STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF LAW ENFORCEMENT, ) CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 98-4122

)

HAWANDA GILBERT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 10, 1999, via video teleconference, with the Petitioner and the Respondent appearing in Miami, Florida, before Patricia Hart Malono, the duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Karen D. Simmons, Esquire

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

For Respondent: Cornelius Shiver, Jr., Esquire

3692 Grand Avenue

Miami, Florida 33133 STATEMENT OF THE ISSUE

Whether the Respondent committed the offenses set forth in the Administrative Complaint dated June 18, 1996, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated June 28, 1996, the Criminal Justice Standards and Training Commission ("Commission") charged Hawanda Gilbert with having "failed to maintain the qualifications established in Section 943.13(7), Florida Statutes, which require that a Law Enforcement officer in the State of Florida have good moral character," a violation of "Section 943.1395(6) and/or (7), Florida Statutes, and/or

Rule 11B-27.0011(4)(b) and/or (c), Florida Administrative Code." These charges are based on allegations in the Administrative Complaint that Ms. Gilbert "did unlawfully and knowingly make a false statement in writing with the intent to mislead, a public servant, in the performance of his/her official duty" and that Ms. Gilbert "did unlawfully and knowingly make false statements to investigators of the Metro Dade Police Department concerning material matters regarding an internal investigation."

The Administrative Complaint was served on Ms. Gilbert on September 16, 1997. She timely disputed the facts in the Administrative Complaint and requested a formal hearing. The Commission transmitted the matter to the Division of Administrative Hearings in a Request for Assignment of Administrative Law Judge dated September 16, 1998. Pursuant to notice, a final hearing was held on February 10, 1999.

At the hearing, the Commission presented the testimony of Officer William Romero, Officer Sandra Leon, Lieutenant Kevin

Lindahl, Sergeant Anita Carabine, and Officer Willie McFadden, all of whom are employed by the Metro-Dade Police Department. Petitioner's Exhibits 1 through 5 were offered and received into evidence. Ms. Gilbert testified in her own behalf, and Respondent's Exhibits 1 and 2 were offered and received into evidence. At the Respondent's request, official recognition was taken of Section 790.151, Florida Statutes (1993).1

The transcript of the proceedings was filed with the Division of Administrative Hearings, and the parties timely filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Criminal Justice Standards and Training Commission is the state agency responsible for certifying and revoking the certification of law enforcement officers. Section 943.12(3), Florida Statutes (1997).

2. Ms. Gilbert was certified by the Commission as a law enforcement officer on March 12, 1993, and was issued Law Enforcement Certificate No. 136544.

3. On July 1, 1994, Ms. Gilbert was employed as a sworn law enforcement officer by the Metro-Dade Police Department.

4. On July 1, 1994, Officer William Romero was employed by the Metro-Dade Police Department as a law enforcement officer.

   He was first employed on March 29, 1993, and was still on probation on July 1, 1994. He was working as a uniform patrol officer, and, at the time of the incident in question, he was working alone.

5. On the evening of July 1, 1994, a black female flagged down Officer Romero while he was patrolling the neighborhood. When Officer Romero stopped, she told him that an elderly, Hispanic male was in the vicinity armed with a handgun.

6. Officer Romero promptly confronted the person pointed out by the black female and told him to turn around. When the man did so, Officer Romero saw a revolver sticking out from the waistband of the man's trousers. Although the gun was not in the man's hand at the time, Officer Romero immediately drew his firearm and told the man to put his hands up. The man did not respond but continued to talk with very slurred speech, and he appeared intoxicated to Officer Romero.

7. After a few moments, the man grabbed the revolver in his waistband, but it stuck, and he was not able to remove it. Officer Romero overpowered the man, and they fell to the ground and wrestled. Officer Romero was able to remove the gun from the man's waistband, and he threw it onto a nearby grassy area. Officer Romero handcuffed the man and picked up the gun. He opened the cylinder of the revolver and saw that there were no bullets in the cylinder.

8. Officer Romero took the gun back to his patrol car, and put the suspect in the car as well. Officer Romero then called fire rescue because the man was elderly and intoxicated, and Officer Romero was concerned because they had wrestled for what seemed like several minutes. Officer Romero did not speak with the black female who had flagged him down after she initially told him about the man with the gun, nor did he interview any other persons in the area.

