STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1318

)

KENNETH C. GREEN, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before P. Michael Ruff, duly- designated Hearing Officer of the Division of Administrative Hearings, on March 21, 1990, in Gainesville, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Horace N. Moore, Sr., Esquire

Moore & Ehrenreich

235 South Main Street Gainesville, Florida 32601

STATEMENT OF THE ISSUES

This cause concerns the issue of whether the Petitioner should impose disciplinary sanctions against the certification of the Respondent, Kenneth C. Green, as a law enforcement officer. Specifically the issues concern whether the Respondent has failed to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, requiring maintenance of good moral character by a certified law enforcement officer and, if he has not, what discipline is warranted.

PRELIMINARY STATEMENT

The Petitioner, the Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Petitioner, agency), filed an administrative complaint seeking to discipline the certification of the Respondent Kenneth C. Green. The complainant contends that the Respondent failed to maintain the qualification of "good moral character" as provided in Section 943.13(7), Florida Statutes and that, pursuant to Section 943.1395(5) (6), Florida Statutes, the Respondent should be disciplined. In essence the Petitioner maintains that the Respondent was in possession of certain quantities

of marijuana, an illegal substance and that the Respondent, ultimately was charged with possession of cannabis and entered a plea of nolo contendere to that charge. The Petitioner maintains that this conduct and the circumstances surrounding it constitute failure to maintain good moral character in accordance with the above subsection.

The cause came on for hearing as noticed at which the Petitioner presented seven witnesses and exhibits 1 through 4, which were admitted into evidence.

The Respondent presented his own testimony.

The parties elected to have the proceedings transcribed and requested an extended briefing schedule, which was allowed. The parties timely submitted proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders, which have been considered in the rendering of this Recommended Order and are specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is an agency of the state of Florida charged with licensing (certification) of law enforcement officers and with enforcing the practice standards embodied in Chapter 943 Florida Statutes and pendent rules. It regulates the practice of law enforcement officers through the enactment of regulatory standards and enforcement of such standards by rulemaking, as well as by implementation of policy decisions.

   
   

2. The Respondent was certified as a law enforcement officer on June 17, 1982. He was issued certificate number 02- 331-00. The Respondent was employed as a police officer by the City of Gainesville Police Department at all times pertinent to this proceeding.

   
   

3. Early on the morning of January 2, 1988, the Respondent returned from a trip to Atlanta, Georgia, of several days duration. He returned directly to his residence at the Gardenia Apartments, an apartment complex in Gainesville, Florida. On that morning, Sergeant Louis Aceveda of the Gainesville Police Department responded to a call to investigate a complaint of loitering and a possible illicit drug transaction at the apartment complex. Sergeant Aceveda is a narcotics investigator for that police department.

   Shortly after his arrival at the Gardenia Apartments complex, Sergeant Aceveda coincidentally encountered the Respondent, a fellow police officer, when the Respondent was driving into the parking lot of the complex. They engaged in a brief conversation about Sergeant Aceveda's purpose at the site and the Sergeant asked the Respondent if he could use the restroom in the Respondent's apartment. The Respondent readily agreed.

   
   

4. Upon entering the Respondent's apartment the Sergeant smelled an aroma of burnt marijuana. No one else was present in the apartment at that time other than Sergeant Aceveda and the Respondent. The Sergeant made his way to the only restroom in the apartment and closed the door. Once he was in the restroom he observed a partially-burned marijuana cigarette in an ashtray lying in plain view on the top of the toilet tank. He confiscated that cigarette remnant, placed it in his pocket, and left the Respondent's apartment without revealing his discovery to the Respondent. After leaving the apartment he reported the incident to his supervisors and fellow investigators.

5. Later that same day, Detective Drayton McDaniel of the Gainesville Police Department Narcotics and Organized Crime Section executed a probable cause affidavit in support of a search warrant application in order to attempt a search of the Respondent's apartment. The affidavit was based on Sergeant Aceveda's observations made earlier that day. It was presented to a county judge who found probable cause and issued a search warrant for the Respondent's apartment.

   
   

6. At approximately 7:50 p.m. on January 2, 1988 Detective McDaniel and several other officers met the Respondent outside his apartment. Detective McDaniel knew the Respondent as a fellow police officer. He read the search warrant to the Respondent and the Respondent exhibited no specific reaction, asked no questions and made no comments concerning the search. Detective McDaniel and the officers assisting him then entered the apartment and began the search.

   
   

7. Detective McDaniel collected, packaged and placed identification on certain seized items found during the search. Sergeant A. W. Smith, the Respondent's former supervisor, assisted with the search. He found a metal can top which contained approximately one tenth of a gram of marijuana (cannabis) as well as "rolling papers" commonly used to roll marijuana cigarettes. This material was in plain view on top of the Respondent's dresser in his bedroom. The Respondent's police badge and identification had been placed almost in contact with the metal can top on top of the dresser also.

