vs. ) Case No. 85-0139
MARY L. MOORE )
Respondent. )
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 cause on March 18, 1986, at Tallahassee, Florida.
For Petitioner: Joseph S. White, Esquire
Department of Law Enforcement, Post Office Box 1489 Tallahassee, Florida 32302.
For Respondent: Thomas L. Powell, Esquire
Post Office Box 1674 Tallahassee, Florida 32302.
By Amended Administrative Complaint dated January 10, 1986, the Criminal Justice Standards and Training Commission, Petitioner, seeks to revoke the certificate of Mary L. Moore, Respondent, as a law enforcement officer. As grounds therefor it is alleged that on or about February 15, 1985, Respondent was in actual or constructive possession of controlled substances and paraphernalia associated therewith.
At the commencement of the hearing Respondent's Motion to Recuse Hearing Officer because he had read the
Administrative Complaint, which alleged Respondent had pleaded nolo contendere to possession of marijuana and was sentenced to serve nine months probation, was denied.
Respondent's Motion to Strike reference to the nolo contendere plea was unopposed and that allegation was voluntarily deleted by Petitioner.
Thereafter the parties presented a Pre-Hearing Stipulation containing the factual stipulations which comprise findings 1-5 below. Petitioner then called eight witnesses, Respondent called nine witnesses, including Respondent, and
14 Exhibits were admitted into evidence.
Proposed findings have been submitted by the Petitioner. All of these proposed findings are accepted; those not included herein were deemed unnecessary to the conclusions reached.
Pursuant to a search conducted inside the Leon County Florida home residence of the Respondent and her husband, Lynwood Moore, the following items were discovered and seized by agents of the Leon County Sheriff's Department and the Tallahassee Police Department, pursuant to a search warrant:
A brown print canvas bag which contained seven plastic packets. Each plastic packet contained cocaine, a controlled substance named or described in Section 893.03, Florida Statutes. The total aggregate weight of the cocaine within the seven bags was forty-five grams. The said brown print canvas bag also contained three bottles which themselves contained benzocaine, inositil, and procaine HCL, respectively.
A brown case which contained a set of triple beam balance scales, graduated in metric weights. The said scales contained a residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes. The said residue was located on the weighing pan of the scales.
Three smoking pipes which contained an aggregate of
grams of cannabis, a controlled substance, named or described in Section 893.03 Florida Statutes.
A transparent plastic bag which contained 1.9 grams of cannabis, a controlled substance, named or described in Section 893.03, Florida Statutes.
A cellophane cigarette pack wrapper which contained
2.4 grams of cannabis, a controlled substance, named or described in Section 893.03, Florida Statutes.
A brown glass vial which contained a residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes. Attached to the said vial was a miniature spoon.
Two transparent glass vials which each contained a - residue of cocaine, a controlled substance, named or described in
Section 893.03, Florida Statutes.
A small gold colored straw or tube which contained a residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes.
A single edged razor blade which contained a residue of cocaine, a controlled substance, named or described in Section 893.03, Florida Statutes.
A partially burned, hand-rolled cigarette which contained .3 grams of cannabis, a controlled substance, named or described in Section 893.03, Florida Statutes.
The Respondent married Lynwood hove on June 27,1970, and the two have lived together as husband and wife since that date to the present time.
The Respondent has lived at the Leon County Florida home residence described in Paragraph One since 1977.
The Respondent was certified by the Criminal Justice Standards and Training Commission on November 29, 1974 as a law enforcement officer and issued certificate Number 02- 13249. Respondent was employed with the Florida State University Police Department on November 29, 1974, and assigned as a uniform patrol officer. The Respondent performed this function as a full-time employee until October 22, 1982 when she was promoted to the position of Education Officer. The Respondent performed this function as a full-time employee until February 15, 1983.
(a) On June 4, 1975, the Respondent wrote and filed a police report as the reporting officer. The Respondent stated in the report that upon the arrest and search of an individual on a charge of vandalism, three cigarettes which appeared to be marijuana were found in the individual's wallet. The Respondents wrote and filed an evidence impoundment form regarding the incident which described her impoundment of three suspected marijuana cigarettes and a "Zig Zag" package.
On November 15, 1975, the Respondent wrote and filed a police report as the reporting officer. The Respondent
stated in the report that she and another officer had stopped a motorist for a traffic violation. The Respondent stated that the other officer conducted a pat down search of the motorist and discovered what appeared to be a marijuana cigarette in the motorist's shirt pocket.
On October 20, 1976, the Respondent wrote and filed a police report as the reporting officer. In the report, the Respondent stated that during a pat down search of an individual she found marijuana on the individual's person and seized it.
On December 21, 1977, the Respondent wrote and filed a police report as the reporting officer. In the report, the Respondent stated that during the search of an arrested person's automobile, she discovered a plastic box which contained one suspected cannabis cigarette, a plastic bag of suspected cannabis and a plastic bag of suspected hashish. The Respondent stated in her report that she arrested the person for possession of cannabis and hashish. The Respondent wrote and filed an evidence impoundment form regarding the incident which described her impoundment of a rolled cigarette, a plastic bag of marijuana, a partially smoked cigarette, a plastic bag of hashish, a cigarette roller and cigarette papers.
