defendant's constitutional rights to be violated, even if the reverse sting is specifically set up within one thousand feet of a school. Burch.
We have reconsidered the issue of the police manufacture or reconstitution of powdered cocaine into "crack" rocks, and we find that the practice is illegal. We hold that the use by the police of such reconstituted "crack" infringed on the appellant's right to due process of law. In other words, the police agencies cannot themselves do an illegal act, albeit their intended goal may be legal and desirable.
Manufacture is defined in section 893.02(12)(a), Florida Statutes (1989), as:
The production, preparation, propagation, compounding, cultivating, growing, conversion, or processing of a controlled substance either directly or indirectly, by extraction from substances of natural origin, or independently by means of chemical synthesis, and includes any packaging of the substance or labeling or relabeling of its container....
(Emphasis supplied.)
Thus, it seems that the statute is sufficiently broad as to encompass the reconstitution of regular cocaine into "crack," or rock cocaine. Depositions of the police chemist supplied with the record in the instant case support our decision that the process of reconstitution constitutes manufacture under Chapter 893, Florida Statutes (1989). 1 Certainly, as Judge Letts wrote in the dissent from our original opinion, there is more to this reconstitution process than "simply adding hot water to instant coffee grounds."
Section 893.13 provides several exclusions from its application for police officers acting in the course of their duties, but these exclusions apply only and specifically to the possession and delivery of controlled substances. See Sec. 893.13(5), Fla.Stat. (1989). If the legislature intended that police officers be permitted to manufacture "crack", or any controlled substance, before its possession or delivery, then such permission would presumably appear on the face of the statute. The legislature, if it intends to allow such practices, must expressly indicate their intent so that the courts can apply the law accordingly. At this time, however, there is no authority for the police to manufacture controlled substances by reconstitution or otherwise.
We find that the Sheriff of Broward County acted illegally in manufacturing "crack" for use in the reverse sting operation which led to the arrest of the appellant. Even more disturbing is the fact that some of the "crack," which is made in batches of 1200 or more rocks, escapes into the community where the reverse sting operations are conducted. The police simply cannot account for all of the rocks which are made for the purpose of the reverse stings.
Such police conduct cannot be condoned and rises to the level of a violation of the constitutional principles of due process of law. State v. Glosson, 462 So.2d 1082 (Fla.1985). Accordingly, we reverse the appellant's conviction and we instruct the trial court, on remand, to enter an order of discharge.
It is one thing to express righteous indignation over the fact that police illegally "manufacture" drugs in the first instance and then, in the second instance, allow some of those drugs to escape into the community. It is quite another thing, however, to suggest that one who buys such drugs acquires immunity from prosecution because his...
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...rules, or regulations by law enforcement officers, in order to induce a criminal violation, cannot be sanctioned. Cf. Kelly v. State, 593 So.2d 1060 (Fla.Ct.App.1992) [accused's due process rights violated when police illegally manufactured "crack" and sold it to accused in reverse sting op......
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