1 1 IN THE COUNTY COURT FOR PINELLAS COUNTY, FLORIDA 2 CASE NO. 01-00101 MMANO-E 3 4 STATE OF FLORIDA 5 vs. 6 7 JESSE PRINCE 8 Defendant. 9 ______________________________________/ 10 PROCEEDINGS: MOTION TO SUPPRESS, MOTION TO DISMISS 11 BEFORE: Honorable Michael F. Andrews 12 DATE: May 22, 2001. 13 PLACE: Courtroom 15, Division E. Pinellas Criminal Justice Center 14 14250 49th Street North Clearwater, Florida 34762 15 REPORTED BY: Robert William Wagner 16 Notary Public, State of Florida at large. 17 APPEARANCES: 18 MS. LYDIA WARDELL Assistant State Attorney 19 14250 49th Street North Clearwater, Florida 34762 20 Attorney for the State 21 MR. DENIS DEVLAMING, Esquire 1101 Turner Street 22 Clearwater, Florida 34616 Attorney for the Defendant 23 24 KANABAY COURT REPORTERS TAMPA AIRPORT MARRIOTT HOTEL (813) 224-9500 25 ST. PETERSBURG - CLEARWATER (727) 821-3320 KANABAY COURT REPORTERS 2 1 PROCEEDINGS 2 THE COURT: All right, Mr. DeVlaming. You're 3 all spread out over there. 4 MR. DEVLAMING: Yes, sir. 5 THE COURT: Which one shall I address first? 6 MR. DEVLAMING: Judge, if I could make a 7 statement first, then we can make that determination. 8 Judge, I don't know if you've ever had days when you're not 9 thinking straight; but yesterday was one that I was not 10 thinking straight. 11 I dictated that Motion to Dismiss on my way back 12 from a Tampa case; gave it to my secretary; she typed it; I 13 brought it to you and to the State; and we started to argue. 14 You will recall that Mr. Gaston was called by me to the 15 stand and he invoked the Fifth Amendment. 16 The reason I say I'm not thinking straight is it 17 didn't dawn on me until after that hearing that Mr. Gaston 18 has already given sworn testimony in this case and under 19 Florida Statute 90.804, Hearsay Exceptions, the former 20 testimony under 2-A: "Testimony given as a witness at 21 another hearing of the same or different proceeding or in a 22 deposition taken in compliance with the law in the course of 23 the same or other proceeding if the party against whom the 24 testimony is now offered or in a civil action," so on and so 25 forth. KANABAY COURT REPORTERS 3 1 So what I'm going to ask the Court to do is listen 2 to argument of counsel about that. However, I have a copy 3 of Mr. Gastons' deposition which chronicles everything in my 4 motion that was admitted to. 5 THE COURT: Okay. 6 MR. DEVLAMING: So. I guess what I'm saying 7 is if you read this and find everything in my motion. Then 8 the next step is whether you feel that the conduct was 9 egregious and so forth. I gave you the -- I guess we might 10 as well go right into that, and I will do that; but I gave 11 you the Soohoo case, S-O-O-H-O-O, out of the Fourth District 12 1999 case found at 737 So.2nd, page 1108. Which holds on 13 page 1111: "Viewing the instant record as a whole and 14 looking into all the circumstances surrounding this sting 15 operation, we conclude as in Anders" -- which is another 16 case -- "that the conduct of confidential informant 17 Martinez, acting on behalf of law enforcement, offends the 18 canons of decency and fairness." 19 "Additionally although there was a bit more 20 supervision of Martinez than there was of the informant in 21 Anders, Martinez was still given too much leeway to 22 independently structure this transaction. Had Martinez been 23 more closely monitored, the missteps taken might never had 24 occurred." 25 "Not only did the government fail to investigate KANABAY COURT REPORTERS 4 1 Martinez's claims regarding Soohoo's prior drug related 2 activity, but the government failed to closely monitor 3 Martinez's dealings with Soohoo after he became a target for 4 this operation." 5 "We find that the government actions in this case 6 constitute misconduct in violation of defendant's rights 7 under article 1, section 9 of the Florida Constitution, 8 regardless of any predisposition of Soohoo to commit the 9 alleged offense." 10 On a case by case basis, this court has to make a 11 determination whether or not the conduct offends the due 12 process concerns in both our state and national 13 constitutions. 14 Frankly, one case given by the prosecutor is 15 Williams -- excuse me, State versus Williams that's found in 16 462 So.2nd, [sic] page 462. And it's out of the -- well, 17 it's the Florida Supreme Court 1993, they also granted a 18 Motion to Dismiss based upon egregious conduct and said 19 on -- I'm trying to think the page here that it's on, 462. 