STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. )

)

DAEMARI V. WADE, )

)

Respondent. )

Case No. 07-0428PL

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on March 27, 2007, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Joseph S. White, Esquire

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

For Respondent: Damari V. Wade, pro se

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed

against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

On December 5, 2006, Petitioner, Department of Law Enforcement, Criminal Justice Standards and Training Commission, issued an Administrative Complaint alleging that Respondent, Daemari V. Wade, had violated certain statutes and rules regulating his conduct as a correctional officer. Respondent timely requested an administrative hearing regarding those allegations. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.

Petitioner presented the testimony of Jerry M. Livingston, Jr., and Randy W. Thompson. Respondent testified on his own behalf and presented the testimony of Monica Phillips and Rontez Phillips. Additionally, Respondent's Exhibit numbered 1 was admitted in evidence.

The transcript of the final hearing was filed on April 9, 2007. Both parties were granted leave to file proposed recommended orders within ten days from the date the transcript was filed. Petitioner's subsequent motion requesting one additional day was granted. To date, only Petitioner has filed a proposed recommended order.

FINDINGS OF FACT

1. Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on March 7, 2006. He holds certificate number 255361.

2. On June 24, 2006, a Department of Corrections contraband interdiction team arrived at Gadsden Correctional Institution to conduct an operation that included the use of dogs to detect narcotics in vehicles parked in the Institution's parking lot. The Respondent was on duty at the Institution that day.

3. After one of the dogs alerted on a car owned by the Respondent, the Respondent was summoned. He unlocked the car and consented to have his vehicle searched.

4. The officer searching Respondent's car removed all the papers and other items from the glove compartment on the passenger side of the vehicle. He observed trash in the bottom of the glove compartment: sand, pebbles, hair, and the other normal debris that builds up over time in a glove compartment.

5. Also on the bottom of the glove compartment was an unidentified sticky substance. The officer used his gloved hand to scrape up everything from the bottom of the glove box and placed it on a plain, white paper. Within the scrapings were a green leafy substance and a brown leafy substance. He separated these substances from the other debris on the white paper and

   placed them on his gloved hand. The quantity of substances he recovered was, according to his description, less than one gram, the size of a couple pinches of salt, a minute amount the size of a dime or smaller.

6. He then took the substances on his hand to the interdiction team leader, who performed a reagent field test and determined that they were cannabis. It was the officer's opinion based upon his expertise in the identification of cannabis that the substances had been in the glove compartment for a long time.

7. The officer then entered the back of Respondent's vehicle and removed the back seat. The area under the back seat had not been cleaned in a "very, very long time," and he discovered pebbles, gravel, sand, moldy French fries, and other debris. He also observed what looked to him like the residue of cannabis but did not bother to remove or test it. Doing so would have required hand-picking through the dirt and debris with a tweezers.

8. Respondent was relieved of duty and has not worked as a correctional officer since that time.

9. At the time, Respondent denied that the cannabis was his, denied any knowledge of it, and offered to take a urinalysis. However, he was not tested, and there is no evidence that any criminal charges were ever filed.

10. At the time, Respondent owned two cars. His primary vehicle, which he drove to work and which he would not loan to others to drive, was a 2004 Chevrolet Impala. His secondary vehicle, which he did not drive to work and which he loaned to others to drive, was a 1999 Buick which he had purchased in March 2005.

11. The vehicle searched by the interdiction team that day was the Buick, which had just been returned to him after being out on loan for approximately a month, and which he decided to drive to work that day.

12. Among the persons who drove the Buick were

    
    

    Monica Phillips, Rontez Phillips, and Rontarius Phillips. The first two persons testified at the final hearing.

    Rontarius Phillips did not testify since he is incarcerated. The criminal conduct causing his incarceration was not revealed at the final hearing.

13. Monica Phillips is Respondent's girlfriend. They have been together for seven years and have 3 children.

    Rontez Phillips and Rontarius Phillips are cousins of Monica, but Respondent sometimes refers to them as his cousins since he and Monica have been together for so long.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.

15. The Commission seeks to revoke Respondent's certification as a correctional officer in this proceeding. The Commission, therefore, has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. Dept. of Banking & Finance, Division of Securities & Investor Protection v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996). The Commission has failed to meet its burden.

16. The Administrative Complaint alleges that on June 24, 2006, Respondent unlawfully possessed not more than 20 grams of cannabis. It further alleges, therefore, that Respondent has violated Sections 893.13(6)(b) and 943.1395(6) and/or (7), Florida Statutes, and/or Florida Administrative Code Rule 11B- 27.0011(4)(b) in that Respondent failed to maintain the qualifications in Section 943.13(7), Florida Statutes, which requires that a correctional officer have good moral character.

