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Office of the State AttorneyEighth Judicial CircuitL AW E N FO R C E M E N TNEWSLETTERMay 2015A MESSAGEFROMB I L L C E R V O N E S TAT E A T T O R N E YAs we come to the end ofthe Spring, the legislature isalso busily wrapping up thisyear's session. It's beensaid that no one is safe untilthey formally recess, andthat is certainly true thisyear.At this point, we have defeated multiple bills thatwere moving forward thatwould impact law enforcement. Among the most interesting are attempts togreatly re-vamp juvenileprocesses and records expungements.In terms of juvenile procedure, two areas were beingconsidered.First, effortswere being made to curtailthe State's ability to directlyfile an adult information.Those would include requirements that all transfers toadult court be approved bythe court beforehand, whichwould return us to the waythings were in the 70s and80s. This would be regardless of the juvenile's record orthe nature of his crime, andwould in my view open a Pandora's Box of unintendedconsequences, not to mention requiring un-necessarylengthy court proceedings.Second, proposals were circulating in both houses of thelegislature to greatly expandthe citation process for juveniles as an alternative to ajuvenile formally beingcharged. One of these proposals, which has fortunatelybeen withdrawn already, wentso far as to establish a quotasystem requiring that a certainpercentage of cases from eachagency proceed by citation asopposed to formal charging.Again, this would have beenregardless of the nature of thecrime or the background of thejuvenile.A second area that was headed towards major revisionsdeals with records sealing andexpungement. To summarize,efforts are being made to expand that process so that itwould be virtually automatic,sometimes for even repeatoffenders and regardless ofthe outcome of the case. Obviously, the expungement ofcriminal history informationwould severely impact the ability of those of us who are making judgements about how todeal with defendants and cases to know who we are reallydealing with. While the goal ofhelping people maintain employability and eligibility forvarious educational and otherprograms is good, there couldagain be unintended consequences to law enforcement.At this writing it appears thatthese efforts have all failed topass, at least for this year,although nothing will be finalon these or other matters forseveral more weeks. They willno doubt be re-introduced nextyear if they do not pass thisyear. As alContinued Page 2INSIDE THIS ISSUE:MESSAGE FROM BILL CERVONE1CONGRATULATIONS2SAO STAFF CHANGES3LAW ENFORCEMENT MEMORIAL3DATESIN MEMORIAM3SA TWITTER6DUI CHECKPOINTSUS SUPREME COURT LIMITSVEHICLE DRUG SEARCHES5 RULINGS FOR WINNINGCOURTROOM TESTIMONY4-678-9
Page 2L a w E n f o r c em e n tContinued: MESSAGE FROM STATE ATTORNEYBILL CERVONEWe’re on the web:Www.sao8.orgways the Fall issue of the Legal Bulletinwill highlight what has actually passed.Until then, all of us should monitor andweigh in on these proposals through ourvarious associations. The law enforcement community works most effectivelyin Tallahassee when we speak with a singlevoice, and I would encourage those of you whoare active in your statewide associations tourge that kind of co-operation, which over thelast few years seems to have diminished.C O N G R AT U L AT I O N S T O . . .REMINDER:LAWENFORCEMENTNEWSLETTER NOW ON-LINEThe Law EnforcementNewsletter is now availableon-line, including old issuesbeginning with calendar year2000. To access the LawEnforcement Newsletter go tothe SAO website at www.sao8.org and click onthe “Law EnforcementNewsletter” box.ASA Jamie Whiteway, who passed theFlorida Bar exam and was sworn as a Barmember in April. Jamie was also recognized by the University of Florida LawSchool as the graduate in her class whohad performed the highest number of probono hours, a recognition that last yearwent to ASA