vs. ) CASE NO. 93-1808
JAMES E. WEAVER, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on April 13, 1994, in West Palm Beach, Florida.
For Petitioner: Paul D. Johnston, Esquire
For Respondent: Frederick W. Ford, Esquire
712 U.S. Highway One, Fourth Floor North Palm Beach, Florida 33408
At issue in this proceeding is whether respondent committed the offense charged in the administrative complaint and, if so, what disciplinary action should be taken.
By administrative complaint dated November 22, 1991, petitioner charged that respondent, a certified police officer, had violated the provisions of Section 943.13(7) and 943.1395(5) and (6), Florida Statutes, and Rule 11B- 27.0011(4)(b) and/or (d), Florida Administrative Code, by failing to maintain an essential requirement for certification, to wit: good moral character. The gravamen of the charge is the allegation that on or about May 16, 1991, respondent was "unlawfully and knowingly . . . in actual or constructive possession of a controlled substance named or described in Section 893.03, Florida Statutes, to wit: marijuana, and did introduce the said substance into his body."
Respondent executed an election of rights which disputed the allegations of fact contained in the administrative complaint, and the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. At hearing, petitioner called Bernard Mortenson and Beverly A. Brame as witnesses, and offered petitioner's exhibits 1-8. Exhibits 1-5 and 8 were received into evidence at hearing, but the admissibility of petitioner's exhibits 6 and 7 was reserved. Upon consideration, petitioner's exhibits 6 and 7 are also received into evidence. 1/ Respondent called no witnesses on his behalf, but did offer respondent's exhibits 1-6, which were received into evidence.
The transcript of hearing was filed June 7, 1994, and the parties were accorded 10 days from that date to file proposed findings of fact. The parties' post-hearing submittals have been addressed in the appendix to this recommended order.
At all times material hereto, respondent, James E. Weaver, was employed as a law enforcement officer by the Palm Beach Gardens Police Department, and was duly certified by petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Department), having been issued certificate number 02-29327 on December 24, 1981. 2/
On May 16, 1991, respondent invited Martin County Deputy Sheriff Beverly Brame, who was operating undercover and whose status as a law enforcement officer was unknown to respondent, to his apartment for the announced intention to "get high" on a marijuana cigarette and "watch the Simpsons [television show]." During the course of her visit, respondent produced one hand rolled marijuana cigarette, which he proceeded to light and inhale in the presence of Deputy Brame.
The defense of entrapment
In response to the administrative complaint which charged respondent with having failed to maintain an essential requirement for certification, to wit: good moral character, by "unlawfully and knowingly [being] in actual or constructive possession of a controlled substance named or described in Section 893.03, Florida Statutes, to wit: marijuana, and did introduce the said substance into his body," the respondent moved to dismiss the charges based on the defense of entrapment. Based on findings of fact which follow, that motion is denied.
The events giving rise to Deputy Brame meeting respondent at his apartment on May 16, 1991, to share a marijuana cigarette had their genesis on April 18, 1991, when Florida Department of Law Enforcement (FDLE) Special Agent Bernard Mortenson and his supervisor were invited to meet with members of the Palm Beach Gardens Police Department. At that meeting, the Palm Beach Gardens Police Department requested FDLE's assistance in determining whether or not respondent was involved in the use or sale of marijuana. The information supporting such concern was stated to be "a well known suspicion [the derivation of which was not explicated] within the department that [respondent] used marijuana," and a statement one Shelia Hudson, a bartender at O'Malley's Raw Bar, had made to Detective Hudacsek of the Palm Beach Gardens Police Department that respondent "had supplied her with a small amount (baggie) of marijuana in
approximately October 1990." Based on such information, at the direction of his supervisor, Special Agent Mortenson undertook an investigation of respondent on behalf of FDLE.
Initially, respondent was placed under surveillance to detect any criminal activity. Such surveillance was conducted on April 29, 1991, and May 1, 2, 6 and 7, 1991, with Deputy Brame being recruited as a member of the unit early on should an opportunity for surveillance of respondent within one of his known haunts, such as O'Malley's Raw Bar, arise. Respondent was not, however, observed to frequent those places he was known to frequent, when under surveillance, and his activities failed to reveal anything of a criminal nature. Consequently, Special Agent Mortenson proposed to arrange a meeting, between Deputy Brame, who would operate undercover as "Beverly Brown," and the respondent for the purpose of developing a friendly relationship with respondent, if possible, and to observe his response to the subject of marijuana. 3/
On May 13, 1991, Deputy Brame, dressed casually in jeans and a T-shirt, approached respondent as he exited a restaurant adjacent to the Home Depo parking lot in Palm Beach Gardens, and related to him the "story" FDLE had devised as the premise for their meeting. The scenario, as it developed, resulted in Deputy Brame relating to respondent that her purse had been stolen from her truck, while parked in the parking lot, and upon being advised by respondent about the reporting process expressing concerns as to whether she might get into trouble because she had two "marijuana joints" in the purse. According to Deputy Brame, as related to respondent, she had recently located to the area from Alaska, where marijuana usage had been "decriminalized" or was "legal," and was concerned that she might get in trouble for her possession in Florida.
