The Issue The issue in this case is whether the Criminal Justice Standards and Training Commission (Petitioner) should take disciplinary action against the certificate of Bradley W. Carlton (Respondent) based upon his alleged failure to maintain the qualifications set forth in Section 943.13(7), Florida Statutes, including specifically the requirement that a law enforcement officer have good moral character.
Findings Of Fact Respondent was certified as a law enforcement officer by the Petitioner on April 7, 1988, and was issued certificate number 12-87-02-03. Respondent was employed as a law enforcement officer by the North Palm Beach Police Department in 1989, and was so employed at all times material hereto. Based upon information received by the North Palm Beach Police Department from two informants concerning the alleged use of controlled substances by the Respondent, on and off duty, a Departmental investigation was conducted on September 13, 1989. During that investigation, the Respondent gave a statement denying the use of any controlled substances or the possession of a "one-hitter" pipe as described by the informants. The Respondent also consented, orally and in writing, to a search of his person, automobile and residence, and he was entirely cooperative during these searches. No contraband was found on his person. During the search of Respondent's vehicle on September 13, 1989, by Captain George Warren and Lieutenant Wilbur Walker, a portion of a marijuana cigarette and a one-hitter pipe were discovered inside a red pouch that was obtained from a gear bag located in his vehicle's trunk. The ashtray in the Respondent's car also had an odor of marijuana. A search of Respondent's bedroom was also conducted on September 13, 1989, by Captain Warren and Lieutenant Walker. Although the Respondent had a roommate, his roommate occupied a separate bedroom. This search uncovered contraband in Respondent's bedroom which included a 35mm film canister containing marijuana seeds which was found in a box on Respondent's closet shelf, a portion of a marijuana cigarette in an ashtray on Respondent's desk, a plastic coaster containing marijuana seeds located on a bookshelf near his bed, and a portion of a marijuana cigarette on the Respondent's desk behind a clock radio. The items found on the Respondent's desk and bookshelf were in open view and were not hidden inside other containers. Captain Warren and Lieutenant Walker have the necessary training and experience to recognize and identify marijuana, marijuana cigarettes and the odor of marijuana. The one-hitter pipe found in Respondent's trunk matches the description of the pipe which one informant claims that the Respondent used in her presence. Pipes such as this are typically used to smoke marijuana. The Respondent admitted the marijuana seeds found in the 35mm canister, the bag containing the pipe and portion of a marijuana cigarette, and the ashtray containing the partial marijuana cigarette were all his. He stated that the ashtray had only gone unemptied for approximately one week. He also admitted that the pipe was probably his because at one time he had one just like it. However, Respondent urges that he had forgotten about these contraband items since he had not used them in a long time, and that at all times material hereto, he did not "knowingly" possess these items. Nevertheless, these items of contraband were Respondent's, and they were found in his vehicle and in his residence. Prior to his employment with the North Palm Beach Police Department, Respondent had used marijuana. He admitted to using marijuana as late as 1982 during the polygraph portion of his employment process. On or about September 19, 1989, Respondent took a drug test at the Toxi-Tech Laboratory in West Palm Beach, Florida. The results of that test were negative, meaning that there was no indication of any controlled substance which exceeded the testing threshold level. This test cannot exclude the possibility of marijuana use by the Respondent, but simply establishes that the testing threshold level for marijuana of 100 ng/ml was not exceeded in the Respondent's test sample. Officers Donald Zimmerman and William McArdle received written statements about the Respondent from the two informants, and were also involved with the internal investigation of Respondent which was conducted by the North Palm Beach Police Department. Respondent claims that there was a personal animosity between Officer Zimmerman and himself, and that this may have lead to these informants giving these statements to Officer Zimmerman since he and Officer McArdle knew both informants personally. Officer Zimmerman denies any animosity between himself and the Respondent. Even if it were shown that such animosity existed, which it was not, that fact would not discredit the results of the searches conducted by Captain Warren and Lieutenant Walker, especially in light of the Respondent's admitted prior use of marijuana and ownership of the items of contraband found in his vehicle and residence. The statements of these two informants clearly constitute hearsay, which alone is not sufficient to establish the above findings of fact. They are considered only to support and confirm other direct evidence in the record which consists, specifically, of testimony and documentary evidence concerning the searches conducted of Respondent's vehicle and residence, and Respondent's admissions.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order revoking the certification of Respondent. RECOMMENDED this 27th day of March, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5013 Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 11. Adotped in Finding of Fact 3. 6-8. Adopted in Finding of Fact 11. 9. Rejected as unnecessary. 10-12. Adopted in Findings of Fact 3 and 11, but otherwise Rejected as unnecessary. 13-15. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Rejected as unnecessary and immaterial. Adopted in Finding of Fact 4. Adopted in Finding of Fact 6. 22-25. Adopted in Finding of Fact 5. 26-27. Rejected as unnecessary and immaterial. 28. Adopted in Finding of Fact 11, but otherwise Rejected as unnecessary. 29-33. Adopted in Finding of Fact 8. Rulings on the Respondent's Propsoed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 3, but otherwise Rejected as immaterial. 3-4. Adopted in Finding of Fact 11, but otherwise Rejected as immaterial. 5-6. Adopted in Finding of Fact 3. 7. Adopted in Findings of Fact 4 and 8, but otherwise Rejected as not based on competent substantial evidence. 8-10. Adopted in Findings of Fact 5 and 8, but otherwise Rejected as not based on competent substantial evidence. 11. Rejected as unnecessary and immaterial. 12-13. Rejected as not based on competent substantial evidence and immaterial. Adopted in Finding of Fact 9, but otherwise Rejected as not based on competent substantial evidence and immaterial. Rejected as immmaterial and irrelevant. Adopted and Rejected, in part, in Finding of Fact 10. COPIES FURNISHED: Sharon D. Larson, Esquire P. O. Box 1489 Tallahassee, FL 32302 Stephen W. Foxwell, Esquire P. O. Box 11239 Tallahassee, FL 32302 Jeffrey Long, Director Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, FL 32302 James T. Moore Commissioner Department of Law Enforcement P. O. Box 1489 Tallahassee, FL 32302 Rodney Gaddy, Esquire General Counsel P. O. Box 1489 Tallahassee, FL 32302
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in proceeding, I make the following findings of fact: The Respondent was certified by the Criminal Justice Standards and Training Commission as a correctional officer on March 11, 1983 and issued Certificate Number 502-3844. The Respondent was a correctional officer with the Palm Beach County Sheriff's Office beginning in January 1983. On August 27, 1986, the Respondent resided with Ms. Burton (who has subsequently married Respondent and is now known as Elaine Burton Edwards) and two of her children. One of her children, Karl McInis ("Karl") was twenty three months old at the time and he was in the process of being toilet trained. On August 27, 1986, the Respondent discovered that Karl had "messed" on the floor and/or in his pants. The Respondent felt that the child's actions were deliberate and that the child needed to be disciplined. Therefore, Respondent struck the child fives times with a leather belt. There is a dispute as to the type and size of the belt used. While Petitioner contends that Respondent used his heavy Sheriff's Deputy belt, the greater weight of the evidence indicates that Respondent used a typical men's trousers belt. As a result of the discipline described in paragraph 5 above, Karl suffered bruises on his buttocks and legs. Subsequent to the incident, the child was removed from the home by HRS. He currently resides out of state with his grandparents. Criminal charges were brought against Respondent after HRS reported the incident to the police. However, after Respondent successfully completed a counseling program as part of a pre-trial intervention program, the charges were nolle prossed on November 10, 1988. As a result of his arrest, Respondent was suspended from his job at the Palm Beach County Sheriff's Department pending the outcome of the criminal case. Respondent has not been reinstated. After completing the counseling program, Respondent altered his methods of disciplining his children. On most occasions, Respondent has refrained from using corporal punishment and instead attempts to apply the