The Rap Sheet
Legal News for Law Enforcement in Brevard and Seminole Counties
September 2003
Volume XX, Issue 2
Message from State Attorney Norm Wolfinger
This issue of the Rap Sheet takes a look at several issues; some with new twists of the law, and some that will periodically require a “back to the basics” approach to case investigations. Football season is a great time to emphasize the “blocking and tackling” issues of the courtroom field–search and seizure, and laws relating to confessions. It is also a season to not let our guard down. We need to be vigilant to the threat of domestic terrorism, violent crime, and to officer safety at all times. So as you go about your everyday business, continue to serve the public well and remain alert to the dangers around. Be safe and have a productive last quarter. Norm Wolfinger
Admission of Defendant’s Refusal to Submit to Testing by Assistant State Attorney Mary Ann Klein
In Menna v. State, 846 So.2d 502 (FL 2003) the defendant’s husband was shot and killed. The defendant, who was the victim’s wife, was asked by law enforcement to voluntarily submit to a hand swab to detect the presence of gunshot residue. The defendant said she would decline to submit to the test until she spoke to her attorney. The officer did not expressly indicate to the defendant whether the test was mandatory or permissive; he also did not inform her that her refusal to take the test could be used against her in court. The trial court had excluded evidence of the defendant’s refusal to take the test. The trial court found that the refusal was not sufficiently probative of the defendant’s consciousness of guilt because there was no indication that the defendant had any inkling the refusal to take the test was anything other than a “safe harbor.” The Florida Supreme Court, following the decision in Herring v. State, 501 So.2d 19 (3rd
DCA 1986) agreed that the evidence should be suppressed because the defendant reasonably believed that refusal was a “safe harbor.” The Florida Supreme Court stated that a defendant’s behavior is circumstantial evidence probative of his consciousness of his guilt, and ultimately guilt itself, only when it can be said that the behavior is “susceptible of no prima facie explanation except consciousness of guilt.” If a defendant is told that he may refuse a request for testing and is not told of any consequences that would attach to his refusal, then the reason for refusal may quite plausibly be to disengage from further interaction with the police or simply a decision not to volunteer to do anything he is not compelled to do. In essence, the refusal is a “safe harbor” free of any adverse consequences. However, if a defendant knows that his refusal carries with it adverse consequences, then the hypothesis that the refusal was an innocent act is far less plausible. For example, in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the United States Supreme Court held admissible the defendant’s refusal to take a blood alcohol test. Even though the defendant was not told that the refusal could be used against him in court, he was told that he could lose his driver’s license if he refused. The warning that the defendant could lose his license made it “clear that refusing the test was not a ‘safe harbor,’ free of adverse consequences.” In State v. Taylor, 648 So.2d 701 (Fl. 1995) the Florida Supreme Court rejected the defendant’s “safe harbor” argument regarding the defendant’s refusal to submit to roadside field sobriety tests. In Taylor, although the defendant was not told that the refusal could be used against him, the Court deemed significant the following factors: the officer had warned the defendant that if he refused to take the tests he would be forced to make a decision concerning arrest based on his observations up to that point; the defendant was aware of the circumstances surrounding the officer’s request; he knew the purpose of the tests; he had some experience in this area as the defendant had two prior DUI convictions, and the defendant had stated that he had discussed with his lawyer the advisability of taking field sobriety tests. Thus, the defendant’s claim that his refusal was an innocent act was not plausible. The defendant knew that refusal was not a safe harbor. Based upon the decision in Menna, supra, it will be important for law enforcement, when requesting submission by a suspect to “voluntary testing” of any kind, that the suspect not think he can refuse without adverse consequences. A reading of the implied consent warnings will
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negate the “safe harbor” argument where a defendant refuses the breath, urine, or blood test. However, with other testing it will be incumbent for the officer to make sure that the defendant understands that adverse consequences will follow the refusal. For example, the suspect should be told that if they refuse, the refusal will be used against them in court.
