days following receipt of the transcript.
For Petitioner: Joseph S. White, Esquire
The issue presented for decision herein is whether or not the Respondent's certification as a law enforcement officer should be revoked based on conduct, set forth hereinafter in detail, which indicates that Respondent failed to maintain the required qualifications for such officers.
Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the finding relevant factual findings.
Respondent was certified by the Criminal Justice Standards and Training Commission (CJSTC) on June 4, 1982 and was issued Certificate No. 02-31518.
During the fall of 1984, the Miami Police Department Street Narcotics Unit became involved in a criminal investigation which implicated Respondent,
Respondent's brother, Jorge Orellana and Respondent's brother-in-law, Juan Carlos Fernandez. During times material herein, Respondent was employed as a police officer with the Miami Police Department. Vice officers assigned to the narcotics unit wear plain clothes and drive unmarked vehicles.
The Miami Police Department initiated the above investigation in response to information furnished by the Miami Beach Police Department. In carrying out its investigation, the Miami Beach Police Department placed a pen register 1/ on the telephone registered to Juan Carlos Fernandez based on his suspected narcotics trafficking. The pen register placed on Mr. Fernandez' telephone indicated in excess of 100 calls per week to Respondent's telephone.
In furtherance of the Miami Police Department's investigation, Sergeant John Dalton of the Street Narcotics Unit, as well as several other officers, began covert observations of Respondent's residence in an effort to gather further evidence which would support a wiretap application. Respondent lived at the duplex with his wife and his brother Jorge.
During the investigation, Metro-Dade Police Department officers arrested Respondent's brother on a narcotics trafficking related charge. He was released on bail. Respondent was aware of his brother's arrest and release.
On October 30, 1984, the Miami Police Department Street Narcotics Unit was conducting a covert surveillance of Respondent's residence. One of the unit officers, Betancourt, was stationed in an unmarked van approximately one-half block from the Respondent's home.
Respondent suspected the van to be an unmarked police van and, accompanied by his brother Jorge, walked over to the van and tried to peer inside and put his hands on the hood of the vehicle.
During another occasion subsequent to the above occasion, while Sergeant Dalton was attempting to conduct a covert surveillance of the Orellana home, Juan Carlos Fernandez drove by and waved at Sergeant Dalton. The two had never met. On another occasion, Fernandez drove up to Sergeant Dalton's unmarked police vehicle and held his hands up in such a fashion as to simulate taking a picture of Sergeant Dalton with a camera. George Lopez, one of the narcotic unit members, determined that the unit was being countersurveilled during the investigation based on the conduct of Respondent, his brother and brother-in- law.
On December 14, 1984, the narcotics unit again conducted a covert surveillance of the Orellana home. On that date, Officer Betancourt sat in an unmarked car parked in a parking lot across the street from the Orellana home.
Respondent and his brother-in-law stood in front of the Orellana home and looked in the direction of Officer Betancourt's vehicle. Soon thereafter, the two walked across the street and over to Officer Betancourt's vehicle. Officer Betancourt attempted to conceal himself by lying down on the seat, but the two knocked on the window and insisted that he roll the window down. Respondent knew that Officer Betancourt was a police officer and asked what Officer Betancourt was doing. Officer Betancourt told the two that he was on a surveillance in a purse snatching investigation. Respondent knew Fernandez, who accompanied him to Betancourt's vehicle, was involved in illegal narcotics activity.
Later that same day, Respondent's brother, Jorge Orellana, was observed leaving the Orellana residence by members of the narcotics unit. Members of the surveillance team, in several vehicles, followed Jorge Orellana in a covert manner in an effort to learn his destination and the identity of his associates.
Moments after the team began to follow Jorge Orellana, Respondent hurriedly got into his personal car and joined the group of unmarked police cars following Jorge Orellana in an effort to "run interference" for Jorge Orellana.
Jorge Orellana appeared unaware that he was being followed by unmarked police cars. Respondent, however, appeared acutely aware that the unmarked police cars were following his brother, Jorge Orellana.
Respondent attempted to interfere with the surveillance by interposing his car between his brother's and the officers' cars and then fluctuating his speed to prevent them from following his brother.
Thereafter, Respondent, while still attempting to interfere with the surveillance, waved over the lead surveillance car driven by Officer George Lopez.
Sergeant Dalton, concluding that Respondent's actions had compromised the covert nature of the moving surveillance, directed Officer Lopez via police radio to comply with Respondent's wishes and pull over.
When the two cars came to a stop, Respondent got out of his car and walked over to Officer Lopez' car and inquired why he was following his brother. Officer Lopez replied that it was none of his (Respondent's) business.
Sergeant Dalton arrived on the scene moments later and identified himself to Respondent. Respondent was ordered by Sergeant Dalton to report to the Miami Police Department Internal Security Unit, a unit designated to investigate cases of officer misconduct.
Sergeant Terrence Sparrow of the Miami Police Department Internal Security Section interviewed Respondent subsequent to receiving a complaint from Sergeant Dalton that Respondent had "burned" surveillances. Prior to questioning Respondent, Sergeant Sparrow advised Respondent of his constitutional rights under the Miranda decision. Thereafter, Respondent admitted that his brother-in-law, Juan Carlos Fernandez, had given him the tag numbers of vehicles which he, Fernandez, suspected police were using to surveil the Orellana residence. Respondent admitted checking the police garage for vehicles displaying the tag numbers given him by his brother-in- law and running computer checks on tag numbers supplied by his brother. Additionally, Respondent admitted that he approached a police surveillance vehicle in the company of his brother with knowledge that it was occupied by a police officer. Respondent also admits that he provided the information obtained from the tag numbers of vehicles supplied by his brother to his wife, who in turn probably gave the information to his brother-in-law, Fernandez.
The police department parking garage where undercover vehicles park is accessible only to police officers. Likewise, police computer services which identify registered owners of vehicles are cross-referenced to license tag numbers is only available to police officers.
Respondent did not appear at the hearing, although his counsel was present and represented Respondent by cross- examining witnesses who appeared on behalf of Petitioner and by advancing argument on Respondent's behalf.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action. Subsection 120.57(1), Florida Statutes.
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
The authority of the Petitioner is derived from Chapter 943, Florida Statutes.
Respondent, a certified law enforcement officer, is subject to the disciplinary guides of Chapter 943, Florida Statutes.
Section 943.13, Florida Statutes, establishes the minimum qualification for law enforcement officers in Florida, including, at subsection (7):
Have a good moral character as determined by a background investigation under procedures established by the commission.
Moral character as used in the above statute means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence. It cannot be gainsaid that Respondent occupied a position of trust and confidence as a law enforcement officer.
Competent and substantial evidence was offered herein to establish that Respondent, while employed as a police officer, actively assisted his brother and brother-in-law in evading police surveillance by utilizing his position as a police officer to identify undercover police officers and the unmarked vehicles. Respondent further obstructed the efforts of his fellow officers to conduct a criminal investigation by interfering with a police moving surveillance of his brother and stopping a car involved in this surveillance, knowing it was driven by a fellow police officer. Respondent thereby failed to uphold the trust and confidence expected from a law enforcement officer.
Section 943.13 requires the Commission to revoke the certification of any officer who is not in compliance with the provisions of Section 943.13 - (10), Florida Statutes.
