For the Law Enforcement Agencies of Miami-Dade County
Katherine Fernandez Rundle
Miami-Dade State Attorney
1 September 2007
IN THIS ISSUE:
PAGE
POLICE-PROSECUTOR
COORDINATING COMMITTEE
Proving Grand Theft Auto Cases............................................................... 1, 2
Steering Committee:
More New Laws Effective July 1, 2007.......................................................... 2
Case Law ...................................................................................................... 3
Kristi Bettendorf, ASA, Chair
State Attorney’s Office
(305) 547-0220
e-mail:
[email protected]
José Arrojo, Chief ASA
State Attorney’s Office
(305) 547-0309
e-mail: [email protected]
Gerald Darling, Chief
Miami-Dade Schools Police
(305) 754-9630
Naim R. Erched, Assistant Director
Police Services
Miami-Dade Police Department
(305) 471-2625
e-mail: [email protected]
Frank Ledee, ASA
State Attorney’s Office
(305) 547-0853
e-mail: [email protected]
Chief Fred Maas
Sunny Isles Beach PD
(305) 947-4440
e-mail: [email protected]
Betty Tarre, SAO
Recording Secretary
e-mail: [email protected]
Members of the Crimes
Against Law Enforcement
Officers Subcommittee are
listed on the back page
PPCC Sub-Committees................................................................................. 4
REMINDER!!
The Next PPCC meeting is in two weeks:
Thursday, September 13, 2007, 10:00 a.m.
Proving Grand Theft Auto Cases
Last year the legislature enacted 812.022(6), which codified a statutory
inference long used to prove our grand theft auto cases. The
subsection states that proof that a person is in possession of a motor
vehicle and that the steering mechanism of the motor vehicle has been
bypassed or the steering wheel locking device has been broken or
bypassed, unless satisfactorily explained, gives rise to an inference that
the person in possession of the stolen motor vehicle knew or should
have known that the motor vehicle was stolen. It’s easy to argue and
prove that the defendant must have known that the car was stolen
seeing as he was driving it with a screwdriver stuck in the steering
column.
But how do we prove that the driver of a stolen motor vehicle knew it
was stolen when the vehicle is being driven with a key and there is no
other obvious sign that the vehicle is stolen? The other avenues of
proof available to us are an eye-witness who saw the defendant steal
the car, or a confession by the defendant that he stole the car or knew it
was stolen. Since circumstances such as these don’t usually present
themselves in the run-of-the-mill grand theft auto case, we are left with
another statutory presumption which can be very persuasive. It
provides that if someone is in possession of recently stolen property and
can’t satisfactorily explain their possession of the recently stolen
property, then the law allows us to presume that they probably knew it
was stolen. This presumption is found in 812.022(2).
Continued next page
IMPORTANT!
Next PPCC meeting, Thursday, September 13, 2007, 10:00 a.m.
State Attorney’s Office • 1350 NW 12 Avenue • Miami FL 33136
All are invited to attend
Page 2
Grand Theft Auto
Continued from previous page
In cases such as this, where we are going to be
trying to show the defendant’s guilty knowledge of
the fact that the vehicle is stolen, an explanation
offered by the defendant as to how he came into
possession of the stolen vehicle is required.
Therefore, the officer who has stopped the vehicle
will need to question the driver about this. And
because we will need to introduce the defendant’s
statements into evidence at time of trial, the driver
will need to be advised of his Miranda rights
before this questioning. Officers sometimes feel
that if they read someone their rights, they’re
definitely not going to talk to them, even if they
might have if no rights had been given. In this
scenario, however, you are basically in the same
position if someone invokes their right to remain
silent that you are in if someone answers your
questions without benefit of rights – we have
nothing to use either way and can’t take
advantage of the statutory presumption.
What sort of questions should you ask? Beyond
the obvious ‘where did you get the car?’ there are
many questions that can be helpful in establishing
a driver’s guilty knowledge. Don’t just stop asking
when the driver tells you they got the car from
their cousin because you’re sure it’s a lie. Follow
up with more questions: What’s your cousin’s
name? Where does your cousin live? What’s
your cousin’s phone number? [Then tell him
you’re going to call the number and see what
happens when you do.] When did you borrow the
car from your cousin? How long has your cousin
had the car? How long did you borrow it for?
