97-001922 Department Of Law Enforcement, Criminal Justice Standards And Training Commission vs. Herman Blendsoe, Jr. Status: Closed Recommended Order on Monday, December 29, 1997.

Summary: Arguably inculpatory statements of deputy suppressed due to violation of police officer's bill of rights, Miranda, due process, and hearsay statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRIMINAL JUSTICE STANDARDS )

AND TRAINING COMMISSION, )

)

Petitioner, )

)

vs. ) Case No. 97-1922

)

HERMAN BLENDSOE, JR., )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Arcadia, Florida, on August 27, 1997.

APPEARANCES

For Petitioner : Paul D. Johnston

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

For Respondent : Robert M. Bader

Robert M. Bader Law Office

Post Office Box 3551

Port Charlotte, Florida 33949

STATEMENT OF THE ISSUE

The issue is whether Respondent, a law enforcement

officer, is guilty of failing to maintain good moral character

and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated March 26, 1996,

Petitioner alleged that Respondent, over a five-year period,

unlawfully solicited another person to commit prostitution

with himself. By a more definite statement, Petitioner

clarified that the five-year period was from July 1, 1990,

through July 19, 1995. The Administrative Complaint alleges

that Respondent thus violated Section 943.1395(6) and (7),

Florida Statutes, and Rule 11B-27.0011(4)(b) and (c), Florida

Administrative Code, because he failed to maintain good moral

character, as required by Section 943.13(7), Florida Statutes.

Respondent timely demanded a formal hearing.

At the hearing, Petitioner called two witnesses and

offered into evidence five exhibits. Respondent called three

witnesses and offered into evidence one exhibit. All exhibits

were admitted except Petitioner Exhibit 5, which was

proffered, and Petitioner Exhibits 1 and 2, as to which ruling

was reserved. These two exhibits are a transcript and

audiotape of an interview of Respondent in which he made

arguably inculpatory statements.

A major evidentiary issue developed at the hearing as to

whether Respondent’s statements were admissible. Petitioner

conceded that this was its entire case, and, if the statements

were excluded from evidence, Petitioner would not be able to

prove the charges against Respondent.

After hearing argument on the admissibility of the

confession, the administrative law judge, stating that he

could not rule without more authority, effectively transformed

the evidentiary hearing into a suppression hearing. The

administrative law judge advised the parties that they could

file post-hearing briefs on the evidentiary issue, and, if the

administrative law judge admitted the interview, Respondent,

who did not wish to testify if the statements were excluded,

could testify by deposition. In the intervening four months,

the parties have filed nothing, so the administrative law

judge is issuing this recommended order.

As discussed below, the administrative law judge has

ruled that any inculpatory statements are inadmissible. This

order discusses the contents of these statements strictly for

the purpose of explaining the evidentiary ruling. As a result

of the ruling, these statements are not a part of the factual

record on which Petitioner may predicate discipline.

FINDINGS OF FACT

1. Respondent is a certified law enforcement officer,

holding certificate number 92165. At all material times, the

DeSoto County Sheriff’s Office employed Respondent until

Respondent resigned shortly after giving the statement

described below.

2. In June 1995, a female narcotics informant alleged

that she had traded sex for money with Respondent. The DeSoto

County Sheriff’s Office commenced an investigation.

3. According to the female informant, who did not

testify in this case, there were no witnesses to the alleged

incidents. After interviewing the female informant, the

DeSoto County Sheriff’s Office or the female informant filed a

criminal complaint with the State Attorney’s Office.

4. On July 18, 1995, the State Attorney’s Office filed a

memorandum declining to prosecute Respondent because the

“[o ]nly evidence is the word of an admitted prostitute and

drug-user. Under these circumstances, [we] cannot prove the

allegations beyond a reasonable doubt.”

5. After receiving a copy of this memorandum, the DeSoto

County Sheriff's Office scheduled an interview of Respondent

concerning the allegations of the female informant. A

lieutenant who had not previously conducted an internal

affairs investigation assumed responsibility for conducting

the interview. The lieutenant contacted Respondent on the

afternoon of July 18, told him that he was conducting an

internal affairs investigation, and directed him to give an

interview the following afternoon. The lieutenant, who had a

superior rank over Respondent, did not inform Respondent of

the nature of the investigation or of the identity of the

complainant.