assertive discipline procedures he learned in the counseling program. However, Respondent admits that on a few occasions when he felt the children did not respond to the assertive discipline techniques, he has resorted to corporal punishment. On March 2, 1989, Respondent disciplined one of his children, Julius Edwards, by striking him five times on the palms of the hands with a belt. At the time of the incident described in paragraph 10, Julius was five years old. Julius and at least one other sibling from Respondent's previous marriage were living with Respondent and Ms. Burton. Respondent punished Julius because he felt the child was deliberately engaging in a pattern of obstinate conduct in an attempt to be returned to the custody of his natural mother. That conduct included eating excessive amounts of food after being instructed not to. During the punishment, Julius struggled and at least one of the blows landed on his arms. As a result of the punishment, Julius had bruises on his arms which measured approximately four inches long and one inch wide. As a result of the corporal punishment administered by Respondent to Julius, Respondent was arrested and ultimately adjudicated guilty of a misdemeanor for violating Section 827.04, Florida Statutes (child abuse) on March 29, 1989 in the Circuit Court of the Fifteenth Judicial Circuit, Palm Beach County, in case no. 89-5869MMA08. As a result of this conviction, Respondent was required to undergo additional counseling. While the bruises suffered by the children in the two incidents described above are significant cause for concern, neither of the children required medical attention. At the time of both of the incidents in question, none of the other children evidenced bruises, they all appeared well-fed and there was no other evidence of any neglect. Indeed, the evidence reflects that the Respondent is a dedicated and caring father. He is extremely concerned about the many negative influences that affect children in our society. As a result, he believes it is important for him to discipline the children in an attempt to ensure that they choose the right path in life. Respondent contends that he was raised with a similar type of discipline and finds it difficult to understand the commotion caused by his attempts to discipline his children in the manner in which he was raised. While his motives are good, he has used very poor judgment in certain situations and imposed excessive punishment given the age of the children and the nature of their behavior. Respondent has aspired to be a law enforcement officer since his high school days. He has spent hundreds of hours as a volunteer for various school projects and programs involving children. He has strived hard to be a good role model and an active member of his community. However, he needs to temper his concerns and enthusiasm with more sensitivity to the rights of others. There is no indication of any deficiencies or problems in Respondent's job performance. Indeed, the only evidence introduced regarding his performance as a law enforcement officer indicated that he was dedicated, concerned and responsible.
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witnesses and seriousness of the offense as it relates to the public trust placed in a correctional officer who guards those incarcerated by society, it is therefore, RECOMMENDED that the Petitioner, Criminal Justice Standards and Training Commission, enter a Final Order placing Respondent Glenn S. Edwards' correctional officer certification on probation for a period of two years and requiring him to complete an appropriate counseling program for parents while refraining from any further violations of Section 943.13(1)-(10). DONE AND ENTERED this 10th day of April 1990, in Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April 1990.
The Issue The issue in this proceeding is whether Respondent's certification as a law enforcement officer should be disciplined.
Findings Of Fact On October 5, 1989, Respondent was certified by the Criminal Justice Standards and Training Commission as a law enforcement officer, holding certificate #11-89-002-01. In February 1990, Samuel O. Best was employed as a police officer by the City of Port St. Joe Police Department. During the early part of February, Respondent accompanied a woman to a local motel where the two shared a room and engaged in sexual intercourse. While the two were in the room, the Respondent thought the woman smoked two and one-half cigarettes. The items she smoked looked like normal cigarettes. However, Respondent was not paying close attention to the woman's activities or any odor of the smoke because he had his mind on more prurient matters. As the two prepared to leave the room, the Respondent, as was his habit, straightened the motel room. The woman had dropped one of her cigarettes on the floor and Respondent picked up the cigarette and placed it in his pocket. The Respondent forgot about the cigarette in his pocket and kept it for approximately two or three days. Around February 8, 1990, the afternoon of the second or third day after his liaison with the woman in the motel, Respondent went to his father's home and sat on the front porch. The Respondent was on duty. While contemplating the bleakness of his life, in part due to the intense personal problems he was having with his wife, Respondent, who was a heavy smoker, began looking for a cigarette to smoke. He found the motel woman's cigarette in the pocket of a shirt he had worn for three days. He pulled it out, looked at it and lit it. During this activity the "insurance man" was walking up to the house. Officer Best thought the substance in the cigarette was tobacco. However, it tasted like perfume and he put the cigarette out after one puff. He then left the porch to get his father for the insurance man. There was an absence of any competent and substantial evidence reflecting the identifying the substance contained in the cigarette as marijuana. Additionally, no changes in Respondent's behavior were noted by any of his fellow officers or supervisors at any time surrounding the events on February 8, 1990. On February 22, 1990, Chief Richter of the Port St. Joe Police Department received a citizen complaint regarding the Respondent. The insurance agent complained that he had observed the Respondent in police uniform on the porch of the Respondent's father's home smoking. That same day, Chief Richter contacted the Respondent and directed him to come to Chief Richter's office to discuss the complaint. Upon his arrival in Chief Richter's office, Chief Richter told the Respondent what the citizen had alleged. 1/ Chief Richter asked the Respondent if he would answer questions regarding the allegation. The Respondent voluntarily agreed. The initial discussion between Officer Best and Chief Richter lasted approximately 20 to 25 minutes. Officer Best's interpretation of what Chief Richter told him was that the Chief had decided that Officer Best had been smoking marijuana. Officer Best thought his Chief would not misinform him, and he did not argue with Chief Richter over the issue of whether or not the substance was marijuana. However, Officer Best did not know with any certainty what the substance was that he had inhaled briefly while sitting on his father's front porch. After the initial discussion, Chief Richter then placed the Respondent under oath and began to question him while tape recording the interrogation. From Respondent's point of view, the reference to marijuana during the interrogation was merely a convenient label for referring to the cigarette he briefly puffed on his father's front porch. Neither the reference or his responses to questions using the term marijuana was intended to be an admission of knowing drug use. Given the Respondent's demeanor at the hearing, it is understandable under the facts of this case, that even with some training in drug identification, Respondent was not able to identify the substance in the cigarette and that he was also very submissive to what he believed to be a superior officer's view of the matter. As a result of the Respondent's statement, he was discharged from his employment with the Port St. Joe Police Department. However, even with the dismissal, the overwhelming evidence in this case is that Respondent remains of good moral character and remains capable of performing his duties and working with his fellow officers. Moreover, the evidence fails to demonstrate that Respondent at any time knowingly possessed or ingested marijuana. Given these facts, the Administrative Complaint should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the amended Administrative Complaint filed against Samuel O. Best be dismissed. RECOMMENDED this 31st day of December, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1991.