How are you supposed to get it back to your
cousin? And make note of all of the answers the
driver gives you, because it is in these answers
that we must find our proof – if it is to be found –
that the driver cannot give a reasonable
explanation of their possession of the stolen
vehicle.
If you ask this, or a similar, set of
questions of a driver and every response is “I
don’t know”, that falls way short of a reasonable
explanation and we can proceed on these cases
and argue the statutory presumption. If we have
no statements to work with, we have no basis to
argue the presumption and, as a result, no proof
that the defendant knew that the car was stolen, a
required element of the crime. Unfortunately, this
is not information that we can get by any other
means after the defendant has been arrested.
This has to be done at the time of the stop, or the
subsequent arrest and questioning process.
Anything you can do to help us prove and
prosecute these cases is greatly appreciated!
The Rap Sheet
September, 2007
MORE NEW LAWS EFFECTIVE JULY 1, 2007
Additions to section 112.532 require that when a Law
Enforcement Officer or Correctional Officer is under
investigation, all identifiable witnesses shall be interviewed,
whenever possible, prior to the investigative interview of the
officer. The complaint and all witness statements shall be provided
to the officer prior to the investigative interview of the subject
officer. The officer may waive these additional rights and give a
voluntary statement at any time. New subsection 112.533(1)(b)
provides that any political subdivision that receives or initiates a
complaint against an LEO or CO must forward the complaint to the
officer’s employing agency within 5 business days.
Federal law enforcement officers are now included in
section 784.07 for the purposes of upgrading assaults and batteries
one degree when the victim is a law enforcement officer. Federal
law enforcement officers have also been added to 843.08, falsely
personating an officer.
Section 316.6135 is amended, making it a second degree
misdemeanor to leave a child under the age of 6 unattended or
unsupervised in a motor vehicle for more than 15 minutes.
Leaving a child under the age of 6 for any period of time in a motor
vehicle with the motor running or the child’s health is in danger
remains a non-criminal traffic infraction. It is a third degree felony
when a violation of this section causes great bodily harm,
permanent disability, or permanent disfigurement to the child.
Section 316.027 is amended to provide for a 2-year
minimum mandatory sentence for leaving the scene of a crash
resulting in death while under the influence and to provide for
court-ordered restitution to the victim.
Section 316.193 is amended to require a 4-year minimum
mandatory prison sentence for anyone convicted of DUI
manslaughter.
New designations are required on the front of the licenses or
identification cards of sexual predators and sexual offenders as of
August 1, 2007. Sexual predators shall have the marking “775.21
F.S.” and sexual offenders shall have the marking “943.0435 F.S.”.
All sexual offenders and predators are required, during the month of
their scheduled re-registration, to obtain a license or ID card with
the appropriate marking. Effective February 1, 2008 there is a
new felony violation in subsection 322.212(5)(c) for a sexual
predator or sexual offender to have in his or her possession a license
or ID card that does not contain these markings or upon which the
marking has been altered.
Page 3
The Rap Sheet
September, 2007
Case Law
Watson v. State, 32 Fla.L.Weekly D1856a (2d DCA, 8/8/07) The defendant in this case was convicted of
possession of a firearm and ammunition by a convicted felon. He was in the driver’s seat of a stopped vehicle and
there was another passenger in the back seat, on the passenger side. The front passenger seat was unoccupied when
the police came upon the vehicle. The officer who approached the passenger side of the vehicle saw part of a
firearm on the front passenger floorboard. Ammunition was also found in the glove box and a shotgun, rifle and
more ammunition were found in the trunk. The car was a rental. The defendant said that he borrowed it from his
girlfriend.
The decision discusses proving actual vs. constructive possession. Since the defendant was not in actual physical
possession of any of these items, the State must prove his constructive possession by circumstantial evidence, as the
defendant made no admissions. In order to prove constructive possession beyond a reasonable doubt, the State had
to show that the defendant knew of the presence of the illegal items and was able to exercise control over them.
Because the defendant was in a jointly occupied vehicle, these elements cannot be inferred from his mere proximity
to the items, but must be shown by independent proof. The court held that there was absolutely no evidence of
constructive possession regarding the ammunition in the glove box or the contraband in the trunk, and that while
there may be sufficient evidence to show that the defendant knew of the presence of the gun under the front
passenger seat, there was no evidence presented regarding the defendant’s control over the firearm. The court noted
that there was no other evidence to link the defendant to the illegal items, such as fingerprints, statements or
anything else. The defendant’s conviction was reversed and he was discharged.