9. Lieutenant Kevin Lindahl arrived on the scene immediately after Officer Romero placed the suspect in the patrol car. Officer Romero explained the situation to Lieutenant Lindahl, showed him the suspect's handgun, and specifically told him that the gun was unloaded during his altercation with the suspect. When he showed the gun to Lieutenant Lindahl, the cylinder was open, and it was obvious that there were no bullets in the gun.

10. Lieutenant Lindahl left the scene a short time after he arrived. As Lieutenant Lindahl was leaving the scene, then- Officer Gilbert and Officer Willie McFadden arrived. These officers were the primary unit assigned to the call. At the time of the July 1, 1994, incident, Officer McFadden was on probation as a new law enforcement officer, and Officer Gilbert had recently completed her probation. They were assigned to the same squad but were not routinely assigned to work together.

11. When they arrived at the scene, both Officer McFadden and Officer Gilbert approached Officer Romero as he sat on the driver's side of his patrol car. Officer Romero told them what happened after he was flagged down; Officer Gilbert and Officer McFadden were both privy to Officer Romero's remarks.2 Officer Romero gave the suspect's revolver either to Officer McFadden or to Officer Gilbert. Officer McFadden asked Officer Romero whether the gun was loaded. Officer Romero responded that the gun was not loaded, and Officer McFadden examined the gun and confirmed that the cylinder was open and that there were no bullets in the cylinder. Both Officer Gilbert and Officer McFadden understood Officer Romero's statement that the gun was not loaded to refer to the time during which Officer Romero and the suspect struggled over possession of the gun, when Officer Romero took the gun from the suspect.

12. Officer Romero turned the suspect over to Officer Gilbert and Officer McFadden and then left the scene. Officer Romero sought out and spoke with his acting sergeant, Officer Sandra Leon. He told her about the incident and advised her that Lieutenant Lindahl had appeared at the scene. During this conversation, Officer Romero told Officer Leon that there were no bullets in the gun. It was important to him because he was a rookie police officer and the July 1 incident was the first time he had confronted an armed suspect; he was nervous because he almost shot the suspect.

13. Officer McFadden spoke with several witnesses at the scene who told him that the suspect's revolver had been loaded at some point during the afternoon and that the bullets had been removed from the gun. He was also told that the suspect had put the gun to someone's head and pulled the trigger twice but that the gun did not discharge. Officer McFadden "asked around for the bullets; no one could give me the bullets. And I immediately said then the gun is unloaded, we can't find any bullets."3 None of the witnesses Officer McFadden interviewed told him that the suspect had discharged the gun before Officer Romero arrived.

14. Officer McFadden did not interview witnesses in the house in front of which the altercation took place. Rather, he stayed with the suspect while Officer Gilbert went into the house and spoke with several witnesses. She was told by Brenda Smith, the woman who had flagged down Officer Romero, that, earlier in the afternoon, the suspect had discharged the firearm into the air outside the house. Ms. Smith also told Officer Gilbert that the suspect entered the house after discharging the gun, pointed the gun at her and another person in the house, and pulled the trigger twice; the gun did not fire but just clicked when the hammer fell.

15. Officer McFadden and Officer Gilbert stayed at the scene about 30 or 40 minutes. They discussed the offenses with which to charge the suspect and began preparing the required

    paperwork, which consisted of the arrest affidavit, the offense/incident report, and the property receipt.

16. During the discussion at the scene, Officer McFadden raised the possibility of charging the suspect with the offense of "using a firearm while under the influence of alcoholic beverages, chemical substances, or controlled substances" (hereinafter "using a firearm while under the influence"), a crime defined in Section 790.151, Florida Statutes (1993), and identified as a first degree misdemeanor. Officer McFadden looked up the offense in the police manual setting forth crimes and their elements.4 The focus of discussion between Officer Gilbert and Officer McFadden was the statutory requirement that the firearm be loaded; they did not discuss whether the charge was appropriate in light of the fact that the offense was a misdemeanor.

