The Issue Whether Respondent, Carl C. Brown (Respondent), failed to maintain good moral character required of law enforcement officers by engaging in the acts alleged in the Administrative Complaint; and, if so, what is the appropriate penalty.
Findings Of Fact Respondent was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on January 27, 2017, and issued Law Enforcement Certification Number 340839. The Department is the state agency responsible for enforcing standards applicable to law enforcement certificates, pursuant to section 943.12 and chapter 120. Respondent had notice of the time and date of the hearing, but did not attend or present any evidence. Respondent was employed by the Quincy Police Department from April 3, 2017, to July 28, 2017. During Respondent's employment with the Quincy Police Department, Respondent worked in the W.A. Woodham Justice Center. The W.A. Woodham Justice Center is a public building that, during Respondent's employment, housed both the Gadsden County Sheriff's Office and the Quincy Police Department. At the time, the ground floor of the W.A. Woodham Justice Center was designated for the Gadsden County Sheriff's Office. The floor above the ground floor was designated for the Quincy Police Department. Marketa Powell (Inmate Powell or Ms. Powell) was an inmate at the Gadsden County Jail during the months of June and July 2017. During that time, she held trustee status as an inmate and was assigned to work at the W.A. Woodham Justice Center. Respondent did not know Inmate Powell prior to June 2017. Respondent first came into contact with Inmate Powell in June 2017, at the W.A. Woodham Justice Center. When they met, Respondent struck up a conversation with Ms. Powell and gave her his personal cell phone number so that she could contact him. Respondent also met with Inmate Powell at the Gadsden County Jail during his personal time. In June 2017, Respondent asked Inmate Powell to meet him in the men’s restroom on the ground floor of the W.A. Woodham Justice Center. Sometime later, Inmate Powell met Respondent in the men's restroom and performed oral sex on Respondent. On a separate, later occasion that same month, Respondent again asked Inmate Powell to meet him in the men’s restroom of the W.A. Woodham Justice Center. Once again, Inmate Powell met Respondent in the men’s restroom. On that occasion, she and Respondent had sexual intercourse and Inmate Powell performed oral sex on Respondent. Rachel McPherson, custodian at the W.A. Woodham Justice Center, was the supervisor in charge of Inmate Powell. Ms. McPherson witnessed Respondent fraternizing with Ms. Powell several times during June 2017. One day in June 2017, while Ms. McPherson was searching for Inmate Powell, she saw Respondent between the men’s and women’s restrooms of the W.A. Woodham Justice Center. Ms. McPherson entered the men’s restroom and observed someone’s feet in a stall of the men’s restroom. Ms. McPherson called out, but the person in the stall failed to respond. Ms. McPherson then exited the men’s restroom and asked Sheriff’s Assistant Betty Carter to watch the men’s restroom to see who exited. Ms. Carter's office was no more than 30 feet from the men’s restroom. Later that day, Ms. Carter witnessed Inmate Powell exiting the men’s restroom. The incident was reported and an internal investigation of Respondent was initiated. During the internal investigation, Inmate Powell was initially reluctant to come forward and tell authorities about her sexual encounters with Respondent because of fear of further criminal penalties. However, Ms. Powell eventually admitted her contacts with Respondent and, during the final hearing, provided credible, clear, and convincing evidence that the encounters with Respondent in the men's restroom, while she was an inmate serving as a trustee at the W.A. Woodham Justice Center, had occurred. Ms. Powell also provided credible testimony that Respondent also gave her money and visited her at the jail during his personal time. During his internal affairs interview with Lieutenant Larry Gilyard, Respondent admitted that he met alone with Inmate Powell in a restroom at the W.A. Woodham Justice Center while he was employed by the Quincy Police Department. As a result of the investigation, Respondent was dismissed from his employment with the Quincy Police Department on July 28, 2017. After Ms. Powell’s release from incarceration, and while she was still on probation, Respondent maintained contact with her, engaged in sexual intercourse with her, and exchanged text messages. While still on probation, Ms. Powell contacted Respondent and apologized to him for his losing his job. Respondent, through texts, admonished Ms. Powell stating, “what was the reason for saying it”; “you probably could have easily been like nothing happened”; and “you could have refused to give a . . . .” Not once in the pages of text messages did Respondent deny the allegations or say that Ms. Powell was being dishonest with the authorities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Department of Law Enforcement finding that Respondent failed to maintain good moral character as required by law and revoking Respondent’s law enforcement certification. DONE AND ENTERED this 25th day of March, 2019, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 25th day of March, 2019.
The Issue Whether Respondent, Lamar S. Green's, conduct evidenced lack of "good moral character" as alleged in the Administrative Complaint in this matter.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Respondent was certified by Petitioner on November 18, 1998. He holds law enforcement Certificate No. 197843. At the times relevant to the allegations of impropriety in the Administrative Complaint, Respondent was a bailiff with the Polk County Sheriff's Office. On October 15, 2006, Deputy Jeff Blair of the Polk County Sheriff's Office responded to a residence in Lakeland regarding a child custody dispute. Upon arrival at the residence, Deputy Blair met with Tracy Fields. Ms. Fields wanted Deputy Blair to get her children back from her ex-husband, Mr. Fields. Based on the initial information he obtained, Deputy Blair told Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. (Apparently, it was later determined that a restraining order as a result of domestic violence had been issued against Mr. Fields. It appeared that the restraining order had been issued prior to October 15, 2006. It is also similarly unclear as to whether the restraining order awarded custodial responsibility and visitation and would have provided the "court order" Deputy Blair required.) Subsequently, Respondent, Ms. Fields' boyfriend, arrived on the scene. Deputy Blair did not know Respondent and Respondent was not in uniform. Deputy Blair repeated his statement to Respondent and Ms. Fields that in the absence of a court order, he was not authorized to intervene in the matter. Respondent reacted angrily to Deputy Blair, became confrontational, and questioned Deputy Blair as to his time in service as a law enforcement officer by telling him that given his identification number, he had not been a deputy very long. Respondent subsequently apologized to Deputy Blair and identified himself as a deputy sheriff, serving as a bailiff. While Deputy Blair was discussing the matter with Ms. Fields and Respondent, Deputy Blair received a report that a "911" call had been made reporting Ms. Fields at Mr. Fields' house, which was obviously untrue since she was with him. In addition, Mr. Fields agreed to meet Deputy Blair and his watch commander at a gas station to return the Fields' children. He failed to meet them. Neither of these incidents resulted in an incident report; however, Deputy Blair was directed to author an Incident Report regarding Respondent's conduct. In June 2006, Respondent was re-assigned from his post as a court bailiff to the court holding section based on a memorandum from a judge to Respondent's supervisor regarding Respondent's work performance. The stated reason for Respondent's reassignment was his reported absenteeism from his courtroom duties. Respondent was told this by his Captain, and he acknowledged that he understood. Respondent explained to his Captain that he had been having difficulties with his bowels that made it necessary to be absent from the courtroom from time to time. On September 15, 2006, Respondent testified as a witness before Polk County Circuit Court Judge Carpanini in a domestic violence