STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS ) AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2912

)

MICHAEL S. HIDAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on November 30, 1995, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Pauline M. Ingraham-Drayton, Esquire 711-B Liberty Street

Jacksonville, Florida 32202-2715

For Respondent: James C. Casey, Esquire

10680 Northwest 25th Street, Suite 202

Miami, Florida 33172-2108 STATEMENT OF THE ISSUE

The issue in this case is whether respondent's law enforcement certificates should be disciplined for the reasons given in the amended administrative complaint filed on September 14, 1994.

PRELIMINARY STATEMENT

This matter began on December 16, 1993, when petitioner, Criminal Justice Standards and Training Commission, issued an administrative complaint charging respondent, Michael S. Hiday, a certified law enforcement officer, with having demonstrated "a lack of good moral character" in contravention of the law. More specifically, the complaint alleged that on October 26, 1992, respondent "did then unlawfully and knowingly possess drug paraphernalia" and "did then unlawfully and knowingly be in actual or constructive possession of crack cocaine." Respondent denied the allegations and requested a formal hearing to contest the agency's action. The matter was referred by petitioner to the Division of Administrative Hearings on May 25, 1994, with a request that a Hearing Officer be assigned to conduct a hearing.

On September 14, 1994, petitioner filed an amended administrative complaint in which it clarified the original allegations by charging that on October 26, 1992, respondent "did unlawfully and knowingly fail to properly submit evidence

or turn into the Property Room drug paraphernalia, to wit: a crack pipe," and on the same date he allegedly was "in actual or constructive possession of crack cocaine . . . (which he) placed . . . into the glove compartment of his assigned police vehicle." The final hearing concerned these amended charges.

By notice of hearing dated June 22, 1994, a final hearing was scheduled on August 18, 1994, in Jacksonville, Florida. At respondent's request, the matter was continued to November 2, 1994. By agreement of the parties, the case was consolidated with Case No. 94-2911 and both cases were continued to November 18, 1994. The cases were then placed in abeyance pending the submission of a stipulation to the agency. When the stipulation was not accepted, the two cases were severed and the matter was rescheduled to November 30, 1995, at the same location.

At final hearing, petitioner presented the testimony of Don Retzer, a sergeant with the Jacksonville Sheriff's Office; and George H. Williams, an officer with the Jacksonville Sheriff's Office. Also, it offered petitioner's exhibits 1-6. All exhibits were received in evidence except exhibit 6.

Respondent testified on his own behalf and presented the testimony of Roy Henderson, a sergeant with the Jacksonville Sheriff's Office; Thomas J. Pomeroy, an officer with the Jacksonville Sheriff's Office; James R. Ross, a lieutenant with the Jacksonville Sheriff's Office; James Penn, a vice-president of an automobile dealership; and Elisha D. Edmonds, a sergeant with the Jacksonville Sheriff's Office. Also, he offered respondent's 1-8. All exhibits were received in evidence.

The transcript of hearing was filed on December 13, 1995. By agreement of the parties, the time for filing proposed findings of fact and conclusions of law was extended to January 22, 1996, and both parties timely filed the same. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At all times relevant hereto, respondent, Michael S. Hiday, was certified as a law enforcement officer by respondent, Criminal Justice Standards and Training Commission (Commission), having been issued law enforcement certificate number 43066 and auxiliary law enforcement certificate number 43067 on August 30, 1988, and August 7, 1987, respectively. When the events herein occurred, respondent was employed as a police officer with the Jacksonville Sheriff's Office (JSO).

   
   

2. This controversy involves charges that respondent (a) "knowingly fail(ed) to properly submit (a crack pipe to) the Property Room . . . which was taken from a drug suspect" and thus was "in unlawful possession of drug paraphernalia," and (b) was "in actual or constructive possession of crack cocaine . . . (which he) placed . . . into the glove compartment of his assigned police vehicle." The facts underlying these charges are set forth below.

   
   

3. Beginning in March 1991, respondent was assigned to the JSO Zone Three Task Force, a small team of officers who responded to various types of citizen complaints filed with the JSO, including those of a drug-related character. As a member of the team, respondent traveled with a partner in an assigned vehicle. In October 1992, respondent's partner was officer Padgett.

