the new

1 Legal Eagle February 2002 February 2002


In This Issue:

u DUI Blood
Collection
u Floridas Child
Deaths u Recent Case
Law
Legal Eagle Published by the Office of the State Attorney, 401 North Dixie Highway, West Palm Beach, FL 33401 Tel. (561) 355-7248 B. Krischer, Editor the new A Newsletter for the Criminal Justice Community The use of in-car cameras to record
video and audio has become fairly
popular with law enforcement of
late. The cost of the units are
dropping, and the emphasis on a
meaningful response to racial
profiling complaints, has resulted in
more agencies putting more cameras
in use. One agency has even wired
their motorcycle officers with remote
cameras and mikes to backup the
cycles equipment. All of which
raises the question, does the citizen
have to be advised he is being taped?
Video Recording
The issues surrounding video
recording are much simpler than
audio recording. Videotapes and
motion pictures are admissible on the
same basis as still photographs; they
are generally admissible when a
foundation has been laid that the
videotapes or motion pictures are a
fair and accurate representation of a
material fact or issue in the law
suit. (Ehr- hardt on Evidence).
In simplest terms a still photo is
introduced into evidence even
without the photographers presence
and testimony as long as a witness
who has seen the scene depicted in
the photograph testifies that the
photograph fairly and accurately depicts the events portrayed. That
is, based upon his or her personal
knowledge, the photograph fairly and
accurately portrayed the scene
depicted therein. The same rule
applies to videotape as well.
However, the courts have also gone a
step further by recognizing the
silent witness rule.
Silent Witness Rule
Under the silent witness theory,
photographic evidence may be
admitted upon proof of the reliability
of the process which produced the
photograph or videotape. In Wagner
v. State, 707 So.2d 827 (1DCA
1998), the court reviewed a number
of out of state decisions favorably as
to the procedure to be followed for
authenticating the tape under the
silent witness theory.
All the cases set out basically the
following process: ... a film from a
surveillance camera, depicting the
robbery of a store, was properly
authenticated where the state
introduced testimony describing the
installation and view of the camera,
operation of the camera, testing of
the camera, removal of the film, and
the chain of custody of the film after
removal. (Continued on page 2) In-Car Video Recording Visit us at our new web site: www.sa15.state.fl.us 2 Legal Eagle February 2002 And again, ...a videotape depicting
the defendant stealing groceries from
the back of a store was properly
authenticated where the store
manager testified that he had
previously positioned the camera to
view the back door of the store,
loaded and started the camera,
checked to see that it was working
properly, changed the tape two hours
later, and had continuous custody of
the tape. The manager also testified
that the tape had not been tampered
with and that there were no gaps in
the tape. Further, once the camera
had been activated, the controls
could not be approached without
recording a picture of that approach.
Obviously in most situations the
arresting officer is also the camera
operator, albeit by remote control.
He will be available to authenticate
the videotape as pictorial evidence.
However, even in those situations
where the officer is distracted by
other events, or injured and not able
to testify to the events depicted on
the videotape, the tape would still
admissible. To quote the court in
Wagner, at page 831:
We thus hold that relevant
photographic evidence may be
admitted into evidence on the silent
witness theory when the trial judge
determines it to be reliable, after
having considered the following: (1)
evidence establishing the time and
date of the photographic evidence;
(2) any evidence of editing or
tampering; (3) the operating
condition and capability of the
equipment producing the
photographic evidence as it relates to Florida law. Florida statute makes it
illegal to intentionally intercept,
attempt to intercept or have someone
else intercept on your behalf any
wire, electronic or oral
communication through the use of
any device. Interception is not illegal
if one has the prior consent of all
parties, unless it is done for the
purpose of committing a criminal
act. This is the general rule.
Florida law does, however, provide
for law enforcement to intercept
oral communications without a
warrant, when it is part of a criminal
investigation.
It is lawful under ss. 934.03-934.09
for an investigative or law
enforcement officer...to intercept a
wire, oral, or electronic
communication when such person is
a party to the communication, or one
of the parties to the communication
has given prior consent to such
interception, and the purpose of such
interception is to obtain evidence of
a criminal act.
The term oral communication is
defined by Florida statute as, any
oral communication uttered by a
person exhibiting an expectation that
such communication is not subject to
interception under circumstances
justifying such expectation and does
not mean any public oral
communication uttered at a public
meeting or any electronic
communication.