injunction hearing in Fields v. Fields, Polk County Circuit Court Case No. 2006DR-6613. During direct examination, Respondent was questioned about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of the testimony: T. Fields: Has there been any other type of harassment that you feel Mr. Fields has employed upon you? Respondent: He's contacted the Polk County Sheriff's Office and filed a complaint with the internal affairs against me, which is not true. I have documentation and we'll have testimony from the deputy that was at the Kroger's Dance Studio that what he alleges in the complaint is not factual, also he alleged a, tried to put an injunction of protection against me, stating I threatened his secretary that I didn't (inaudible) him. It was denied. He then entered a voluntary dismissal up of [sic] that injunction, but there still is an investigation at the sheriff's office that's going to be followed up on where he filed a bogus complaint against me there. T. Fields: And because of this harassment Mr. Green, you've had to hire an attorney haven't you? Respondent: That's correct. T. Fields: And you've been removed from your current position as a bailiff here at the courthouse? Respondent: That's correct. T. Fields: And was that on or before- Judge Carpanini: Mrs. Fields is this; this case doesn't involve Mr. Green. It involves you so please move on. During cross-examination, Respondent was questioned further about his removal from his job assignment as a bailiff with the Polk County Sheriff's Office. The following is the relevant portion of that testimony: ML: You know, you mentioned with Mrs. Fields earlier that you've been removed from your job, your current job here at the courthouse because of Mr. Fields. Respondent: Believe so. That investigation isn't complete. Respondent's testimony set forth hereinabove is ancillary to the matter at issue before the Circuit Court and not dispositive of any issue in the domestic violence case involving Mr. and Mrs. Fields, and, as pointed out by the presiding Circuit Court Judge, this testimony is not germane to the issue being considered by the Court. In addition, it clearly expresses Respondent's opinion or belief on why his job was changed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Lamar S. Green, be found not guilty of failure to maintain good moral character as required by Subsection 943.13(7), Florida Statutes; and that no disciplinary action be taken against Respondent's law enforcement certification. This matter should be dismissed. DONE AND ENTERED this 22nd day of May, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2008. COPIES FURNISHED: Michael Crews, Program Director Division of Criminal Justice Professionalism Services Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue presented here concerns the question of the entitlement of Petitioner to be granted certification as a law enforcement officer under the provisions of Section 943.13, Florida Statutes, and Chapter 11B-16, Florida Administrative Code. In particular, the matter to be determined deals with the propriety of the denial of certification in the face of an arrest and conviction of Petitioner for a felony offense, which allegedly would cause the Petitioner to be rejected as an applicant for certification. The denial of licensure is purportedly in keeping with the dictates of Subsection 943.13(4), Florida Statutes.
Findings Of Fact Petitioner had made application to be certified as a law enforcement officer in the State of Florida, in keeping with the terms and conditions of Subsection 943.13, Florida Statutes. See Respondent's Exhibit No. 1, admitted into evidence. Petitioner has completed all administrative requirements for such licensure; however, he has been denied licensure based upon his arrest, a finding of guilt and judgment and sentence related to a charge of conspiracy to transport a stolen vehicle in Interstate Commerce and Foreign Commerce from New York, New York, to Miami, Florida, and from Miami, Florida, to Havana, Cuba, knowing that the motor vehicle had been stolen. This offense related to Title XVIII, Sections 2312 and 2371, U.S.C., in an action in the United States District Court for the Southern District of Florida, Case No. 8519-M-CR. For these matters the Petitioner was imprisoned for a period of two (2) years on two (2) counts of the indictment, Counts 3 and 6. The sentence in those counts was to run concurrently. See Respondent's Exhibit No. 2, admitted into evidence. Petitioner has had his civil rights restored in the State of Florida, together with his rights to own, possess and use a firearm. Federal firearms disability arising from the felony conviction have also been set aside. See Petitioner's Exhibit Nos. 1 through 3, respectively, admitted into evidence.
The Issue Whether Respondent's certification as a law enforcement officer should be suspended or revoked pursuant to Chapter 943, Florida Statutes for alleged conduct as set forth in Amended Administrative Complaint dated April 16, 1982. This proceeding was initiated by an administrative complaint issued by the Police Standards and Training Commission on May 26, 1981, alleging certain grounds under Chapter 943, Florida Statutes, for the suspension or revocation of Respondent's certification as a law enforcement officer. The case was referred to the Division of Administrative Hearings for the appointment of a Hearing Officer, and the case was thereafter set for hearing on September 15, 1981. Pursuant to a request for a continuance by the Petitioner, the hearing was continued and rescheduled for March 16, 1982. The case was again continued upon motion of Petitioner due to injuries sustained by its counsel. A prehearing conference was held on March 9, 1982 at which time the Criminal Justice Standards and Training Commission was substituted as the Petitioner in this proceeding, pursuant to Section 943.255, Florida Statutes. The final hearing was rescheduled for April 13, 1982. Thereafter, on March 31, 1982, L. Sanford Selvey, II, Esquire filed a Motion for Continuance based on the incapacity of Respondent's counsel, M. Howard Williams, Esquire as a result of an apparent heart attack. The motion requested that final hearing be continued until such time as Mr. Williams had recovered from his illness. The motion was granted and final hearing was cancelled by Order, dated April 7, 1982, wherein counsel for Respondent was directed to advise the Hearing Officer within thirty days as to when he anticipated medical recovery. On April 20, 1982, Petitioner filed an Amended Administrative Complaint seeking disciplinary action pursuant to subsection 943.145(3)(a), F.S. for failure to maintain qualifications for certification under subsection 943.13(4) and (7), F.S. On May 19, 1982, Petitioner filed a Motion for an Order Deeming Requests for Admissions Admitted and Amended Complaint Filed. No opposition was filed against this motion and it was granted by Order dated June 7, 1982. That Order provided that the final hearing was rescheduled for July 21, 1982, in view of the failure of counsel for Respondent to advise the Hearing Officer as to his anticipated date of medical recovery. A copy of the Order was furnished to M. Howard Williams, Esquire and L. Sanford Selvey, II, Esquire. Neither Respondent nor his counsel appeared at the final hearing on July 21, 1982. Upon inquiry by the Hearing Officer, counsel for Petitioner stated that he had previously been advised by Mr. Selvey's office that the case files of Mr. Williams had been referred by the Circuit Court to Dexter Douglas, Esquire as an inventory attorney, and that upon inquiring of Mr. Douglas' office, he was informed that two letters had been sent to Respondent informing him of the hearing date in this proceeding. Upon direction of the Hearing Officer, counsel for Petitioner again contacted Mr. Douglas' office to ascertain if any response to the letters had been made by Respondent. Counsel was advised that letters, dated June 29 and June 30, 1982, had been sent to Respondent, advising him of the date of hearing and of the need to obtain representation, but no response was received. Based upon these representations, and under all the circumstances, it was determined that adequate notice of the hearing had been provided Respondent, and Petitioner was permitted to proceed with presentation of its case as an uncontested proceeding. Petitioner presented the testimony of four witnesses and submitted four exhibits in evidence.