17. Section 943.13(7), Florida Statutes, requires that a correctional officer have a good moral character. Section 943.1395(7), Florida Statutes, authorizes the Commission to take disciplinary action against a correctional officer who has not

    maintained good moral character, the definition of which has been adopted by rule and is, therefore, a statewide standard.

18. The Administrative Complaint cites Florida Administrative Code Rule 11B-27.0011(4)(b). That Subsection includes many types of conduct inapplicable to this case, such as undermining the integrity of the certification examination and sexual misconduct. It is assumed that the provision applicable in this case is Subsection (4)(b)1., which defines as a failure to maintain good moral character the commission of an act prohibited by Section 893.13, Florida Statutes.

19. Section 893.13(6)(b), Florida Statutes, makes unlawful the actual or constructive possession of not more than 20 grams of cannabis and establishes such an offense to be a misdemeanor of the first degree. It is uncontroverted that the Respondent was not in actual possession of the cannabis residue when it was discovered. The Commission argues that Respondent was, however, in constructive possession of the cannabis residue because it was in his car although he was not.

20. In order to establish constructive possession of the cannabis, the Commission must prove that Respondent: (1) had dominion and control over the cannabis, (2) knew the cannabis was in his presence, and (3) knew the illicit nature of the cannabis. See State v. Bell, 882 So. 2d 468 (Fla. 5th DCA 2004; State v. Reese, 774 So. 2d 948 (Fla. 5th DCA 2001); Department

    of Law Enforcement, Criminal Justice Standards and Training Commission v. Williams, Case No. 05-3985 (DOAH March 1, 2006).

21. Respondent had control over his locked vehicle in which the cannabis residue was found. Respondent does not dispute the illicit nature of the cannabis. However, the Commission has failed to offer proof by even a preponderance of the evidence that Respondent knew the cannabis was in his car.

22. The car was a 1999 Buick purchased by Respondent in March 2005. His primary vehicle was a 2004 Chevrolet Impala, which he drove, and the Buick was his secondary vehicle which he loaned to family and friends and which had just been returned to him before he drove it to work that day. The evidence offered by the Commission is that the minute quantity of cannabis found in the car had to be scraped up out of the bottom of the glove box along with other kinds of debris and had been there for a very long time.

23. The residue scraped out of the glove box was tested and determined to be cannabis. Although the officer searching Respondent's vehicle then removed the back seat from the car and observed among the other debris that had been there "a very, very long time," what he believed to be small bits of cannabis, that material was not removed from Respondent's car or tested. Although the officer's observation might be accurate, it does not constitute the clear and convincing evidence required for

    the Commission to take disciplinary action. Further, there is no evidence that Respondent knew of this material which was only observable after the back seat had been removed from the car.

24. It is as reasonable to conclude that the cannabis residue found in the bottom of the glove box (or even that found under the back seat if it were cannabis) had been there since before Respondent bought the used car or that it had been left there by any of the persons to whom he had loaned his car or any persons riding in the car while it was on loan as it is to conclude that Respondent put it there. There is, therefore, no clear and convincing evidence that Respondent knew it was there, and the Commission has failed to prove that Respondent was in constructive possession of the cannabis residue.

25. Since the Commission failed to prove that Respondent was in actual or constructive possession of the cannabis, it has also failed to prove that Respondent violated Section 893.13(6)(b), Florida Statutes, and, therefore, has failed to prove that Respondent violated Florida Administrative Code Rule 11B-27.0011(4)(b) and, therefore, has failed to prove that Respondent violated Section 943.1395(7), Florida Statutes.

26. The Administrative Complaint also alleges that Respondent violated Section 943.1395(6), Florida Statutes. That Section refers to other statutory sections with which Respondent is not charged and describes how the Commission should

    investigate complaints. Nothing in that Section appears to pertain to this proceeding. The Commission has, therefore, failed to prove that Respondent violated Section 943.1395(6), Florida Statutes.

27. Since the Commission has failed to prove any of the allegations in the Administrative Complaint filed against Respondent in this cause, the Administrative Complaint should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered finding Respondent not guilty and dismissing the Administrative Complaint in this cause.

DONE AND ENTERED this 14th day of May, 2007, in Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

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 14th day of May, 2007.

COPIES FURNISHED:

Michael Crews, 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

Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302

Damari V. Wade

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: 07-000428PL

Orders for Case No: 07-000428PL