20 No, that's -- 464: "Due process of law imposes upon the 21 Court the responsibility to conduct an exercise of judgment 22 upon the whole course of the proceedings in order to 23 ascertain whether they offend those canons of decency and 24 fairness which express the notions of justice. Due process 25 is a general principal of law that prohibits the government KANABAY COURT REPORTERS 5 1 from obtaining convictions brought about by methods that 2 offend the sense of justice." That was recorded from the 3 United States Supreme Court. 4 Judge, what we have here is a confidential 5 informant run amok. He comes into town and with almost no 6 supervision of the Largo Police Department ingratiates 7 himself into the life of Mr. Prince; possesses drugs against 8 department policy; possesses drugs against the law as 9 testified to by the supervising detective; who thereafter 10 provides alcohol to someone with an alcohol problem; he 11 takes evidence from a person's house, that is, Mr. Prince's 12 house without a warrant; and engages in conduct which in my 13 opinion is egregious. 14 So that's basically my argument and that the Court 15 reads the deposition. I would ask you to apply those 16 standards that are found in Williams and also in Soohoo. Do 17 you want me to argue the Motion to Suppress or do you want 18 me to give this part of the argument to the -- 19 THE COURT: Let's pass it right now to Ms. 20 Wardell as it relates to this motion. 21 MS. WARDELL: The dismissal one, judge? 22 THE COURT: Yes. 23 MS. WARDELL: Judge, as to the depo, I 24 expected the defense to make that the argument this morning; 25 and I actually pulled your statute and borrowed it from you KANABAY COURT REPORTERS 6 1 just to double check; and I've availed myself of the same 2 section when a witness has taken the Fifth and refused to 3 testify; and in that case somebody came in and played the 4 part of one person in the depo and the other person in the 5 depo. So I would be hard pressed to tell you that the depo 6 is not admissible in light of what happened yesterday. 7 THE COURT: Okay. 8 MS. WARDELL: The reason I gave you the 9 Williams case which in fact they did find that due process 10 was violated just to show you the extreme conduct that's 11 required for dismissal. I think that part of the problem 12 with the depo, judge, is that Mr. Gaston wasn't really good 13 on his dates and times. I think when you read the depos 14 it's kind of hard to figure out when is doing what he's 15 doing. When is he doing it? Is it after law enforcement? 16 Is it before? Is it in between? 17 That kind of brings us back to the issue, well, we 18 didn't get the reports then. The reports show you the dates 19 of when he's doing what he's doing. I know it's not 20 evidence; but, you know, I think you're going to have hard 21 time to straighten out what he's doing when he's doing it in 22 light of the depo. 23 I think it's going to be important what date did 24 he become a C.I.? What date did he on his own go have 25 contact with the defendant? What date did he go again, and KANABAY COURT REPORTERS 7 1 when did the cops come in? And when was law enforcement 2 present? And if after reviewing the depo you want some of 3 those dates clarified, I think the only way we're going to 4 do it although it's been ruled inadmissible is through that 5 report. I think that's going to be the determining factor 6 here. But what you've got to decide is Mr. Gaston's conduct 7 so reprehensible to warrant a dismissal, and I think that's 8 an extreme sanction. 9 The case that I gave you of Caballero at 510 10 So.2nd, 922. That suggests that when there was imperfect 11 misconduct on behalf of the agent of law enforcement; again, 12 judge, I'd be hard pressed to say that he wasn't an agent of 13 law enforcement once he got his C.I. number. Which is why 14 when he got that C.I. number is important. As you recall, 15 Detective Crosby told you that was on April 24th. 16 April 24th is when he is taken in and told and given his 17 instructions and cleared as a C.I. 18 But the sanction in the Caballero case wasn't a 19 dismissal but rather to exclude the witness testimony. The 20 State's already indicated they're not going