Phillips v. State, 32 Fla.L.Weekly D1948a (2d DCA, 8/15/07) I know the topic of proving possession with intent
to sell narcotics has been of interest to a number of you. This case from Polk County adds another perspective in
the collection of diverging opinions throughout Florida. This defendant was arrested on a non-drug offense and
during booking a plastic baggie was found in the defendant’s waistband. Inside the plastic baggie were 10 smaller
plastic bags containing cannabis, a total weight of 26.6 grams. There was no other indication, other than the manner
in which the drugs were packaged, that the defendant possessed the marijuana with the intent to sell it. There was
no cash that might have been drug proceeds, the defendant had not been seen engaged in any possible drug
transactions, the defendant made no statements and therefore, the evidence of the intent to sell was solely
circumstantial. As you know, when proving a case through circumstantial evidence, that evidence must preclude
every reasonable hypothesis of innocence. The defendant in this case of course argued that the marijuana was for
his own personal use. Although the 3 officers involved in the case all testified that the way the cannabis was
packaged was consistent with packaging marijuana for sale, one of the officers also stated, on cross examination,
that packaging for sale could also be the same as packaging for purchase. None of the officers testified that the
amount involved was inconsistent with personal use. Although the 3d DCA case, Bruce v. State, 616 So.2d 504,
(where 13 individually wrapped pieces of crack cocaine and the expert testimony of an experienced narcotics officer
were found sufficient to support the intent to sell) was argued by the State in this case, it was rejected by the 2d
DCA and the defendant’s conviction was reversed. This issue of sufficient proof of intent to sell narcotics based on
quantity and packaging has not yet been resolved by the Florida Supreme Court.
*All opinions of the Third District Court of Appeal (3d DCA) and the Supreme Court are binding in our
Circuit. All other DCA opinions are binding in this District only if there are no contrary opinions in the 3d
DCA.
Current and back issues of the Rap Sheet are posted on the State Attorney’s Office web site:
http://www.MiamiSAO.com
Subscribe online by sending an e-mail to: RapSheet @MiamiSAO.com
Page 4
The Rap Sheet
September, 2007
All PPCC Sub-Committees, Chairs and members are listed below. Please contact any of the Co-Chairs or members if you have an issue to be addressed.
CASE INTAKE SUBCOMMITTEE
CO-CHAIRS:
Marie Jo Toussaint, ASA, SAO (305) 547-0255;
e-mail: Marie Jo [email protected]
Bart Armstrong, Police Legal Advisor
Miami-Dade P.D. (305) 471-2550
e-mail: [email protected]
Committee Members:
Sandy Roberts, SAO
Sgt. Ray Santiago, UMPS
Det. Paul Manzella, SIBPD
Lt. Efren Lopez, M-DPD
COMMUNICATIONS SUBCOMMITTEE
CO-CHAIRS:
Major L. Buck, M-DPD (305) 375-5555;
e-mail: [email protected]
Deisy Rodriguez, ASA, SAO (305) 324-2999
[email protected]
Committee Members:
Lt. Steve Rossbach, MPD
Major Michael Mills, SMPD
Sandy Roberts, SAO
Major Kathy Katerman, NMBPD
Manny Segarra, ASA, SAO
Oliver Spicer, Jr., M-DPD