In response to the scenario devised by FDLE, respondent evidenced no concern regarding her possession of marijuana, assured her she would not get in any trouble, and completed an incident report and vehicle/property report which, although detailing the incident and the other contents of her purse, failed to mention the two "marijuana joints" that were reported to have been in the purse that was stolen.
After respondent took the information for his reports, he and Deputy Brame continued to engage in casual conversation for about 10 to 15 minutes, during which time Deputy Brame had occasion to compliment him on how "cool" he had been about the marijuana in her purse, and respondent had occasion to ask her, and she agreed, to meet him at O'Malley's bar the next night.
At approximately 11:30 p.m., May 14, 1991, respondent and Deputy Brame met in front of O'Malley's bar but, since it was closed, proceeded to the Irish Brewery, another bar, which was located at the other end of the same strip mall. There, respondent and Deputy Brame spent approximately one and one-half hours socializing. During that time, respondent related to Deputy Brame, among other things, that he had gotten "high" on duty with a former lieutenant with his department, as well as one time while he was working traffic. Finally, at some point in the conversation, respondent offered that it was a fantasy of his to get high and watch the Simpsons television show, and the parties agreed to meet at his apartment to watch the Simpsons and get high. Respondent gave Deputy Brame one of his business cards, with his home number written on it, and it was agreed that she would call him at 3:00 p.m., May 16, 1991, to finalize arrangements.
Deputy Brame telephoned respondent at 3:00 p.m., May 16, 1991, without success, but at 3:30 p.m. he answered the telephone. During that conversation, Deputy Brame related to respondent that:
. . . I've been trying to see if I could, you know, get a hold of anything so we could watch the Simpsons and . . . you know, get high like we talked about, and I haven't been able to get anything. I was wondering if you were, by any chance?
Respondent replied:
No. You know, I have one person I'm going to call and, if he's home--he's a cop, but he doesn't work with me. He works for another police department. And, he has some good connections and, I'm going to call him and see--and, if he's home, he might be able to.
Respondent cautioned, however, that "I don't want to even get my hopes up" since, "lately its . . . hard for [cops] to find," and observed that he wished he currently worked an area with street crime, like he used to, where it was easy to shake down street dealers so you could "have your own little stash." Later, respondent resolved to call the other officer and call her back in a few minutes.
Shortly thereafter, respondent called Deputy Brame and told her that his contact didn't have anything, but that he had one other alternative, a friend who was a paramedic, living in Lake Park, and who he was going to drive over to see. Arrangements were then made for Deputy Brame to call respondent at 6:00 p.m.
At or about 6:00 p.m., Deputy Brame called respondent and respondent advised her that "I was successful in obtaining one joint." Thereafter, the parties agreed to meet in the parking lot of O'Malley's bar so they could go to respondent's apartment and "get stoned and watch the Simpsons."
At or about 7:30 p.m., May 16, 1991, Deputy Brame met respondent in the parking lot, and followed him to his apartment in her vehicle. Thereafter, following approximately 15 minutes of casual conversation, respondent produced one hand rolled marijuana cigarette (joint) which he proceeded to light, inhale, and offer to Deputy Brame. Deputy Brame, under pretext, then attempted to leave the apartment with the joint, but exited without it when respondent objected.
On May 24, 1991, Special Agent Mortenson telephoned respondent, advised him that "there was a matter we needed to discuss," and asked that he meet him at the FDLE office. Respondent agreed to meet with Special Agent Mortenson at 11:00 a.m., and at that time Special Agent Mortenson advised him that FDLE had been conducting an investigation into his use and possession of marijuana while a police officer with the Palm Beach Gardens Police Department, advised him of his Miranda rights, and asked him if he would like to make a statement. At that point, respondent advised he wanted to confer with an attorney, and he left the office. Then, at or about 2:50 p.m., respondent returned, stated he had consulted with some attorneys, and wished to make a statement regarding the matter.
In his sworn statement, taken May 24, 1991, respondent confessed that while employed as a police officer with the Palm Beach Gardens Police Department he had used marijuana "in excess of ten" times, some of which were on duty with other uniformed officers; that while employed by the Belle Glade Police Department he had, "a couple of times," shaken down street dealers for their marijuana; and that the last time he had used marijuana was May 16, 1991, with Deputy Brame. Such statement was given without coercion, and only after being advised of his Miranda rights.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.
Section 943.13, Florida Statutes, establishes the minimum qualifications for certification as a law enforcement officer, which include the following requirement:
(7) Have a good moral character . . . .
Section 943.1395, Florida Statutes, establishes the bases for disciplining the certification of a law enforcement officer. Pursuant to the provisions of that section, such certification may be revoked, suspended or otherwise disciplined should the officer fail to maintain a good moral character as required by Section 943.13(7), Florida Statutes.