17. Officer McFadden and Officer Gilbert continued discussing the offense of using a firearm while under the influence as they drove the suspect to the Dade County Jail and as they completed the arrest affidavit, which they did while sitting in the patrol car in the jail parking lot. Officer Gilbert told Officer McFadden during this discussion that a witness had told her that the suspect had discharged the gun earlier in the afternoon, before Officer Romero arrived on the scene. Officer Gilbert believed that it was appropriate to charge the suspect with this offense because he was intoxicated

    and because she had been told that the gun had been discharged during the afternoon. Since she had been told that the gun had been discharged, Officer Gilbert reasoned that the gun had been loaded at some point during the afternoon, a fact which was corroborated by the witness statement given to Officer McFadden. Officer Gilbert and Officer McFadden agreed to charge the suspect with the offense of using a firearm while under the influence.5

18. Officer Gilbert filled out the arrest affidavit in the jail parking lot, in Officer McFadden's presence. She included the charge of using a firearm while under the influence, and she inserted the phrase "since the gun was loaded" into the narrative portion of the arrest affidavit, squeezing it in at the end of one line of printing as she was editing and completing the affidavit. As revised, the narrative in the completed arrest affidavit contains the following sentence: "V-01 advised that he and V-02 was in fear of their life being taken [when the suspect pointed the gun at them and pulled the trigger] since the weapon was loaded." Officer Gilbert did not mention in the arrest affidavit narrative that the witness Brenda Smith had told her that the suspect had discharged the revolver earlier in the afternoon. Before they left the patrol car, Officer Gilbert and Officer McFadden signed both pages of the affidavit, attesting by their signatures that "I swear that the above Statement is correct and true to the best of my knowledge and belief."6

19. The offenses set forth in the arrest affidavit when Officer Gilbert and Officer McFadden signed it in the parking lot of the jail were aggravated assault, discharging a firearm in public,7 carrying a concealed firearm, resisting arrest, and using a firearm while under the influence. Probable cause existed to arrest the suspect regardless of whether the offense of using a firearm while under the influence was properly charged.

20. Although Officer McFadden had searched the suspect at the scene, he was searched again by the corrections officers at the jail. This search produced a knife and six bullets, which were found in the suspect's clothing. Officer Gilbert was told that these items were on the suspect's person, and, based on the information that the suspect was carrying a knife, she added to the arrest affidavit the charge of carrying a concealed weapon. Officer McFadden was aware that Officer Gilbert added the concealed weapon charge, which he considered an appropriate charge under the circumstances. The arrest affidavit was turned in at the jail.

21. Officer McFadden completed the first page of the required offense/incident report at the station, after he and Officer Gilbert left the suspect at the jail.8 He included the charge of using a firearm while under the influence, and he cited the charge to Section 790.151, Florida Statutes. Officer McFadden claimed that he was not aware that he had included that

    offense in the report, that he was simply copying the information from the arrest affidavit completed by Officer Gilbert without thinking about what he was writing.9 At some point, Officer McFadden stopped working on the offense/incident report and began completing the property report.

22. While Officer McFadden was preparing the property report, Officer Gilbert completed the narrative portion of the offense/incident report. Although Brenda Smith was listed in the report as a witness, Officer Gilbert did not mention in the narrative that Ms. Smith had reported that the suspect had discharged the gun during the afternoon, nor did she include in this narrative any statement regarding whether the gun was loaded or unloaded. Officer Gilbert cannot explain these omissions.

23. As acting sergeant and the supervisor of Officer McFadden and Officer Gilbert on July 1, 1994, Officer Sandra Leon was responsible for reviewing the offense/incident report at issue in this proceeding and ensuring that all of the information provided was complete and correct. Officer Leon reviewed the offense/incident report on the evening of July 1, 1994, and she noticed that the offense of using a firearm while intoxicated was included in the report. She was not familiar with this offense, so she looked up the statute defining the offense. She noted that an element of the offense was that the firearm be loaded, and she remembered that Officer Romero had told her that the gun was not loaded when he struggled with the suspect. Nonetheless,

    without speaking with either Officer McFadden or Officer Gilbert, Officer Leon signed the offense/incident report and forwarded it through channels pursuant to the usual procedures. At the time she signed the report, Officer Leon knew that the narrative did not include all of the elements of the offense of using a firearm while under the influence, and she recalled that Officer Romero had told her that the gun was not loaded at the time he arrested the suspect.