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Burton B. Griffin, was certified as a law enforcement officer by respondent, Criminal Justice Standards and Training Commission (Commission), having been issued law enforcement certificate number 56974 on August 3, 1979. When the events herein occurred, respondent was employed as a police officer with the Jacksonville Sheriff's Office (JSO). This controversy involves charges that respondent (a) unlawfully possessed drug paraphernalia in October 1992, (b) unlawfully possessed a crack pipe in July 1992, and (c) falsified an arrest and booking docket for one Beverly Hay in July 1992. In 1991, respondent was assigned to the Zone 3 Community Problem Response Team (team). The team, which consisted of 6 to 8 officers at any given time, worked the "core city downtown" area, which was the most crime-ridden, dangerous and violent part of the City. As a member of the team, respondent often engaged in the dangerous task of performing undercover narcotics work, which required him to make undercover purchases of drugs from local dealers. Through undercover assignments, he also apprehended local prostitutes. In order to effectively carry out his responsibilities as an undercover agent, respondent was required to wear disguises, which included such "props" as civilian clothes, a beard, and glasses. In addition, respondent would drive an unmarked car and carry a bottle of liquor and crack pipes. The pipes were placed in the ashtray of the car and in his shirt pocket to convince the drug dealer that respondent was a "street person" and not an undercover law enforcement officer. When not being used, the props were kept in a bag in the trunk of the vehicle. On July 13, 1992, respondent and his partner were flagged down by a female prostitute named Beverly Hay on a downtown street. After solicting respondent, Hay was told she would be charged with prostitution, a misdemeanor. She was also in possession of what appeared to be a crack pipe, another misdemeanor. Hay had a previous record of prostitution arrests, and she did not want to be incarcerated for a long period of time. In return for not being arrested, she agreed to act as a confidential informant and make purchases of drugs from various crack houses in the neighborhood. With this information, JSO could then obtain search warrants for each of the illicit houses. After obtaining the approval of his supervisor not to arrest Hay, respondent released Hay but gave her his pager number and instructions to call him as soon as she was ready to make a buy. Respondent kept the crack pipe in his vehicle as leverage to insure that Hay would fulfill her side of the agreement. In other words, if she did not fulfill her part of the agreement, the pipe would then be used as evidence to arrest her for possession of drug paraphanalia at a later date. Before she was released, Hay was told that this would happen. This type of arrangement was not unusual for officers working in undercover narcotics. As of July 16, 1992, Hay had still not provided the agreed upon assistance. That evening, respondent observed Hay in the 700 block of West Monroe Street. After apprehending her, respondent learned that Hay did not intend to provide any assistance. Accordingly, he prepared an arrest and booking report in which he stated that Hay was being arrested for possession of the crack pipe which he had found on her three days earlier. In the "narrative" portion of the report, however, respondent stated that Hay had the pipe in her possession on July 16, rather than the correct day of July 13. The report and crack pipe were filed with the JSO, and Hay served approximately 16 days in jail before being released. Respondent filled out the report in this manner because both he and his partner were unsure how to fill out a "deferred arrest" for a misdemeanor offense. Indeed, while most witnesses in this case were generally familiar with the procedure for a felony deferred arrest, no one had ever made a deferred arrest for a misdemeanor. The report would have been accurate had respondent simply stated that Hay was arrested with the pipe on July 13, released that day on the condition that she would provide information, and after failing to perform under her agreement, she was again arrested on July 16 for the original offense. Respondent candidly acknowledged that in hindsight he was wrong and had used poor judgment in filling out Hay's arrest report in the manner that he did. Even so, there was no intent on his part to intentionally violate any JSO policy, Commission rule or state law. More specifically, he did not intend to falsify an official record as charged in the administrative complaint. Rather, the report was incorrectly prepared due to respondent's lack of knowledge on how to make a deferred misdemeanor arrest. On October 27, 1992, the JSO internal affairs section searched all team vehicles. While searching respondent's vehicle, the section found two crack pipes (and other props) that were used by respondent during his undercover work. Even if the pipes were used as props, under a JSO general order the pipes should have been returned to the property room at the end of each shift. By failing to turn them in, respondent unintentionally violated the JSO policy. In addition, by not turning in the Hay pipe for three days until she was arrested, respondent unintentionally violated the same policy. Respondent had found the two pipes used as props laying on a street during one of his many sweeps of known drug areas. Since they were necessary props for his undercover work, he kept them in a bag with his other props. Although the JSO had an informal policy calling for paraphanalia to be checked out of the property room before each undercover assignment, respondent was unaware of this requirement, and he knew of no other officer who had ever done the same. In addition, respondent believed the items had no intrinsic value, and under another JSO general order, unclaimed property having no intrinsic value did not have to be turned into, or checked out of, the property room. At the same time respondent was using the pipes as props, it was common knowledge among JSO officers that another JSO strike force, with its supervisor's approval, was using similar props without turning them into the property room each day. Therefore, it is found that respondent could have reasonably believed he was not violating any general order by keeping his props in a bag in the trunk of his vehicle. In any event, there is no suggestion, or even a hint, that the three pipes were used for any purpose other than official police business. For violating a general order pertaining to "Competency and the Handling of Evidence," respondent received a written reprimand and a limited suspension of sixty working days in 1993. The JSO did not sustain the allegations pertaining to unlawful possession of contraband and falsifying a report. Under Rule 11B-27.003(2), Florida Administrative Code, the employing agency (JSO) is required to forward to the Commission a completed form reflecting only those violations that are sustained. For reasons unknown, in the form filed with the Commission, the JSO internal affairs section incorrectly recited that all allegations had been sustained. Thereafter, the Commission issued an administrative complaint, as amended, seeking disciplinary action against respondent's law enforcement certification for the unsustained allegations. Except for the discipline meted out by JSO in 1993, respondent has had an exemplary career as a law enforcement officer, having served with various departments since 1979. He has continued his employment with the JSO since this incident and is now in a position of special trust as an evidence technician. At hearing, his superiors lauded his integrity, honesty, work ethic and dedication as a police officer.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a Final Order dismissing the administrative complaint, with prejudice. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2909 Petitioner: 1-3. Partially accepted in finding of fact 1. 4. Partially accepted in finding of fact 4. 5-8. Partially accepted in finding of fact 12. 9-13. Rejected as being unnecessary. Partially accepted in finding of fact 12. Rejected as being unnecessary. Rejected as recitation of testimony. Partially accepted in finding of fact 12. 18-24. Rejected as recitation of testimony. 25. Rejected as being irrelevant. 26-27. Rejected as being recitation of testimony. 28-29. Partially accepted in finding of fact 8. Partially accepted in finding of fact 9. Covered in preliminary statement. Rejected as being unnecessary. 33 Rejected as being irrelevant. 34-49. Rejected as being recitation of testimony. Partially accepted in finding of fact 11. Rejected as being recitation of testimony. Respondent: Partially accepted in findings of fact 1 and 17. Partially accepted in finding of fact 17. Partially accepted in finding of fact 3. 4-7. Rejected as being unnecessary. 8. Partially accepted in finding of fact 12. 9-10. Partially accepted in finding of fact 4. 11. Partially accepted in finding of fact 14. 12-14. Partially accepted in findings of fact 12 and 13. 15-16. Partially accepted in findings of fact 13. 17. Rejected as being unnecessary. 18-29. Partially accepted in findings of fact 5-11. 30-34. Partially accepted in findings of fact 15 and 16. 35. Partially accepted in finding of fact 11. 36-42. Partially accepted in finding of fact 17. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary for a resolution of the issues, not supported by the evidence, cumulative or a conclusion of law. COPIES FURNISHED: Pauline M. Ingraham-Drayton, Esquire 711-B Liberty Street Jacksonville, Florida 32202-2715 T. A. Delegal, III, Esquire 5530 Beach Boulevard Jacksonville, Florida 32207 A. Leon Lowry, II, Executive Director Division of Criminal Justice Standards and Training Commission P. O. Box 1489 Tallahassee, Florida 32302-1489 Michael R. Ramage, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302-1489
The Issue Whether the Respondent's certification as a police officer should be disciplined for alleged violations of Chapter 943, Florida Statutes.