to call the 21 witness. I know that Mr. DeVlaming wants this testimony, 22 but that still says that's what the remedy is. Take Mr. 23 Gaston out of this and what do you have? You have law 24 enforcement going to the defendant's home twice and 25 independently seeing the marijuana out by the pool, and KANABAY COURT REPORTERS 8 1 based upon that second visit getting a warrant. So let's 2 take Mr. Gaston -- if you don't like his behavior and you 3 think it was repugnant, take it out of the equation. What 4 you have left is law enforcement. You know, we may not like 5 the source. We may not like the snitch, but that's just how 6 cases are made these days. 7 And in Garcia again that was -- the unique thing 8 about Garcia was that was the one where it was a 9 co-defendant that wanted a dismissal because somebody else 10 who'd already gotten a dismissal got one because of improper 11 informant behavior and the Court said yes, this guy, the 12 middle man, doesn't get a dismissal but you might see they 13 referenced that the other the guy did in fact get a 14 dismissal. Well, that was because there was a threat of a 15 gun involved. The informant the law enforcement had 16 utilized actually pulled out a gun and threatened defendant 17 number one. So he got a dismissal. This guy didn't because 18 he was a middleman. 19 Again, that's just to show you what it takes to 20 be, quote, outrageous behavior; and I think that's what it 21 comes down to is whether Your Honor deems Mr. Gaston's 22 conduct so outrageous as to warrant a dismissal. So I think 23 after reading the depo you may have to revisit that issue of 24 the court so you can see when the conduct was done in 25 relation to this offense. KANABAY COURT REPORTERS 9 1 I also wanted make sure it's clear on the record I 2 think I inadvertently gave you my highlighted original 3 copies yesterday. That was in no way meant to influence the 4 Court, and I have a clean set if you want to swap me. 5 THE COURT: No, I needed them. I got a bunch 6 to read and other cases to address. So thank you. Okay, 7 anything else regarding this? 8 MS. WARDELL: The suppression issue. 9 THE COURT: I'm sorry? 10 MS. WARDELL: The suppression issue. 11 THE COURT: Well, yes. Anything regarding 12 the dismissal? Nothing else regarding regarding the 13 dismissal? 14 MR. DEVLAMING: No. I'll just give the Court 15 this. 16 THE COURT: Thank you, sir. Another light 17 reading for the evening. I appreciate that. 18 MR. DEVLAMING: Judge, I'll make my next 19 argument brief. It has to do with the Motion to Suppress. 20 You heard testimony concerning my allegation that evidence 21 was taken from Mr. Prince's house by the confidential 22 informant on July 3, 2000. You also heard testimony that on 23 April 24, 2000, he became a confidential informant thereby 24 an agent of law enforcement and that on that date of July 3, 25 2000, that he took -- he pulled off a leaf of what purported KANABAY COURT REPORTERS 10 1 to be marijuana from inside Mr. Prince's house to later to 2 be tested to find out if it was in fact marijuana. 3 I have two cases I'll leave with the Court. One 4 is State versus Waterman, W-A-T-E-R-M-A-N, found at 638 5 So.2nd, page 1032. It's a Florida Second District Court of 6 Appeal, 1994. In this case an officer saw in plain view or 7 open view evidence seen within a person's automobile. And 8 the court said on page 1036 of the opinion: "Once probable 9 cause exists because of an 'open view' of incriminating 10 evidence, the police must obtain a warrant, unless an 11 exception to the warrant requirement is present, to justify 12 entry into the protected area and the seizure of the 13 evidence. The trial court granted suppression of the items 14 found in the Renault" -- which is the automobile -- "because 15 it concluded there was no exigent circumstances present 16 excusing the need for a warrant." 