Findings Of Fact Respondent, Earl Junior Beagles, was first employed with the Tallahassee Police Department in January, 1967. He received certification as a "grandfathered" law enforcement officer in June of 1967. In 1979, he was a sergeant in charge of the Vice and Narcotics unit of the Police Department. (Testimony of Tucker, Westfall) In November or December of 1979, Respondent obtained $200 from the Police Department informant fund upon authorization of Police Chief Melvin Tucker. At the time, Respondent told Chief Tucker that he wanted the funds to compromise a prostitute in order to obtain access to a local drug dealer. In March, 1980, one Patricia Dalton made allegations to police officials that on December 19, 1979, Respondent had coerced her into having sexual relations with him. Specifically, she told police investigators that she was a prostitute and had previously received a telephone call from someone identifying himself as "Bill", and that they arranged to meet at a local motel. At that meeting in the motel room, they arrived at an understanding that she would furnish her services for $150. She produced a small portion of cocaine, at which point Respondent placed her under arrest for drug possession and prostitution whereupon she commenced to cry, but Respondent told her that he was sure they could work things out and make a deal. Respondent turned the cocaine over to his partner, Officer Lewis Donaldson, and told him that he would take Miss Dalton home. She alleged that she departed with Respondent and that later, at his request, she registered at another hotel under a fictitious name where he coerced her into having sexual intercourse and fellatio with him. (Testimony of Tucker, Coe) Police investigators verified the fact that Miss Dalton had been transported in a taxicab to the motel where she had allegedly met Respondent on December 19, 1979, and also that she had registered under a fictitious name at the second motel on that date. As part of the investigation, Miss Dalton was equipped with a "body wire" to enable the investigators to monitor a conversation that she had with Respondent at the Greyhound Bus Station in Tallahassee. Although the investigators observed Miss Dalton enter the bus station, they did not personally see Respondent from their monitoring location nearby. However, they were able to recognize his voice from the tape recording made of the conversation. Respondent made admissions during the conversation which gave credence to Dalton's contentions that he had had prior sexual relations with her and had not pursued criminal charges against her. A transcript of the conversation shows that he made the following statements to her: "No, you're unarrested, no charges, forget it, it's over. Call it washed clean." and "For God's sake, don't mention my deal about dropping those God-damn charges". Police records reflect that Respondent never initiated charges against Patricia Dalton and that he returned the entire amount of $200 which he had obtained from the informant fund. (Testimony of Coe, Runo, Petitioner's Exhibit 2) As a result of the investigation, Respondent was indicted for sexual battery, extortion, and bribery in the Leon County Circuit Court on April 23, 1980. On that date, Chief Tucker advised Respondent of the Dalton complaint, but Respondent denied all of her allegations of misconduct. Respondent was then suspended from his employment with the Police force pending disposition of the criminal charges. (Testimony of Tucker, Petitioner's Exhibits 1, 4) On October 17, 1980, Respondent entered a plea of nolo contendere to one count of unlawful compensation (Section 838.016, F.S.) which is a third degree felony, and one count of simple assault which is a misdemeanor. Adjudication of guilt and imposition of sentence was withheld and he was placed on probation for a period of two years. In the opinion of Chief Tucker and Lieutenant Thomas R. Coe, Jr. of the Tallahassee Police Department, Respondent's actions in connection with the Dalton incident did not meet the required standards of moral character required for certification as a law enforcement officer. After the indictment, Respondent was discharged from his employment with the Department. (Testimony of Tucker, Coe, Petitioner's Exhibit 1) Although hearsay testimony was received from a police investigator concerning another incident of sexual misconduct involving another alleged prostitute in 1977, insufficient competent evidence was received upon which to base findings of fact. (Testimony of Runo)
Recommendation That the Criminal Justice Standards and Training Commission issue a final order revoking the certification of Respondent as a law enforcement officer. DONE and ENTERED this 30 day of August, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1982. COPIES FURNISHED: Arthur C. Wallberg, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32301 Earl Junior Beagles Star Route, Box 506B Tallahassee, Florida 32304 Sheriff Don R. Moreland Chairman Criminal Justice Standards and Training Commission Marion County Sheriff's Department P. O. Box 1987 Ocala, Florida 32670 M. Howard Williams, Esquire Post Office Box 382 Tallahassee, Florida 32302 William S. Westfall, Jr., Bureau Chief Bureau of Standards Division of Criminal Justice Standards & Training Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint dated June 18, 1996, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Criminal Justice Standards and Training Commission is the state agency responsible for certifying and revoking the certification of law enforcement officers. Section 943.12(3), Florida Statutes (1997). Ms. Gilbert was certified by the Commission as a law enforcement officer on March 12, 1993, and was issued Law Enforcement Certificate No. 136544. On July 1, 1994, Ms. Gilbert was employed as a sworn law enforcement officer by the Metro-Dade Police Department. On July 1, 1994, Officer William Romero was employed by the Metro-Dade Police Department as a law enforcement officer. He was first employed on March 29, 1993, and was still on probation on July 1, 1994. He was working as a uniform patrol officer, and, at the time of the incident in question, he was working alone. On the evening of July 1, 1994, a black female flagged down Officer Romero while he was patrolling the neighborhood. When Officer Romero stopped, she told him that an elderly, Hispanic male was in the vicinity armed with a handgun. Officer Romero promptly confronted the person pointed out by the black female and told him to turn around. When the man did so, Officer Romero saw a revolver sticking out from the waistband of the man's trousers. Although the gun was not in the man's hand at the time, Officer Romero immediately drew his firearm and told the man to put his hands up. The man did not respond but continued to talk with very slurred speech, and he appeared intoxicated to Officer Romero. After a few moments, the man grabbed the revolver in his waistband, but it stuck, and he was not able to remove it. Officer Romero overpowered the man, and they fell to the ground and wrestled. Officer Romero was able to remove the gun from the man's waistband, and he threw it onto a nearby grassy area. Officer Romero handcuffed the man and picked up the gun. He opened the cylinder of the revolver and saw that there were no bullets in the cylinder. Officer Romero took the gun back to his patrol car, and put the suspect in the car as well. Officer Romero then called fire rescue because the man was elderly and intoxicated, and Officer Romero was concerned because they had wrestled for what seemed like several minutes. Officer Romero did not speak with the black female who had flagged him down after she initially told him about the man with the gun, nor did he interview any other persons in the area. Lieutenant Kevin Lindahl arrived on the scene immediately after Officer Romero placed the suspect in the patrol car. Officer Romero explained the situation to Lieutenant Lindahl, showed him the suspect's handgun, and specifically told him that the gun was unloaded during his altercation with the suspect. When he showed the gun to Lieutenant Lindahl, the cylinder was open, and it was obvious that there were no bullets in the gun. Lieutenant Lindahl left the scene a short time after he arrived. As Lieutenant Lindahl was leaving the scene, then- Officer Gilbert and Officer Willie McFadden arrived. These officers were the primary unit assigned to the call. At the time of the July 1, 1994, incident, Officer McFadden was on probation as a new law enforcement officer, and Officer Gilbert had recently completed her probation. They were assigned to the same squad but were not routinely assigned