If Mr. Perrella violated the above statutes and rules, should his correctional officer certificate be revoked or some other penalty be imposed?
Petitioner, Criminal Justice Standards and Training Commission (Commission), issued its Administrative Complaint alleging that Mr. Perrella failed to maintain the qualifications required for his correctional officer certification and that penalties should be imposed upon him. On August 30, 2012, the Commission referred the matter to the Division of Administrative Hearings. On September 6, 2012, the case was set for hearing on October 23, 2012.
Mr. Perrella filed an unopposed Motion for Continuance on October 12, 2012. The motion was granted, and the hearing was rescheduled to December 18, 2012. Mr. Perrella's counsel was granted leave to withdraw on November 19, 2012. After two additional unopposed continuances, one due to the change in counsel and the other due to a death in counsel's family, this matter was set for hearing on April 8, 2013.
Mr. Perrella filed a Motion in Limine seeking to exclude all evidence arising from a traffic stop, which resulted in the charges of the Administrative Complaint. Due to disputes about the factual basis of the motion and the fact that much of the evidence relevant to the motion overlapped evidence relevant to the charge, the undersigned withheld ruling on the motion until presentation of evidence at the final hearing. This Recommended Order treats the motion as a motion to strike and disposes of it.
The hearing was held as noticed. Both parties appeared and were represented by counsel.
The Commission presented testimony from Tyler Anderson, Terry Baker, Stacy Lehman, and Roger Mallory. The Commission's Exhibits E through I were accepted into evidence. This Recommended Order, however, strikes Exhibits F and G from the record. Mr. Perrella presented the testimony of Anthony Conti, Thomas McDonald, Eduardo Rivero, and Jeffery Scott Robinson.
Mr. Perrella did not offer exhibits.
The Transcript was filed on May 10, 2013. The parties timely filed proposed recommended orders which have been considered.
Mr. Perrella is a correctional officer certified by the Criminal Justice Standards and Training Commission.
At all times material to this matter, the Florida Department of Corrections, Region Three, employed Mr. Perrella at Polk Correctional Institute.
The management of Polk Correctional Institute values Mr. Perrella and considers him an asset to the institution.
Mr. Perrella is, in the words of Warden Eduardo Rivero, "a very loyal, dedicated officer. He's a hard worker." Mr. Perrella's supervisor of five years, Captain Jeffrey Robinson, relies upon and trusts Mr. Perrella. After the arrest that is the subject of this proceeding, Mr. Perrella entered into and completed a
six-session counseling program for substance abuse.
The Commission has sanctioned Mr. Perrella before. On May 9, 2006, it issued a Final Order imposing a six-month period of probation on Mr. Perrella. The terms of probation included a requirement that Mr. Perrella provide the Commission with proof that he completed an approved substance abuse counseling program before the probationary period ended.
The Commission is an integral participant in the training and discipline of law enforcement officers in Florida. It establishes uniform minimum training standards for officers in the various criminal justice disciplines. § 943.12(5), Fla. Stat. The Legislature charged the Commission with consulting and cooperating with the state, municipalities, and political subdivisions of the state in the development of law enforcement training and education. § 943.12(6), Fla. Stat. The Commission establishes minimum curricular requirements for criminal justice training schools. § 943.12(8), Fla. Stat.
The facts that are the subject of the charges in the Administrative Complaint were also the basis of prosecutions for driving under the influence (DUI) and careless driving in Polk County, Case Nos. TT11-000062-LD and CI11-000878-LD.
The facts that are the subject of the Motion in Limine in this case were the basis of a Motion to Dismiss in that case. The court issued an order granting the motion and dismissing all charges. That order stated, "the State Attorney conceded that the motion was well-founded and stipulated to the granting of the Defendant's motion to dismiss."
Stop of Mr. Perrella
On January 11, 2011, Mr. Perrella was driving his truck south on Florida Avenue in Lakeland, Florida, around one o'clock a.m. Mr. Perrella turned right from Florida Avenue to
travel west on Pipkin Road.2/ Florida Avenue is a four-lane road, with a turning lane for the turn onto Pipkin. There were no cars near Mr. Perrella's truck when he made the turn other than the car of Lakeland Police Officer Tyler Anderson who was many yards behind Mr. Perrella.
Mr. Perrella momentarily crossed for a very short distance from the Florida Avenue turn lane into the adjacent lane of Pipkin Road as he made the turn.3/ There were no cars nearby. Mr. Perrella was driving within the speed limit. He was not driving erratically.
Florida Avenue is within the city limits of Lakeland where it meets Pipkin Road.