Findings Of Fact On December 19, 1986, Thomas Barrow was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission, Certificate Number 23-86-999-03. He was initially employed by the Santa Rosa County Sheriff's Department in April, 1986. Barrow has served as a deputy sheriff with three sheriffs. His duties have included at least five years as an investigator for the Santa Rosa County Sheriff's Department. He is currently serving as a corporal with Sheriff Jerry Brown. As a corporal under Sheriff Brown, Barrow is a line supervisor working in the field with the road deputies. Barrow assists the road deputies when questions arise and carries out the orders of his superiors. During Barrow's tenure with the Santa Rosa County Sheriff's Department, his performance evaluations can generally be characterized as above satisfactory or outstanding. Barrow's last evaluation, by Sheriff Brown, rates his performance as satisfactory (the highest rating available); however, both Sheriff Brown and Barrow's immediate supervisor, Lieutenant Joel Lowery, consider him to be a "very effective," and "good" supervisor. Barrow has been disciplined on three occasions as a deputy sheriff. On two occasions, the discipline was voluntarily withdrawn or overturned by the Santa Rosa County Civil Service Board. The remaining disciplinary action was a verbal reprimand for working overtime without authorization. In March, 1991, Barrow was discharged from his position as deputy sheriff by Sheriff E.M. Coffman for conduct unbecoming an employee and mishandling of evidence. Barrow successfully appealed his discharge through the Santa Rosa County Civil Service Board which found his discharge to be without just cause. Barrow was ordered reinstated to his position as deputy sheriff and granted full backpay and restoration of benefits. Corporal Barrow was not formally returned to his position as deputy sheriff until September, 1992. During the period from March, 1991, through September, 1992, Barrow did not visit the Sheriff's Department, have any current knowledge of the activities of the Department's narcotics division, its personnel operating as undercover agents or any narcotics investigations being conducted by the division. It is during the period of Barrow's termination that the allegations of misconduct outlined in the Administrative Complaint arise. Prior to Barrow's termination in March, 1991, he was working in the Sheriff's Department criminal investigations division. Through that duty, Barrow met an individual named Jimmy Joe McCurdy. McCurdy, a longtime resident of Santa Rosa County, was confined in the County jail as a result of a violation of probation for a federal arson conviction. Barrow met McCurdy when he assisted a federal agent in obtaining McCurdy's release on bond as part of a plea agreement. During the summer and fall of 1991, McCurdy would occasionally contact Barrow by telephone about problems he was having. On one occasion, McCurdy asked Barrow to help him correct a problem with a suspended driver's license. On another occasion, McCurdy asked Barrow to locate a vehicle which had been confiscated by the Sheriff's Department. Barrow provided McCurdy with information about how to correct the problem or persons to contact for assistance. McCurdy had somewhat attached himself to Barrow when he needed advice. Barrow did not attach any real significance to the telephone contacts made by McCurdy. They were infrequent, once every four or five weeks, and he had other major concerns at the time having lost his job. Barrow did not socialize with McCurdy, have any business dealings with McCurdy or loan him any money. Barrow was simply trying to pacify McCurdy, who was somewhat paranoid, that "everybody wasn't out to get him." During almost every conversation, Barrow advised McCurdy if he was not doing anything wrong, he did not have to worry. McCurdy always assured Barrow that he was not doing anything wrong. Barrow believed McCurdy because he could not imagine McCurdy or anyone stupid enough to commit criminal acts while on probation, awaiting sentencing for a federal crime, and while helping the federal government on the same matter. In early October 1991, Jimmy Joe McCurdy telephoned Barrow at his home. McCurdy wanted to know if Barrow had found out anything about his confiscated car. Barrow advised him he had not and that McCurdy should contact FDLE about the car. During the course of the conversation, McCurdy told Barrow he felt the County was trying to set him up and that cars were driving by his house. Barrow advised McCurdy that he needed to stay out of trouble. Barrow further advised McCurdy if he was not doing anything wrong, nobody could do anything to him, but if he was doing anything wrong, they would catch him. Finally, during the conversation, McCurdy asked Barrow about a car which had driven by his house and described it to Barrow. Barrow told McCurdy that it could possibly be one which belonged to the Sheriff's Department. At the time of the October, 1991, conversation between McCurdy and Barrow, Barrow did not know the Sheriff's Department was conducting an undercover narcotics investigation of Jimmy Joe McCurdy, nor did he know McCurdy was engaging in the possession and sale of illegal drugs. On the contrary, McCurdy assured Barrow on several occasions he was "staying straight." Had Barrow known of the narcotics investigation, he would not have disclosed to McCurdy the car was possibly an undercover vehicle used by the Sheriff's Department. On the evening of November 8, 1993, Jimmy Joe McCurdy was arrested for the possession of marijuana as a result of a narcotics investigation being conducted by the Sheriff's Department and FDLE. The undercover narcotics investigation had begun in early October, 1991, with Jimmy Joe McCurdy the subject of the investigation. The arrest of McCurdy on November 8, 1991, concluded the investigation. Thomas Barrow was not aware of the investigation of McCurdy by the Sheriff's Department at any time prior to the end of the investigation. During the course of the investigation, the Sheriff's Department became aware of Barrow's comments to McCurdy relating to the possibility of the car being an undercover vehicle. The Sheriff's Department did not contact Barrow to seek his cooperation in not revealing any additional information to McCurdy which might be damaging to the investigation. On the evening of November 8, 1991, after McCurdy was arrested by the Sheriff's Department and the FDLE, McCurdy telephoned Thomas Barrow at his home. The telephone call was made at the request of FDLE. McCurdy was asked to contact Barrow and describe several cars to him. McCurdy agreed to cooperate by making the telephone call. At approximately 10:00 p.m., on November 8, 1991, McCurdy telephoned Barrow. Barrow was already asleep, but answered the telephone. When McCurdy initially brought up the subject of a car, Barrow mistakenly believed that he was speaking about McCurdy's confiscated car and told him he had not been able to find out any additional information about the car. When McCurdy told Barrow he was referring to the possible undercover car from the Sheriff's Department, Barrow indicated it was the type of car driven by Leonard Thomas. McCurdy then told Barrow a man came by earlier in the evening "driving a silver or grey Camaro." Barrow told McCurdy the Sheriff's Department has undercover cars of that kind. During the conversation, McCurdy indicated the driver of the car was "asking a lot of questions" and was concerned whether the County was "out