24. The next day, in a brief encounter, Officer Leon "casually" asked Officer Gilbert whether the gun was loaded.10 According to Officer Leon, Officer Gilbert responded affirmatively, and Officer Leon did not pursue the matter any further with Officer Gilbert. Officer Leon and Officer Gilbert did not engage in a conversation regarding the offense/incident report, and Officer Leon asked Officer Gilbert only the one question.

25. Shortly after she spoke with Officer Gilbert, Officer Leon spoke with Officer McFadden about the condition of the gun because he had also signed the offense/incident report.

    According to Officer Leon, Officer McFadden appeared "visibly upset" during this conversation, and Officer Leon attributed this to the fact that, because he had signed the offense/incident report, he and Officer Gilbert were "equally at fault."11

    Officer McFadden told Officer Leon that the gun was not loaded. Finally, Officer Leon spoke again with Officer Romero, who

    confirmed that the gun was not loaded when he took it from the suspect.

26. Four or five days later, Officer Leon brought the matter to the attention of Lieutenant Lindahl, who had taken several days off from work after the July 1 incident. Officer Leon went to Lieutenant Lindahl because, even though she had signed and submitted the offense/incident report, she was concerned that there was a problem with charging the suspect with the offense of using a firearm while under the influence.

    Officer Leon told Lieutenant Lindahl that she had asked Officer Gilbert about the condition of the gun and that Officer Gilbert told her that it was loaded. Lieutenant Lindahl then had a copy of the arrest affidavit sent to his office via facsimile.12

27. Lieutenant Lindahl reviewed the arrest affidavit and questioned Officer Romero and Officer McFadden about the condition of the gun. Officer Romero reiterated his story that the gun was not loaded when he took it from the suspect. Officer McFadden told Lieutenant Lindahl that he had told Officer Gilbert repeatedly that the charge of using a firearm while under the influence was improper because the gun was not loaded, but he did not tell Lieutenant Lindahl that Officer Gilbert had told him that a witness reported that the suspect had discharged the gun before Officer Romero arrived at the scene. Lieutenant Lindahl did not ask Officer Gilbert why the charge of using a firearm while under the influence was included on the arrest affidavit

    and in the offense/incident report. Rather, he decided it was appropriate to refer the matter to the police department's internal affairs section, and he promptly filed a complaint against Officer Gilbert.13

28. Lieutenant Lindahl based his decision to file the complaint against Officer Gilbert on the statements of Officer Romero and of Officer McFadden. Lieutenant Lindahl concluded that Officer Gilbert included the charge of using a firearm while under the influence in the arrest affidavit even though she knew that the gun was not loaded and that this was an essential element of the offense. Lieutenant Lindahl testified that, if the gun had in fact been discharged, the charge of using a firearm while under the influence "would have been appropriate."14 Lieutenant Lindahl did not speak with Officer Gilbert after he filed the complaint because she was the subject of an internal affairs investigation, and it would have been improper for him to interfere in the investigation by talking with her.

29. It is not unusual for arresting officers to charge a suspect with an offense when all of the elements of the offense are not present. If a charge included in an arrest affidavit is not appropriate, the responsible police officers bring it to the attention of the assistant state attorney handling the case, who sees that the unsupported charge is stricken from the arrest affidavit. When Officer McFadden and Officer Gilbert met with

    the assistant state attorney at what is called the "prefile conference" to discuss the arrest on July 1, 1994, they asked the assistant state attorney whether, in his opinion, the charge of using a firearm while under the influence should be stricken from the arrest affidavit because the gun was not loaded. The assistant state attorney reviewed the statute and concluded that the charge should be dropped.

30. On October 20, 1994, Officer Gilbert gave a sworn statement to the internal affairs investigator for the Metro-Dade Police Department. In that statement, Officer Gilbert testified that she overheard Officer Romero state that the gun was unloaded at the time of the altercation; that she and Officer McFadden agreed to charge the suspect with using a firearm while under the influence; that the charge and the phrase "since the gun was loaded" were on the arrest affidavit before Officer McFadden signed the affidavit; and that she never spoke with Officer Leon about the offense/incident report.