Providing Notice
What does all this mean when
utilizing an in -car video camera that (Continued on page 3) the accuracy and reliability of the
photographic product; (4) the
procedure employed as it relates to
the preparation, testing, operation,
and security of the equipment used to
produce the photographic product,
including the security of the product
itself; and (5) testimony identifying
the relevant participants depicted in
the photographic evidence.
Expectation of Privacy
A related issue pertains to the
videotaping itself. As a general
proposition a motorist/defendant has
no expectation of privacy while on a
public street or thoroughfare that his
image and actions will not be
recorded. The videotape is
admissible in evidence if the content
of the tape is relevant to the issues at
trial, and as discussed above, the tape
can be
authenticated.
Audio Intercept
Tape and other sound recordings are admissible if they are authenticated
and are not excluded by any other
rules of evidence. Evidence offered
in the form of a tape recording is not
inadmissible solely because of its
form. (Ehrhardt on
Evidence).
Sound recordings may also be
inadmissible if they are violative of 3 Legal Eagle February 2002 also records conversation? In
simplest terms, as long as the
recording is made pursuant to a
lawful police criminal investigation,
the tape is admissible in evidence (if
authenticated as set forth above).
Since not all police-citizen contacts
involve a criminal investigation it is
important to control the microphone
and its use. In those instances where
the police-citizen encounter involves
the investigation of a non-criminal
traffic infraction it would be illegal
to record that conversation. At the
point the investigation turns criminal,
i.e. reckless driving, DUI, etc., then
audio taping would be permissible.
Clearly the citizens expectation of
privacy that his conversation is not
being recorded is the lynch-pin of the
statute. Thus, if the officer were to
provide the citizen with notice of the
interception the statute would be
satisfied.
The Police Law Institute, Inc.
recommends, During all officer/
citizen encounters where interception
of the conversation is desired,
prompt notification should be made
that the conversations will be
recorded. In all traffic stops, the
driver and occupants should be
notified that the conversation is
being taped for their safety.
The Institute goes on to
recommend, Whenever an
interception is made, the report
should describe: the purpose of the
interception; the consent given by the
officer to the interception in his/her
words; and if there was no purpose to
obtain evidence of a criminal act, the
circumstances that justified an (Continued from page 6) from his conviction for sexual
battery on a person less than 12.
While serving the probation,
Conforti encountered an undercover
police officer at a park and, with the
officers consent, sat in his car and
masturbated for about 25 seconds
while the officer stood outside and
watched. The officer arrested
Conforti and charged him with an
unnatural and lascivious act with
another person. Conforti contended
that someone other than the officer
must be offended in order for a
violation of the statute to occur. The
trial court ruled that the law does not
require that the act be offensive to
another person, although it
nevertheless found that the officer
had been offended.
Reversing, the 4th DCA said, The
plain wording of the statute requires
that the alleged lewd and lascivious
act be committed with another
person. It cannot be said that
appellants masturbation was
committed by a person with another
person. Certainly, the public
exhibition statute..., if charged,
would have been applicable to
appellants behavior under these
circumstances. Conforti v. State, 11/28/01




expectation by the other party to the
conversation that the conversation
would be intercepted.@
Conclusion
A number of Police Departments
have an SOP to the effect that the in-
car video recording system is to be
engaged during all investigative stops and police action involving
citizen contact. These policies also
provide, The officer will inform the
citizen/suspect that they are being
video taped and audio recorded.
Officers will advise individuals that
they are being recorded during the
initial contact. Officers will note in
the offense report when video/audio
recordings were made during an
incident.
Other Resources
In addition to The Police Law
Institute, Inc. as a resource, also
peruse the articles found at:
www.rtnda.org/resources/
hiddencamera/contents.html
4 Legal Eagle February 2002 F.Y.I. Blood testing rules were held to be
insufficient, by the Florida Supreme Court
in 2000. State v. Miles, 775 So.2d 950
(Fla. 2000). As such, the State was
required to establish the traditional
predicate prior to being able to use b lood
tests in court. The traditional predicate is
not complicated, but because of the need to
have experts testify, it can be quite
destructive to an already fragile budget.
As such, immediately after Miles, FDLE
sought out experts to rewrite the blood
rules to comply with the Supreme Courts
mandate. For the most part, the new FDLE
blood rules codify the procedures that have
been used for many years; however, there
are some new points to remember.
