Proving Grand Theft Auto Cases

For the Law Enforcement Agencies of Miami-Dade County

Katherine Fernandez Rundle

Miami-Dade State Attorney

1 September 2007 IN THIS ISSUE:

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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.

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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.

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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]