to work together. When they arrived at the scene, both Officer McFadden and Officer Gilbert approached Officer Romero as he sat on the driver's side of his patrol car. Officer Romero told them what happened after he was flagged down; Officer Gilbert and Officer McFadden were both privy to Officer Romero's remarks.2 Officer Romero gave the suspect's revolver either to Officer McFadden or to Officer Gilbert. Officer McFadden asked Officer Romero whether the gun was loaded. Officer Romero responded that the gun was not loaded, and Officer McFadden examined the gun and confirmed that the cylinder was open and that there were no bullets in the cylinder. Both Officer Gilbert and Officer McFadden understood Officer Romero's statement that the gun was not loaded to refer to the time during which Officer Romero and the suspect struggled over possession of the gun, when Officer Romero took the gun from the suspect. Officer Romero turned the suspect over to Officer Gilbert and Officer McFadden and then left the scene. Officer Romero sought out and spoke with his acting sergeant, Officer Sandra Leon. He told her about the incident and advised her that Lieutenant Lindahl had appeared at the scene. During this conversation, Officer Romero told Officer Leon that there were no bullets in the gun. It was important to him because he was a rookie police officer and the July 1 incident was the first time he had confronted an armed suspect; he was nervous because he almost shot the suspect. Officer McFadden spoke with several witnesses at the scene who told him that the suspect's revolver had been loaded at some point during the afternoon and that the bullets had been removed from the gun. He was also told that the suspect had put the gun to someone's head and pulled the trigger twice but that the gun did not discharge. Officer McFadden "asked around for the bullets; no one could give me the bullets. And I immediately said then the gun is unloaded, we can't find any bullets."3 None of the witnesses Officer McFadden interviewed told him that the suspect had discharged the gun before Officer Romero arrived. Officer McFadden did not interview witnesses in the house in front of which the altercation took place. Rather, he stayed with the suspect while Officer Gilbert went into the house and spoke with several witnesses. She was told by Brenda Smith, the woman who had flagged down Officer Romero, that, earlier in the afternoon, the suspect had discharged the firearm into the air outside the house. Ms. Smith also told Officer Gilbert that the suspect entered the house after discharging the gun, pointed the gun at her and another person in the house, and pulled the trigger twice; the gun did not fire but just clicked when the hammer fell. Officer McFadden and Officer Gilbert stayed at the scene about 30 or 40 minutes. They discussed the offenses with which to charge the suspect and began preparing the required paperwork, which consisted of the arrest affidavit, the offense/incident report, and the property receipt. During the discussion at the scene, Officer McFadden raised the possibility of charging the suspect with the offense of "using a firearm while under the influence of alcoholic beverages, chemical substances, or controlled substances" (hereinafter "using a firearm while under the influence"), a crime defined in Section 790.151, Florida Statutes (1993), and identified as a first degree misdemeanor. Officer McFadden looked up the offense in the police manual setting forth crimes and their elements.4 The focus of discussion between Officer Gilbert and Officer McFadden was the statutory requirement that the firearm be loaded; they did not discuss whether the charge was appropriate in light of the fact that the offense was a misdemeanor. Officer McFadden and Officer Gilbert continued discussing the offense of using a firearm while under the influence as they drove the suspect to the Dade County Jail and as they completed the arrest affidavit, which they did while sitting in the patrol car in the jail parking lot. Officer Gilbert told Officer McFadden during this discussion that a witness had told her that the suspect had discharged the gun earlier in the afternoon, before Officer Romero arrived on the scene. Officer Gilbert believed that it was appropriate to charge the suspect with this offense because he was intoxicated and because she had been told that the gun had been discharged during the afternoon. Since she had been told that the gun had been discharged, Officer Gilbert reasoned that the gun had been loaded at some point during the afternoon, a fact which was corroborated by the witness statement given to Officer McFadden. Officer Gilbert and Officer McFadden agreed to charge the suspect with the offense of using a firearm while under the influence.5 Officer Gilbert filled out the arrest affidavit in the jail parking lot, in Officer McFadden's presence. She included the charge of using a firearm while under the influence, and she inserted the phrase "since the gun was loaded" into the narrative portion of the arrest affidavit, squeezing it in at the end of one line of printing as she was editing and completing the affidavit. As revised, the narrative in the completed arrest affidavit contains the following sentence: "V-01 advised that he and V-02 was in fear of their life being taken [when the suspect pointed the gun at them and pulled the trigger] since the weapon was loaded." Officer Gilbert did not mention in the arrest affidavit narrative that the witness Brenda Smith had told her that the suspect had discharged the revolver earlier in the afternoon. Before they left the patrol car, Officer Gilbert and Officer McFadden signed both pages of the affidavit, attesting by their signatures that "I swear that the above Statement is correct and true to the best of my knowledge and belief."6 The offenses set forth in the arrest affidavit when Officer Gilbert and Officer McFadden signed it in the parking lot of the jail were aggravated assault, discharging a firearm in public,7 carrying a concealed firearm, resisting arrest, and using a firearm while under the influence. Probable cause existed to arrest the suspect regardless of whether the offense of using a firearm while under the influence was properly charged. Although Officer McFadden had searched the suspect at the scene, he was searched again by the corrections officers at the jail. This search produced a knife and six bullets, which were found in the suspect's clothing. Officer Gilbert was told that these items were on the suspect's person, and, based on the information that the suspect was carrying a knife, she added to the arrest affidavit the charge of carrying a concealed weapon. Officer McFadden was aware that Officer Gilbert added the concealed weapon charge, which he considered an appropriate charge under the circumstances. The arrest affidavit was turned in at the jail. Officer McFadden completed the first page of the required offense/incident report at the station, after he and Officer Gilbert left the suspect at the jail.8 He included the charge of using a firearm while under the influence, and he cited the charge to Section 790.151, Florida Statutes. Officer McFadden claimed that he was not aware that he had included that offense in the report, that he was simply copying the information from the arrest affidavit completed by Officer Gilbert without thinking about what he was writing.9 At some point, Officer McFadden stopped working on the offense/incident report and began completing the property report. While Officer McFadden was preparing the property report, Officer Gilbert completed the narrative portion of the offense/incident report. Although Brenda Smith was listed in the report as a witness, Officer Gilbert did not mention in the narrative that Ms. Smith had reported that the suspect had discharged the gun during the afternoon, nor did she include in this narrative any statement regarding whether the gun was loaded or unloaded. Officer Gilbert cannot explain these omissions. As acting sergeant and the supervisor of Officer McFadden and Officer Gilbert on July 1, 1994, Officer Sandra Leon was responsible for reviewing the offense/incident report at issue in this proceeding and ensuring that all of the information provided was complete and correct. Officer Leon reviewed the offense/incident report on the evening of July 1, 1994, and she noticed that the offense of using a firearm while intoxicated was included in the report. She was not familiar with this offense, so she looked up the statute defining the offense. She noted that an element of the offense was that the firearm be loaded, and she remembered that Officer Romero had told her