Judge says giving portion of sale to unwitting aide is valid investigative practice
Two men looking for drugs found help quickly on East Sprague Avenue in Spokane last April. A drug user eager for his next high took them to a west Spokane parking lot, where he handed them a rock of crack cocaine he’d bought from a dealer in a nearby car.
The men gave their assistant a small portion of the drug and drove back to Sprague, but they didn’t join him in getting high.
Instead, the remaining crack cocaine was secured at the Spokane police evidence room and the man suspected of selling it was charged with a felony.
The investigation was detailed in a court hearing Thursday that provided a rare look at the Spokane Police Department’s undercover drug unit, where confidential informants are used daily and some drug users have no idea they’re actually helping police.
Sometimes, keeping that cover requires giving unsuspecting participants drugs.
“There’s a lot of deceit going on through all of this, because that’s the way the drug dealers are caught,” said Superior Court Judge Kathleen O’Connor, who rejected an attempt by defense attorney Doug Phelps to dismiss a felony drug charge because of “outrageous government conduct.” Phelps said the removal of a portion of the drugs could mean there isn’t enough evidence for lab tests, but Deputy Prosecutor Eugene Cruz said that isn’t true.
O’Connor said police providing a portion of the drugs to participants who don’t realize they’re part of an undercover investigation isn’t outrageous – it’s part of the war on drugs.
“This is in my view a legitimate way, as long as it is completely documented, to deal with a particular investigation,” O’Connor said. “It’s not common, but it is done periodically.”
Phelps, a former law enforcement officer in the Midwest and a lawyer for 17 years, said he’d never heard of police providing citizens with drugs free of consequence until he read a report from Spokane police Detective Michael Bahr detailing the case against Anthony D. Koss.
“They hadn’t even tested the drug at the time they were giving it away to know what it was,” Phelps said. “They’re busting people for crack cocaine because they want it off the streets, but then they’re putting it back out there.”
Koss, 27, is in jail on $25,000 bail, charged with felony delivery of crack cocaine stemming from the April transaction with what police call an “unwitting” – someone contacted in an undercover investigation who doesn’t realize he’s working with police.
Police department rules prohibit drug payments to confidential informants, who undergo screening before working with detectives. But drug payments to other people, such as the man who police say bought crack from Koss in April, is allowed, police supervisors testified Thursday.
“We have very few shalls and shall nots,” said Spokane police Chief Anne Kirkpatrick. “We want officers to be able to exercise their discretion in this line of work.”
Bahr was working undercover in the East Sprague area on April 20 when he and a confidential informant approached a man about buying crack cocaine and said they’d give him a piece if he helped. Bahr told the man he was from out of town.
The man led them to a parking lot at North Ash Street and West Indiana Avenue, where Bahr watched as the man bought crack cocaine from Koss and Lavonda M. Rios, Bahr testified Thursday. Rios, 24, also is charged with distribution of crack cocaine.
Before dropping the man back off in the East Sprague area, Bahr gave him about one-tenth of the crack cocaine, he testified.
“Generally, they’re only out there with the sole purpose of actually obtaining drugs themselves,” Bahr said of unwitting participants. “They’re basically paid with drugs because that’s what they’re after.”
Drug unit Detective Kevin Langford said payments to middlemen probably occur in “between 2 to 5 percent of our cases.”
“I’d say it occurs once every two weeks,” Langford said.
He said crack cocaine is given out most often; he doesn’t know of heroin, which he said is more harmful, ever being distributed in cases in which he’s involved.
Sgt. Joel Fertakis called the practice “a valid investigative tool that is, unfortunately, occasionally necessary to protect officer confidentiality (and) officer safety.”
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