STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH W. SPENCER, )

)

Petitioner, )

)

vs. ) CASE NO. 82-451

)

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 14 June 1982 at Tallahassee, Florida.

APPEARANCES

For Petitioner: Joseph W. Spencer, pro se Route 3

Ripley, Tennessee 38063

For Respondent: Jeffrey Miller, Esquire

Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

By Election of Rights form dated 28 January 1982, Joseph W. Spencer, Petitioner, contests his denial of certification by the Criminal Justice Standards and Training Commission, Respondent. As grounds for denying Petitioner certification, Respondent alleges that while Petitioner was a student at Southwest Florida Police Academy he gave another student at that academy a baggie containing 3.2 grams of marijuana.

At the hearing Petitioner testified in his own behalf, Respondent called one witness, and one exhibit was admitted into evidence.

FINDINGS OF FACT

1. While a student at Southwest Florida Police Academy in April 1981, Petitioner gave Janice Kellogg a baggie containing 3.2 grams of marijuana. The only factual dispute occurred regarding the circumstances leading to Petitioner's acquisition of the marijuana and the reasons for giving the marijuana to Kellogg.

   
   

2. Petitioner testified he found the marijuana in the road leading into a trailer space adjacent to his trailer the morning after the trailer had departed. He further testified he threw the marijuana into the cab of his pickup truck intending to turn it in to the authorities; that he was engaged in

   final exams and forgot about the marijuana until later in the day when a K-9 drug dog was presented and Petitioner hid the marijuana to test the dog; that after they observed the dog locate the marijuana, Kellogg asked Petitioner for the marijuana and he gave it to her; and that when he asked for it back later that day he was told she had smoked it.

   
   

3. Kellogg's version of the events surrounding the marijuana is that after the marijuana had been produced for the drug dog, Petitioner gave her the baggie saying, "You look like a girl who likes to lay back and smoke a joint once in a while." Upon receipt of the marijuana Kellogg turned it in to police authorities and at their request attempted to get Petitioner to provide her with additional marijuana, without success. She further testified Petitioner told her he had obtained the marijuana from a suspect he had "frisked" the previous day.

   
   

4. Petitioner worked in law enforcement in Tennessee for at least two years before moving to Florida. He has been in charge of the drug section of a police force in Tennessee but has had no special training. His experience caused him to immediately recognize the contents of the baggie as marijuana.

   
   

5. Janice Kellogg has been involved in police work in Florida for one and one-half years and worked as a confidential informant to a narcotics squad in Michigan for five years before coming to Florida. She is certified as a law enforcement officer in Florida.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. Kellogg's disposition of the marijuana by turning it in to her superiors was proper. Petitioner's casual handling of the marijuana after it came into his possession lends less credence to his testimony of how he came into possession of the marijuana and his intent with respect thereto. Furthermore, he has much more to gain from his version of the facts than does Ms. Kellogg from her version. There is no evident gain for Ms. Kellogg to color her testimony surrounding this incident.

   
   

8. From the foregoing it is concluded that Joseph W. Spencer gave Janice Kellogg a baggie of marijuana to smoke while they were enrolled as students in the Southwest Florida Police Academy. It is further concluded that this conduct warranted Petitioner's expulsion from the police academy and justified the denial of his application for law enforcement certification. It is, therefore,

RECOMMENDED that the petition of Joseph W. Spencer for certification as a law enforcement officer be dismissed.

ENTERED this 2nd day of July, 1982, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 2nd day of July, 1982.

COPIES FURNISHED:

Joseph W. Spencer Route 3

Ripley, Tennessee 38063

Jeffrey Miller, Esquire Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Criminal Justice Standards and Training Commission

Division of Standards and Training Department of Law Enforcement

Post Office Box 1489 Tallahassee, Florida 32302 Attention: A. Leon Lowry

Docket for Case No: 82-000451

Orders for Case No: 82-000451