to get him." Barrow advised McCurdy: "No, now just be careful, you know, don't be messing with nothing, of course, you told me you hadn't been messing with anything you told me last time so." On two other occasions in the conversation, Barrow advised McCurdy to "keep it straight" and "stay outta anything." During the November 8, 1991, conversation, Barrow did not know the Sheriff's Department was conducting a narcotics investigations of Jimmy Joe McCurdy, nor did he know McCurdy was engaging in the possession or sale of illegal drugs. Had Barrow believed McCurdy was engaging in the sale of illegal drugs, he would have advised the Sheriff's Department or Charles Layman of FDLE concerning McCurdy's conduct. Corporal Barrow's disclosures of information to Jimmy Joe McCurdy relating to the possibility of vehicles and persons working undercover for the Sheriff's Department were unthinking, incautious and in poor judgment for a law enforcement officer. Barrow acknowledges the errors. The disclosures were not made by Barrow with any intent to obstruct an ongoing narcotics investigation or assist McCurdy in avoiding detection during the investigation. Barrow's family and friends are all involved in law enforcement. Barrow would never jeopardize a law enforcement officer by purposely revealing confidential information. Since the McCurdy incident, Barrow has returned to work with the Santa Rosa County Sheriff's Department. The McCurdy incident has been disclosed to Sheriff James Brown and Barrow's supervisor, Lieutenant Joel Lowery. While these individuals do not consider Barrow's conduct in the matter proper, it has not affected Barrow's performance as a law enforcement officer. Barrow is considered to be a very effective law enforcement officer who exercises good judgment in the field.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint filed against the Respondent. DONE AND ENTERED this 23rd day of March, 1994, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 92-7100 The facts contained in paragraphs 1-4, 7-9, 95, 96 and 103 of the Petitioner's proposed findings of fact are adopted in substance, insofar as material. The facts contained in paragraphs 12-19, 25, 32, 33, 35, 42, 50, 63, 64, 69, 74-76, 78, 81-84, 88, 89, and 93 of the Petitioner's proposed findings of fact were not shown by the evidence. The facts contained in paragraphs 5, 6, 10, 11, 20-24, 26-31, 34, 36- 41, 43-49, 51-62, 65-68, 70-73, 77, 79, 80, 85(a)&(b)-87, 90-92, 94, 97-102, and 104-118 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 1-24 of Respondent's proposed findings of fact are adopted in substance, insofar as material. COPIES FURNISHED: Monica Atkins-White, Esq. Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489 Gene "Hal" Johnson, Esq. 300 East Brevard Street Tallahassee, FL 32301 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 Michael Ramage, Esq. General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302-1489
The Issue The issue for determination is whether Respondent's conduct, which resulted in his conviction of the misdemeanor offenses of battery and improper exhibition of a deadly weapon, also constitutes violation of Section 943.13(7), Florida Statutes; namely, failure to maintain the good moral character requisite to continued certification as a law enforcement officer.
Findings Of Fact Respondent is Melvin M. Barton, holder of Auxiliary Law Enforcement Certificate Number 32-85-001-01 and Law Enforcement Certificate Number 33-87- 002-01, at all times pertinent to these proceedings. On January 1, 1989, Respondent, estranged from his wife and three month old daughter, went to the house where the wife and daughter resided. He was upset with his wife because she had left the infant with an unfamiliar baby sitter the night before in order to attend a New Year's eve celebration with another individual. Respondent and his wife argued. He struck her numerous times with his hands and with the butt of a rifle. He pointed the rifle at his wife and told her that he could shoot her. Respondent's wife was "fearful" at this moment. Then, after he told her to sit in a stuffed chair in the living room, he proceeded to fire a bullet into the chair. He later discharged the gun into a door of the home. Later in the altercation, Respondent held a pistol against his wife's throat and directed her to telephone the individuals she had been with the evening before. She tried to reach these people by telephone, but was unsuccessful. During a major portion of the time, several minutes,that Respondent's wife attempted to telephone the persons with whom she had celebrated the night before, Respondent kept the gun barrel pressed against her throat. Respondent's wife was frightened by this action of Respondent. Later, Respondent made his wife undress and engage in sexual intercourse with him. He then went to sleep. She got up, took the infant, and left the house. Respondent's wife subsequently was treated on an outpatient basis at a local hospital where the treating physician observed she was bleeding from both nostrils and had a fracture of her nasal bone. The physician also observed swelling on the victim's left and right upper arms, thighs and right shoulder. The swollen areas were red and tender. Red circular marks were also observed on her neck. The marks observed on the neck of Respondent's wife were consistent with marks which could be expected to have resulted from the pressing of a gun barrel against that area of her neck for several minutes. She acknowledged to the physician that her estranged husband had beat her up. Respondent and his wife were not living together at the time of the altercation which is the subject of this proceeding and have not lived together since. However, they are not formally divorced and continue to see each other on an occasional basis. Petitioner's evidentiary exhibits 2-14 consist of photographs. The photographs were admitted in evidence at thefinal hearing. They were taken by a deputy sheriff for DeSoto County, shortly after the incident, in the course of his investigation of the matter. Photographs in Petitioner's exhibits 2-10 depict the marks on the body of Respondent's wife which resulted from the incident and corroborate the testimony of Respondent's wife regarding her injuries, as well as the testimony of the emergency room physician who treated the victim. Petitioner's photographic exhibits 11-14 document the trajectory of the bullet, and resultant damage, through the chair in which Respondent's wife was sitting when Respondent discharged a firearm into it. Later in the evening of January 1, 1989, after Respondent's wife initiated the investigation of the incident by the DeSoto County Sheriff's department, Respondent appeared at the County Sheriff's office where he apologized to his wife and told her that he was sorry. He further told her that she could do the same thing to him if it would make everything all right. On January 30, 1989, Respondent was charged by information filed in DeSoto County Court case no. 89-37-34mm with a misdemeanor count of battery in violation of Section 784.03, Florida Statutes, and a misdemeanor count of improper exhibition of a firearm in violation of Section 790.10 Florida Statutes. Both offenses are first degree misdemeanors. On March 20, 1989, Respondent entered a plea of no contest to both of the charged offenses. He was subsequentlyadjudicated guilty of both violations and sentenced to one year's probation and payment of $75.00 in court costs.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of failure to maintain good moral character as required by Section 943.13(7), Florida Statutes, and revoking Respondent's Auxiliary Law Enforcement Certificate Number 32 002-01. DONE AND ENTERED this 5th day of June, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1990. Copies furnished: Joseph S. White, Esq. Florida Department of Law Enforcement P.O. Box 1498 Tallahassee, FL 32302 Joseph R. Fritz, Esq. 4204 North Nebraska Avenue Tampa, FL 33603 Jeffrey Long, Director Criminal Justice Standards Training Commission P.O. Box 1489 Tallahassee, FL James T. Moore Commissioner 32302 P.O. Box 1489 Tallahassee, FL 32302 Rodney Gaddy General Counsel P.O. Box 1489 Tallahassee, FL 32302