6. The interview of Respondent took place on July 19,

1995, starting at 1:00 p.m. In addition to Respondent and the

lieutenant, a major and captain of the DeSoto County Sheriff’s

Office were present, as was a sergeant, who was present at the

request of Respondent as an additional witness, but not an

advisor.

7. The lieutenant had a package of information at the

start of the interview, but did not give it to Respondent

until after the interview was completed. The package included

a Notification of Charges/Allegations, stating that from

January 1991 through June 1995 Respondent allegedly engaged

the named female informant in prostitution at least ten times

at Respondent’s residence. The form advised that, if

sustained, these allegations constituted conduct unbecoming a

deputy.

8. The package also included an Admonition Form. This

form, which is prepared by the DeSoto County Sheriff's Office ,

states that “prior to questioning an accused member . . .,

[any member of the DeSoto County Sheriff's Office shall]

present the following admonition to said accused . . . for the

member to read.” The Admonition states in its entirety:

I wish to advise you that you are being

questioned as part of an official

investigation of the DeSoto County

Sheriff's Office. You will be asked

questions specifically directed and

narrowly related to the performance of

your official duties and/or your continued

fitness for office. You are entitled to

all the rights and privileges guaranteed

by the laws and Constitution of the State

and the Constitution of the United States,

including the right not to be compelled to

incriminate yourself. I further wish to

advise you that if you refuse to testify

or to answer questions relating to the

performance of your official duties or

fitness for duty, you will be subject to

departmental charges which, if sustained,

could result in your dismissal from the

DeSoto County Sheriff's Office. If you

answer questions, as required, neither

your statements nor any information or

evidence which is gained by reason of such

statements can be used against you in any

subsequent criminal proceeding. However,

these statements may be used against you

in relation to subsequent department

charges.

9. The lieutenant commenced the interview by stating

that the purpose of the interview was an allegation of some

misconduct and then reading the Admonition. After reading the

Admonition, the lieutenant asked Respondent if he understood

the Admonition, and Respondent replied that he did.

10. Without letting Respondent read the Admonition, the

lieutenant then asked Respondent about the allegation that he

had engaged in sex for money at least ten times with the named

female informant. Respondent admitted to a single incident of

sexual intercourse four or five years ago, without any mention

of any payment, but denied any other sexual relations. He

explained that he had given her some money for information and

for personal matters--as Respondent had known her socially for

over 20 years and each was a friend of the other’s family.

11. At the conclusion of his questions, the lieutenant

asked the major if he had any questions. The major asked if

Respondent would take a polygraph test and if Respondent knew

that the female informant had taken and passed one. The major

asked a few more questions, largely repeating the questions

asked by the lieutenant.

12. After the major was finished, the lieutenant asked

Respondent to sign the Notification and Admonition forms. He

then asked Respondent to raise his right hand and swear that

the statement that he had given was the ”truth, so help you

God.”

13. After obtaining an affirmative answer from

Respondent, the lieutenant proceeded to go over some of the

forms when Respondent interrupted him, saying:

Wait, wait, wait, wait. I . . . I . . . I

. . . I can’t do this here. I won’t be

able to live with myself. There was more

than one time. I . . . I . . . I just

can’t do this now. I’m not going to lie.

It was more than one time. I’ll take the

polygraph. Um . . . I think it was like

. . . four times. I . . . I . . . I just

can’t do that.

14. The lieutenant asked Respondent if he had exchanged

money for sex, and Respondent answered in the affirmative. He

said that on two occasions he gave her about $15 or $20 and

the rest of the time the money was for information.

Respondent said that the sex acts took place only when he was

off-duty and out of uniform. The lieutenant asked, “I guess

you realize that that’s considered prostitution, right?”

Respondent answered, “Yeh. That’s about it.”

15. The interview continued, although no material

information emerged. Respondent apologized for lying the

first time during the interview and stated: “Jap [Respondent].

You sitting here lying to these people. You done worked for

these people for eight years. You ain’t never lied to them.

So why are you going to sit here and lie? . . . I just

couldn’t walk out of here knowing that I had told you a lie.”

Respondent also mentioned that a mutual acquaintance of his

and the female informant had told him of the allegations and

that Respondent had told his attorney the truth.

16. Respondent's statements do not detail the two

occasions on which Respondent paid money to the female

informant, had sex with her, and did not obtain any

information. They were friends for over 20 years and knew

each other's families; the possible explanations are numerous.