Kate Artman.Gilchrist County Sheriff Bobby Schultz,who was honored as Man of the Year bythe Gilchrist County Chamber of Commerce in February.Gilchrist County Sheriff's Office deputieswho were recognized at the Department'sannual awards dinner in February, including Michelle Jones, Investigator of theYear and recipient of the Capt. TonyCruse Community Award, Amanda Colsonand James Kitlen, Deputies of the Year,Nichole Certain, Correctional Officer ofthe Year, Kerry Koehler, CommunicationsOfficer of the Year, and Jeannie Roberts,Civilian Employee of the Year. Also recognized by GCSO with its One Team, OneMission award was Assistant State Attorney Robert WillisSeveral Gainesville Police Departmentofficers who retired in January and February, including Lt. Will Halvosa after 30years of service, Ed Posey, Joe Mayo, BretStarr, Richard Roberts and Frances Belyew.Also from GPD promotions announced inFebruary include Jorge Campos, AnthonyFerrara and Brian Helmerson to the rankof Captain, and Jamie Kurnick, Paris Owens, Joe Raulerson and Tscharna Senn tothe rank of Lieutenant.The Newberry High School Academy of CriminalJustice program and director Patrick Treese,which recently participated in a statewide conference and competition and placed third in thestate. Academy students placed in the top fivein multiple events, including first place finishesin Prepared Speaking and Advanced Firearmswith one student earning Top Gun recognitionwith a perfect 300 out of 300 on the advancedcourse of fire. The Academy also held its annualawards ceremony on April 30th. Among thoserecognized were Paige Reece as OutstandingCriminal Justice Student, Brandon Gunter aswinner of the Christa Hoyt Memorial Award andformer ASA Angie Chesser as Outstanding Advisory Board Member. Victoria Stone and P.J.Darling also were each awarded criminal justicescholarships funded in part by the local law enforcement community to further their educationat the college level.The Williston Police Department held its annualawards banquet in conjunction with the WillistonFire Department on March 13th. Among department recognitions were Sharon Brannon, recipient of the David W. Moss Humanitarian Award,Colleen Stevens, Dispatcher of the Year, DaveDrennan, Reserve Officer of the Year, BrookeWillis, Civilian of the Year, and Dave Johnson,Officer of the Year.SAO Deputy Chief Investigator Darry Lloyd, whowas named the Phil Beta sigma Florida Man ofthe Year.
L a w E n f o r c em e n tPage 3Law Enforcement Memorial DatesLaw Enforcement memorials will be held in severallocations in the circuit on Thursday, May 7th. Yourattendance and participation is always encouragedand appreciated.The combined Bradford-Union Countymemorial will be at the Lakefront Centerin Lake Butler at 6pm.The Alachua County Law Enforcement Memorialwill be at 6:30pm at the Veterans Memorial Park inGainesville.Baker County's memorial will be at the Sheriff'sOffice at 7pm.SAO Staff ChangesEffective May 1st, ASA Jamie Whiteway was reassigned to the Levy County office, where she willhandle County Court cases. ASA David Byron,who has been covering that caseload while Jamie waited for her Bar exam results, will return tothe Alachua County Court division on May 1st aswell.IN MEMORIAMAny changes in agency emailaddresses should be reportedto our office atclendeninp@sao8.org.For a copy of the complete textof any of the cases mentionedin this or an earlier issue of theLegal Bulletin, please call ChiefInvestigator Paul Clendenin atthe SAO at 352-374-3670.Former ASA and long time private practitioner Gloria Fletcher passed away on February 26th. Afterher years as a prosecutor Gloria dedicated much ofher private practice to the representation of lawenforcement officersRetired GPD officer and Waldo Police Chief A. W.Smith died on April 17th. At the time of his deathA.W. continued to work security at the Gainesvillefederal courthouse.Both will be deeply missed by our law enforcementcommunity.