Plain-View Seizure of Controlled Substances
by Assistant State Attorney Mary Ann Klein
In Sawyer v. State, 842 So.2d 310 (5th DCA 2003), the defendant moved to suppress evidence of the drug Ecstasy that was seized from his car during a traffic stop. During the stop, the officer noticed a single white pill sitting in plain view on the console. The officer then reached into the car and seized the pill. The officer testified at the suppression hearing that although the pill was in plain view, he could not tell what kind of pill it was until he seized it. It was only after he seized the pill that he saw a design on the pill that caused him to believe it was Ecstasy. The officer never testified at the suppression hearing that he believed, prior to the seizure, that the item was contraband, nor did he testify to any facts which would have rendered that belief reasonable. The court reiterated that the plain-view doctrine provides that items in plain view may be seized provided: (1) the seizing officer is in a position where he has a legitimate right to be, (2) the incriminating character of the evidence is immediately apparent, and (3) the seizing officer has a lawful right of access to the object. However, when closer examination of an item observed in plain view is necessary to confirm the incriminating nature of the contraband, its incriminating nature is not considered “immediately apparent.” Since the incriminating character of the pill was not “immediately apparent,” the pill in this case should have been suppressed.
Traffic Citations and the Running of Speedy Trial
by Assistant State Attorney Mary Ann Klein
Pursuant to Florida Rule of Criminal Procedure 3.191(a), a person charged with a misdemeanor crime must be brought to trial within 90 days of arrest and within 175 days of arrest if the crime is a felony. The “speedy-trial time clock” begins to run when the defendant is taken into custody. Custody for speedy trial purposes, occurs when the person is arrested or when a traffic citation, notice to appear, or summons is served upon the person in lieu of arrest. See also Rule 6.160 of The Florida Rules for Traffic Courts. In Fothergill v. State, 754 So.2d 174 (5th DCA 2000), the 5th District Court of Appeal ruled that a defendant who was not arrested but was given a traffic citation indicating “summons to be set,” was not in custody for purposes of the speedy trial rule 3.191. Since there was no
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indication of a required date, time, or place to appear in court to respond to the citation, there was no “custody.” However, recently in a Seminole County court case, even in light of Fothergill, the court discharged a defendant where the defendant signed the citation which said “to be set” even though there was no date or time for appearance stated. The Circuit Court affirmed the trial court’s ruling discharging the defendant. See State v. Coughlin, 18th Circuit Court for Seminole County, Appeal No. 02-7148. Since the Fothergill case made no mention of whether the defendant had signed the citation, we can only speculate whether this distinction would be of any significance. In most criminal traffic cases either an arrest is made or the citation is given to the defendant with the court information indicating where and when to appear to answer to the charges. Clearly, in either case the “speedy-trial time clock” is ticking. Based upon the Circuit Court’s affirmance of discharge in State v. Coughlin, if the citation is signed for by the defendant, even without the “where and when” information, the date the defendant signs the citation will be treated as the arrest date for speedy trial purposes. Additionally, even where the defendant does not sign the citation but it is given to him, and even without the required where and when information, the court may also treat this as an arrest for speedy purposes. In summary, if the citation is given to the defendant, an “arrest” for speedy trial purposes takes place. This problem seems more likely to occur when there has been an accident and the officer is awaiting blood results and a physical arrest was not made. In these situations it is imperative that you submit the case as a DIRECT (also referred to as a Capias or Summons request case) and further, that the defendant not be given any criminal citations. The original citations can be filled out and included in the DIRECT case package that is sent to the State Attorney’s Office. If any criminal citation is given to the defendant, even though the citation states that the time and date for appearance is “to be set” this could be treated as an arrest by the court. If you are aware of any cases where the defendant was given a criminal citation but the case package was submitted as a DIRECT, please notify our office so that we can treat the case like an arrest case and move on it in a timely fashion in light of speedy trial running on the case.
The Benefits of Obtaining a Statement from the Defendant
by Assistant State Attorney Mary Ann Klein
Let the defendant talk! Unless there is some reason such as not wanting to tip the defendant off prior to his arrest, the importance of obtaining a statement from the defendant cannot be over emphasized. Even if the case seems strong at the time of arrest, when witnesses move or change their stories, the case all of a sudden is not as strong as it was before.