31. The evidence presented by the Commission is not sufficient to establish with the requisite degree of certainty that Ms. Gilbert knowingly made a false statement that was intended to mislead when she included in the arrest affidavit the offense of using a firearm while under the influence and inserted in the affidavit the phrase "since the gun was loaded." Rather, based upon the consideration of all of the evidence presented

    herein and upon the assessment of the credibility of the witnesses, the persuasive evidence supports the finding that

    Ms. Gilbert acted in good faith when she included the charge and the phrase "since the gun was loaded" in the arrest affidavit.

    It was Officer Gilbert's understanding from the statement of Brenda Smith that the suspect had discharged his gun prior to the arrival of Officer Romero and that the suspect was intoxicated when he did so, and Officer McFadden agreed with Ms. Gilbert that the offense of using a firearm while under the influence could appropriately be charged.15

32. In any event, Ms. Gilbert's use of the phrase "since the gun was loaded" in the arrest affidavit was, under the circumstances, ambiguous. Pursuant to her testimony, which is credited, Officer Gilbert assumed that, because the suspect discharged the gun, the gun had, at some point, been loaded; Officer Leon and Lieutenant Lindahl assumed that the phrase referred to the time period in which the suspect was involved in the altercation with Officer Romero. The first opportunity Officer Gilbert was given to explain what she meant by the phrase was in the sworn statement she gave on October 20, 1994.

33. The evidence presented by the Commission is not sufficient to establish with the requisite degree of certainty that Ms. Gilbert gave false statements, which she did not believe to be true, in her sworn statement given on October 20, 1994, to the Metro-Dade Police Department's internal affairs investigator.

    First, the conflicts in the testimony of Officer McFadden and Ms. Gilbert have been resolved on the basis of the evidence presented herein, and the persuasive evidence supports the finding that Ms. Gilbert did not make a false statement under oath when she stated that Officer McFadden signed the arrest affidavit after she included the offense of using a firearm while under the influence and inserted the phrase "since the gun was loaded." Second, contrary to the position taken by the Commission, Ms. Gilbert did state in the October 20, 1994, sworn statement that she had overheard Officer Romero state that the gun was not loaded when the suspect was arrested. Third, although Ms. Gilbert's testimony in her sworn statement that she had never discussed the report with Officer Leon conflicts with Officer Leon's testimony that she asked Officer Gilbert if the gun was loaded, it is reasonable to infer that, due to the brief, casual nature of Officer Leon's inquiry to Ms. Gilbert and the length of time which elapsed between the incident and her sworn statement, Ms.

    Gilbert simply forgot that Officer Leon had asked her that one question.

    CONCLUSIONS OF LAW

    
    

34. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and .57(1), Florida Statutes (1997).

35. Section 943.13(7), Florida Statutes (1993), requires that an person employed as a law enforcement officer "[h]ave a good moral character." Section 943.1395(7), Florida Statutes (1993), provides as follows:

    Upon a finding by the commission that a certified officer has not maintained good moral character, the definition of which has been adopted by rule and is established as a statewide standard, as required by s.

    943.13(7), the commission may enter an order imposing the following penalties:

    1. Revocation of certification.

    2. Suspension of certification for a period not to exceed 2 years.

    3. Placement on a probationary status for a period not to exceed 2 years, subject to terms and conditions imposed by the commission. Upon the violation of such terms and conditions, the commission may revoke certification or impose additional penalties as enumerated in this subsection.

    4. Successful completion by the officer of any basic recruit, advanced, or career development training or such retraining deemed appropriate by the commission.

    5. Issuance of a reprimand.

36. The version of Rule 11B-27.0011, Florida Administrative Code, effective on July 1, 1994, provides:

    1. For purposes of the Commission's implementation of any of the penalties enumerated in subsection 943.1395(6) or (7), F.S., a certified officer's failure to maintain good moral character, as required by subsection 943.13(7), F.S., is defined as:

       1. The perpetration by the officer of any act which would constitute a felony offense, whether criminally prosecuted or not, or

       2. 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 . . . 837.012, . . . 837.06 . . . , or

       3. The perpetration by the officer of an act or conduct which:

          1. significantly interferes with the rights of others; or

          2. significantly and adversely affects the functioning of the criminal justice system or an agency thereof; or