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on July 14, 1983, and November 19, 1981, and was issued certificate numbers 02-33918 and 502-868. Respondent is currently certified as a law enforcement officer and as a correctional officer by the Commission. At all times material hereto, Respondent was employed as a Deputy Sheriff by the Broward County Sheriff's Department. On May 3, 1986, Respondent, Deputy McDonald, and their immediate supervisor Sergeant James Walkup were working a directed patrol in the south portion of Broward County, Florida. Each was in his own patrol car, but they were working as a group with the express purpose of conducting a routine harassment of known or suspected drug dealers or users in the vicinity. They spotted a rental car occupied by two black males parked in an open field in a residential neighborhood. The occupant of the vehicle in the driver's seat was Jimmy Fox, a reputed drug dealer. All three patrol cars pulled into the field behind the rental vehicle. Respondent "radioed" in that he had made a traffic stop. Neither McDonald nor Walkup radioed that they were on the scene to serve as back-up units. Deputy George Gechoff was working off-duty at the Home Depot on 58th Avenue in the west Hollywood area when he heard Respondent radio that he had made a traffic stop. Since Gechoff did not hear anyone radio that they were serving as back-up to Respondent, Gechoff drove to the location of the traffic stop which was just a few blocks away. When Gechoff arrived at the scene Respondent had already searched the front seat area of the rental vehicle and had asked Fox's permission to search the trunk. Initially, Fox refused consent to the search of the trunk of the rental vehicle. Gechoff and Fox knew each other. After Respondent assured Fox that Fox would not be arrested since the search was illegal and after Gechoff urged Fox to be cooperative, Fox consented to the request. The trunk of the car was opened, and Respondent and Gechoff began searching it. The Respondent found a pistol in the trunk and went to his patrol car to "run a check" on the gun. While Respondent was in is patrol car, Deputy Gechoff, who assisted in the search of the trunk, found an aspirin or "pill- type" bottle containing approximately 50 small objects. Although Walkup testified that the objects were square cubes of yellowish material, Gechoff testified that the objects were white chips of different sizes. At the time, Walkup, Gechoff, and Respondent each believed that the objects were "crack" cocaine. If the objects were indeed crack cocaine, each object would be a single dose of the drug, and each object would have a sale price ranging from $10 to $20. In respondent to his radio inquiry, Respondent was advised that he had a "hit" on the gun, which meant it was wanted in connection with a crime or that it had been previously reported as stolen. When Respondent communicated that information to his immediate supervisor, Sergeant Walkup, Gechoff handed Respondent the aspirin bottle. Walkup instructed Respondent to take both the firearm and the suspected cocaine and write up a "found property report." Respondent was concerned about writing a report for found property, rather than seized property, and suggested to Walkup that they simply turn the matter over to the State Attorney's Office. Walkup took the position that the property was illegally seized since there was no probable cause for the search of the vehicle and the search had taken place simply as part of an harassment operation. He instructed Respondent to report the property as "found property" and left the scene. When Respondent left the scene, he had with him both the confiscated firearm and the aspirin bottle with its contents. He remained concerned about being ordered to write a found property report, but knew he had to do something since he had already radioed in that he had recovered a firearm wanted by the Broward County sheriff's Office. On the spur of the moment, as he was driving through a wooded area near a rock pit, Respondent took the top off the bottle and threw it out the window scattering the contents as he threw away the bottle. Later that day Respondent wrote and signed an Event Report at the Broward County Sheriff's Office reporting that he had found a .44 Magnum and suspected cocaine off the roadway while on routine patrol. The firearm was turned in at the same time, and a property receipt was issued. No property receipt was issued for the suspected cocaine. Several weeks later, Sergeant Walkup received a telephone call from Fox concerning the incident on May 3. In response to that telephone call, Walkup retrieved and reviewed Respondent's report of the May 3 incident with Fox. Upon reviewing the report, Walkup became concerned with the apparent conflicts between the report's contents and his recollection of the events. He so notified his supervisor. On July 1, 1986, Respondent provided a sworn statement to Lieutenant Roger Lekutis of the Broward County Sheriff's Office, Internal Affairs Unit. He admitted that after he drove away from the scene of the Fox "traffic stop" he threw the bottle which he believed contained cocaine "rocks" out the window of his patrol car. He told Lekutis that Walkup had instructed him to write a report of the incident as a "found property" report. He also admitted failing to turn over the suspected cocaine to an evidence custodian. No evidence was offered suggesting that Respondent disposed of the suspected cocaine in a manner different than throwing it out the window as he drove through the wooded area near the rock pit, and the Respondent's testimony in that regard is credited. Since this incident, Respondent has been reinstated by the Broward County Sheriff's Office but was not yet on the payroll by the time of the final hearing in this cause, since he was undergoing certain pre-employment certification and testing procedures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint filed against him and dismissing the Administrative Complaint filed in this cause. DONE AND ENTERED this 26th day of April 1989, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1989. APPENDIX DOAH CASE NO. 88-4963 Petitioner's proposed findings of fact numbered 1, 5, 6, 8-10, 13-17, and 19 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 2-4, 7, 11, 12, and 18 have been rejected as not being supported by the weight of the credible evidence in this cause. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Johnny L. McCray, Jr., Esquire 400 East Atlantic Boulevard Pompano Beach, Florida 33060 Daryl McLaughlin, Executive Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in this case are whether Respondent violated sections 943.1395(7) and 943.13(7), Florida Statutes (2008),1/ and Florida Administrative Code Rule 11B-27.0011(4)(b), and, if so, what discipline should be imposed.