   
   

8. Investigator Richard Brooks of the Alachua County Sheriff's office also assisted in the search. He found an ashtray in the Respondent's bedroom which contained three marijuana cigarettes. Inside a drawer in the dresser Detective McDaniel found a black ceramic smoking pipe containing the residue of cannabis in the bowl. Sergeant Smith found a closed, purple handbag in the same bedroom on top of a chest at the foot of the bed. Inside the handbag was the Respondent's service revolver, issued to him by the Gainesville Police Department, as well as a small bag containing 1.5 grams of cannabis.

   
   

9. Detective McDaniel found two cannabis cigarettes in the Respondent's automobile after he had obtained the Respondent's consent to search it. Sergeant Smith found four partially smoked marijuana cigarettes weighing approximately a tenth of a gram which were in a metal tray on the top of a dresser in the Respondent's bedroom. These were in plain view. Sergeant Smith also found a round tray under the dresser in the Respondent's bedroom which contained .1 gram of cannabis.

   
   

10. During this lengthy search the Respondent was present. Despite this he made no statements nor asked any questions of his fellow police officers, who were known to him, while they were searching his home and his vehicle. However when Detective McDaniel discovered a small bag of suspected cocaine in his vehicle the Respondent indicated to him that his fingerprints would not be found on the bag. Other than this he was heard to make no comment during the entire search. After the search was concluded Detective McDaniel told him that he would be arrested. Again he made no statement.

    
    

11. On January 4, 1988 Investigator Raymond Griffin of the Gainesville Police Department Internal Affairs Unit conducted an administrative interview of the Respondent. The Respondent was asked to submit to a urinalysis to determine if he had used narcotics but refused to do so. On January 5, 1988 the Respondent resigned his position with the Gainesville Police Department after having worked in that capacity for five and one- half years.

    On May 31, 1988 he entered a plea of nolo contendere on the charge of possession of cannabis before the County Court, In And For Alachua County.

    
    

12. The Respondent maintained in his testimony that he had been to Atlanta on a vacation trip for several days, during which time his brother and some of his friends had used his apartment, apparently as a place for temporary residence and to "party". The Respondent indicated that he felt that his brother or other persons occupying the premises temporarily, during his brother's possession of them, had left the marijuana cigarettes and remnants of them on the premises. The Respondent maintained that he was gathering these items to begin investigating their origin and who might be responsible for them and that this was why he had the marijuana in the purple handbag and on top of his dresser. He had no explanation for the marijuana cigarette remnants from the bathroom or under the dresser or from his vehicle, however. The same is true of the discovery of the cocaine in his vehicle. The Respondent maintained that he was unable to locate his brother to secure his testimony for this proceeding because at some point after the Respondent's arrest and resignation from the Gainesville Police Department, and before this hearing, the Respondent's brother was convicted of a felony, and sentenced and incarcerated in the state prison system. The Respondent professed not to know his whereabouts at the time of the hearing.

    
    

13. The Respondent's version of events concerning his gathering the marijuana in his bedroom as evidence, for purposes of conducting an investigation concerning its origin is not accepted. It is not credible to believe that a police officer of five and one-half years experience would gather marijuana and place it on his dresser in a convenient location, in the belief that persons not normally using his apartment had left those items there, without conducting a thorough search of his apartment so that he would have discovered the other marijuana remnants and also gathered them into a central location for preservation as evidence. If he had really intended gathering the marijuana in his bedroom as evidence, he would certainly have discovered that which was found in the bathroom, under the dresser and the marijuana smoking pipe from the dresser drawer.

    
    

14. The fact that these other items were discovered not gathered and preserved in one location for transmittal to the police department, and the origination of an investigation, belies the Respondent's story in this regard. In fact, it appears that the Respondent was simply in possession of an illegal substance, marijuana, in his apartment and the search was conducted and the discoveries made before he could dispose of it. His story is further belied by the fact that cocaine and marijuana cigarettes were found in his automobile, which does not fit his description of events concerning his gathering of evidence to investigate who might have left the marijuana lying around the apartment. He was in possession of his automobile during the Atlanta trip.

    
    

15. Further, his possession of the marijuana in question in the apartment was shown by the fact that he was present at home in the residence when the search warrant was served and the marijuana was lying around, or most of it was, in plain view. It is, thus, difficult to believe that he was unaware of its presence and did not have dominion and control over it. The fact that the marijuana in his apartment was under his dominion and control and, therefore, his possession, is corroborated by the fact that marijuana was found, along with cocaine, in his vehicle, which points to the fact that all the illegal substances found were possessed by the Respondent with his knowledge.

    There was certainly no evidence that Respondent's brother or other unknown persons had used his vehicle and left marijuana and cocaine therein unbeknownst to the Respondent.