4. On October 20, 1992, respondent assisted officer Padgett in the arrest of one Charles D. Littlejohn for possession of a crack pipe, which constituted a misdemeanor offense. During the arrest, respondent learned that Littlejohn had a suspended driver's license.

   
   

5. On October 26, 1992, respondent and his partner observed Littlejohn driving a motor vehicle in the 200 block of West Union Street in Jacksonville. After stopping Littlejohn's truck, and confirming that he had a suspended driver's license, respondent asked Littlejohn to step out of the vehicle so he could be placed under arrest. As Littlejohn proceeded to do so, a pipe fell onto the pavement. The pipe appeared to be one typically used by individuals for smoking crack cocaine. There is no evidence, however, that the pipe in question contained any cocaine residue so as to make it illegal contraband.

   
   

6. Except for domestic violence, a police officer has the discretion not to arrest an individual for a misdemeanor offense. Respondent knew that Littlejohn could not make bail if he was charged with a drug offense, and that he had just been arrested on a prior drug offense some six days earlier. Since he had already charged Littlejohn with one misdemeanor, namely, driving with a suspended license, respondent decided to "be a good guy" and give Littlejohn "a break." Accordingly, respondent took the pipe from Littlejohn but did not charge him with a drug offense. The pipe was placed in the side door panel of respondent's police vehicle.

   
   

7. Later that same day, respondent and his partner were patrolling in the Turkey Villa housing project, a known drug area, when they observed several individuals standing in a group. On the ground near the group was a matchbox which contained a white "ball" resembling crack cocaine. Since the owner of the matchbox could not be determined, respondent took the matchbox and placed it in the seat of his car. When the box began "sliding around" in the seat, respondent placed it in the glove box of his vehicle. There is no evidence, however, that the "ball" in the matchbox was crack cocaine, or any other illegal controlled substance.

   
   

8. Respondent intended to turn in the pipe and matchbox to the property room at the end of his shift, as required by a JSO general order. However, respondent acknowledges he became "lax" and did not do so before he left duty that day. By not doing so, respondent failed to conform with the JSO general order.

   
   

9. The next day, respondent's vehicle was assigned to another police officer. Before respondent had an opportunity to retrieve the items and turn them into the property room, the JSO internal affairs section searched the vehicle and found the pipe and matchbox. For not complying with JSO general orders pertaining to "Competency and the Handling of Evidence," respondent was given a written reprimand and suspended without pay for thirty working days in July-August 1993. A charge that respondent unlawfully possessed contraband was not sustained. Eventually, the Commission learned of this incident and thereafter issued its administrative complaint, as amended.

   
   

10. Respondent did not keep the pipe and matchbox for his own personal use, for the purpose of delivering those items to another person, or for any other illicit reason. Rather, he had always intended to turn them into the property room.

11. Other than the disciplinary action meted out by JSO in 1993, respondent has an unblemished record as a law enforcement officer since being certified in August 1987. He has received a number of commendations, and his current supervisor and other JSO officers had nothing but praise for his work, integrity, honesty and dedication as a police officer.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties pursuant to Section 120.57(1), Florida Statutes.

    
    

13. Because respondent's law enforcement certifications are subject to suspension or revocation, petitioner must prove the allegations in the complaint by clear and convincing evidence. See, e. g., Newberry v. Fla. Dept. of Law Enforcement, 585 So.2d 500, 501 (Fla. 3d DCA 1991).

    
    

14. Respondent is charged with violating "the provisions of Section 943.1395(6),(7), Florida Statutes and Rule 11B-27.001(4)(a) (b), and (c), Florida Administrative Code, in that (he) failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that an officer in the State of Florida have good moral character." According to the complaint, the failure to maintain "good moral character" is premised on the notion that respondent (a) was "in unlawful possession of drug paraphernalia (a crack pipe) which is contrary to Section 893.03, Florida Statutes," and (b) was "unlawfully, and knowingly . . . in actual or constructive possession of crack cocaine, a controlled substance as defined in Section 893.03, Florida Statutes."