that the gun was not loaded when he struggled with the suspect. Nonetheless, without speaking with either Officer McFadden or Officer Gilbert, Officer Leon signed the offense/incident report and forwarded it through channels pursuant to the usual procedures. At the time she signed the report, Officer Leon knew that the narrative did not include all of the elements of the offense of using a firearm while under the influence, and she recalled that Officer Romero had told her that the gun was not loaded at the time he arrested the suspect. The next day, in a brief encounter, Officer Leon "casually" asked Officer Gilbert whether the gun was loaded.10 According to Officer Leon, Officer Gilbert responded affirmatively, and Officer Leon did not pursue the matter any further with Officer Gilbert. Officer Leon and Officer Gilbert did not engage in a conversation regarding the offense/incident report, and Officer Leon asked Officer Gilbert only the one question. Shortly after she spoke with Officer Gilbert, Officer Leon spoke with Officer McFadden about the condition of the gun because he had also signed the offense/incident report. According to Officer Leon, Officer McFadden appeared "visibly upset" during this conversation, and Officer Leon attributed this to the fact that, because he had signed the offense/incident report, he and Officer Gilbert were "equally at fault."11 Officer McFadden told Officer Leon that the gun was not loaded. Finally, Officer Leon spoke again with Officer Romero, who confirmed that the gun was not loaded when he took it from the suspect. Four or five days later, Officer Leon brought the matter to the attention of Lieutenant Lindahl, who had taken several days off from work after the July 1 incident. Officer Leon went to Lieutenant Lindahl because, even though she had signed and submitted the offense/incident report, she was concerned that there was a problem with charging the suspect with the offense of using a firearm while under the influence. Officer Leon told Lieutenant Lindahl that she had asked Officer Gilbert about the condition of the gun and that Officer Gilbert told her that it was loaded. Lieutenant Lindahl then had a copy of the arrest affidavit sent to his office via facsimile.12 Lieutenant Lindahl reviewed the arrest affidavit and questioned Officer Romero and Officer McFadden about the condition of the gun. Officer Romero reiterated his story that the gun was not loaded when he took it from the suspect. Officer McFadden told Lieutenant Lindahl that he had told Officer Gilbert repeatedly that the charge of using a firearm while under the influence was improper because the gun was not loaded, but he did not tell Lieutenant Lindahl that Officer Gilbert had told him that a witness reported that the suspect had discharged the gun before Officer Romero arrived at the scene. Lieutenant Lindahl did not ask Officer Gilbert why the charge of using a firearm while under the influence was included on the arrest affidavit and in the offense/incident report. Rather, he decided it was appropriate to refer the matter to the police department's internal affairs section, and he promptly filed a complaint against Officer Gilbert.13 Lieutenant Lindahl based his decision to file the complaint against Officer Gilbert on the statements of Officer Romero and of Officer McFadden. Lieutenant Lindahl concluded that Officer Gilbert included the charge of using a firearm while under the influence in the arrest affidavit even though she knew that the gun was not loaded and that this was an essential element of the offense. Lieutenant Lindahl testified that, if the gun had in fact been discharged, the charge of using a firearm while under the influence "would have been appropriate."14 Lieutenant Lindahl did not speak with Officer Gilbert after he filed the complaint because she was the subject of an internal affairs investigation, and it would have been improper for him to interfere in the investigation by talking with her. It is not unusual for arresting officers to charge a suspect with an offense when all of the elements of the offense are not present. If a charge included in an arrest affidavit is not appropriate, the responsible police officers bring it to the attention of the assistant state attorney handling the case, who sees that the unsupported charge is stricken from the arrest affidavit. When Officer McFadden and Officer Gilbert met with the assistant state attorney at what is called the "prefile conference" to discuss the arrest on July 1, 1994, they asked the assistant state attorney whether, in his opinion, the charge of using a firearm while under the influence should be stricken from the arrest affidavit because the gun was not loaded. The assistant state attorney reviewed the statute and concluded that the charge should be dropped. On October 20, 1994, Officer Gilbert gave a sworn statement to the internal affairs investigator for the Metro-Dade Police Department. In that statement, Officer Gilbert testified that she overheard Officer Romero state that the gun was unloaded at the time of the altercation; that she and Officer McFadden agreed to charge the suspect with using a firearm while under the influence; that the charge and the phrase "since the gun was loaded" were on the arrest affidavit before Officer McFadden signed the affidavit; and that she never spoke with Officer Leon about the offense/incident report. The evidence presented by the Commission is not sufficient to establish with the requisite degree of certainty that Ms. Gilbert knowingly made a false statement that was intended to mislead when she included in the arrest affidavit the offense of using a firearm while under the influence and inserted in the affidavit the phrase "since the gun was loaded." Rather, based upon the consideration of all of the evidence presented herein and upon the assessment of the credibility of the witnesses, the persuasive evidence supports the finding that Ms. Gilbert acted in good faith when she included the charge and the phrase "since the gun was loaded" in the arrest affidavit. It was Officer Gilbert's understanding from the statement of Brenda Smith that the suspect had discharged his gun prior to the arrival of Officer Romero and that the suspect was intoxicated when he did so, and Officer McFadden agreed with Ms. Gilbert that the offense of using a firearm while under the influence could appropriately be charged.15 In any event, Ms. Gilbert's use of the phrase "since the gun was loaded" in the arrest affidavit was, under the circumstances, ambiguous. Pursuant to her testimony, which is credited, Officer Gilbert assumed that, because the suspect discharged the gun, the gun had, at some point, been loaded; Officer Leon and Lieutenant Lindahl assumed that the phrase referred to the time period in which the suspect was involved in the altercation with Officer Romero. The first opportunity Officer Gilbert was given to explain what she meant by the phrase was in the sworn statement she gave on October 20, 1994. The evidence presented by the Commission is not sufficient to establish with the requisite degree of certainty that Ms. Gilbert gave false statements, which she did not believe to be true, in her sworn statement given on October 20, 1994, to the Metro-Dade Police Department's internal affairs investigator. First, the conflicts in the testimony of Officer McFadden and Ms. Gilbert have been resolved on the basis of the evidence presented herein, and the persuasive evidence supports the finding that Ms. Gilbert did not make a false statement under oath when she stated that Officer McFadden signed the arrest affidavit after she included the offense of using a firearm while under the influence and inserted the phrase "since the gun was loaded." Second, contrary to the position taken by the Commission, Ms. Gilbert did state in the October 20, 1994, sworn statement that she had overheard Officer Romero state that the gun was not loaded when the suspect was arrested. Third, although Ms. Gilbert's testimony in her sworn statement that she had never discussed the report with Officer Leon conflicts with Officer Leon's testimony that she asked Officer Gilbert if the gun was loaded, it is reasonable to infer that, due to the brief, casual nature of Officer Leon's inquiry to Ms. Gilbert and the length of time which elapsed between the incident and her sworn statement, Ms. Gilbert simply forgot that Officer Leon had asked her that one question.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission dismiss the Administrative Complaint against Hawanda Gilbert dated June 28, 1996. DONE AND ENTERED this 11th day of June, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1999.