    
    

16. In summary, the marijuana being in plain view in the apartment at several different locations indicates that it was in the Respondent's actual possession, that he knew of it, and that he simply was surprised before he could discard it or otherwise dispose of it.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989).

    
    

18. Section 943.13(4), Florida Statutes, sets forth the minimum standards for law enforcement officers certified in Florida, including at subsection (7):

    
    

    Have a good moral character as determined by a background investigation under

    established by the commission. Section 943.1395(5), requires:

    The commission shall revoke the certification of any officer who is not in compliance with the provisions of section 943.13(1) through (10) . . .

    
    

    Section 943.1395(6) establishes certain lesser penalties for application in appropriate cases.

    
    

19. Rule 11B-27.0011(4), Florida Administrative Code, defines "good moral character" for purposes of enforcement of the certification standard for law enforcement officers. The rule states in pertinent part:

    
    

    (4) For the purpose of the commission's implementation of any of the penalties enumerated in Section 943.1395(5) or (6), a certified officer's failure to maintain a good moral character, as required by Section 943.13(7), is defined as:

    (b) the perpetration by the officer of

    an act which would constitute any of the following misdemeanor or criminal offenses, whether criminally prosecuted or not:

    893.13 . . . (1)(g) . .

    
    

20. Section 893.13(1)(g), Florida Statutes, in turn, makes unlawful the possession of not more than 20 grams of cannabis. Although no issue has been raised in this proceeding concerning the legality of the search and seizure, and the probable cause basis for the warrant by which the search was conducted, there is no question that the search and seizure of the various cannabis- related items was proper. Sergeant Aceveda's seizure of the cannabis cigarette from the Respondent's restroom was in plain view of the officer when he went in there for the purpose of relieving himself. Therefore, its seizure was proper. In Texas v. Brown, 103 S.Ct. 1535 (1983), the United States Supreme Court held that if, while engaged in lawful activity in a particular place, police officers

    perceive a suspicious object, they may cease it immediately. Likewise, the search of the apartment and the seizure of the cannabis and the paraphernalia there was lawful because it was done pursuant to a lawfully sought and issued search warrant. See Franks v. Delaware, 98 S.Ct. 2674 (1978). In any event, the Respondent does not dispute the presence of the cannabis and related items in both his apartment and his vehicle, as well as the bag of cocaine.

    
    

21. A controlled substance may be unlawfully possessed actually or constructively. Constructive possession exists where the accused is without physical possession of contraband, but had dominion and control over it, recognized it as contraband, and was aware of it in his presence. When contraband is found in a jointly-occupied premises, the presence of the contraband in plain view in common areas or in an area over which the accused had exclusive domain and control establishes constructive possession for purposes of statutes rendering possession of the controlled substance illegal. In the case of Brown v. State, 428 So.2d 250 (Fla. 1983), the Florida Supreme Court held that:

    
    

    Joint occupancy, with or without

    ownership of the premises, where contraband is discovered in plain view in the presence of the owner or occupant is sufficient to support a conviction for constructive possession.

    
    

    Brown, at 252. See also Maisler v. State, 425 So.2d 107 (Fla. 1st DCA 1982); Julian v. State, 545 So.2d 347 (Fla. 1st DCA 1989).

    
    

22. There is no legal requirement that a person be shown to be the owner of a quantity of controlled substance in order to be in unlawful possession. It is sufficient if it is shown that the contraband was found in a place where the person had control over it or in which the person had hidden or concealed it.

    
    

23. Clear and convincing evidence adduced at the hearing establishes the conclusion that the Respondent was in unlawful possession of cannabis. The marijuana was found in plain view in his apartment, specifically in the bathroom and in his bedroom; areas over which he had dominion and control.

    Additionally, marijuana was found in places where the Respondent had dominion and control of it or where he had placed it in his vehicle, in his dresser drawer and under his dresser, as well as in the handbag in which his personal police service revolver was kept in his bedroom.

    
    

24. Further, the Respondent failed to notify his supervisors of the marijuana he claimed to have found in his apartment, putatively placed there by his brother or other persons. This is true in spite of the fact that the Respondent allowed several hours to elapse between the time of his discovery of it early in the morning on the date in question and the time of the execution of the search warrant. After the Respondent made such an alarming "discovery" upon his return home from Atlanta, he apparently failed to inform the police department of his discovery of the contraband or to take any other steps to determine why it appeared in his apartment and who might have placed it there, if, indeed, he had not. When Sergeant Aceveda entered his apartment with the Respondent's permission, in the Respondent's presence, the Respondent failed to notify him of the alleged "discovery" of the drugs in his apartment upon his return from Atlanta, despite knowing that the Sergeant was a narcotics investigator and a fellow police officer and having a clear opportunity to timely inform him of the alleged discovery.