On May 9, 1978, the Respondent wrote and filed a police report as the reporting officer. In the report, the Respondent stated that she found a marijuana cigarette in a truck that three juveniles stood by. The Respondent also stated in her report that she observed rolling papers that were apparently dropped on the ground by the juveniles upon her approach. The Respondent's report also indicated that one of the juveniles was searched and the search uncovered a plastic bag containing marijuana. The Respondent wrote and filed an evidence impoundment form regarding the incident which described her impoundment of suspected marijuana cigarettes.
On July 25,1979, the Respondent wrote and filed a police report as a reporting officer. The Respondent stated in the report that she had assisted another officer in stopping a motorist. The Respondent stated in her report that upon looking into the motorist's vehicle, she saw a plastic bag containing suspected cannabis which she seized. The Respondent stated in her report that a further search of the motorist's vehicle revealed a rolled
cigarette of suspected cannabis, eleven pieces of cigarettes and suspected cannabis seeds. The Respondent arrested the motorist for possession of cannabis.
On October 8; 1979, the Respondent wrote and filed a police report as the reporting officer. The Respondent stated in the report that she arrested a person for driving under the influence of alcohol and possession of less than twenty grams of cannabis. The Respondent wrote and filed an evidence impoundment form regarding the arrest which described her impoundment of a brown pipe, two packages of smoking papers and cannabis.
Tallahassee police received information that Lynwood Moore, husband of Respondent, was selling drugs in this area. In a combined operation with local authorities and the federal drug administration, Richard G. Hafner, an FDLA agent in Panama City, came to Tallahassee to set up a meeting with Moore to buy cocaine. With the assistance of an informant, Hafner contacted Moore and arranged for the informant to pick up one ounce of cocaine on January 18, l983. On February 2, 1983 Hafner and the informant met Moore at a filling station and they arranged for Hafner to come to an address that evening to buy an ounce of cocaine. Hafner, accompanied by the informant who was pregnant at the time, went to the address which he discovered to be a house outside the city set back from the highway more than one hundred yards with no lights on. Two or three cars were parked in front and Hafner decided the area was too dangerous under the circumstances and he returned to Tallahassee. The informant then called Moore's residence and Respondent answered the telephone. Hafner took the phone from the informant and told Respondent he was calling about the "puppies" and that the area selected to purchase the puppies was unsatisfactory as being too remote and requested she get the message to Lynwood. Hafner had been told by the informant that in telephone conversations with Moore one "puppy" was to be used to designate one ounce of cocaine. When Hafner asked Respondent to give the message to her husband, she appeared to fully understand the message she was to deliver. At a subsequent meeting with Hafner, Lynwood Moore became suspicious of Hafner and refused to sell him any cocaine.
For several years Lynwood Moore has bred, raised and sold greyhound dogs, both as a business and an avocation. Respondent testified that she frequently got calls from
prospective greyhound buyers inquiring about buying dogs from her husband. Some of these calls would be late in the evening and be received from women.
Geneen Marsh, the informant, agreed to help police authorities arrest Lynwood Moore in exchange for releasing her husband from prison. Ms. Marsh had been buying cocaine from Moore for more than six months making purchases of 1/8 ounce twice per week. She often called the Moore residence and on occasion talked to Respondent who would pass messages to her husband. Marsh never received any cocaine from Respondent but Respondent was at home on several occasions when Marsh picked up her "buy" at the Moore residence. On one occasion Lynwood Moore had the balance scale on which the cocaine was weighed in the room while Marsh was there to pick up her buy and Respondent came into the room where the scales were in clear view.
Following the controlled buys of cocaine from Lynwood Moore, the police obtained a search warrant and, on February 15, 1983, a search was made of the Moore's residence. Upon arrival of the police officers accompanied by Lynwood Moore they allowed Lynwood to go in first to alert his mother who was living with them so she would not be too upset at the arrival of the police.
Upon entering the residence the police put all occupants in the living room while the search was conducted. Upon their arrival Respondent was in the bathtub washing her daughter's hair. She was told the police were there and when she exited the bathroom she was taken immediately to the living room. Upon being told the nature of the search Respondent gave no evidence of surprise but remained stoical.
Two police officers searched the master bedroom occupied by Respondent and her husband. The officer who searched the walk-in closet found the items in findings l(a) and l(b) above on the floor of the closet. Although these bags were under hanging clothes on the side of the closet containing men's clothing, they could be seen without first having to remove the clothes which partially obscured these bags. The aroma of cannabis was noted in the bedroom by the police officers.
The other police officer, Spears, searched the remainder of the room. On the top of the dresser in the
master bedroom Spears found a cup containing several .38 caliber bullets, a razor blade with some white powder, later identified as cocaine, on the cutting edge, and police collar insignia. Also on the dresser was a marijuana cigarette, a glass cutting screen, and a man's jewelry box. Inside the jewelry box were rings, cuff links, a bag containing marijuana, three bottles containing traces of cocaine, and many wrappers used to wrap bills in
$1000 and $2000 bundles.