          3. shows disrespect for the laws of the state or nation; or

          4. causes substantial doubts concerning the officer's moral fitness for continued service, or

       4. The unlawful use of any of the controlled substances enumerated in section 893.13, F.S., or rule 11B-27.00225, F.A.C.

37. Because the Commission seeks to revoke Ms. Gilbert's certification as a law enforcement officer, the Commission must prove by clear and convincing evidence that Ms. Gilbert committed the acts alleged in the Administrative Complaint. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 933-34 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

38. The Commission has charged Ms. Gilbert with failing to maintain good moral character on the grounds that she committed acts prohibited in Section 837.012, Florida Statutes (1993), by committing "[p]erjury when not in an official proceeding" and acts prohibited in Section 837.06, Florida Statutes (1993), by making "[f]alse statements."

39. Section 837.06, Florida Statutes (1993), provides that "[w]hoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his official duty shall be guilty of a misdemeanor of the second

    degree, punishable as provided in s. 775.082 or s. 775.083." To establish that Ms. Gilbert committed an act constituting a misdemeanor under Section 837.06, the Commission must show both that she "knowingly made a false statement in writing" and that she did so with "the intent to mislead" a public official. This charge relates to the information contained in the arrest affidavit prepared by Ms. Gilbert. Given the facts found herein, the Commission has failed to prove by clear and convincing evidence that the phrase "since the gun was loaded" inserted by Ms. Gilbert in the arrest affidavit was false. Ms. Gilbert intended the phrase to refer to the condition of the gun when it was discharged by the suspect, not to the condition of the gun at the time of suspect's arrest.

40. The inclusion in the arrest affidavit of the charge of using a firearm while under the influence cannot be categorized as either a true or a false statement. Rather, the question of whether Ms. Gilbert committed an act in violation of Section 837.06, can only be determined by considering whether she knowingly included the offense with the intent to deceive her superiors and the criminal justice system. On the basis of the facts found herein, the Commission has failed to prove by clear and convincing evidence that Ms. Gilbert knew that the charge was improper or that she included the charge with the intent to deceive anyone.16

41. Section 837.012(1), Florida Statutes (1993), provides that "[w]hoever makes a false statement, which he does not believe to be true, under oath, not in an official proceeding, in regard to any material matter shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083." Given the facts found herein, the Commission has failed to prove by clear and convincing evidence that Ms. Gilbert made any false statement, believing it to be untrue, in her sworn statement of October 20, 1994.

42. In conclusion, the Commission has failed to prove by clear and convincing evidence that Ms. Gilbert did not maintain the qualifications required of a law enforcement officer with respect to being of good moral character.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission dismiss the Administrative Complaint against Hawanda Gilbert dated June 28, 1996.

DONE AND ENTERED this 11th day of June, 1999, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1999.

ENDNOTES

1 Although Mr. Shiver stated that the applicable statute was that in effect in 1995, the relevant offense charged against Ms. Gilbert allegedly occurred in July 1994. Accordingly, reference should be had to the statute that was in effect on that date, which is quoted in full in endnote 4, below.

2 The testimony of Officer Gilbert and Officer McFadden regarding who participated in the conversation with Officer Romero cannot be reconciled. Officer Gilbert testified that she did not participate in the conversation with Officer Romero but did overhear Officer Romero's statement to Officer McFadden that the gun was unloaded during Officer Romero's altercation with the suspect. Officer McFadden testified that he did not participate in the conversation with Officer Romero but did overhear him tell Officer Gilbert that the gun was not loaded at the time of the altercation. Officer Romero's testimony that both Officer Romero and Officer McFadden approached his patrol car and spoke with him is accepted.

3 Petitioner's Exhibit 5 at 7.

4 Section 790.151(1), Florida Statutes (1993) provided: (1) As used in ss. 790.151-790.157, to

"use a firearm" means to discharge a firearm or to have a firearm readily accessible for immediate discharge.

1. For purposes of this section, "readily accessible for immediate discharge" means loaded and in a person's hand.

2. It is unlawful and punishable as provided in subsection (4) for any person who is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that his normal faculties are impaired, to use a firearm in this state.