The Issue Whether the Respondent committed the offense alleged in the Administrative Complaint dated March 9, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency responsible for certifying and revoking the certification of law enforcement officers in Florida. See §§ 943.12(3) and 943.1395, Fla. Stat. (2004). Mr. Rendon is a Florida-certified law enforcement and corrections officer. Mr. Rendon's first contact with Sheila Smith and Kimberly Ann Sturtz, Mrs. Smith's daughter, was in November 1998, when Ms. Sturtz called the police after an argument with her mother. At all times material to this proceeding, Ms. Sturtz was a child under 16 years of age. In December 1998, Mr. Rendon was dispatched to the Smith residence when Mrs. Smith called the police as a result of a fight with her son, Travis Caley. Mr. Rendon arrested Travis on December 2, 1998, and Travis was subsequently placed in a foster home. Mr. Rendon developed an interest in Travis and the Smith family, and he periodically contacted a representative of the Florida Department of Children and Family Services to check on Travis's situation. Mr. Rendon also talked to Travis on the telephone. Mr. Rendon often telephoned Mrs. Smith or went to the Smith residence to give her news about Travis, and Mrs. Smith often telephoned Mr. Rendon. Mr. Rendon had Mrs. Smith's and Kimberly's cell phone and pager numbers, and he used a code when he paged them, so they would know to call him back. He frequently paged Kimberly during the day. Mr. Rendon visited the Smith residence several times when Mr. and Mrs. Smith were home. He also stopped at the Smith residence when Mr. and Mrs. Smith were not at home and Ms. Sturtz was at the residence alone or with a friend named Alicia Cox, who lived across the street from the Smith residence. During these visits, Ms. Sturtz and Mr. Rendon talked but generally stayed outside the house, on the porch or in the yard. Mr. Rendon's visits to the Smith residence were not as frequent between February and April 1999, during the time Mr. Rendon was assigned to patrol an area of Lake County that was a considerable distance from the Smith's residence. His visits increased after April 1999, when he was assigned to patrol an area that included the Smith's residence. During this time, he often visited Ms. Sturtz when her parents were not at home. On May 27, 1999, Mr. Rendon stopped at the Smith's residence at a time when Ms. Sturtz was alone. Mr. Rendon and Ms. Sturtz sat on the porch for a while, talking. During this conversation, Ms. Sturtz told Mr. Rendon that she had a "crush" on him. Ms. Sturtz and Mr. Rendon subsequently entered the house, where Mr. Rendon asked Ms. Sturtz what she would do if he kissed her; Ms. Sturtz told him that she would probably kiss him back. Ms. Sturtz's back was against the wall inside the door, and Mr. Rendon held Ms. Sturtz's hands over her head; he kissed her; asked her to stick out her tongue so that he could suck on it; ran his hands down the sides of her body, grazing the sides of her breasts; lifted her skirt; licked and kissed the area around her navel; and stuck his tongue in her navel. Ms. Sturtz became frightened and asked Mr. Rendon to stop, which Mr. Rendon did. Ms. Sturtz observed that Mr. Rendon appeared to be sexually aroused during the incident and had a wet spot on the front of his trousers. Ms. Sturtz was 14 years old at the time of this incident. Mr. Rendon was arrested on June 9, 1999, for lewd and lascivious conduct with a child under 16 years of age. On or about October 13, 2000, Mr. Rendon entered a plea of nolo contendere to two charges of misdemeanor battery, defined in Section 784.03, in the Circuit Court of the Fifth Circuit in Lake County, Florida. These charges were based on the incident involving Ms. Sturtz that took place at the Smith residence on May 27, 1999. A judgment was entered adjudicating Mr. Rendon guilty of these crimes. The evidence presented by the Commission is sufficient to establish that Mr. Rendon failed to maintain good moral character. He touched Ms. Sturtz in a lewd and lascivious manner on May 27, 1999, and his actions also constituted misdemeanor battery.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order finding that David Rendon failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes (1999), and that his certification as a law enforcement officer should be revoked. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2005.
The Issue The issues in this case are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), by possessing not more than 20 grams of cannabis in violation of section 893.13(6)(b), Florida Statutes, and if so, the penalty that should be imposed.
Findings Of Fact Petitioner, Criminal Justice Standards Training Commission, is the state agency charged with the responsibility of certifying correctional officers and taking disciplinary action against them for failing to maintain good moral character as required by section 943.13(7). § 943.1395, Fla. Stat. At all times relevant, Respondent was a certified Florida Correctional Officer, and employed as a correctional officer at Everglades Correctional Institute ("ECI"). On March 31, 2011, shortly after reporting to work, Respondent was confronted by Inspectors George Montenegro, Philip Cataldi, and Darrel Grabner (all of whom are employed with the Office of the Inspector General within the Florida Department of Corrections). Respondent was requested to submit, and consented, to a pat down search of his person. The personal search did not reveal any contraband. Thereafter, Respondent was requested to submit, and again consented, to a search of his personal vehicle located in the ECI employee parking lot. Respondent was aware that, pursuant to Florida Administrative Code Rule 33-208.002, as a Department of Corrections employee, while on the ECI premises, he was subject to search or inspection of his person and vehicle.1/ Respondent escorted Inspectors Montenegro, Cataldi, and Grabner to his vehicle. Respondent acquired his vehicle, a 2006 Chevrolet Colorado, at an automobile auction in January 2011; the vehicle had been repossessed from its previous owner. Respondent opened the vehicle and then remained in close proximity, at the side of Inspector Montenegro. Inspector Cataldi, while searching Respondent's vehicle, located a small clear plastic bag.2/ Specifically, the bag was located on the floor and two to three inches back from the mid-point of the front passenger's seat. Within the bag Inspector Cataldi observed a green, leafy substance which, based on his law enforcement experience and training, he believed to be marijuana. Inspector Cataldi contemporaneously advised Inspector Grabner of the find and transferred the bag to Inspector Grabner's possession. Inspector Grabner observed residue that, based on his law enforcement training and experience, was consistent with marijuana. Inspector Grabner then proceeded to confirm his suspicion by utilizing the Duquenois-Levine reagent test, a presumptive field test designed to identify THC in marijuana.3/ Inspector Grabner, who has performed the same test on several hundred occasions, transferred the de minimis amount of suspicious material with tweezers into the test kit's pre- packaged ampoule, and followed the remaining directions as indicated in the package insert. After the sample was agitated, as directed, a presumptive positive result for THC was indicted by the color purple. The positive result was also observed by Inspector Montenegro. According to Inspector Grabner, the entirety of the suspicious material was consumed in the Duquenois-Levine testing process. The persuasive evidence establishes that the residue contained within the clear plastic bag was marijuana. Respondent was thereafter interviewed by Inspector Montenegro. At that time, Respondent denied any knowledge of the clear plastic bag or its contents. Respondent conceded that, during the approximately three-month period he had owned his car, he had cleaned and vacuumed the vehicle on multiple occasions. Respondent clarified, however, that when he acquired the repossessed vehicle from an automobile auction, the vehicle had not been detailed and was dirty. He further elaborated that, as he was the primary occupant of the vehicle, he had not attempted to vacuum the flooring underneath the passenger seat. Respondent credibly testified that he had no knowledge of the presence of the baggie or its contents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 3rd day of October, 2012, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 3rd day of October, 2012.
