STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS AND ) TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 85-4320

)

SAMUEL D. STEVENS, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Joseph S. White, Esquire

Assistant General Counsel

Florida Department of Law Enforcement

P. O. Box 1489

Tallahassee, Florida 32302 For Respondent: No appearance

This matter was heard by William R. Dorsey, the hearing officer designated by the Division of Administrative Hearings in Orlando, Florida on April 30, 1986. Although provided notice of the hearing, neither Respondent nor anyone representing him appeared at the final hearing. The Petitioner has filed Proposed Findings of Fact and Conclusions of Law. Rulings on the proposals are found in the Appendix to this Recommended Order.

ISSUE

The issue is whether the certification of Samuel D. Stevens as a law enforcement officer should be revoked for failure of Mr. Stevens to maintain good moral character as required by Section 943.13(7), Florida Statutes.

FINDINGS OF FACT

1. Samuel D. Stevens was certified by the Criminal Justice Standards and Training Commission on November 19, 1982, certificate number 0232529 (Tr. 52-3*).

   
   

2. Mr. Stevens was employed in 1985 by the City of Winter Haven Police Department (Tr. 19).

3. James D. Kirkland and Mark Myers were Winter Haven police officers (Tr. 13, 17). On March 14, 1985, Kirkland and Myers were working undercover and went to the Inn Club in Winter Haven where they tried to purchase cocaine or heroine from club employees (Tr. 19-20, 25). At that time, they dressed in street clothes (Tr. 20), and kept their identities secret as they attempted to gain the trust of employees to be able to purchase drugs (Tr. 20-23).

   
   

4. When Kirkland arrived at the Inn Club, he saw a man he knew to be a police informant, Tony Thomas (Tr. 23).

   
   

5. The Winter Haven Police Department kept Mr. Thomas' status as an informant secret. His status was not known to the Respondent, Mr. Stevens (Tr. 16-19, 49, 51). Officer Myers and Mr. Thomas walked outside the Inn Club through a parking lot to use a public telephone. As they did so, Samuel Stevens drove into the parking lot and saw Myers and Thomas together (Tr. 23, 24). Stevens entered the club while Officer Kirkland was inside (Tr. 23); Officers Myers and Kirkland then left the club (Tr. 24).

   
   

6. On March 15, 1985, Officer Kirkland and an investigator from the State Attorney's Office, Mr. Martin Hodges, met with Tony Thomas (Tr. 5, 25). Before that meeting, Thomas had told Hodges that illegal drugs were being sold by people living at 1904 Brown Street, Winter Haven (Tr. 6), the residence of his half-brother, Calvin Tribett. Tribett was selling the drugs, and Respondent Stevens lived in the same residence. Thomas believed Stevens was aware of the drug sales (Tr. 15, 19).

   
   

7. When Kirkland and Hodges met with Thomas on March 15, 1985, Thomas agreed to wear a concealed microphone, which was placed on him (Tr. 12, 48). Kirkland and Hodges instructed Thomas to go to the Brown Street address and attempt to buy marijuana (Tr. 7, 8, 28). Officer Kirkland gave Thomas $40.00 to buy the marijuana (Tr. 7-8).

   
   

8. Kirkland and Hodges then drove Thomas near the residence and let him out of the car (Tr. 8). The officers positioned themselves about two blocks from the residence to listen to the conversation through the monitoring equipment Thomas wore. They also taped the conversations (Tr. 8, 9, 29). Those conversations were transcribed (Tr. 31, 32; Petitioner's Exhibit 1). When Mr. Thomas came to the residence he spoke with his half-brother, Calvin Tribett. Tribett told Thomas that "Sam" had told him that the men Thomas had been with at the Inn Club were "narcs" (Tr. 9; Petitioner's Exhibit 1). Officer Kirkland then recognized the voice of Samuel Stevens in the conversation. He knew Stevens'

   voice, for he had trained Stevens for police duties (Tr. 14-15, 33, 36). Respondent Stevens warned Thomas that the men he was with the night before were police narcotics officers and identified Officer Kirkland by name (Tr. 11, 12, 32,

   34; PX-1). During the same conversation, Mr. Thomas stated that he was there to buy marijuana and Stevens volunteered to take Thomas in Stevens' car to buy marijuana (Tr. 49, 50; PX-1).

   
   

9. Shortly thereafter on March 17, 1985, Mr. Thomas met Respondent Stevens and Calvin Tribett at a local Pizza Hut. Stevens warned Thomas again that the men he had been with at the Inn Club were narcotics officers and identified them by name as Detective Kirkland and Officer Mark Myers (Tr. 48, 49).

   
   

10. On March 26, 1985 Officers Kirkland and Myers met with Thomas and again placed a concealed microphone on his person (Tr. 47, 50). Under a plan devised by Kirkland (Tr. 39, ln. 20), the officers gave Mr. Thomas a handgun and instructed him again to go to Respondent's Brown Street address, to tell Respondent the gun was stolen and to request Mr. Stevens to buy the gun (Tr. 37).