Page 4L a w E n f o r c em e n tDUI CHECKPOINTSContributed by ASA Josh Wright and Jon RamseyOn this past New Year’s Eve, the Levyically, a driver must sign citations thatFurthermore, law enforcement is notCounty Sheriff’s Office conducted arequire mandatory hearing or citationsgoing to be able to fully determineDUI checkpoint. During this check-that involve other criminal traffic viola-whether a license is altered withoutpoint, a man drove up to the check-tions listed under Section 316 of theactually being able to hold and touchpoint with his valid driver’s license,Florida Statutes. If the citation is notthe license. Therefore, the claim thatregistration, and insurance card hang-for one of those violations, then lawa driver is not required to hand aning in a Ziploc bag from his closedenforcement must certify the citationofficer their license is not accurate.driver’s window. The Defendant didwas delivered to the individual. There-Finally, the last issue is whether athis in an effort to not roll down hisfore, the statement on the card, “I amdriver is required to roll down hiswindow. Further, he displayed a signnot required to sign - §318.14(2)” iswindow. This issue is obviously thestating the following:not completely accurate.The deter-most important when it comes to DUImining factor will be what violation thecheckpoints. The law on this particu-driver is being cited for. Should a driv-lar issue is not direct and does noter refuse to sign a qualifying citationunequivocally state that an individualunder §318.14(2), the driver could bemust roll down their window at a DUIcharged with a misdemeanor of thecheckpoint.second degree. §318.14(3), Fla. Stat.balancing the overwhelming govern-(2014).ment and public interest in prevent-I remain silentNo searchesI want my lawyerPlease put any tickets under windshield wiper.I am not required to sign - §318.14(2)I am not required to hand you my license - §322.15Thus I am not opening my windows.I will comply with clearly stated orders.Nevertheless, whening DUIs with the minimal intrusionThe next claim of, “I am not required toon an individual’s Fourth Amend-hand you my license - §322.15” is alsoment rights, there is a strong argu-In light of this incident, it is importantnot entirely accurate. Section 322.15ment to be made for requiring anthat we address the relevant legalof the Florida Statutes requires a driverindividual to roll down their windowissues at hand in order to adequatelyto “present or submit” their licenseat a DUI checkpoint.inform law enforcement officers ofupon demand of a law enforcementwhat they are permitted to do underofficer. The purpose of this law is forthe law, how to deal with future situa-In Rinaldo v. State, the Fifth Districtlaw enforcement officers to inspect antions similar to the above, and what weCourt of Appeals addressed this is-individual’s driver’s license to ensure itthe future will entail.Within thissue sort of. 787 So. 2d 208 (Fla.is legible, not faded, altered, mutilated,memo, we will specifically address5th DCA 2001).or defaced. While the statute does noteach of the assertions that are dis-defendant approached a DUI check-define present or submit, the argumentplayed on the car referenced abovepoint and rolled past the police of-can be made that the colloquial under-and the legal accuracy of them.ficer signaling him to stop his vehi-standing of present and submit re-cle.First, the assertion that anquires and individual to give the lawfendant over. The officer, becauseindividual is not required to sign a cita-enforcement officer their license forthe vehicle’s windows were tintedtion is not entirely true. Pursuant toinspection. “submit.” Merriam-and the officer could only see the topSection 318.14(2) of the Florida Stat-Webster Online Dictionary. 2015.of the defendant’s head, asked theutes, an individual is required to signhttp://www.merriam-webster.com/citations for certain infractions. Specif-dictionary/submit (17 February 2015).In that case, theAnother officer pulled the de-Continued Page 5
Page 5L a w E n f o r c em e n tContinued: DUI CHECKPOINTSdefendant to roll down his window orThe court in Rinaldo found the stop of theactivity, such as obstructing oropen his door. The defendant did nei-Defendant at the DUI checkpoint was notattempting to obstruct an officer,ther. The officer then opened the de-a consensual counter. In accordance withthe officer may lawfully order thefendant’s door for officer safety. Thethe United States Supreme Court’s previ-driver out of the vehicle.defendant immediately pulled the doorous decision, a seizure occurs when aThe court was careful not to drawshut, to which the officer, again, openedvehicle is stopped at a checkpoint. Michi-a bright line rule in allowing anthe door and positioned himself to keepgan Dep’t of State Police v. Sitz, 496 U.S.officer to ask an individual out ofthe door open. The officer then asked444, 450 (1990). The validity of the stoptheir car in every DUI checkpointthe defendant for his driver’s license,turns upon whether the officers carry outstop. The court acknowledged thatregistration, and proof of insurance.the checkpoint stop pursuant to “a planprevious cases do permit an of-During this encounter, the officer ob-embodying specific neutral criteria whichficer, as a matter of course, toserved indicators of impairment on thelimits the conduct of the individual offic-order a driver of a lawfully stoppeddefendant including an odor of alcoholers” rather than reasonable suspicion.car to exit his vehicle. Pennsylva-on the defendant’s breath, bloodshotState v. Jones, 483 So. 2d 433 (Fla.nia v. Mimms, 434 U.S. 106and watery eyes, flushed face, and1986).