25. It is illogical to presume that an innocent police officer, when faced with his fellow officers armed with a search warrant and knowing that others had placed the drugs in his residence, would not have told his fellow officers this belief. Instead, however, when the search warrant was served on him, the Respondent made no comment other than to apparently disclaim possession of the suspected cocaine found in his automobile. The Respondent's failure to speak concerning the origin of the marijuana and cocaine and how it came to be in his vehicle and in his apartment tends to indicate his responsibility for its presence in his apartment and his automobile.

    
    

26. Although he claimed that he was collecting the marijuana as evidence and placing it in one central location in his apartment on top of the dresser, and also in the handbag containing his pistol, preparatory to his investigating how it came to be in his apartment and who might have placed it there, the totality of the evidence shows this version of events to be inaccurate. The marijuana was found in the bathroom, on top of the bedroom dresser, inside a dresser drawer, under the dresser, in the handbag and in the Respondent's vehicle. Such a wide array of locations for the marijuana at the time the officers actually searched, quite a few hours after the Respondent is alleged to have discovered it, belies the Respondent's claim that he was assembling evidence preparatory to an investigation of the matter on his own. The Respondent's testimony that he was the innocent victim of his brother's or others' misdeeds is simply not credible or worthy of belief.

    
    

27. Additionally, his failure to report his alleged suspicion that his brother or other persons had placed the drugs in his apartment or in his vehicle when he was told he was under arrest, demonstrates he was not the victim of circumstance. His refusal to take a urinalysis drug test, his resignation, as well as his plea to the criminal charges, are indicative that the Respondent intended and possessed the marijuana for his own use.

    
    

28. His unlawful possession of cannabis demonstrates his failure to maintain good moral character. Rule 11B-27.0011(4) (b) renders such illegal conduct to be tantamount to a lack of good moral character. Such misconduct involving the breaking of law such a police officer is charged with enforcing raises substantial uncertainty about the Respondent's respect for the law.

    
    

29. The position of a law enforcement officer is one of substantial public trust and confidence. The Respondent as a law enforcement officer was charged with the enforcement of criminal laws. Section 943.10(1), Florida Statutes.

    The Respondent chose to violate the law he was charged with enforcing. In City of Palm Bay v. Bauman, 475 So.2d 1322 (Fla. 5th DCA 1985), the court stated, in effect, that police officers sworn to enforce laws lose credibility and public confidence when they violate the very laws they are charged with enforcing. By becoming a law breaker, the Respondent has demonstrated that he has qualities which are unacceptable to the general public for the position of public trust they have reposed in the enforcers of the criminal laws.

    
    

30. In summary, it has been demonstrated by the clear and convincing evidence of record, culminating in the above findings of fact, that the Respondent has violated minimum professional standards involving the maintenance of good moral character. The severity of the violation involving controlled substances was not mitigated by evidence of good moral character or prior acts reflecting positively upon the Respondent, although there was no evidence showing that he had previously violated any laws or otherwise failed to

maintain appropriate, professional law enforcement officer standards. However, the pervasiveness and severity of the use and traffic in illegal drugs in our society has caused our state legislature to enact severe penalties for the various levels of illegal drug possession, use and traffic activity. They are a substantial and serious responsibility for our police officers, given the pervasive and harmful effects the use and traffic of illegal drugs has on our populace. Consequently, the unlawful possession of cannabis must be deemed to be one of the more intolerable violations of police standards. In this context then, it unfortunately must be concluded that the penalty of

revocation of certification is warranted in the circumstance at bar.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED:

That a Final Order be entered by the Criminal Justice Standards and Training Commission of the Florida Department of Law Enforcement revoking the certification of the Respondent, Kenneth C. Green, as a law enforcement officer.

DONE and ENTERED this 5th day of July, 1990, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1990.

APPENDIX TO RECOMMENDED ORDER

Petitioner's Proposed Findings Of Fact:

1-28. Accepted.

Respondent's Proposed Findings Of Fact: Accepted.

1. Rejected as subordinate to the Hearing Officer's Findings of Fact on the subject matter, and not entirely supported by the clear and convincing evidence of record.

   
   

2. Accepted.

3. Accepted.

5-13. Accepted.

14. Accepted, but not itself materially dispositive of the issues presented for adjudication.

Copies furnished to:

Joseph S. White

Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302

Horace N. Moore, Sr.

Attorney at Law

Post Office Box 2146 Gainesville, FL 32602

Jeffrey Long, Director Criminal Justice Standards and Training Commission

Post Office Box 1489 Tallahassee, FL 32302

James T. Moore, Commissioner Criminal Justice Standards and Training Commission

Post Office Box 1489 Tallahassee, FL 32302

Docket for Case No: 89-001318

Orders for Case No: 89-001318