STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4963

)

RICHARD WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 14, 1989, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

For Respondent: Johnny L. McCray, Jr., Esquire

400 East Atlantic Boulevard Pompano Beach, Florida 33060

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint seeking to discipline the law enforcement and correctional officer certifications of the Respondent for failure to maintain the qualifications for certification, and Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination herein are whether Respondent is guilty of those allegations, and, if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Sergeant James Walkup, Deputy George Gechoff, Lieutenant Roger Lekutis, and William Thomas Walsh. Additionally, Petitioner's Exhibits numbers 1-3 were admitted in evidence. Respondent Richard Williams testified on his own behalf.

Although both parties requested leave to file posthearing proposed findings of fact in the form of proposed recommended orders, only Petitioner did so. A ruling on Petitioner's proposed findings of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent was certified by the Criminal Justice Standards and Training Commission on July 14, 1983, and November 19, 1981, and was issued certificate numbers 02-33918 and 502-868. Respondent is currently certified as a law enforcement officer and as a correctional officer by the Commission.

   
   

2. At all times material hereto, Respondent was employed as a Deputy Sheriff by the Broward County Sheriff's Department.

   
   

3. On May 3, 1986, Respondent, Deputy McDonald, and their immediate supervisor Sergeant James Walkup were working a directed patrol in the south portion of Broward County, Florida. Each was in his own patrol car, but they were working as a group with the express purpose of conducting a routine harassment of known or suspected drug dealers or users in the vicinity.

   
   

4. They spotted a rental car occupied by two black males parked in an open field in a residential neighborhood. The occupant of the vehicle in the driver's seat was Jimmy Fox, a reputed drug dealer. All three patrol cars pulled into the field behind the rental vehicle.

   
   

5. Respondent "radioed" in that he had made a traffic stop. Neither McDonald nor Walkup radioed that they were on the scene to serve as back-up units.

   
   

6. Deputy George Gechoff was working off-duty at the Home Depot on 58th Avenue in the west Hollywood area when he heard Respondent radio that he had made a traffic stop. Since Gechoff did not hear anyone radio that they were serving as back-up to Respondent, Gechoff drove to the location of the traffic stop which was just a few blocks away.

   
   

7. When Gechoff arrived at the scene Respondent had already searched the front seat area of the rental vehicle and had asked Fox's permission to search the trunk.

   
   

8. Initially, Fox refused consent to the search of the trunk of the rental vehicle. Gechoff and Fox knew each other. After Respondent assured Fox that Fox would not be arrested since the search was illegal and after Gechoff urged Fox to be cooperative, Fox consented to the request.

   
   

9. The trunk of the car was opened, and Respondent and Gechoff began searching it. The Respondent found a pistol in the trunk and went to his patrol car to "run a check" on the gun. While Respondent was in is patrol car, Deputy Gechoff, who assisted in the search of the trunk, found an aspirin or "pill- type" bottle containing approximately 50 small objects. Although Walkup testified that the objects were square cubes of yellowish material, Gechoff testified that the objects were white chips of different sizes. At the time, Walkup, Gechoff, and Respondent each believed that the objects were "crack" cocaine. If the objects were indeed crack cocaine, each object would be a single dose of the drug, and each object would have a sale price ranging from

   $10 to $20.

   
   

10. In respondent to his radio inquiry, Respondent was advised that he had a "hit" on the gun, which meant it was wanted in connection with a crime or that it had been previously reported as stolen. When Respondent communicated that information to his immediate supervisor, Sergeant Walkup, Gechoff handed Respondent the aspirin bottle.

11. Walkup instructed Respondent to take both the firearm and the suspected cocaine and write up a "found property report." Respondent was concerned about writing a report for found property, rather than seized property, and suggested to Walkup that they simply turn the matter over to the State Attorney's Office. Walkup took the position that the property was illegally seized since there was no probable cause for the search of the vehicle and the search had taken place simply as part of an harassment operation. He instructed Respondent to report the property as "found property" and left the scene.

    
    

12. When Respondent left the scene, he had with him both the confiscated firearm and the aspirin bottle with its contents. He remained concerned about being ordered to write a found property report, but knew he had to do something since he had already radioed in that he had recovered a firearm wanted by the Broward County sheriff's Office.

    
    

13. On the spur of the moment, as he was driving through a wooded area near a rock pit, Respondent took the top off the bottle and threw it out the window scattering the contents as he threw away the bottle. Later that day Respondent wrote and signed an Event Report at the Broward County Sheriff's Office reporting that he had found a .44 Magnum and suspected cocaine off the roadway while on routine patrol. The firearm was turned in at the same time, and a property receipt was issued. No property receipt was issued for the suspected cocaine.

    
    

14. Several weeks later, Sergeant Walkup received a telephone call from Fox concerning the incident on May 3. In response to that telephone call, Walkup retrieved and reviewed Respondent's report of the May 3 incident with Fox. Upon reviewing the report, Walkup became concerned with the apparent conflicts between the report's contents and his recollection of the events. He so notified his supervisor.