As before, when collecting blood
specimens, the skin must be cleansed with
a non-alcoholic antiseptic. The most
common one used is Betadine. Gray top
tubes continue to be the primary choice for
collection, as they contain both an
anticoagulant and p reservative.
Additionally, they provide a complete seal,
when properly used. Established in the
new rules are time limits for when
refrigeration of the blood is required; when
and how it must be submitted to the lab;
and, the time frame within which the lab
must analyze the blood. If received by the
lab for analysis within 7 days of
withdrawal, no refrigeration is needed.
However, it must be refrigerated, except
during transportation, if it will not arrive in
the lab within the first seven days.
Additionally, it must be submitted to the
lab for analysis within 30 days of
withdrawal. And, the lab must analyze it
within 60 days. Following the new procedures will ensure the scientific reliability of your evidence; and,
reduce the costs associated with prosection since additional experts will
not be required.
Editors Note: This case note was written by Assistant State Attorney
Ira Karmelin. 5 Legal Eagle February 2002 Recent Case Law O NCE AN OFFICER WHO STOPS A VEHICLE for an expired tag determines that the tag is proper, no
further stop or inquiry is justified, the
2nd DCA said.
Johnny Diaz challenged his
conviction for felony driving with a
suspended license, arguing that the
trial court should have suppressed
identification he gave to police
during a stop. An officer stopped the
vehicle Diaz was driving because he
could not read the temporary tag on
the top of the cars rear window. As
he approached the car, the officer
was able to clearly read the tag
information and found nothing
improper. Nevertheless, the officer
asked Diaz for identification, which
ultimately led to the determination
that Diaz license was suspended.
The DCA concluded that once the
officer was able to determine that
Diaz tag had not expired, the
justification for the stop ended and
Diaz should have been free to leave. Editors Note: Had the officer requested
to see the drivers license, registration
and proof of insurance prior to
investigating the legitimacy of the
temporary tag, there might have been a
different result. Diaz v. State, 11/14/01
F OR PURPOSES OF ENTRAPMENT , IT IS fundamentally unfair for law
enforcement to exploit a vulnerable
innocent persons weakness to
pursue a prosecution, the 4DCA said.
Susan Dial appealed her conviction
for selling hydrocodone, arguing she was entrapped into selling her pain
medication by her job supervisor, an
informant who was trying to win a
reduction in her own criminal
sentence. The informant, who knew
Dial suffered from chronic pain and
needed additional income, told Dial a
friend needed some additional pain
medication due to an illness. Dial,
who had no prior criminal record or
activity, offered to give the friend
some of her medication. However,
the supervisor insisted that her friend
could pay and proceeded to set the
drug price and arrange the
transaction with an undercover
officer. Dial was pressured into
subsequent drug sales, and the
undercover officer never advised or
supervised the informant on how to
avoid entrapping Dial.
Reversing Dials drug conviction,
the DCA said, The informants
conduct in this case, targeting an
innocent person under her
supervision and exploiting her
weaknesses without any effort from
law enforcement to avoid entrapment
or monitor the informants activities,
offends due process under Floridas
constitution and constitutes
entrapment as a
matter of law. Dial v. State, 11/14/01
A TRIAL JUDGE PROPERLY ALLOWED evidence from a photo lineup and did
not err by admitting into evidence
photographs labeled with the words mug shots, the 4th DCA said.
Richard Lock was convicted of
carjacking, robbery and aggravated
battery, all with a deadly weapon.
The victim picked Lock out of a
photo array and then made what the
DCA termed a 100 percent in-
court identification. Lock asserted
that the trial court committed
reversible error when it admitted
photographic evidence labeled with
the words mug shot and said the
photo array was tainted by the fact
that the individuals names were
printed on the photos. A detective
testified that the names were
concealed and that at no time was the
victim told the suspects name. The
DCA affirmed Locks conviction,
noting that the victims identification
was unequivocal and other
evidence linked Lock to the
carjacked vehicle. Lock v. State, 11/14/01
A TRIAL COURT DOES NOT HAVE THE authority to dismiss criminal charges
based on an adversarial preliminary
hearing to determine probable cause,
the 4th DCA said.