3. Any person who violates subsection (3) commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

4. This section does not apply to persons exercising lawful self-defense or defense of one's property.

5 Officer McFadden testified that he told Officer Gilbert several times that it would not be proper to charge the suspect with the offense of using a firearm while under the influence because the gun was not loaded. He claimed to have told her this at the scene when he first brought the offense to Officer Gilbert's attention; in the parking lot of the jail when Officer Gilbert was filling out the arrest affidavit; and in the jail itself, after the bullets had been found in the suspect's pocket. Having considered the totality evidence in this case and assessed the credibility of the witnesses, Officer McFadden's testimony is not credited, and Officer Gilbert's testimony on this point is found to be persuasive.

6 Officer McFadden testified that neither the charge of using a firearm while under the influence nor the phrase "since the gun was loaded" were included in the arrest affidavit when he signed it. Having considered the totality of the evidence presented in this case and assessed the credibility of each witness, Officer McFadden's testimony is not credited, and Officer Gilbert's testimony on this point is found to be persuasive. Especially noteworthy in this respect is Officer Leon's testimony that Officer McFadden would be held responsible for the information contained in the arrest affidavit and the offense/incident report because he signed them and her testimony that Officer McFadden was "visibly upset" when she questioned him about the charge.

See paragraph 25.

7 The offense of discharging a firearm in public was based on the information Officer Gilbert had received from Brenda Smith that the suspect had discharged the firearm outside the house on the afternoon of the day of his arrest. Neither Officer McFadden nor anyone else questioned the inclusion of this charge in the arrest affidavit. It was omitted from the offense/incident report, and no explanation was offered at the hearing for this omission.

8 In his sworn statement given July 24, 1994, which was admitted into evidence as Petitioner's Exhibit 5, Officer McFadden repeatedly denied having written any part of the offense/incident report except for the property report portion, insisting that Officer Gilbert wrote the entire report. After being pressed and guided by the investigator taking the statement, Officer McFadden recalled having completed the first page of the report. Petitioner's Exhibit 5 at 17-21.

9 Officer McFadden did not, however, include in the offense/incident report the charge of discharging a firearm in public, which had also been included in the arrest affidavit. Furthermore, there is no explanation in the record of how the arrest affidavit came to be at the station since it had been left at the jail.

10 Hearing transcript at 29.

11 Hearing transcript at 32.

12 Officer Gilbert had left the arrest affidavit with the officers at the jail when the suspect was incarcerated, pursuant to standard procedure at the time. Officer Leon did not see the arrest affidavit at the time she was reviewing the offense/incident report.

13 Hearing transcript at 63, 65.

14 Hearing transcript at 66.

15 The Commission also elicited testimony and pointed out in its Proposed Recommended Order that the offense of using a firearm while under the influence is a misdemeanor and that Officer Gilbert improperly included the charge in the arrest affidavit because the gun was not discharged in her presence or in the presence of Officer McFadden. Section 901.15, Florida Statutes (1993), provides that a person may not be arrested without a warrant unless a misdemeanor offense is committed in the presence of the arresting officer. Officer Gilbert did not arrest the suspect in violation of Section 901.15. She merely included the charge of using a firearm while under the influence in the arrest affidavit as an additional charge. Though this offense may not have been properly charged, probable cause already existed to arrest the suspect for the other offenses charged, such as aggravated assault and resisting arrest. And even Lieutenant Lindahl exhibited confusion on this point because he agreed that the charge would have been appropriate had the gun been discharged.

16 In addition, the evidence is sufficient to establish that Ms. Gilbert did not violate the oath to which she ascribed by signing the affidavit that the information contained therein was "correct and true to the best of my knowledge and belief." Cf. Naekel v. Department of Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986)("Indeed, an SF-171 [sworn employment application] does not require absolute accuracy. Instead, an employee must certify that the answers are "true, complete, and correct to the best of my knowledge and belief, and are made in good faith." No more

than that can reasonably be required. The oath does not ask for certainty and does not preclude a change in one's belief.").

COPIES FURNISHED:

Karen D. Simmons, Esquire Office of the General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Cornelius Shiver, Jr., Esquire 3692 Grand Avenue

Miami, Florida 33133

A. Leon Lowry, II, Program Director Division of Criminal Justice

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

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-004122

Orders for Case No: 98-004122