Gloria Paskiewicz, MBPD
Ray Araujo, ASA, SAO, County Court
CRIMES AGAINST LEOs SUBCOMMITTEE
CO-CHAIRS:
José Arrojo, ASA, SAO (305) 547-0309;
e-mail: [email protected]
Chief Steven Steinberg, Aventura PD (305) 466-8996;
e-mail: [email protected]
David Waksman, ASA, SAO (305) 547-0445;
e-mail: [email protected]
Capt. Mike Hernandez, M-DPD, (305) 375-5086
[email protected]
Fran Miller, Inv., SAO, (305) 547-0669
e-mail: [email protected]
Committee Members:
Lt. Ralph Gracia, Hialeah PD
Abbe Rifkin, ASA, SAO
Lt. David Evans, M-DPD, Airport
Lt. Willie Hill, Pinecrest PD
Det. Robert Garland, M-DPD
Ofcr. Roger Ruano, Corrections
Lt. Efren Lopez, M-DPD, City of Doral
Det. Norma Dieppa, CGPD
Susan Leah Dechovitz, ASA, SAO
Ofcr. Nelson Delgado, VGPD
Audrey Frank-Aponte, ASA, SAO
Lt. Marshall Gilreath, M-DPD
Lt. William Riley, MBPD
Sgt. Danny Formosa, Coral Gables PD
Sgt. Carlos Arguelles, M-DPD, City of Doral
Captain Luis Bazo, M-DPD, Police Administrative Bureau
JUVENILE SUBCOMMITTEE
CO-CHAIRS:
Leon Botkin, ASA (305) 637-1300
e-mail: [email protected]
Olanike Adebayo, M-DPD, Legal Unit
e-mail: [email protected]
Committee Members:
Capt. Ian Moffett, M-DSBPD
Lt. Walter Campbell, MBPD
Ellen Skidmore, SAO
Lt. Howard Ostlund, M-DPD, JAC
PAWNSHOP SUBCOMMITTEE
CO-CHAIRS:
Colleen Kay, ASA, SAO (305) 547-0350;
e-mail: [email protected]
Committee Members:
Det. Melissa Dejong, CGPD
Pat Kiel
DOMESTIC CRIMES SUBCOMMITTEE
CO-CHAIRS:
Leah Klein, ASA, SAO (305) 547-0132;
e-mail [email protected]
Major Michael A. Herrera, M-DPD (305) 305-418-7200
e-mail [email protected]
Committee Members:
Carrie Soubal, SAO
Sarah Poux, MBPD
Sgt. Jed Burger, MPD/CID/Violent Crimes/Domestic Violence Unit
RAP SHEET SUBCOMMITTEE
CO-CHAIRS:
Kristi Bettendorf, ASA, SAO (305) 547-0220
e-mail: [email protected]
Committee Members:
Sandy Roberts, SAO
Betty Tarre, SAO
Ed Griffith, SAO
ROLL CALL/RIDE-ALONG SUBCOMMITTEE
CO-CHAIRS:
Committee Members:
Lt. Richard Pichardo, M-DPD, Cutler Ridge
Shana Belyeu, ASA, SAO
Audrey Frank-Aponte, ASA, SAO
Brenda Mezick, ASA, SAO
TRAINING SUBCOMMITTEE
CO-CHAIRS:
Capt. Miguel Hernandez, M-DPD, Court Services (305) 375-5086;
e-mail: [email protected]
Susan Dechovitz, ASA, SAO; 547-0309
e-mail: [email protected]
Tom Headley, ASA, SAO; 547- 547-0186
e-mail: [email protected]
Sgt. Barry Mankes, M-DPD, Intracoastal District (305) 940-9980
Committee Members:
Capt. Ian Moffett, M-DSBPD
Det. David Adlet, EPPD
Lt. Van Toth, Hialeah Gardens PD
Oliver Spicer, Jr., M-DPD
Sgt. Lynnise Jones-Curry, M-DPD
Ofcr. Chad Rosen, Surfside PD
Capt. Luis Bazo, M-DPD
Shana Belyeu, ASA, SAO
David Waksman, ASA, SAO
OPERATIONS SUBCOMMITTEE
CO-CHAIRS:
Major Carmen Pichardo, M-DPD, Property and Evidence Bureau,
(305) 471-2900, [email protected]
Major Kathy Katerman, NMBPD, (305) 948-2929,
[email protected]
Dreama Oliver, SAO, Administrator, Felony Operations,
(305) 547-0307, [email protected]
Committee Members:
Lt. Albert Vila, MPD
Bill Altfield, ASA, SAO
Sgt. Gladys Amato, MPD
Jay Pollen, MPD
Liaison Subcommittee
CO-CHAIRS:
Kathleen Hoague, SAO, (305) 547-0522;
e-mail: [email protected]
Maria Diaz, SAO, (305) 547-0331;
e-mail: [email protected]
Sgt. Betty Jewett, M-DPD, (305) 548-5775
[email protected]