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Even when a defendant denies everything, the substance of the denial will lock him into a story for his trial testimony. If a defendant is willing to talk, get as many details as possible including who else he told about his involvement. When a defendant denies involvement, ask him detailed questions about his “alibi” or other “defense.” Simply getting from the defendant, “I didn’t do it” is not helpful. Even in a case where the defendant is charged with the sale of drugs, a statement from the defendant admitting to it and why he sells drugs can go a long way in showing he was not entrapped six months later at trial. Record everything a defendant says. Although a tape recording is preferred, if a tape is not made, document everything in writing. This will assist you at trial when testifying. In addition, the state has a duty to disclose all statements made by a defendant. If we do not know them, we cannot disclose them. If we find out about them too close to the trial date and then disclose them, the court may prohibit us from admitting them. The prosecutor needs to know what you know. Keep in mind that the tape recording is evidence and should be safeguarded. If a transcript is made of the tape, it must be read by the law enforcement officer who did the interview and all portions deemed inaudible by the typist must be filled in with what was said. It is important that we get a complete and accurate account of the conversation with the defendant. Although, a summary on 5th and 6th Amendment Miranda and Right to Counsel issues is beyond the scope of this article, it is important to be aware of the most recent Miranda case. In Pirzadeh v. State, 2003 WL 21993956 (5th DCA Aug. 22, 2003), the Fifth District Court of Appeal ruled that the defendant’s statement in a drug trafficking case should have been suppressed as it was taken in violation of the 5th Amendment. Pirzadeh was arrested for trafficking in opium, advised of his Miranda rights, and he invoked his right to counsel before being transported to the jail. While being booked at the jail, a detective told him the crimes he was being charged with, the applicable sentencing guidelines, and that he was not going to give him a bond. The detective did not ask the defendant any questions or make any promises. The defendant told the detective that he wanted to cooperate because he wanted a bond. The detective said he still was not going to give him a bond, and he should get an attorney and seek a hearing. They then engaged in a back-and-forth discussion over cooperation and the continued denial of a bond. Eventually the defendant gave essentially the following written statement:
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I told the agent that I want to write the statement, I am writing this in my own free will, the agent promises nothing, I had 220 grams of opium in my store, I paid $6,000 and bought that six days ago. I am not an opium trafficker, I use that for my own; this 220 grams of opium should last me about one year. I buy the opium from the friend I know. When I bought that, the opium comes in candy wrapper, I have back problems and I use it to remedy pain. I own the gas station at [address omitted]. Another agent read my rights and I chose to write the statement anyway. The trial court admitted the statement into evidence. This was reversed on appeal. The Fifth District Court of Appeal agreed with the defendant that the statement was obtained in violation of the 5th Amendment, noting: In the constitutional sense, an interrogation can be either the direct asking of questions or its “functional equivalent.” The functional equivalent of interrogation includes any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response. Rhode Island v. Innis, 446 U.S. 291 (1980). In Larson v. State, 753 So.2d 733 (Fla. 2nd DCA 2000), the Second District Court of Appeal found that an officer who held a conversation with a defendant about the crimes for which he was charged and told the defendant that he was facing a twenty-fiveyear sentence, was conducting an interrogation of the defendant because those statements were reasonably likely to elicit an incriminating response from the defendant. The current case goes beyond Larson. Not only did the detective inform Pirzadeh of the crimes with which he was charged and the possible sentence, but also told Pirzadeh he would not be given a bond. Whether or not Pirzadeh believed that the defendant had any control over the bond is immaterial. Once the detective told Pirzadeh about the nature of the charges against him, he should have terminated the confrontation as it became clear that continuing the conversation would lead to an incriminating response…The law concerning Miranda warnings and the right to counsel establishes a policy whose purpose is to prevent what happened in this case.
