94-002909 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Burton B. Griffin Status: Closed Recommended Order on Friday, February 16, 1996.

Summary: Insufficient evidence to sustain charges of unlawful possession of drug para phernalia and falsifying report; Violation by Agency of 11B-27.003(2) harmless error.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2909

)

BURTON B. GRIFFIN, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of

Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on

December 13 and 14, 1995, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Pauline M. Ingraham-Drayton, Esquire

711-B Liberty Street

Jacksonville, Florida 32202-2715

For Respondent: T. A. Delegal, III, Esquire

5530 Beach Boulevard

Jacksonville, Florida 32207

STATEMENT OF THE ISSUE

The issue is whether respondent's law enforcement certificate should be

disciplined for the reasons given in the amended administrative complaint filed

on September 14, 1994.

PRELIMINARY STATEMENT

This matter began on December 16, 1993, when petitioner, Criminal Justice

Standards and Training Commission, issued an administrative complaint charging

respondent, Burton B. Griffin, a certified law enforcement officer, with having

demonstrated "a lack of good moral character" in contravention of the law.

Respondent denied the allegations and requested a formal hearing to contest the

agency's action. The matter was referred by petitioner to the Division of

Administrative Hearings on May 25, 1994, with a request that a Hearing Officer

be assigned to conduct a hearing.

On September 14, 1994, petitioner filed an amended administrative complaint

in which the following allegations were lodged: (a) on October 26, 1992,

respondent "did unlawfully and knowingly possess drug paraphernalia, to wit:

crack pipe(s) which were found in his assigned police vehicle which were not

documented nor turned into the Property Room," (b) on July 13, 1992, respondent

"was also in possession of a crack pipe which he kept in his possession until

three (3) days later until deciding to charge an individual with possession of

drug paraphernalia," and (c) on July 16, 1992, respondent "knowingly falsified

or caused another to falsify an official record or official document." The

final hearing concerned these amended charges.

By notice of hearing dated June 22, 1994, a final hearing was scheduled on

August 10, 1994, in Jacksonville, Florida. At petitioner's request, the matter

was continued to November 17, 1994. The case was then placed in abeyance

pending the submission of a stipulation to the agency. When the stipulation was

not accepted, the matter was rescheduled to December 13 and 14, 1995, at the

same location.

At final hearing, petitioner presented the testimony of Don Retzer, a

sergeant with the Jacksonville Sheriff's Office; Thomas D. Kypke, a former

officer with the Jacksonville Sheriff's Office; Larry W. Sparkman, a sergeant

with the Jacksonville Sheriff's Office; and Roy Henderson, a sergeant with the

Jacksonville Sheriff's Office. Also, it offered petitioner's exhibits 1-11.

All exhibits were received in evidence. Respondent testified on his own behalf

and presented the testimony of John Hartley, a lieutenant with the Jacksonville

Sheriff's Office; Lyndal H. Sweeney, a sergeant with the Jacksonville Sheriff's

Office; J. D. Warren, a lieutenant with the Jacksonville Sheriff's Office;

Joseph G. Stelma, a former captain with the Jacksonville Sheriff's Office; Mack

Bowen, asst. division chief with the Jacksonville Sheriff's Office; and Bobby L.

Deal, a sergeant with the Jacksonville Sheriff's Office. Also, he offered

respondent's exhibits 1-6. All exhibits were received in evidence.

At hearing, a ruling was reserved on respondent's motion to dismiss the

complaint and is discussed in the conclusions of law portion of this order.

The transcript of hearing (two volumes) was filed on January 8, 1996. By

agreement of the parties, the time for filing proposed findings of fact and

conclusions of law was extended to February 8, 1996. Proposed orders were filed

by petitioner and respondent on January 29 and February 5, 1996, respectively.

A ruling on each proposed finding has been made in the Appendix attached to this

Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are

determined:

1. 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).

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties hereto pursuant to Section 120.57(1), Florida

Statutes.

19. Because respondent's law enforcement certification is subject to

suspension or revocation, petitioner must prove the allegations in the complaint

by clear and convincing evidence. See, e. g., Newberry v. Fla. Dept. of Law

Enforcement, 585 So.2d 500, 501 (Fla. 3d DCA 1991).

20. By the amended complaint, respondent is charged with violating "the

provisions of Section 943.1395(6) and (7), Florida Statutes, and Rule 11B-

27.001(4)(a), (b), and/or (c), Florida Administrative Code, in that (he) has

failed to maintain the qualifications established in Section 943.13(7), Florida

Statutes, which require that a law enforcement officer in the State of Florida

have good moral character." The failure to maintain good moral character is

based on the premise that (a) on October 27, 1992, respondent unlawfully

possessed drug paraphanalia, namely, two crack pipes, (b) from July 13 until

July 16, 1992, respondent unlawfully possessed a crack pipe taken from Beverly

Hay, and (c) on July 16, 1992, respondent falsified the arrest and booking

docket of Beverly Hay.