Pertinent to this case, Rule 11B-27.0011(4), Florida Administrative Code, defines a failure to maintain good moral character, as required by subsection 943.13(7), 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:
Sections . . . 893.13 . . . (1)(g) ,
F.S., or . . . .
* * *
(d) The unlawful use of any of the controlled substances enumerated in section 893.13, F.S., or 11B-27.00225, F.A.C.
And, Section 893.13(1)(g), Florida Statutes (1991), currently Section 893.13(6)(b), Florida Statutes (1993), referenced in Rule 11B-27.0011(4)(b) and (g), Florida Administrative Code, discussed supra, provides:
. . . If the offense is the possession or delivery without consideration of not more than 20 grams of cannabis . . . that person is guilty of a misdemeanor of the first degree . . .
Cannabis (commonly known as marijuana) is a controlled substance enumerated in Section 893.03(1)(c), Florida Statutes.
Here, petitioner has established by clear and convincing evidence that respondent was in actual possession of not more than 20 grams of cannabis, a controlled substance, and delivered such substance without consideration to Deputy Brame. Under such circumstances, petitioner has demonstrated that respondent violated the provisions of Sections 943.13(7) and 943.1395(5) and (6), Florida Statutes, and Rule 11B-27.0011(4)(b) and (d), Florida Administrative Code. Moreover, under the circumstances of this case, respondent's defense of entrapment, assuming its applicability to administrative proceedings, must be rejected. 4/
Absent egregious law enforcement conduct, which is not present in this case, the appropriate test to be applied to the issue of entrapment is that established by Section 777.201, Florida Statutes. Munoz v. State, 629 So.2d 90 (Fla. 1993). That section provides:
A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.
Here, the proof fails to support the conclusion that the methods employed by FDLE created a substantial risk that a crime would be committed by a person other than one who was ready to commit it, or that respondent was not predisposed to commit the offense. Rather, the proof is compelling that FDLE merely afforded respondent the opportunity to commit the offense and that given his history, he was predisposed to do so. Given the circumstances, the proof fails to support the defense of entrapment. Munoz v. State, supra.
In determining an appropriate penalty for the offense committed by respondent, consideration has been given to the disciplinary guidelines, as well as the aggravating and the mitigating circumstances, set forth in Rule 11B- 27.005, Florida Administrative Code. Here, considering the offense, circumstances surrounding it, and respondent's employment history, an appropriate penalty is revocation.
RECOMMENDATION
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner render a final order revoking respondent's
certification.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of July 1994.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 15th day of July 1994.
ENDNOTES
1/ Based on the proof in this case, respondent's post Miranda statements to Special Agent Mortenson were voluntary and admissible as evidence. Roman v. State, 475 So.2d 1228 (Fla. 1985), and Wimberly v. State, 393 So.2d 37 (Fla. 3d
DCA 1981).
2/ Respondent was employed as a law enforcement officer by the Belle Glades Police Department from September 7, 1981 through July 23, 1985, and by the Palm Beach Gardens Police Department from May 6, 1987 to May 24, 1991.
3/ In developing a friendly relationship with respondent, Special Agent Mortenson specifically directed Deputy Brame that she was to avoid the subject of sex, to avoid sexual connotations or innuendo, and to dress in a casual and nonprovacative manner. Based on the proof, Deputy Brame conformed her conduct to such directions, and it is found that the relationship she objectively sought to foster with respondent was friendly and without sexually suggestive overtones.
4/ Pursuant to Section 777.201(2), Florida Statutes, "a person prosecuted for a crime shall be acquitted if he proves by a preponderance of the evidence that his criminal conduct occurred as a result of an entrapment" defined by subsection (1). Although this is not a criminal proceeding, it is nonetheless observed that the investigating agency is also the agency seeking to take disciplinary action and, therefore, good cause exists to consider respondent's entrapment defense.
APPENDIX
Petitioner's proposed findings of fact are addressed as follows:
& 4. Addressed in paragraph 1.
& 3. Addressed in endnote 2. 5-7. Addressed in paragraph 4.
8-11. Addressed in paragraph 5 and endnote 3, otherwise subordinate or unnecessary detail.
12 & 13. Addressed in paragraphs 6-8. 14-17. Addressed in paragraph 9.
18 & 19. Addressed in paragraphs 10-12. 20-24. Addressed in paragraph 13.
Accepted and addressed in paragraph 5 and endnote 3, otherwise unnecessary detail.
Rejected as hearsay.
27-33. Addressed in paragraphs 14 and 15, otherwise unnecessary detail.
Respondent did not submit a proposed recommended order containing proposed findings of fact but did file, prior to hearing, a motion to dismiss based on the defense of entrapment. That motion has been duly addressed in this recommended order.
Paul D. Johnston, Esquire Assistant General Counsel Florida Department of Law
Frederick W. Ford, Esquire Fourth Floor
712 U.S. Highway One
A. Leon Lowry, II, Director Florida Department of Law
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