(1977). However, the court distin-slurred speech. Ultimately, the defend-Based on the court’s reasoning, an indi-guished Mimms from the facts ofant was arrested for DUI, carrying avidual stopped at a DUI checkpoint is notRinaldoconcealed firearm, resisting arrest with-free to ignore an officer’s request for doc-Mimms was based on a trafficout violence, and no proof of insurance.uments or to thwart the officer’s ability toviolation rather than a DUI check-The defendant moved to sup-observe him for signs of impairment.point.press the physical evidence and state-Nowhere in the Rinaldo case does it di-ments observed at the DUI checkpointrectly say an officer can require an individ-claiming, among other things, that theual to roll down their window. However, aofficers obtained the evidence pursuantstrong argument can be made that anto an unlawful roadblock and an unlaw-individual not rolling down their windowful detention. Specifically, the defend-after being lawfully stopped a DUI check-ant argued that because a stop at a DUIpoint would be thwarting an officer’s abil-checkpoint is not founded on anyity to observe him for signs of impairment.founded suspicion, they are more akinThe court in Rinaldo further addressedto consensual encounters. The defend-es, the courts expressed that driv-what an officer can require from an indi-ant further argued that because theseing an automobile over public high-vidual after the officer develops reasona-stops are consensual encounters, anways is not an absolute right.ble suspicion from the actions of the sus-individual is free to ignore the officer’sJones, 483 So. 2d 433, 439. Inpect after he has been stopped at a DUIdirections and refuse to answer any ofordercheckpoint. The court found that when anhis questions.against impaired drivers, motoristsindividual’s conduct both before and dur-should reasonably accept the mi-ing a roadblock raises reasonable suspi-nor inconvenience which they maybecausethestop inIt is important to note that theFlorida courts in Rinaldo andJones both continuously focus onthe balance between a driver’sFourth Amendment rights and thelegitimate government interest inpreventing DUIs. Within both cas-tosafeguardcion that he was engaged in a criminalContinued Page 6Floridians
L a w E n f o r c em e n tPage 6Continued: DUI CHECKPOINTSendure at a properly run DUI road-sonable suspicion to require the indi-An officer should also be aware ofblock. Id.; Rinaldo at 212. Motoristsvidual to exit their vehicle.Inhow an individual is acting bothare not privileged to refuse an officer’sRinaldo, the court considered manybefore and during a DUI check-reasonable requests at a valid road-factors including the defendant driv-point. Until the Florida courts di-block and must accept the minor in-ing past the first officer without stop-rectly address whether a driver hasconvenience which they may endure.ping, the defendant’s refusal to rollto roll down his window at a DUIId.down his window or open his door,checkpoint, this issue will remainthe defendant’s hesitation in handingcontested and the subject of futureover his driving information, alongmotions to suppress.So what does this all mean? The shortanswer is that Florida case law is unsettled as to whether a driver has toroll down his window at a DUI checkpoint. An officer should recognize thatthe relevant Florida law does not directly say an individual must roll downtheir window at a DUI checkpoint.However, there is a strong argumentthat refusing to do so would not onlythwart an officer’s ability to observe anindividual for signs of impairment, butit would defeat the very purpose of awith the defendant’s “vocal” passenger. The court found that these factors, taken in their totality, wereenough for the officer to believe thatthe defendant was engaged in obstructive conduct. Ultimately, whether there are enough facts to amountto reasonable suspicion will dependon how well the officer can articulatewhat he observed and how thoseobservations are indicative of a crimeoccurring or having occurred.DUI checkpoint.An officer should also be cognizant ofIn sum, an officer should keep inthe fact that additional conduct by themind the purpose of a DUI check-individual can amount to enough rea-point and what they are looking for.The SAO Is NowOn TwitterThe SAO has established a Twitter feed to better disseminate information to the media and others such as law enforcement agencies. Like us at #8THCIRCUITSAO. For more information contactDeputy Chief Investigator Darry Lloyd at 352-374-3670.