    
    

15. On July 1, 1986, Respondent provided a sworn statement to Lieutenant Roger Lekutis of the Broward County Sheriff's Office, Internal Affairs Unit. He admitted that after he drove away from the scene of the Fox "traffic stop" he threw the bottle which he believed contained cocaine "rocks" out the window of his patrol car. He told Lekutis that Walkup had instructed him to write a report of the incident as a "found property" report. He also admitted failing to turn over the suspected cocaine to an evidence custodian.

    
    

16. No evidence was offered suggesting that Respondent disposed of the suspected cocaine in a manner different than throwing it out the window as he drove through the wooded area near the rock pit, and the Respondent's testimony in that regard is credited.

    
    

17. Since this incident, Respondent has been reinstated by the Broward County Sheriff's Office but was not yet on the payroll by the time of the final hearing in this cause, since he was undergoing certain pre-employment certification and testing procedures.

    CONCLUSIONS OF LAW

    
    

18. Section 943.13, Florida Statutes, establishes the minimum qualifications for law enforcement and correctional officers in Florida and requires that such persons shall, inter alia:

    
    

    (7) Have a good moral character as determined by a background investigation under procedures established by the Commission.

    
    

19. Further, Section 943.1395(5), Florida Statutes, provides that:

    
    

    The Commission shall revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10)....

    
    

    Finally, Section 943.1395(6), Florida Statutes (1988), establishes lesser penalties than revocation for failure to maintain good moral character once the Commission has adopted a rule providing a definition for the term "good moral character."

    
    

20. The Administrative Complaint filed in this cause charges Respondent with violating Sections 943.1395(5) and (6), Florida Statutes, by failing to maintain the qualifications established in Section 943.13(7), Florida Statutes, which requires that a law enforcement or correctional officer have good moral character, on two separate grounds: First, by making a false statement under oath on July 1, 1986; and second, by failing to deliver a substance for safekeeping to the custody of a law enforcement agency and discarding it by throwing it into a public street or otherwise improperly disposing of it.

    
    

21. It has been found that Respondent did throw the suspected cocaine rocks out of the window of his car in a wooded area near a rock pit. No evidence was offered to suggest that Respondent did dispose of the substance in any other manner, such as by using it or selling it. Although Respondent did scatter the suspected cocaine rocks on or along a public street, no evidence was offered to suggest that the substance was recoverable after being scattered in the wooded area.

    
    

22. Although Respondent admittedly exercised extremely poor judgment in discarding the substance rather than turning it in to an evidence custodian, Respondent's behavior falls far short of that required for a showing of bad moral character. It is clear that Respondent's testimony and from exhibits written by him which were admitted in evidence that Respondent is neither a well educated nor sophisticated person; he is, however, a believable person. At the time that Respondent discarded the substance, he knew there would be no criminal prosecution due to the substance being seized as a result of an illegal harassment operation conducted by his supervisor, Respondent, and others. Respondent did fill out a found property report as instructed by his immediate supervisor and did report on it that suspected cocaine had also been found. Respondent is not charged in this proceeding with failure to follow proper procedures; rather, he is charged with failure to maintain a good moral character. The evidence in this cause simply does not establish such a severe allegation.

    
    

23. As to the allegation that Respondent has violated the statutory sections set forth above my making a false statement under oath, Respondent has not been charged with filing a false report with the Broward County Sheriff's

    Office. Rather, he is charged with having falsely testified during the Internal Affairs investigation by telling those investigators that Sergeant Walkup ordered him to file a found property report. It has been specifically found that Sergeant Walkup did order Respondent to file a found property report, rather than reporting the firearm and suspected cocaine as seized property, although Sergeant Walkup did not specify the details to be included in that report. The report filed by Respondent is written in such a way that it does sound as though the property was found and not seized. It cannot be said that Respondent's conduct in carrying out the direct orders of his immediate supervisor constitutes lack of good moral character under the circumstances in this case.

    
    

24. In short, Petitioner has failed to prove that Respondent's use of poor judgment in disposing of the suspicious substance constitutes lack of good moral character. Further, Petitioner has failed to prove that Respondent knowingly made a false statement under oath on July 1, 1986, since it has been found in this Recommended Order that Respondent did not make any false statements on that date.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of

the allegations contained in the Administrative Complaint filed against him and

dismissing the Administrative Complaint filed in this cause.

DONE AND ENTERED this 26th day of April 1989, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1989.

APPENDIX

DOAH CASE NO. 88-4963

1. Petitioner's proposed findings of fact numbered 1, 5, 6, 8-10, 13-17, and 19 have been adopted either verbatim or in substance in this Recommended Order.

   
   

2. Petitioner's proposed findings of fact numbered 2-4, 7, 11, 12, and 18 have been rejected as not being supported by the weight of the credible evidence in this cause.

COPIES FURNISHED:

Joseph S. White, Esquire Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Johnny L. McCray, Jr., Esquire

400 East Atlantic Boulevard Pompano Beach, Florida 33060

Daryl McLaughlin, Executive Director Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Jeffrey Long, Director Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Rodney Gaddy, General Counsel Florida Department of Law

Enforcement

Post Office Box 1489 Tallahassee, Florida 32302

Docket for Case No: 88-004963

Orders for Case No: 88-004963