    
    

11. Mr. Thomas followed those instructions, and Officers Kirkland and Myers listened to the conversation (Tr. 38-39). Thomas told Stevens the gun was stolen and for sale. Stevens declined to buy the gun and advised Thomas to "get rid of it" (Tr. 39; Petitioner's Exhibit 1). Mr. Stevens made no report of the incident to the Winter Haven Police Department and did not attempt to return the "stolen" gun to its rightful owner (Tr. 40, 44, 45).

    
    

    CONCLUSIONS OF LAW

    
    

12. The Criminal Justice Standards and Training Commission is empowered by Section 943.1359(5), Florida Statutes (1985), to "revoke the certification of any officer who is not in compliance with the provisions of Section 943.13(1)-(10)." Among the provisions which may serve as the basis for revocation of certification is Section 943.13(7), which requires officers to "have a good moral character as determined by a background investigation under procedures established by the Commission."

    
    

13. The term "good moral character" in Section 943.13(7), Florida Statutes, is not defined by statute. Rule llB- 27011(2)(a), Florida Administrative Code, does not apply because there is no evidence Mr. Stevens has been found guilty of any offense listed there. For the same reason the portion of Rule llB-27.011(2)(b), which incorporates the list found in (2)(a) does not apply. The remainder of that rule is circular. In the context of determining whether a candidate for admission to the bar possessed the requisite good moral character, the Supreme

    Court of Florida determined that a lack of good moral character would be shown not only by conduct historically found to constitute moral turpitude, but also the commission of acts or conduct

    
    

    which would cause a reasonable man to have substantial doubt about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation. Florida Board of Bar Examiners re: G. W. L., 364 So. 2d 454, 458 (Fla. 1978).

    
    

    This definition is useful in a police certification proceeding where good moral character is in issue. The exposure of the identity of fellow officers working undercover exposes those officers to substantial risk to their safety and decreases the effectiveness of attempts to enforce the law. This conduct demonstrates a lack of respect for the rights and safety of others, and disrespect for the laws of the state and nation.

    
    

14. The matter of the handgun does not rise to the same level. There is no evidence that Respondent was predisposed to purchase a "stolen" weapon. When the offer was made to him, he rejected it. The incident appears to have been manufactured by one of the officers whose identity had been disclosed as a way of seeking retribution. As that same officer testified, however, if he had been presented with the gun that was represented to have been stolen, one of the things he would have thought was the person presenting it was "trying to get me in some manner" (Tr. 40, In. 21-25). Mr. Stevens' response to the person presenting the gun to him is consistent with the belief that he was being set up; he told the person with the gun to get rid of it; and he had nothing more to do with the matter.

    
    

15. The Petitioner has also failed to prove any rule or policy which was violated by Respondent with respect to the gun incident, and has pointed to no statute which would require a police officer to report the incident to the police department or attempt to return the "stolen" gun to its rightful owner. (See Petitioner's Proposed Finding of Fact #28.) There was a failure of proof with respect to the stolen gun matter.

RECOMMENDATION

Based upon the actions of Mr. Stevens in exposing fellow officers to danger by identifying them as narcotics agents, it is recommended that the certification of Mr. Stevens by revoked.

DONE AND ORDERED this 7th day of July 1986 in Tallahassee, Leon County, Florida.

WILLIAM R. DORSEY, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of July 1986.

ENDNOTE

* References to the transcript will be shown as (Tr.).

COPIES FURNISHED:

Daryl G. McLaughlin Director

Criminal Justice Standards & Training

P. O. Box 1489

Tallahassee, Florida 32302

Robert R. Dempsey Executive Director

Department of Law Enforcement

P. O. Box 1489

Tallahassee, Florida 32302

Janet E. Ferris, Esquire General Counsel

Department of Law Enforcement

P. O. Box 1489

Tallahassee, Florida 32302

Joseph S. White, Esquire Assistant General Counsel Department of Law Enforcement

P. O. Box 1489

Tallahassee, Florida 32302

Sherry A. Spiers, Esquire DOUGLASS, COOPER & COPPINS

P. O. Box 1674

Tallahassee, Florida 32301

Mr. Samuel D. Stevens c/o Mrs. Willean Dickey 1114 Clay Street

Tallahassee, Florida 32304

APPENDIX

The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties.

Rulings on Proposed Findings of Fact Submitted by Petitioner

Officer Kirkland's testimony reveals that he devised the plan (Tr. 39), it appears that the "instruction" of the police chief to go ahead with this plan was the authorization for the plan, not its genesis.

1. Accepted in Finding of Fact 10.

   
   

2. Accepted in Finding of Fact 11.

3. Accepted in Finding of Fact 11, except that the record does not support the proposal that the gun was not purchased "because it was not a 'snub nose.'"

   
   

4. Accepted in Finding of Fact 11.

Docket for Case No: 85-004320

Orders for Case No: 85-004320