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The appellate court rejected the State’s argument that the defendant initiated the contact with police. In their view, the defendant made the statement after he had already requested counsel and as a result of the conversation initiated by law enforcement. This case reminds us that Miranda warnings are required before custodial interrogations. If after reading Miranda the defendant invokes his right to counsel, all questioning must cease. Interrogation may take the form of direct questioning or its “functional equivalent.” Functional equivalent means words or actions by a law enforcement officer that the officer should know are reasonably likely to elicit an incriminating response. An officer telling an arrestee about the charges against him or her, and the sentences that apply to those crimes, will be regarded as the functional equivalent of interrogation. Similarly, an officer discussing bond status with the arrestee, as well as the charges against him or her and the sentences that apply to those crimes, will be regarded as the functional equivalent of interrogation.
Probable Cause Affidavits In recent months, several of our local law enforcement agencies have for Criminal Traffic Offenses inquired about the reason for requests from misdemeanor Assistant
by Assistant State Attorney Michelle Jackson Misdemeanor Division Chief Brevard
State Attorneys for a 923.01 or probable cause affidavits in criminal traffic cases that have been submitted to our office. This article will address the issue of when, other than for felony cases and DUI’s, a 923.01 is actually necessary. In routine criminal traffic cases, the need for a probable cause affidavit will vary. Of course one is needed for all DUI’s, but there are other criminal traffic cases where a probable cause affidavit or 923.01 may be necessary. The types of cases where a 923.01 or a sworn investigative narrative is essential include any criminal traffic case where information other than simply the testimony of the ticketing/arresting officer is needed to prove the crime. For example, a case of leaving the scene of an accident should have a narrative that includes how the defendant/driver was identified, by whom, and the circumstances surrounding the identification procedure. It should have the crash report attached as an enclosure along with any sworn witness statements or the officer’s sworn summary of who the witnesses are and what they told him or her. Other examples of charges where a more complete investigative report and/or witness statements might be needed would be reckless driving, fleeing and eluding an officer, driving in violation of a BPO license restriction, or attaching tag not assigned to the vehicle. In general, no 923.01 or probable cause affidavit is required for the charge of driving while license suspended, canceled, or revoked
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(DWLS). However, the reason for the initial vehicle stop must be noted somewhere on the face of the DWLS citation. Where no information is furnished regarding the reason for the stop, a supplemental police report may have to be requested from the officer. That information is necessary to avoid the inevitable motion to suppress that the defense will file if the reason for the stop is not easily discernible. Please be aware that the clerk’s office does not furnish our office with a copy of the “court information” side of the uniform traffic citations. That is where many officers do make notes concerning the stop of the defendant. It would be helpful to our office to receive routine copies of those notes from your agency. Occasionally, your agency will receive a letter requesting a sworn statement on a misdemeanor DWLS case. This means that in reviewing the defendant’s driving history, we have learned that he or she may be eligible for a felony upgrade due to having sufficient prior convictions for DWLS, a Habitual Traffic Offender status, or that their driver’s license has been permanently revoked. This information would not necessarily be provided to your officers in the field, and the case would come to our office initially as a misdemeanor only. If we find that any of those circumstances exist, however, we can attempt to upgrade the case to a felony. As you are probably aware, a felony information can only be filed based on sworn testimony. Since a uniform traffic citation is not “sworn to,” the letter is sent to attempt to obtain the sworn statement that is needed to upgrade the case. In addition, the “knowledge” element of DWLS cases requires the state to prove that the defendant knew his driver’s license was suspended. The request for a supplemental affidavit or report is to find out if the defendant made any such admissions to the officer during the course of the traffic stop. Each time a criminal traffic citation is issued by an officer, he or she should use common sense and consider if a narrative would be helpful to the prosecution. If so, a 923.01 should be completed to go along with the citation(s). The 923.01 gives the officer an opportunity to outline the reason for the stop, any information from witnesses, and very importantly, a place to list any statements or admissions made by the defendant. It is critical for us to know about these statements so they can be properly disclosed through discovery; otherwise, the court may rule that none of those statements will be admissible at the trial of the case.
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