During the interview, Respondent expressed considerable

remorse for lying initially and having sex with a known

prostitute and drug abuser. Without more, given the

background between the parties, Respondent's admission of this

moral lapse does not constitute an admission of the crime of

prostitution or a failure of good moral character. Advice of

already-retained counsel might have clarified Respondent’s

testimony by differentiating between the shame that Respondent

felt and possible commission of a crime or failure to maintain

good moral character. Certainly, contemporaneous legal advice

might have lent meaning to Respondent’s dubious admission to

the legal conclusion that he committed the crime of

prostitution; the record provides no reason to believe that

Respondent was aware of the legal elements of the crime, which

another deputy testified had been prosecuted only once in the

many years in DeSoto County.

17. Another source of confusion is the Admonition

itself. In general, the Admonition addresses the possibility

of criminal and employment sanctions, but not professional

discipline against Respondent’s law enforcement certificate.

18. Most misleading is the second-to-last sentence,

advising, “If you answer questions, as required, neither your

statement nor any information or evidence which is gained by

reason of such statements can be used against you in any

subsequent criminal proceeding.” This statement tells

Respondent that he is required to answer questions, although

clearly he is not. Following the statement concerning

employment with the DeSoto County Sheriff's Office, this

statement mentions criminal proceedings, but nowhere is there

any statement of Respondent’s due-process rights regarding a

disciplinary proceeding against his certificate.

19. Respondent was confused in the interview due to the

inadequate and untimely disclosure of the nature of the

charges; the misleading statements contained in the

Admonition; the reading of the Admonition by the lieutenant,

rather than Respondent's being allowed to read the Admonition

itself, as the Admonition allows Respondent to do; the belated

administration of the oath; the alternative interrogations by

the lieutenant, then the major, and then the lieutenant; the

failure to explain all of Respondent’s rights; and the failure

to provide Miranda rights. These serious deficiencies

undermined the reliability of Respondent’s arguably

inculpatory statements to the point that they are inherently

unreliable and not even, on their face, inculpatory.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes.)

21. Section 943.13(7) requires that law enforcement

officers maintain “good moral character.” Section 943.1395(7)

authorizes Petitioner to discipline a law enforcement officer

for failing to maintain good moral character.

22. Petitioner must prove the material allegations by

clear and convincing evidence. Department of Banking and

Finance v. Osborne Stern and Company, Inc. , 670 So. 2d 932

(Fla. 1996) and Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987).

23. Respondent’s statements are inadmissible because the

interview violated the Police Officer’s Bill of Rights, as set

forth in Section 112.532, which now applies to deputies

appointed by sheriffs, as well as other law enforcement

officers employed by various agencies.

24. Section 112.532(1) provides, in relevant part:

Whenever a law enforcement officer . . .

is under investigation and subject to

interrogation by members of his or her

agency for any reason which could lead to

disciplinary action, demotion, or

dismissal, such interrogation shall be

conducted under the following conditions:

(c) . . . All questions directed to the

officer under interrogation shall be asked

by and through one interrogator at any one

time.

(d) The law enforcement officer . . .

under investigation shall be informed of

the nature of the investigation prior to

any interrogation, and he or she shall be

informed of the name of all complainants.

(h) If the law enforcement officer . . .

under interrogation is under arrest, or is

likely to be placed under arrest as a

result of the interrogation, he or she

shall be completely informed of all his or

her rights prior to the commencement of

the interrogation.

(i) At the request of any law

enforcement officer . . . under

investigation, he or she shall have the

right to be represented by counsel or any

other representative of his or her choice,

who shall be present at all times during

such interrogation whenever the

interrogation relates to the officer’s

continued fitness for law enforcement

. . . service.

25. The interrogation of Respondent violated each of the

cited rights accorded law enforcement officers. The

lieutenant and major alternated asking Respondent questions,

and the lieutenant failed to inform Respondent, until the

interrogation had begun, of the nature of the charges. Most

importantly, no one completely informed Respondent of his

rights. The State Attorney’s Office had declined to prosecute

at that time, but this decision was not irreversible and was

based on the problem of relying exclusively on the word of the

female informant, so Respondent still risked criminal

prosecution, as well as a disciplinary proceeding. Also, the

interrogation took place outside the presence of Respondent’s

already-retained attorney.