Findings Of Fact At all times material to this proceeding, the Respondent was a certified law enforcement officer having been certified by the Commission on August 5, 1983 and issued certificate number 43-86-017-01. Respondent had previously been certified as a law enforcement officer by the Commission in December 1974 but that certificate expired while Respondent was attending college. At all times material to this proceeding, Respondent was employed as a deputy sheriff by the Osceola County Sheriff's Office. However, Respondent began his employment as a law enforcement officer in 1974 when he worked for the Windermere Police Department in Orange County, Florida, and since July 1990 has worked part-time for the Davenport Police Department. Respondent has been employed full-time as a financial consultant with Merrill Lynch since February 1990. Respondent is licensed in Florida under Chapter 517, Florida Statutes to conduct securities transaction and licensed under Chapter 626, Florida Statutes to conduct business in annuities, life insurance and health insurance. Licensure under both Chapter 517, Florida Statutes and Chapter 626, Florida Statutes, requires, among other requirements, that the licensee be of good moral character. On September 29, 1989, Respondent was on duty as an Osceola County Sheriff's Department deputy assigned to the southwest portion of Osceola County. At approximately 1800 hours, Respondent was dispatched to a residence in the community of Poinciana to talk to the parents of two minor females (ages fourteen and sixteen) who were allegedly provided alcoholic beverages by three adult males earlier in the day. The juveniles, who had skipped school, advised Respondent that the three males had taken them to a lake and allowed them to drink beer and go swimming. The three males involved were pointed out to Respondent, who then went to the males and questioned them. During this questioning, a "field contact card" was completed on each male. The time of completion of the cards is indicated on the cards to be 1830 hours (6:30 p.m.). By reason of the completion of the cards, Respondent identified the names of the three males (Robert Miller, William Troy, and Clayton Daniel Worley), their ages (27, 26, and 19 years, respectively), their addresses, phone numbers, physical descriptions, social security numbers, and, for Miller and Worley, drivers license numbers. Worley was identified as owner of the red pickup truck on the scene. After completing the contact cards, Respondent returned to the victims. One victim, J.B., age 14, reported that while she was in the water, Robert Miller started feeling her breasts and that Clayton Worley also grabbed her and started fondling her breasts. According to J.B., she told Miller and Worley to leave her alone, and she went ashore. J.B. then related that William Troy then asked her to go for a walk and that during the walk, Troy grabbed J.B. and tried to kiss her, than pulled his penis from his pants and forced her hand into it. J.B. indicated she pulled away but Troy grabbed her again and tried to force her to touch his penis. J.B. indicated Troy repeatedly asked her to perform various sex acts and she refused. According to J.B., the three males agreed to take the girls home and, when the truck stopped at an intersection, J.B. jumped from the truck and sought help. By the time Respondent learned of the breast fondling and penis exposure allegations, the males had left the scene. Respondent contacted his supervisor then-Sergeant Robert Hansell who talked with him about probable cause to arrest the three suspects. Hansell further contacted the on-call investigator Detective Andy Strecker who agreed with Hansell that there was probable cause to effect arrests for lewd and lascivious acts committed in the presence of a minor. Strecker contacted Respondent by phone, instructed him to send the parents and juveniles to the Sheriff's Office for sworn taped statements and to effect the arrest of all three suspects, if possible, on the felony charge of lewd and lascivious acts. Neither Hansell nor Strecker advised Respondent to charge sexual battery at that time, although Respondent still considered it a probable charge. After leaving the victim's home, Respondent attempted to locate the three males. During this attempt, he identified the red pickup truck and made a traffic (felony) stop of the vehicle at the intersection of San Remo Court and Deauville Court in Osceola County. Respondent recognized the driver as one of the three males who had been questioned by Respondent in conjunction with the "field contact cards" earlier, and knew the driver was not the vehicle owner, Clayton Worley. The traffic (felony) stop was indicated to the Osceola Sheriff dispatcher by Respondent at approximately 204658 (two seconds before 8:47 p.m.). Respondent exited his patrol car and ordered Miller to get out of the truck. When Miller reached the front of the patrol car Respondent ordered him to place his hands on the hood of the patrol car. As Miller placed his hands on the hood of the patrol car, Respondent stepped up behind Miller and advised him he was under arrest. At this time Respondent noticed a bulge in Miller's right rear pocket that was not there earlier when Respondent had asked for identification. Before Respondent could secure the handcuffs, Miller began acting belligerently by raising his hands and turning around and asking why he was being arrested. Respondent pushed Miller back onto the hood of the patrol car, advised him he was under arrest again, and told Miller to place his hands behind his back. Miller did not comply but spun around bumping into the Respondent. At this point, Respondent felt a hit against his weapon and a pull on his gunbelt causing Respondent to think that Miller was attempting to get his weapon. As a result, Respondent pushed Miller away and swung his gunside away from Miller. As Respondent recovered his balance, he turned toward Miller who was on his hands and feet in the roadway beside the driver's side of the patrol car. Respondent grabbed for Miller, but Miller jumped up and ran counter clockwise around the patrol car, west on San Remo Court to Deauville Court, a distance of about 35 feet. Respondent pursued Miller on foot as Miller turned south on Deauville Court. Other than Respondent's flashlight, the only light in the area was a street light at the southeast corner of San Remo Court and Deauville Court. As Respondent chased Miller away from the street light the area of the chase became less illuminated, and required Respondent to depend more on his flashlight. Since Respondent had failed to switch his flashlight from wide beam to narrow beam the flashlight did not provide sufficient light for Respondent to clearly observe Miller's actions during the chase. After the Respondent had chased Miller about 77 feet, Miller suddenly stopped about 30 feet from Respondent. Miller then turned toward Respondent with both hands somewhat extended and held close together in front of his body about waist level in what Respondent considered an offensive position. Miller made no effort to raise his hands as to give up. Since Miller had escaped before Respondent had been able to determine what the bulge was in his rear jeans pocket, Respondent believed that Miller had a weapon and was preparing to shoot him. Because they had moved away from the street light into a less illuminated area during the chase, the Respondent was unable to determine if Miller had a gun in his hands. Under the circumstances the Respondent feared for his life, and therefore, pulled his weapon, aimed and fired once. Miller then turned and ran south on Deauville Court again with Respondent pursuing him. Miller ran another 40 or 50 feet, suddenly stopped and pivoted toward Respondent, again holding his hands together low and in front of his body similar to that used to hold a handgun at low port. When Miller continued to hold his hands in an offensive position, the Respondent, again in fear for his life, fired three rounds. Apparently, Miller turned to run while Respondent was still shooting since Miller was hit in the lower right side of his back just above the hip through the Levi-Strauss patch on his jeans by one of the bullets. Although Respondent thought he had hit Miller, he began to have doubts that he had hit