    
    

15. Petitioner has clearly established that respondent violated a JSO policy (general order) which requires that evidence be turned into the property room by the end of an officer's duty shift. There is insufficient evidence, however, either direct or inferentially, to support the charge that respondent unlawfully possessed a controlled substance as defined by Section 893.03, Florida Statutes. This is because there is no evidence that the white ball in the matchbox was actually crack cocaine, a necessary predicate for establishing that the item was a controlled substance within the meaning of section 893.03. See, e. g., L. R. v. State of Florida, 557 So.2d 121 (Fla. 3d DCA 1990)(testimony that substance appeared to be rock cocaine insufficient to adjudicate a juvenile defendant delinquent for possession of cocaine). See also Cabral v. State, 550 So.2d 46, 47 (Fla. 3d DCA 1989); Weaver v. State, 543 So.2d

    443 (Fla. 3d DCA 1989). In addition, the evidence fails to support a finding that respondent intended to do anything other than to turn the matchbox into the property room. Indeed, except for respondent's oversight or inadvertence, the item would have been turned in by the end of the duty shift on October 26, 1992.

    
    

16. The complaint further alleges that "(r)espondent (was) in unlawful possession of drug paraphernalia which is contrary to Section 893.03, Florida Statutes." While the pipe appears to be drug paraphernalia as defined by Section 893.145(12), Florida Statutes, the unlawful possession of drug paraphanalia is controlled by Section 893.147, Florida Statutes, and not section

    893.03. Section 893.147 makes it "unlawful for any person to use, or possess with intent to use, drug paraphanalia to inject, injest, inhale, or otherwise introduce into the human body a controlled substance in violation of this chapter." Aside from the use of an incorrect statutory citation to support the charge, there is no evidence from which even an inference can be drawn that respondent intended to use the drug paraphernalia for the purposes described in

    the statute. Therefore, it must be concluded that a violation of section

    893.147 has not occurred. For these reasons, the complaint, as framed, must logically fail.

    
    

17. As noted above, the complaint rests upon the theory that respondent violated section 893.03 by unlawfully possessing a controlled substance and drug paraphernalia, and that those acts constituted a violation of Commission law and rules. In the absence of any specific allegations in the complaint that a violation of a JSO office policy pertaining to the handling of evidence per se equates to a violation of the cited law and rules, it is unnecessary to reach that issue. Parenthetically, however, it would appear that the established facts herein would not support such a charge.

    
    

18. Finally, a brief comment is necessary with respect to one evidentiary ruling. At hearing, petitioner offered into evidence as petitioner's exhibit 3 a copy of a transcript of an interview given under oath by respondent to a JSO internal affairs officer. After objections to the document were made, including a hearsay objection, petitioner, with respondent's acquiescence, offered the document as hearsay evidence under Section 120.58(1), Florida Statutes, which authorizes the use of hearsay evidence when it supplements or explains other competent evidence. Although respondent's statements therein clearly constitute a party admission under Section 90.803(18), Florida Statutes, the parties agreed that the document would be offered as hearsay under section 120.58(1). Therefore, exhibit 3 has been treated as that type of evidence. At the same time, however, the officer who interviewed respondent testified at final hearing and repeated in substance (over the objection of counsel) many of the statements made by respondent during the interview. Since no section 120.58(1) limitation was placed on those statements, and they constitute a party admission under section 90.803(18), they have been used in that context.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order dismissing the amended

administrative complaint, with prejudice.

DONE AND ENTERED this 31st day of January, 1996, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 31st day of January, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2912

Petitioner:

Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the evidence, cumulative, or a conclusion of law.

COPIES FURNISHED:

Pauline M. Ingraham-Drayton, Esquire 711-B Liberty Street

Jacksonville, Florida 32202-2715

James C. Casey, Esquire 10680 N. W. 25th Street Suite 202

Miami, Florida 33172-2108

A. Leon Lowry, II, Executive Director Division of Criminal Justice Standards

and Training Commission

P. O. Box 1489

Tallahassee, Florida 32302-1489

Michael R. Ramage, Esquire Department of Law Enforcement

P. O. Box 1489

Tallahassee, Florida 32302-1489

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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

Docket for Case No: 94-002912

Orders for Case No: 94-002912