The State appealed a trial judges
decision, following a preliminary
probable cause hearing, to dismiss
felony battery charge against John
Conley. The night of the incident the
victim told an officer before she lost
consciousness that Conley had
beaten her and thrown her out of a (Continued on page 6) 6 Legal Eagle February 2002 (Continued from page 5) moving vehicle, but weeks later she
said in an affidavit that Conley had
acted in self-defense because she was
intoxicated and had been the
aggressor. At the hearing, the court
asked to hear from the victim, who
said she had never wanted to press
charges and had consented to the
battery. The judge then dismissed the
case, concluding that because the
victim consented to the action, there
was no probable cause. The DCA
reversed the dismissal.
Appellant did not move to dismiss,
orally or in writing. The hearing was
an adversarial preliminary hearing to
determine probable cause. Therefore,
the trial court did not have authority
to dismiss the charges against
appellee. the DCA said.
More imprtantly, in a concurring
separate opinion, Judge Warner
wrote, Even if this were not a
domestic violence matter, civilized
society cannot permit individuals to
consent to the type of injury
inflicted in this case. While the
victim recanted her statement to the
police regarding her injuries, a
common occurrence in domestic
violence situations, those issues are
for the trier of fact to sort through in
light of all of the evidence in the
case. State v. Conley, 11/14/01
A N OFFICER CONDUCTING A CONSENSUAL pat-down search must first pat down the suspects outer
clothing to check for a weapon and
can search beneath the outer clothing
only if he detects a possible weapon, the 2nd DCA said.
A juvenile identified only as M.A.
W. challenged the trial courts
refusal to suppress marijuana and
rolling papers found when officers
conducted a pat-down search. After
obtaining M.A.W.s consent for the
search, an officer lifted the youths
shirt and saw a plastic bag of
marijuana and rolling papers. The
DCA ordered that M.A.W. be
discharged because the officer
improperly reached beneath the
suspects outer clothing before
conducting an outer clothing pat-
down for weapons.
The officer exceeded the scope of
M.A.W.s consent to search when he
lifted M.A.W.s shirt and retrieved
the baggy and rolling papers from M.
A.W.s pocket. Before lifting a
suspects shirt pursuant to a weapons
pat-down, an officer must first
conduct a pat-down of the suspects
outer clothing to detect the presence
of a concealed weapon. If that outer
clothing pat-down indicates the
possible presence of a weapon, the
officer is then authorized to search
beneath the outer clothing. M.A.W. v. State, 11/21/01
A POLICE OFFICER WHO OBSERVES A vehicle operated in an unusual
manner may have sufficient
justification for a stop even though
no violation of traffic regulations
took place and no citation was
issued, the 4th DCA held.
Frederick Finizio challenged the
denial of his motion to suppress,
arguing that a Palm Beach County
sheriffs deputy lacked reasonable suspicion to justify the investigatory
stop that resulted in DUI and drug
possession charges.
While on DUI patrol, Deputy
Alfred Araujo saw Finizios truck
driving erratically. The deputy
stopped Finizio and, after smelling
alcohol, conducted a DUI
investigation that also turned up
cocaine. The deputy arrested Finizio,
but did not issue a traffic citation.
The DCA said that under the totality
of the circums tances, the deputys
actions were justified.
We are not persuaded by
appellants argument that before
Araujo could possess a reasonable
suspicion to stop him, he had to
observe his driving for an extended
period of time or distance. In this
case, Araujo observed him operate
his truck in an unusual manner by
hitting the curb with the front and
back tires, speeding up and then
abruptly stopping in quick
succession. Under the circumstances,
we conclude that an extended
observation was neither possible nor
necessary, the DCA said. Finizio v. State, 11/28/01
T HE LAW AGAINST LEWD AND LASCIVIOUS acts committed with another person does not apply
where a defendants solitary act of
masturbation occurred in a parked
car wh ile an undercover police
officer looked on from outside, the
4th DCA said. Case Law Ronald Conforti challenged a
probation revocation that stemmed (Continued on page 3) 7 Legal Eagle February 2002 In 1999, the Florida Legislature mandated
that the Department of Health establish a
statewide multidisciplinary, multi-agency
child abuse death (review) system,
consisting of state and local review teams,
to conduct reviews of the facts and
circumstances surrounding child abuse and
neglect deaths in which the Department of
Children and Families, Florida Abuse
Hotline accepted at least one prior report of
abuse or neglect. Chapter 383.402 (1)
Florida Statute, identifies the purpose of
these child abuse death reviews as follows:
The purpose of the reviews shall be to:
Achieve a greater understanding of the
causes and contributing factors of deaths
resulting from child abuse or neglect.