him when Miller started running again without staggering. Miller ran a short distance further south on Deauville Court before turning right (southwest) into an area of tall grass and ducked out of sight. Respondent followed Miller a short distance into a wooded area but retreated when he realized he might be shot from ambush because at this point Respondent still assumed that Miller was possibly armed. At approximately 8:49 p.m., Respondent requested a K-9 unit for searching the area. Respondent made this call for the K-9 unit from his hand- held radio while he was still near the area where Miller had entered the woods. This call was made approximately two minutes after Respondent indicated to the dispatcher that he was making the traffic (felony) stop. Upon returning to his patrol car, Respondent and Deputy Larry Dodson who had responded to Respondent's call for assistance removed Clayton Worley, the vehicle's owner, from the truck. Worley was unconscious from alcohol consumption but otherwise okay. Respondent explained to Dobson what had transpired and Dobson called Sergeant Hansell and secured the perimeter until the K-9 unit arrived. K-9 officer, Deputy Lisa Bowen arrived at approximately 9:07 p.m., and although not advised by Respondent that Miller might be armed and dangerous or that Respondent had fired shots at Miller, Bowen had heard the call for assistance and the shots-fired dispatch. Deputy Bowen proceeded to search the area in accordance with proper procedures, and eventually found Miller and placed him under arrest. Deputy Cutcher who had also responded to the call for assistance handcuffed Miller. Miller advised the deputies that he had been shot and could not move. Deputy Bowen found one bullet entry and requested paramedics and ambulance at approximate 9:48 p.m. Miller was identified from his wallet which had been taken from his pocket by Deputy Cutcher. When Sergeant Hansell, who had arrived on the scene, learned that Miller had been shot and was possibly armed, he directed the 9MM "spent" shell casings to be secured, that all law enforcement officers be advised that Miller may be armed, and directed Respondent to sit in his patrol car and not to discuss the incident with anyone. No firearm was found on Miller, and no firearm was found at the scene other than the service firearm secured from Respondent. Four 9MM "spent" casings from Respondent's service firearm were found at the scene. One "spent" 9MM casing was found in the area where Respondent first fired at Miller and three "spent" 9MM casings were found in the area where Respondent fired at Miller the second time. No other "spent" bullet casings were found at the scene. The shot that wounded Miller was fired by Respondent using his service firearm. Miller was admitted to Humana Hospital in Kissimmee at 11:15 p.m. where the bullet was surgically removed from the abdominal area by Dr. Antonio Ramirez. Miller's blood alcohol content was determined to be 0.18 percent. Evidence of Benzodiazepine (a class of tranquilizer which includes valium), cannabnoid, and cocaine metabohite were found by a urine drug screen. The arrest history for Miller indicates two arrests for resisting arrest; one dismissed and one with no disposition, and one charge of battery on a police officer which was dismissed. Subsequent to the night of the incident, Investigator Ryan, with the assistance of Deputy Bowen and Detective Webster, conducted an experiment at the scene to determine what the Respondent could have observed in regards to Miller's action under the same conditions as on the night of the incident. Notwithstanding the results of this experiment, the most credible evidence of what the Respondent may have seen or thought he saw during the chase of Miller was Respondent's testimony in this regard which is set out in the above Findings of Fact. While I understand Ryan's effort in this regard, none of those involved in the experiment had to make decisions on what they saw while chasing a person who had just escaped and who may possibly be armed. Respondent did not enjoy this luxury on the night of September 29, 1991 while chasing Miller who, Respondent had reason to believe, might be armed. Stewart R. Hudson, a special agent with the Florida Department of Law Enforcement investigated possible criminal charges against Respondent for aggravated assault concerning the shooting of Miller by Respondent on September 29, 1989. Hudson's investigative report, dated October 9, 1989, was submitted to the State Attorney's Office, Ninth Circuit, and to Sheriff Jon Lane. On November 7, 1989, the State Attorney's Office presented to the Grand Jury Hudson's investigative report. Agent Hudson, Sergeant Hansell and Major Magnaght testified before the Grand Jury regarding the shooting. The Grand Jury voted No True Bill, apparently finding the shooting to be justifiable use of force pursuant to Section 776.05, Florida Statutes. On October 11, 1989, an Osceola County Sheriff's Office Investigator interviewed Respondent regarding the shooting of Miller. Subsequently, the investigator asked Respondent to take polygraph examinations on October 19 and October 27, 1989. Each of the exams showed that Respondent was truthful regarding his fear for his life on September 29, 1989, and truthful in answering Sergeant Ryan on October 11, 1989. 2/ Nevertheless Sergeant Ryan indicated that Respondent was untruthful regarding whether Respondent struggled with Miller and whether Miller was facing him with his hands in a threatening manner when Andrews shot him. When Ryan told Respondent and impressed upon him he did not believe him after the polygraph examinations on October 19 and 27, 1989, Respondent changed his account of the two points which Ryan said showed deception and tried to comport his testimony with what he had been told the polygraph examinations showed. Respondent then requested to be polygraphed again on those questions to prove that he had been truthful in the interview of October 11, 1989, in his incident report and in his interview with Agent Hudson. Ryan indicated that he could not do another polygraph and reported that Respondent had given false information during the internal investigation with the intent to mislead the investigators. At the meeting when Respondent was dismissed on November 6, 1989, Andrews stood by his report and explained the changes in the October 27, 1989 interview with Sergeant Ryan. When he had finished, Commander Croft asked if Respondent was allowed or given the opportunity to be polygraphed after he changed his account of the shooting. Ryan indicated that they had already discussed this and told Respondent, "Don't go muddy up the water." Respondent's employment with the Osceola County Sheriff's Office was terminated November 6, 1989. Notwithstanding that Respondent changed his story to comport with the alleged results of the polygraph examinations of October 11 and 27,1989 that he was being untruthful concerning the matter set out above, the more credible evidence concerning the events of the night of September 29, 1989 which led up to the shooting of Miller is Respondent's testimony at the hearing which comports in almost every detail with the Offense Incident Report which was completed and filed by Respondent shortly after the incident occurred. Respondent's reason for changing his story concerning Miller's action was that he was aggravated by the investigation, and thought that by giving the "changed answers" to the same questions on another polygraph examination would indicate that he was also being untruthful with the "changed answers" and hopefully, this would clear up those areas on the two previous polygraph examinations. There was sufficient substantial competent evidence to establish that Respondent was in fear in his life, on both occasions, when he shot at Miller on September 29, 1989, and that Respondent's reasons for changing certain statements about the incident was done neither with the intent to mislead the investigation nor to accomplish some unlawful purpose.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, accordingly recommended that the Administrative Complaint, as amended at the hearing, filed against the Respondent be dismissed in its entirety. RECOMMENDED this 16th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 16th day of December, 1991.