L a w E n f o r c em e n tPage 7US Supreme Court LimitsVehicle Drug SearchesThe United States Supreme Court issuedan opinion on April 21st that limits theability of law enforcement to conduct adog sniff of a stopped vehicle. Fortunately, the opinion is closer to an affirmation of than a change to existing Florida law.In the case, which occurred in Nebraska,police stopped a car because they hadobserved it run off of the pavement ontothe shoulder of the road after midnightand then suddenly jerk back onto theroad. The driver said that he had veeredoff the road to avoid a pothole. Afterchecking the driver's license, registration and insurance information the officer decided to issue a warning. Thatprocess only took a few minutes andafter it was "out of the way" the officerasked permission to search the vehiclewith a drug sniffing dog. The driver refused and the officer told him he couldnot leave until the dog arrived. Aboutfive minutes later, a second officer arrived with the dog, which of course alerted to the presence of drugs. Acting onthat alert, officers found a bag of narcotics.In reversing the resulting conviction,which had been upheld at lower levels offederal court, the Supreme Court heldthat routine traffic stops may not bedelayed and turned into drug searcheswith trained detection dogs, specificallystating that "[Police may not prolongdetention of a car and driver beyond thetime reasonably required to address thetraffic violation." While a legitimate traffic stop justifies officers in checking themotorist and his license, the Court said,such a stop does not give officers authority to conduct an "unrelated" investigation involving drugs. "Authority for theseizure.ends when tasks tired to thetraffic infraction are - and reasonablyshould have been - completed."Under existing Florida law, law enforcement officers have already been precluded from any detention of a driver forlonger than required to deal with thecause of the stop. This has been so formany years. In 1992, for example, the2nd DCA held that it was impermissibleto detain a vehicle stopped because anofficer could not read the tag in thewindow for longer than necessary to doso. In 2003, the Florida SupremeCourt likewise stated that once anofficer has totally satisfied the purposefor which he has stopped a vehicle andabsent some other circumstance hehas no reasonable grounds or legalbasis for continued detention and maynot continue to detain the driver. Inthat case, the stop was to inspect atemporary tag on which the officercould not read the expiration date, andthe court precluded even the extratime to ask for a license.The bottom line is clear. When youmake a traffic stop you are limited towhatever time it takes to resolve thereason for the stop, whether that beissuance of a citation or somethingelse. Once that time is past, you musthave developed something else (thesmell of burnt cannabis for example)to do other than send the driver onhis way. Consent to remain for asearch, of course, would be anotheroption and if that is the situation itshould be carefully documented andexplained to the motorist to avoidlater problems.The full text of the opinion, Rodriguezvs United States, can be found on theSupreme Court website.
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at the college level. The Williston Police Department held its annual awards banquet in conjunction with the Williston Fire Department on March 13th. Among depart-ment recognitions were Sharon Brannon, recipi-ent of the David W. Moss Humanitarian Award, Colleen Stevens, Dispatcher of the Year, Dave Drennan, Reserve Officer of the Year, Brooke