Findings Of Fact Mr. Rodriguez was certified as a correctional officer in the State of Florida by the Commission on May 18, 2004, and was issued Correctional Certification No. 240475. On or about February 10, 2009, officers from the Kissimmee Police Department and St. Cloud Police Department participated in an undercover police operation geared to targeting individuals that intend to commit crimes involving narcotics or prostitution. They created a false advertisement for prostitution services on the website, Craigslist. The advertisement consisted of photographs and an undercover phone number to contact for sexual services. The advertisement did not indicate that it was an undercover operation. On or about that same date, Mr. Rodriguez placed a phone call using the same number on the advertisement. At the time Mr. Rodriguez placed the call, he was unaware that the advertisement was part of an undercover operation. During the phone conversation, Mr. Rodriguez communicated with Detective Takeya Close (Detective Close), an undercover agent who posed as a prostitute. Detective Close did not identify herself to Mr. Rodriguez as an undercover agent. Mr. Rodriguez communicated to Detective Close that he desired sexual services from her in exchange for money. Detective Close informed Mr. Rodriguez that the price for sexual services ranged from 50 to 80 dollars. A “quickie” service consisted of 15 minutes or less of sexual activity and cost 50 dollars. A “full service” consisted of a half-hour of sexual activity and cost 80 dollars. Mr. Rodriguez told Detective Close that he wanted a “full service” and was willing to pay her either price for her sexual services. Detective Close then provided Mr. Rodriguez a meeting location, a residential house at 4903 Newton Court in St. Cloud, Florida. Law enforcement used the residential house as part of the undercover operation. They agreed to meet at 8:45 p.m. Mr. Rodriguez arrived at the agreed time at the St. Cloud residential house that was part of the undercover operation. Detective Close, posed as a prostitute, greeted Mr. Rodriguez at the front door. Once Mr. Rodriguez entered the house, law enforcement officers arrested and detained him. During a search of Mr. Rodriguez incident to his arrest, law enforcement officers discovered his cellular phone, which contained the undercover phone number in the call history log, and 50 dollars cash. Detective Close’s credible testimony was that, on or about February 10, 2009, Mr. Rodriguez communicated with her, agreed to pay her money for her sexual services, and arrived at the St. Cloud undercover residential house attempting to engage in prostitution. Mr. Rodriguez’s testimony that the purpose of his communication with Detective Close and his arrival at the St. Cloud residential house was to receive a massage was not credible. His cellular phone showed that he had called the undercover number and that he went to the St. Cloud undercover house at the agreed time. On or about April 12, 2009, Mr. Rodriguez was driving a white SUV. Devon Littlejohn (Ms. Littlejohn), a prostitute, was standing on the corner of Wakulla and Orange Blossom Trail, an area known for prostitution activity. When Mr. Rodriguez drove past where Ms. Littlejohn was standing, Ms. Littlejohn waived at him. Mr. Rodriguez made a U-turn and drove up to Ms. Littlejohn. Ms. Littlejohn approached Mr. Rodriguez while he was in his vehicle and engaged in conversation with him. Ms. Littlejohn solicited sexual services to Mr. Rodriguez by asking him if he wanted a “date.” Mr. Rodriguez answered affirmatively and then asked Ms. Littlejohn if she had a room. Ms. Littlejohn answered yes. Mr. Rodriguez then asked Ms. Littlejohn about the price for her sexual services, and she informed him that “full service” costs 80 dollars. Mr. Rodriguez agreed to pay Ms. Littlejohn 80 dollars in exchange for her sexual services. Ms. Littlejohn entered the passenger side of Mr. Rodriguez’s vehicle. Mr. Rodriguez then drove off with Ms. Littlejohn inside his vehicle. On April 12, 2009, Law Enforcement Sheriff Deputy Scott Bearns (Deputy Bearns) of the Orange County Sheriff’s Office was patrolling the Orange Blossom Trail area when he drove pass Mr. Rodriguez’s vehicle. Deputy Bearns conducted a traffic stop on Mr. Rodriguez’s vehicle for having an illegal window tint. Mr. Rodriguez pulled his vehicle over at a parking lot across the street from the place where Ms. Littlejohn was originally standing. Deputy Bearns recognized Ms. Littlejohn as a prostitute in the local area and observed her and Mr. Rodriguez in the vehicle. Mr. Rodriguez informed Deputy Bearns that he worked as a correctional officer. Deputy Bearns then escorted Ms. Littlejohn outside of Mr. Rodriguez’s vehicle and Mirandized her. Ms. Littlejohn revealed to Deputy Bearns that Mr. Rodriguez had agreed for her to perform sexual services in exchange for 80 dollars. Ms. Littlejohn provided Deputy Bearns a written statement to that effect. Deputy Bearns arrested Mr. Rodriguez for assignation to commit prostitution. Ms. Littlejohn was not arrested. Incident to the arrest, another deputy conducted a search of Mr. Rodriguez’s vehicle and discovered a total of 102 dollars cash. Ms. Littlejohn’s credible testimony was that Mr. Rodriguez communicated with her, agreed to pay her money for her sexual services, and allowed her to enter his vehicle in an attempt to engage in prostitution. Mr. Rodriguez’s testimony that Ms. Littlejohn jumped in his vehicle without his consent and was hanging out of the vehicle with the door open was not credible.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Jose R. Rodriguez violated sections 943.1395(7) and 943.13(7) and rule 11B-27.0011(4)(b) and revoking his certification. DONE AND ENTERED this 21st day of June, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2011.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On August 28, 1987, Respondent was certified by the Commission as a law enforcement officer and was issued certificate number 19-87-002-04. At all times material to this case, Respondent was employed as a law enforcement officer with the City of Miami Police Department. Respondent was born in Marianna, Florida, but was reared in Miami, Dade County, Florida. Respondent has lived and worked in the Liberty City and Overtown areas of Miami for many years. Prior to becoming employed with the City of Miami Police Department, Respondent was graduated from Florida A & M University with a bachelor's degree in criminal justice. Additionally, he had completed police academy training and had served as a reservist in the U.S. Navy. According to Respondent, he is a natural leader and has acquired discipline from his military experiences. During the early morning hour of September 18, 1988, Respondent was on duty in a marked police vehicle patrolling an area of Miami in the vicinity of 22nd Street and Biscayne Boulevard. Respondent was armed, dressed in his police uniform, and accompanied by another uniformed officer, Efrain Grillo. At approximately 12:00 a.m. on that date, Respondent observed a white female standing in the curb area along Biscayne Boulevard. The Respondent later learned that the female's name was Linda MacArthur. At that time, however, he recognized her from a prior encounter he had had with her in the Overtown area approximately a month before. At that time, Respondent believed Ms. MacArthur to be a prostitute. Officer Grillo pulled the police car over to the curb where Ms. MacArthur was standing. Respondent directed her to enter the back seat of the vehicle and she complied. Prior to being directed to enter the vehicle, Ms. MacArthur was not placed under arrest, was not advised that she was being transported for questioning, and had not committed a criminal offense in the officers' presence. Neither Respondent nor Officer Grillo notified police dispatch that they were transporting a female passenger. Such notification is required by police policy. After Ms. MacArthur entered the police vehicle, the Respondent and Officer Grillo took her to a dead end street located at approximately 23rd Street and 2nd Avenue. Once there, the three individuals exited the police car and walked over to a dumpster that blocked the end of the paved street. After exiting the vehicle, Respondent obtained Ms. MacArthur's purse and went through it. Among the items enclosed in the purse were condoms and a small bottle of perfume. Officer Grillo took the perfume bottle and emptied it over Ms. MacArthur's upper torso. Next, Respondent asked Ms. MacArthur how she used the condoms. While the police officers observed, Ms. MacArthur opened the condom package, placed the condom in her mouth and began a sucking action. After a few seconds, she threw the condom down on the ground. While Officer Grillo spoke with Ms. MacArthur, the Respondent went to the police car and retrieved his flashlight. Officer