21. Petitioner has clearly established that respondent failed to comply

with a JSO general order requiring that an officer turn evidence into the

property room by the end of his duty shift. But the specific allegation here is

that respondent "unlawfully" possessed "drug paraphanalia," thereby violating

the requirement that he have "good moral character." The pipes are, of course,

drug paraphanalia within the meaning of Section 893.145(12), Florida Statutes.

However, to prove that such possession was unlawful, as required by Section

893.147, Florida Statutes, petitioner must show that respondent used, or

intended to use, drug paraphanalia "to inject, injest, inhale, or otherwise

introduce into the human body a controlled substance in violation of (chapter

893)." There being no such evidence, the charges in paragraphs 2.(a) and (b) of

the amended complaint must necessarily fail.

22. The amended complaint also alleges that on July 16, 1992, respondent

"falsified" an official record, namely, the "arrest and booking docket of

Beverly Hay charging her with prostitution and possession of drug paraphanalia."

However, the arrest and booking report received in evidence shows only that Hay

was charged with possession of drug paraphanalia, but not prostitution. In any

event, the charge clearly implies that respondent intentionally falsified an

official record, an allegation requiring a finding of wrongful intent or

scienter. But the facts in paragraphs 9 and 11 show otherwise and indicate that

the report was incorrectly prepared due to respondent's lack of knowledge on how

to secure a deferred misdemeanor arrest. There being a lack of wrongful intent

or scienter on the part of respondent, the final charge should also be

dismissed.

23. Finally, respondent has moved to dismiss this matter on the theory the

charges were improperly forwarded by the JSO to the Commission and thus it lacks

jurisdiction to hear the case. There is no response to the motion. Under the

statutory scheme in Section 943.1395(5), Florida Statutes,

the employing agency (JSO) must conduct an

internal investigation if it has cause to

suspect that an officer is not in compliance

with, or has failed to maintain compliance

with s. 943.13(4) or (7). If an officer is

not in compliance with s. 943.13(4) or (7),

the employing agency must submit the invest-

igative findings and supporting information

to the commission in accordance with rules

adopted by the commission.

Rule 11B-27.003(2), Florida Administrative Code, which implements the foregoing

statute, provides that

if the allegations are sustained by the

employing agency, the employing agency shall

complete an Internal Investigation Report

form CJSTC-78 (and forward to the Division

the complete investigative file) . . . If

the employing agency concludes that the

allegations are not sustained, unfounded, or

the officer has been exonerated, or the

allegations are only violations of the

employing agencies' policies which are not

violations of subsections 943.13(4), or

943.13(7) or Rule 11B-27.0011(4), F.A.C., the

employing agency should complete form CJSTC-78,

but maintain the completed form on file at the

(employing) agency.

The statute and rule contemplate, then, that sustained allegations be forwarded

to the Commission with an investigative report but that unsustained violations

be kept on file at the employing agency. At the same time, presumably the

employing agency must make a preliminary determination as to whether it believes

the allegations violate state law and Commission rules, or whether they simply

constitute a violation of local agency policy. However, there can be no

violation of section 943.1395(5) or rule 11B-27.003(2) if the employing agency

forwards even "minor" sustained allegations since the Commission (and not the

employer) is the agency charged by law with interpreting its statutes and rules

and adjudicating disputes arising under subsection 943.13(7).

24. Having received the JSO investigative file with the notation that all

allegations had been sustained, the Commission had appropriate authority and

jurisdiction to make a preliminary decision that any one of the allegations, or

all of them, constituted a violation of state law and Commission rules. While

arguably the JSO may have made an error in procedure by incorrectly

characterizing all allegations as being sustained, it was not shown that this

error impaired the fairness of the proceeding, or that respondent was prejudiced

in the defense of his case. Accordingly, the motion to dismiss is denied.

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

[phone]

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.

14. Partially accepted in finding of fact 12.

15. Rejected as being unnecessary.

16. Rejected as recitation of testimony.

17. 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.

30. Partially accepted in finding of fact 9.

31. Covered in preliminary statement.

32. Rejected as being unnecessary.

33 Rejected as being irrelevant.

34-49. Rejected as being recitation of testimony.

50. Partially accepted in finding of fact 11.

51. Rejected as being recitation of testimony.

Respondent:

1. Partially accepted in findings of fact 1 and 17.

2. Partially accepted in finding of fact 17.

3. 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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this

Recommended Order. All agencies allow each party at least ten days in which to

submit written exceptions. Some agencies allow a larger period within which to

submit written exceptions. You should contact the agency that will issue the

Final Order in this case concerning agency rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the Final Order in this case.