In the bottom drawer of the night stand alongside the bed were three marijuana pipes containing some marijuana in each. These pipes were covered by letters, insurance policies and exercise instructions. Some of Respondent's personal effects were kept in this night stand.
Lynwood Moore testified that his wife never touched any of his possessions or intruded on his side of the closet. She wouldn't dare open his jewelry box and look in it. He normally kept the cocaine in a detached building on his property but a few weeks before the raid brought the cocaine into the house where it would not absorb as much moisture as in the out building. He insisted his wife had no knowledge that he was dealing drugs and that he left home at all hours and returned when he pleased without offering any explanation for his actions.
Respondent testified that she never looked on her husband's side of the closet that she had never seen any evidence of drugs in their residence that Lynwood had been raising and selling greyhounds for several years and she often received calls regarding purchase of these dogs that she never saw Ms. Marsh until she testified at the earlier Career Service hearing that she never walked in while Lynwood was dispensing drugs to Marsh and that she never saw a marijuana cigarette, the razor blade, scales, or any other evidence of drugs in her home.
On the other hand Respondent, while undergoing training leading to certification as a law enforcement officer, received training in drugs, in drug identification and drug paraphernalia. She also received refresher courses from time to time. After her promotion to sergeant she was made education officer at the FSU police department and given the duty, inter alia, of instructing other officers in the prevention of drugs on campus. A display board with pictorial identification of various drugs and
drug paraphernalia was on the wall in her office. As noted in finding of fact 5 above Respondent has made numerous arrests for possession of controlled substances and was fully capable of identifying a marijuana cigarette and paraphernalia used with controlled substances.
Accordingly, her testimony that she never saw any drugs or any drug paraphernalia in her home is simply not credible. While she may never have participated in any of her husband's "dealings" the paraphernalia associated with such transactions could hardly have been kept in the master bedroom and Respondent be totally unaware of its presence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings.
Section 943.1395 Florida Statutes, (1985), provides in pertinent part:
(5) The commission shall revoke the certification of any officer who is not in compliance with the provisions of S. 943.13(1)-(10) and shall, by rule, adopt revocation procedures pursuant to Chapter 120.
Section 943.13 Florida Statutes (1985) provides in pertinent part:
(7) Have a good moral character as determined by a background investigation under procedures established by the commission.
Possession of controlled substances is prima facie evidence of lack of good moral character.
Respondent contends that she was never in possession of any controlled substance and was unaware that any controlled substance was in her home. As noted in the findings above Respondent's testimony that she was unaware of any drugs or drug paraphernalia ever being in her house is not credible. No one with her background and training could have failed to recognize the clear evidence of drugs and drug paraphernalia located in the master bedroom she shared with her husband.
Although Respondent objected to the admission of testimony relating to the items found during the search, on grounds the search warrant was invalid, no evidence was presented to show the search warrant was improperly issued. The burden is on Respondent to show such warrant to be unlawful. Franks v. Delaware, 438 U.S. 154,98 S.Ct. 2674, 57 L.Ed.2d 667(1978).
The possession of a controlled substance by Respondent may be actual or constructive. If the controlled substance is in a place over which the person has control and in plain view as was shown in this case, the person is deemed to be in constructive possession of the controlled substance. Brown v. State, 428 So. 2d 250 (F1 1983).
Even if contraband is not in plain view, direct or circumstantial evidence may establish a person's knowledge of the substances. Winchell v. State, 362 So. 2d 992 (F1 3rd DCA 1978).
Respondent's training in narcotics as a police officer, her apparent understanding of the callers' intent in phone messages she relayed to her husband, and the frequent visits of the informer to her residence to pick up her "buy" all lead to the inescapable conclusion that Respondent was fully aware that cocaine was being dispensed from her residence. Knowledge of the presence of cocaine in a place under the control of Respondent constitutes constructive possession.
It is here alleged that Respondent is not of good moral character as evidenced by the unlawful possession of controlled substances. Good moral character, as used in the alcoholic beverages law, required of a licensee, has been defined in Zemour, Inc. v. Division of Beverage, 347 So. 2d 1102 (F1 1st DCA
1977) as:
Moral character as used in this statute, means not only the ability to distinguish right and wrong, but the character to observe the difference the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.
Certainly police officers occupy positions requiring greater trust and confidence of the populace than do bartenders or bar owners. (licensees).
From the foregoing it is concluded that Mary L. Moore was in possession of controlled substances on February 15, 1983, and has thereby failed to maintain good moral character.
Recommended that a Final Order be issued revoking Mary L. Moore's certificate as a law enforcement officer.
Entered this 13th day of May, 1986, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1986.
Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement Post Office Box 1489 .
Thomas L. Powell, Esquire Post Office Box 1674 Tallahassee, Florida 32302