26. Section 112.532(3) authorizes private civil actions

for violations of the Police Officer’s Bill of Rights.

Neither the statutes nor judicial decisions imply that a

private cause of action is the sole remedy for a violation.

The officer who does not avail himself of such a civil remedy

should at least be able to suppress in a disciplinary

proceeding the evidence obtained in violation of these rights.

In this case, the representatives of the DeSoto County

Sheriff's Office unwittingly violated several of Respondent's

statutory rights, and the ensuing loss of reliability of the

statements justifies their exclusion from evidence.

27. Respondent has a constitutional right against self-

incrimination in disciplinary proceedings. State ex rel.

Vining v. Florida Real Estate Commission , 281 So. 2d 487 (Fla.

1973). The interview violates Respondent’s Fifth Amendment

privilege against self-incrimination, as set forth by Miranda

v. Arizona , 384 U.S. 436, 86 S. Ct. 1602 (1966). One of the

subsidiary purposes of the requirement of giving Miranda

rights is to ensure the reliability of the information

obtained in the confession. Thus, a waiver of Miranda rights

must be knowing and intelligent.

28. Miranda issues require a two-part inquiry. In the

first part, the court determines as a matter of law whether

“serious police misconduct” requires suppression of the

confession. In the second part, the trier of fact determines

whether the “reliability or fairness” of the confession

requires discrediting of the statement. Johnson v. State , 660

So. 2d 637, 642 (Fla. 1995). In discharging its

responsibilities in this regard, the court may conduct an

evidentiary suppression hearing. See , e.g. , State v. Crosby ,

599 So. 2d 138, 139 (Fla. 5 th DCA 1992).

29. In this case, the administrative law judge

determines as a matter of law and fact that the circumstances

surrounding any inculpatory statements sufficiently undermine

the reliability of the statements as to preclude the admission

of the statements under Miranda . As to the legal issue, this

is not a question of intentional police misconduct, but the

seriously flawed interrogation sufficiently tainted the

interview as to require, as a matter of law, that Respondent's

statements be excluded from evidence. For the same reasons,

as a factual issue, the statements are inherently unreliable

and must be excluded from evidence.

30. Respondent was entitled to a Miranda warning at the

time of a custodial interrogation. Analogizing the criminal

and disciplinary proceedings, the order of a superior to

attend an interview satisfies the custodial requirement. In

the alternative, Respondent was entitled to a Miranda warning

no later than the point at which he was read the Admonition.

At that point, a full Miranda warning was required to correct

the misstatements in the Admonition.

31. In addition, simple due process considerations

effectively require that, as an evidentiary matter, the

hearsay statements of Respondent be excluded from evidence.

See , e.g. , Black v. State , 630 So. 2d 609, 615, and 615 n.8

(Fla. 1 st DCA 1993). The hearsay exception for admissions at

Section 90.803(18) requires that the out-of-court statement be

reliable. See , e.g. , Lightbourne v. State , 644 So. 2d 54, 57

(Fla. 1994) (stating that an "admission" of perjury was not a

qualifying exception because the statute of limitations had

run, the Court added: "In any event, the hearsay evidence

. . . lacks the necessary indicia of reliability.") In the

present case, Respondent clearly admitted a sense of shame and

guilt for his behavior, but not, more relevantly, either the

specific elements required for the crime of prostitution or

for a categoric finding of failed moral character. For the

reasons already stated, Respondent made statements that, for

the purpose intended by Petitioner, are inherently unreliable

and must be excluded from evidence.

RECOMMENDATION

It is

RECOMMENDED that the Criminal Justice Standards and

Training Commission enter a final order dismissing the

Administrative Complaint.

DONE AND ENTERED this 29th day of December, 1997, in

Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of December, 1997.

COPIES FURNISHED:

Paul D. Johnston

Assistant General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302-1489

Robert M. Bader

Robert M. Bader Law Office

Post Office Box 3551

Port Charlotte, Florida 33949

A. Leon Lowry, II, Director

Division of Criminal Justice

Standards and Training

Post Office Box 1489

Tallahassee, Florida 32302

Michael Ramage, General Counsel

Florida Department of Law Enforcement

Post Office Box 1489

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any

exceptions to this recommended order must be filed with the

agency that will issue the final order in this case.