Grillo asked Ms. MacArthur if she had underwear on. When she replied she did not, Respondent asked her if they (the officers) could see. Ms. MacArthur pulled her pants down to reveal her naked backside. When he returned from the car with the light, Respondent attempted to illuminate Ms. MacArthur's lower body but was unable to do so since the batteries in the flashlight failed. Officer Grillo then went to the police car and obtained a surgical glove which he placed on his hand. With Respondent present, Officer Grillo placed his hand in Ms. MacArthur's vagina and anal areas. Respondent observed Officer Grillo rub his hand in Ms. MacArthur's vagina and anal areas and saw her fidget at one point. Officer Grillo inserted his finger into Ms. MacArthur's vagina and rectum without her consent. The touching that is described in paragraph 10 was not done to effect a cavity search of someone under arrest nor was it performed for a bona fide medical purpose. Following the acts described above, the Respondent and Officer Grillo placed the Respondent into the police car and transported her back to the vicinity of Biscayne Boulevard. Ms. MacArthur then located an undercover police officer and disclosed the activities which had taken place. As part of the follow up investigation performed by the police, the perfume bottle and condom were retrieved from the site. Also in connection with the investigation of the allegation, an investigator went to the location of Respondent's day job and asked him to return to the police station for questioning. Respondent drove himself to the sexual battery office and spoke with Detective Mahon and Sgt. Sparrow. Prior to giving a statement, Respondent was advised of his rights by the officers. Respondent executed a written Miranda warning form. Respondent then gave an account of the activities which had occurred with Ms. MacArthur and Officer Grillo. This statement was given at approximately 3:21 p.m., September 18, 1988. Respondent gave a second statement to an assistant state attorney and Detective Mahon at approximately 5:41 p.m., September 18, 1988. That statement was made under oath and mirrored the one previously given by him. While Respondent did not see penetration of Ms. MacArthur's vagina and anal areas by Officer Grillo's hand, it is undisputed that he observed the gloved hand being placed in those specific areas as described above. The police did not coerce Respondent into making the statements given on September 18, 1988. Respondent was not placed under arrest, was not charged with a criminal offense, and has not been prosecuted for any alleged wrongdoing. Further, there is no evidence that Respondent is likely to be prosecuted for any alleged criminal act. In contrast, Officer Grillo was charged with criminal offenses related to the incident with Ms. MacArthur. Subsequent to the incident described above, Respondent resigned his employment with the City of Miami Police Department. Prior to that action, he had received several commendations for specific acts of excellent service, and had obtained satisfactory or very good performance evaluations for his work as a police officer. All acts which gave rise to the allegations of this case occurred during Respondent's rookie year as a police officer. Prior to being asked to return to the police station to give a statement regarding the allegations of this case, Respondent had not disclosed the acts perpetrated by Officer Grillo to another police officer.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Criminal Justice Standards and Training Commission enter a final order revoking the Respondent's certification. DONE and ENTERED this 25th day of July, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1990. APPENDIX TO CASE NO. 90-0919 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE COMMISSION: Paragraphs 1 and 2 are accepted. The first two sentences of paragraph 3 are accepted; the balance is rejected as irrelevant. Paragraphs 4, 5, and 6 are rejected as irrelevant. It is accepted that the Respondent and his partner intimidated the victim, Linda MacArthur and that she was fearful of being arrested. Paragraph 7 is rejected as contrary to the weight of the evidence. The victim complied with Respondent's directive to enter the police vehicle. Paragraphs 8 through 12 are accepted. Paragraph 13 is rejected as contrary to the weight of the evidence. It is accepted that Respondent asked the victim as to how she normally used the condom; it is not accepted that he made her suck it. See finding of fact paragraph 8. Paragraph 14 is rejected as contrary to the weight of the evidence. Respondent did, however, make the request described at a later time (prior to releasing the victim). The second sentence of paragraph 15 is accepted. The balance of that paragraph is rejected as irrelevant. Paragraphs 16, 17, 18, and 19 are rejected as contrary to the weight of the evidence or irrelevant. Paragraph 20 is accepted. Paragraph 21 is accepted. The first sentence of paragraph 22 is accepted; the balance is rejected as contrary to the weight of the evidence. Paragraph 23 is rejected as contrary to the weight of the evidence. Respondent's account (that he did not touch the victim) is accepted. If the flashlight was pressed against the victim, the inference that Officer Grillo did that also is more credible. Paragraph 24 is rejected as contrary to the weight of the evidence. See, however, finding of fact paragraphs 10 and 17. Paragraphs 25 and 26 are rejected as irrelevant. Paragraphs 27 through 32 are accepted. Paragraphs 33 through 36 are rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. Respondent submitted a written closing argument. Copies to: Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rashad El-Amin Attorney at Law 4300 S.W. 92 Davie, Florida 33328
The Issue The issues for determination in this proceeding are whether Respondent committed the acts alleged in the Administrative Complaint and, if so, what, if any, penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating persons certified as fire fighters and fire safety inspectors. Respondent is certified in the state as a fire fighter and fire safety inspector. She is currently employed by Volusia County Fire Services as an Emergency Medical Technician. On or about October 16, 1980, Respondent was charged in circuit court with vehicular manslaughter and driving under the influence of alcohol. Vehicular manslaughter is a felony under Sections 860.01(1)and (2), Florida Statutes. 1/ Driving under the influence of alcohol is a misdemeanor under Section 316.193. On or about April 15, 1981, Respondent entered a plea of nolo contendere to the charge of "Manslaughter by Operation of a Motor Vehicle while Intoxicated or Deprived of Full Possession of Normal Faculties." The court withheld adjudication, placed Respondent on probation for two years, and restricted her driver's license to business purposes for the first three months of her probation. Respondent successfully completed her probation on April 15, 1983. On or about September 15, 1992, Respondent completed an application for certification as a fire fighter. The application asked, "Do you have a record of conviction of a felony or a misdemeanor?" Respondent answered, "No." Respondent did not answer the foregoing questions untruthfully. Respondent was advised by counsel that there had never been an adjudication of guilt and that she should state that she had never been convicted of the charges in 1981. On or about September 10, 1993, Respondent completed an application for certification as a fire safety inspector. The application asked, "Have you ever been convicted of a felony, or a misdemeanor involving moral turpitude?" Respondent answered, "No." Respondent believed that she had never been convicted of such an offense because adjudication of guilt had been withheld, and she had successfully completed her probation. Petitioner certified Respondent as a fire fighter and as a fire safety inspector. Petitioner relied, in part, upon Respondent's answers to the questions quoted in the preceding paragraphs. Respondent did not intentionally misrepresent her criminal history to Petitioner on either application. Respondent relied on advice of counsel and a good faith belief in the truthfulness and correctness of her responses. Respondent is actively employed as a fire fighter. She is seeking certification as a fire safety inspector to further her career and to obtain employment closer to her residence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of all of the charges in the Administrative Complaint except the charge of pleading nolo contendere to a felony within the meaning of Section 633.081(6)(d). It is further recommended that Petitioner enter a Final Order authorizing the issuance of a written reprimand. RECOMMENDED this 9th day of January, 1995, in Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1995.