Whenever possible, develop a
community-based approach to address
child abuse deaths and contributing factors.
Identify any gaps, deficiencies or
problems in the delivery of services to
children and their families by public and
private agencies which may be related to
deaths that are the result of child abuse.
Make and implement recommendations
for changes in law, rules, and policies, as
well as develop practice standards that
support the safe and healthy development
of children and reduce preventable child
abuse deaths.
The second annual report includes
information from the review of the 30
children who died in 2000. Additionally, it
highlights major issues and trends for the
60 deaths reviewed over the two-year
period since the inception of the Florida -1 year 1 - 2 3 - 5 6 - 8 9 - 12 13 - 15 16 - 17 Age at Death 32% 12% 28% 3% 5% 7% 13% Florida Child Abuse Death Review Gunshot 12% Vehicle 10% Shaken Baby 6% Fire 6% Suffocation 5% Other 12% Trauma 27% Drowning 22% Child Deaths State Child Abuse Death Review Team. There are clear patterns
and trends noted for the state that are consistent with national
data; however, because of the limited population there are
variations, which are reflected in this report. (Continued on page 8) 8 Legal Eagle February 2002 (Continued from page 7) Findings
Abuse and neglect were equally
distributed across the deaths included
in this report. The majority of the
abuse deaths involved direct attacks
resulting in physical trauma. Of the
20 trauma related deaths, eight of the
children died from head trauma,
three from abdominal trauma, five
from multiple traumas and four from
trauma resulting from shaken infant
impact.
Drowning, the leading cause of
neglect deaths, was the second
leading cause of all the child abuse
deaths reviewed.
Seven (12%) of the children died
from a fatal gunshot wound. Six
children were intentionally shot by
an adult.
Males represented 63% of the
deaths and females represented 37%.
Sixty-five percent of the children
were white and 35% percent were
black. For those deaths that
identified specific ethnicity, a total of
18% were identified as Hispanic.
These deaths were preventable
Fifty-three (88%) of the 60 children
had three or more risk factors present
at the time of death. Major risk
factors for these children and the
percent of deaths in which these
factors were present included:
One or more children in the
household were age four or younger
(75% of deaths)
A pattern of escalation or frequency
of incidents of abuse or
neglect (45% of deaths).
Parent or caregiver unable to meet
children's immediate needs (45% of educational activities through the
media and through training for staff
and clients. 3. The Department of
Children and Families should
develop operating procedures with
strict guidelines for determining
when petitions must be filed in lieu
of voluntary services. These
operating procedures should specify
that voluntary cases require the same
evidence collection and
documentation as court cases, and
establish mandatory time frames for
case follow-up on all voluntary cases
to ensure that more stringent action
can be taken if necessary.
4. The Florida Department of Law
Enforcement should provide training
to local law enforcement agencies to
ensure they recognize the crossover
between domestic violence and child
abuse, and the requirements for
reporting domestic violence to the
child abuse hotline when threatened
harm to a child is suspected. Training
on the relationship between domestic
violence and child abuse and neglect
should be provided statewide to all
child protective staff and domestic
violence service providers.
Editors Note: This information is from
the Second Annual Report issued
December 2001. The Report is currently
in draft form. deaths).
Children in the home had limited
community visibility (40% of
deaths).
Parent or caregivers age, mental
health, alcohol or substance abuse
affected their ability to adequately
care for child (37% of deaths).
Parent or caregiver's criminal
history presented a potential threat of
harm to the child (30% of deaths).
Living conditions were physically
hazardous to the health of the child
(25% of deaths).
Parent or caregiver were unable or
unwilling to protect the child from
abusive caregivers/paramours (20%
of deaths).
Recommendations
After a careful analysis of the data,
the State team offered the following
recommendations to address issues
identified during the review of the
deaths of children:
1. The State Child Abuse Death
Review Team should clarify the
concept of preventability as it relates
to child abuse deaths, and provide
training and technical assistance to
local teams so that determinations
made by the local review teams will
be accurate and consistentacross the
state.
2. The State Child Abuse Death
Review Team should evaluate the
state requirements related to pools
and pool safety and make
recommendations for additional
safety requirements as indicated. The
state team, in conjunction with the
Department of Health and the
Department of Children and Families
should provide drowning prevention

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