A small corner, less than 50 feet, of Pipkin Road is within the Lakeland city limits at the Florida Avenue intersection. After that, Pipkin Road is in Polk County, outside the Lakeland city limits.
The location of the city boundaries is common knowledge among Lakeland police officers.
On January 11, 2011, Officer Anderson was fully aware of where the city limits ended at the Florida Avenue/Pipkin Road intersection.
At the time Officer Anderson left the city limits of Lakeland, he had not observed any behavior by Mr. Perrella that indicated to him he was observing a felony, a misdemeanor
involving breach of the peace, driving while under the influence, or reckless driving.
Officer Anderson followed Mr. Perrella for approximately ten blocks down Pipkin Avenue to the 1000 block. Officer Anderson deliberately followed Mr. Perrella with full knowledge that he was outside of his jurisdiction.
On Pipkin Avenue, outside the City of Lakeland boundaries, Officer Anderson observed driving patterns that made him suspect that Mr. Perrella was impaired. Officer Anderson's dashboard video camera recorded the events. Mr. Perrella's recorded actions consisted primarily of Mr. Perrella moving from side to side within the limits of his lane. Mr. Perrella did not enter another lane of traffic, leave his lane, speed, or at any time take actions that produced a risk of accident or injury.
Around the 1000 block of Pipkin Road, Officer Anderson stopped Mr. Perrella. When Officer Anderson spoke to
Mr. Perrella, he smelled alcohol.4/
Officer Anderson did not utter the words, "you are under arrest" to Mr. Perrella immediately after stopping him. But from the point that Officer Anderson pulled Mr. Perrella over, Mr. Perrella was detained. He was not free to go.
After stopping Mr. Perrella, Officer Anderson called Lakeland City Police Officers Eades and Cortez to assist him.
Officer Anderson was fully aware that he was outside of the City of Lakeland jurisdiction.
Officer Anderson and his fellow Lakeland police officers began an investigation of Mr. Perrella, which included interrogating him and administering a number of field sobriety tests to Mr. Perrella. Mr. Perrella refused to take a blood alcohol test.
Based on the test results, Mr. Perrella's appearance, the smell of alcohol, and Mr. Perrella's conduct, Officer Anderson arrested Mr. Perrella and transported him to the Lakeland Police Department for processing.
Officer Anderson deliberately chose to follow, stop, investigate, and arrest Mr. Perrella knowing full well that he was outside of his jurisdiction.
All of the officers who participated in the stop, investigation, and arrest of Mr. Perrella were Lakeland police officers.
Officer Anderson made no effort to contact or seek assistance from the Polk County Sherriff's Office. He also made no effort to notify the Polk County Sherriff's Office that he had followed a suspect from Lakeland's jurisdiction into the Sherriff's exclusive jurisdiction.
Mutual Aid Agreement
At all times material to this matter, the City of Lakeland was party to the Polk County Mutual Aid Agreement (Agreement) with the Sheriff of Polk County, Florida.
Paragraph 2(a) of the Agreement provides:
Whenever a law enforcement officer observes
. . . DUI [driving while impaired] or Reckless Driving, occurring in a cooperating agency's jurisdiction, the law enforcement officer may physically arrest the perpetrator and preserve the crime scene.
Control of both the person apprehended and the crime scene shall be relinquished to the first available officer from the agency having jurisdiction.
Article 4 of the Agreement provides than any officer who provides mutual aid and assistance in another jurisdiction "shall notify the on-duty communications supervisor in the jurisdiction being assisted as soon as possible."
Article 5(a) of the Agreement permits officers investigating offenses that occurred in their jurisdiction to make related arrests in a cooperating agency's jurisdiction. It requires: "Notice of an officer's intention to make such an arrest shall be given to the on-duty communications supervisor for the cooperating agency in sufficient time to allow the cooperating agency to participate in the arrest, unless exigent circumstances exist, in which event notice shall be given immediately thereafter."
Good Faith
Officer Anderson had read the Agreement. He knew its contents.
He was familiar with the Agreement when he chose to follow, stop, investigate, and arrest Mr. Perrella.
In fact, Officer Anderson considered the Agreement in his decision to follow and stop Mr. Perrella. He used his own personal interpretation to justify his decision.
Officer Anderson was personally sensitized to the importance of jurisdictional boundaries in his job. He had been reprimanded for leaving the Lakeland jurisdiction in his marked police car.
Officer Anderson was well aware when he chose to follow Mr. Perrella outside the city limits that he was leaving his jurisdiction. He was not investigating an offense that occurred in his Lakeland jurisdiction.
Officer Anderson proceeded deliberately beyond his jurisdiction, rationalizing his actions, including the stop and investigation of Mr. Perrella, on his personal decision to interpret the plain language of the Agreement in a way to permit and justify his activities. He also chose not to provide the notice clearly required by the Agreement.
