The Colorado Supreme Court, by 5-2, ruled on Monday that the state’s crime victim restitution law does not obligate defendants to repay law enforcement agencies for unrecovered money they use to buy drugs undercover.

The government maintained the restitution law authorized the repayment of “buy money” because it was either “money advanced by law enforcement agencies” or it was an “extraordinary” investigative cost, making it subject to recovery. Members of the majority were unconvinced.

“Construing ‘money advanced by law enforcement agencies’ now as costs incurred by law enforcement agencies would alter the language the legislature used,” wrote Justice Carlos A. Samour Jr. in the Sept. 8 opinion. “What’s more, today, the use of buy money is such a widely accepted practice by law enforcement in this country that it has become customary.”

Justice Brian D. Boatright, writing in dissent, argued the use of buy money was, under his definition, an extraordinary cost, in contrast with “ordinary” police expenditures for uniforms, equipment and salaries.

“If someone were to ask 100 random people whether a defendant should be permitted to keep the money paid to them by an undercover agent during a criminal investigation, certainly the vast majority would answer no,” he wrote for himself and Chief Justice Monica M. Márquez. “The legislature could not have intended for drug dealers to keep the money that law enforcement used during an investigation. This outcome defies logic.”

In the underlying case, Nathan Hollis pleaded guilty to two drug distribution charges in which he sold narcotics on multiple occasions to an undercover officer in Weld County. Law enforcement waited for months after the first transaction to arrest Hollis, at which point $1,640 he received from the officer was gone.

Prosecutors sought to have Hollis repay the buy money as financial restitution. Hollis objected, noting Colorado’s restitution law for crime victims covers money advanced by law enforcement agencies and extraordinary investigation costs. To Hollis, the buy money fell into neither of those categories, especially considering the five to 10 drug transactions Weld County’s drug task force undertook every month.

The Court of Appeals agreed with him.

The drug task force investigating Hollis was “not a victim under the restitution statute,” wrote Judge Ted C. Tow III in the three-judge panel’s opinion. Moreover, the buy money was “used solely to investigate drug-related crimes. And as officers of the Task Force testified, controlled buys occur several times per month using money specifically budgeted for that purpose.”

The Colorado Attorney General’s Office appealed to the Supreme Court, arguing criminal defendants should not benefit from an illegal drug transaction.

During oral arguments, public defender Lisa Weisz urged the court not to find the buy money was something advanced by law enforcement, arguing an “advance” occurs when the entity paying the money is not getting anything in return.

“Would it qualify if a police officer undercover ‘advanced’ money to a prostitute?” asked Boatright.

“It depends if they got something back,” responded Weisz.

“There’s gonna be a problem if he did,” said Boatright to chuckles.

Some justices also felt, as the Court of Appeals did, that the use of buy money was not an extraordinary investigation cost.

“What to make of the fact that there was an existing budget for this when thinking of this as extraordinary?” wondered Justice Maria E. Berkenkotter.

“I would guess right now in Colorado Springs there are 20 officers doing drug-buy busts,” responded Weisz. “It seems exceedingly common to me.”

Ultimately, the majority noted restitution has to be authorized under state law. Samour explained that the buy money was not an “advance” because it was simply a transaction: An officer gave Hollis money and Hollis gave him drugs.

To the extent the drug task force supplied an officer with cash, “it was not ‘money advanced’ by the Task Force,” wrote Samour.

Because buy money is a “widely accepted practice,” he continued, it could not be an extraordinary investigative cost, either. Holding otherwise would risk “opening Pandora’s box” for other types of routine law enforcement expenditures.

The government insists “we should consider the use of buy money extraordinary because we need ‘to take the profit out of crime’,” Samour wrote. “While everyone would agree that this is a laudable goal, it is a policy matter better suited for the legislature.”

Boatright, in dissent, believed “ordinary” costs were synonymous with “fixed” costs that police must account for regardless of criminal activity. Just because the buy money was in the budget, he argued, it did not lose its extraordinary character.

“For example, one would not argue that because a law enforcement agency has allocated money for using drones to protect a visiting dignitary, the use of those funds would be an ordinary cost,” he wrote.

The case is People v. Hollis.