Officer Anderson knowingly and deliberately did not follow the requirements of the Agreement.
Deterrence
Officer Anderson's conduct is important beyond this individual case. He is a very active DUI enforcement officer and part of a DUI task force. He has stopped nearly 300 people for DUI enforcement and participated in over 500 DUI investigations. He handles seven-to-15 DUI investigations per month.
His conduct is also important to the Commission because of its role in the training and education of law enforcement
officers.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
Motion to Strike (Motion in Limine)
Mr. Perrella's motion asks for
an order suppressing any evidence obtained from the unlawful search and seizure of Mr. Perrella, including but not limited to
any observations, smells, hearing or feeling of Mr. Perrella that Off. Anderson, or any other officer or person may have noticed during his time with Mr. Perrella starting from the point that Off. Anderson requested Mr. Perrella's driver's license.
Also, the motion seeks to exclude
[a]ny and all tangible evidence, including but limited to, traffic citations, police reports, DUI reports, complaint affidavits,
breath alcohol test affidavits, refusal to submit to test affidavits/forms, driver's license records, booking sheets, court orders by the criminal court, or any other tangible item.
Finally, the motion asks that Officer Anderson and all other people not be permitted to testify about any of the above- mentioned information and that the undersigned not consider it. The basis of the motion is that all evidence obtained after Officer Anderson stopped Mr. Perrella was obtained from an unlawful search and seizure because Officer Perrella was outside of his jurisdiction. For the reasons that follow, the motion is granted.
The United States and Florida Constitutions prohibit unreasonable searches and seizures. U.S. Const., Amend. 4; Art. I, § 12, Fla. Const. The parties do not dispute that a search and seizure conducted under color of the office of law by an officer outside of his jurisdiction is unreasonable, unless permitted by some exception or special authority. Ramer v.
State, 530 So. 2d 915 (Fla. 1988). Officer Anderson's pursuit and stop of Mr. Perrella were outside of his jurisdiction and, therefore, an unreasonable search and seizure.
In criminal cases, courts usually exclude evidence a law enforcement officer obtains in violation of the state and federal bans on unlawful search and seizures. Davis v. U.S., 131 S. Ct. 2419; 180 L. Ed. 2d 285 (2011)(Fourth Amendment);
State v. Cross, 487 So. 2d 1056 (Fla. 1986) (Art. I, § 12, Fla. Const.).
The federal "exclusionary rule" is a court-crafted deterrent principle. The Supreme Court created it to provide an enforcement mechanism for the Fourth Amendment. Davis v. U.S., supra, at 131 S. Ct. 2423; 180 L. Ed. 2d 290. Because the rule's purpose is deterrence, the Supreme Court applies it only where the purpose is well and effectively served. If application will not result in significant deterrence, the rule is not applied. Id. at 131 S. Ct. 2426; 180 L. Ed. 2d 294.
The exclusionary rule's sole purpose is to deter future Fourth Amendment violations, e.g., Herring v. United States, 555 U.S.
135, 141, 129 S. Ct. 695, 172 L. Ed. 2d 496,
and its operation is limited to situations in which this purpose is "thought most efficaciously served," United States v.
Calandra, 414 U.S. 338, 348, 94 S. Ct. 613,
38 L. Ed. 2d 561. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule's heavy costs. Under a line of cases beginning with United States v. Leon, 468 U.S. 897, 104
S. Ct. 3405, 82 L. Ed. 2d 677, the result of this cost-benefit analysis turns on the "flagrancy of the police misconduct" at issue. Id., at 909, 911, 104 S. Ct. 3405,
82 L. Ed. 2d 677. When the police exhibit "deliberate," "reckless," or "grossly negligent" disregard for Fourth Amendment rights, the benefits of exclusion tend to outweigh the costs. Herring, supra, at 144, 129 S. Ct. 695, 172 L. Ed. 2d 496. But when the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence,
the deterrent value of suppression is diminished, and exclusion cannot "pay its way." See Leon, supra, at 909, 919, 908,
n. 6, 104 S. Ct. 3405, 82 L. Ed. 2d 677;
Herring, supra, at 137, 129 S. Ct. 695, 172 L. Ed. 2d 496. Pp. - , 180 L. Ed. 2d, at 293-295.
Davis v. U.S., supra, at 2422; See State v. Cross, supra.
The genesis of Florida's exclusionary rule is different. Florida's prohibition on unreasonable searches and seizures includes a specific ban on admitting evidence seized in violation of Article I, section 12. But the last sentence of section 12 tempers Florida's constitutional ban on the admissibility of illegally seized evidence by requiring that decisions applying section 12 mirror decisions of the United States Supreme Court construing the Fourth Amendment. This presents the issue of whether the exclusionary rule holdings of the Supreme Court govern application of Article I, section 12, since the Supreme Court "divorces the suppression remedy from the substantive Fourth Amendment right." Illinois v. Krull, 480 U.S. 340, 368; 107 S. Ct. 1160, 1177; 94 L. Ed. 2d 364, 368 (1987) (Justice O'Connor dissenting). The final resolution of the issues makes addressing this question unnecessary.
The Commission argues that the Agreement authorized the pursuit, stop, and ensuing investigation. It did not.
Officer Perrella did not "observe" a DUI occurring outside his jurisdiction. He left his jurisdiction looking for
one. Once he detained Mr. Perrella, he did not preserve the crime scene and relinquish it to the "first available officer" from the Polk County Sheriff's Office. He maintained City of Lakeland control over the incident through transportation of Mr. Perrella to the Lakeland Police Department's jail. He also never provided the notice required by the Agreement.
The United States Supreme Court recognizes a "good faith" exception to application of the exclusionary rule. The Commission argues that even if the Agreement did not authorize Officer Anderson's actions, they were a good faith, if mistaken, interpretation of the Agreement. They were not.
The language of the Agreement is plain, and Officer Anderson was familiar with it. His vague allusions to an "understanding" of the Agreement, based upon statements of "others," are not persuasive. In addition, the evidence clearly establishes Officer Anderson's full awareness that he was leaving Lakeland's jurisdiction and the significance of the action.
The "good faith" exception grows from the deterrence goal of the federal exclusionary rule. U.S. v. Sparks, 711 F.3d
58 (1st Cir. 2013). The basis is that the deterrent value must be balanced against the cost of discarding relevant and probative evidence. So when later judicial review determines that a search or seizure was unconstitutional, but at the time the officer was
complying with authoritative court precedents, excluding the evidence could serve no deterrent purpose. Id.
The facts here do not fit that theory. The theory requires objectively reasonable reliance upon a court decision or statute. Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160,
94 L. Ed. 2d 364 (1987).5/
Officer Anderson was not relying upon any court precedent or statute. He relied upon his personal interpretation of the Agreement. The plain language of the Agreement does not support his interpretation. It was not an objectively reasonable interpretation of the Agreement.
Officer Anderson was not acting in good faith when he followed and stopped Mr. Perrella.
Tribunals usually do not apply the exclusionary rule in administrative proceedings. Valdez v. Dep't. of Rev., 622 So. 2d
62 (Fla. 1st DCA 1993). The Commission relies upon this principle here. The basis of the principle is that excluding evidence in other proceedings would not have a deterrent effect since the party offering the evidence is not the party with control over how the evidence is obtained. See Immigration & Naturalization Servs. v. Lopez-Mendoza, 468 U.S. 1032, 104 S. Ct. 3479, 82 L. Ed. 2d 778 (1984).
But courts apply the exclusionary rule in administrative proceedings when the violations of the Fourth
Amendment are egregious or law enforcement actions transgress notions of fundamental fairness. Valdez v. Dep't. of Rev., supra. The facts here meet that standard.
First, the conduct is sufficiently outrageous. Officer Anderson conducted the entire pursuit, stop, and investigation, well aware that he was leaving his jurisdiction and that every action he took was outside his jurisdiction. Further, he deliberately did not comply with the clear requirements of the Agreement he chose to selectively interpret to justify his actions. He made no effort to contact the Polk County Sherriff's Office.
Second, application of the exclusionary rule here will have sufficient deterrent effect. Because Officer Anderson is so active and involved in DUI investigations, the effect on his conduct alone will be significant. As an active member of the DUI task force, the effect should also be something other members of the task force consider as they conduct their investigations.
Finally, the Commission, as an agency regulating law enforcement officers, section 943.12, has a closer nexus with law enforcement than the completely civil, non-law enforcement agencies typically involved in cases where courts decline to apply the exclusionary rule.
For the preceding reasons, Exhibits F and G are stricken from the record. Also, all testimony of Officer
Anderson, from the moment he stopped Mr. Perrella and all video images taken after the stop, are stricken from the record.
Allegations of the Administrative Complaint
Since this is a disciplinary action, the Commission has the burden of proving the Administrative Complaint's allegation that Mr. Perrella unlawfully drove his vehicle under the influence of alcohol or other substance by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Since the Motion to Strike is granted, there is not sufficient credible, persuasive evidence in the record to prove the allegations of the Administrative Complaint by clear and convincing evidence. This is not a determination that