17 They went on to say they disagreed with the Court 18 in that case because of the Carroll Doctrine; that is, 19 because a vehicle is so readily mobile as you well know. It 20 says: "The trial court properly perceived that no amount of 21 probable cause could justify a warrantless search and 22 seizure absent exigent circumstances," quotes a United 23 States Supreme Court case." 24 In the case before us, however, the car's readily 25 mobility created those exigent circumstances and fulfilled KANABAY COURT REPORTERS 11 1 the requirement. In this case it's not an automobile but a 2 home so the Carroll Doctrine does not apply and the holding 3 of this case does. 4 And as far as what should be suppressed, I'm 5 relying on NAPOLI, N-A-P-O-L-I, versus State found at 596 6 So.2nd, page 782. It's a First District Court of Appeal 7 case 1992. In this case there was a constitutional 8 violation. In this case it was a violation of the knock and 9 announce rule, and the court held that when there is such a 10 constitutional violation that once it is violated all 11 evidence seized as a result of the ensuing warrant must be 12 excluded. 13 So I think the Court made a comment about the leaf 14 would be excluded. I'm suggesting that all evidence be 15 excluded because the State cannot prove that the evidence 16 that Mr. Gaston as a confidential informant took from the 17 Prince house was not the same marijuana they intend to 18 prosecute him for now for possessing. That all evidence 19 found within his house relating to marijuana should be 20 suppressed in this case. 21 THE COURT: Response. 22 MS. WARDELL: With regards to the leaf, 23 judge. We didn't find out about it until after the depo 24 after Your Honor ordered the depo and reports be turned 25 over. There's not going to be any mention of that in the KANABAY COURT REPORTERS 12 1 depo and he's not going to discuss the circumstances and how 2 he took it and where he took it and if, in fact, he tested 3 it. 4 THE COURT: Was it tested? In other words 5 was this one the things that was -- 6 MS. WARDELL: Not by law enforcement. I mean 7 law enforcement -- it came out kind of sloppy yesterday 8 because Mr. Gaston took the Fifth, but law enforcement 9 didn't even know about it until I told them yesterday 10 morning. I think that was pretty clear. I didn't know 11 about it until I read the report Thursday night when you 12 gave it to us. 13 THE COURT: So it was nothing that served as 14 the basis for a warrant? 15 MS. WARDELL: Right. That was my point in 16 giving you Thor (phonetic). Because Thor says basically the 17 evidence in this case came from a warrant; and for him to 18 attack the evidence in this case in my opinion, he has to 19 attack the warrant. So you go back to the warrant. What's 20 the warrant rely on? Does it have any misstatements or 21 false or misleading information? 22 If you look at the warrant, it's strictly to what 23 law enforcement observed on the sixth while in the presence 24 of Mr. Gaston and the defendant. After you make that 25 determination, then you must go one step further and say, KANABAY COURT REPORTERS 13 1 "Was there any information that had it been presented to the 2 judge, the judge wouldn't have signed the warrant?" 3 So you've got to decide had Crosby known about 4 this leaf, had Crosby known about the other visit, if he had 5 presented that to the judge as well would he have said, "No, 6 there's just too much. I'm not going to sign it." I would 7 suggest the fact that Crosby himself observed the plant on 8 two separate occasions holds this warrant valid. 9 So that's the standard. Not only was there a 10 misstatement in the warrant but is there information out 11 there that had that judge known he wouldn't have signed it. 12 And, you know, I think I highlighted the language for you in 13 Thor that shows off that standard. 14 Swayne (phonetic) as provided is the same thing; 15 and Getreu, G-E-T-R-E-U, that's the case where they did find 16 the warrant to not be valid; and, judge, that's because the 17 only information in the warrant came from the C.I. And 18 that's how come Crosby wanted to be there and put the 19 information in the warrant himself and that's how come he's 20 the affiant. 21 I do think that that's the distinguishing factor 22 here. Had it just been the C.I. stating on these five 23 occasions, "I smoked pot with Mr. Gaston and saw the plant." 24 I agree. My ship is sunk. But I think the fact that Crosby 25 was there, 17 years of law enforcement saves this case. KANABAY COURT REPORTERS 14 1 THE COURT: Okay. 2 MS. WARDELL: Just again to the leaf issue. 3 Right now there's really no testimony on the record with 4 regards to, you know, when it was took and the circumstances 5 because he claimed the Fifth, and we didn't know about it 6 until after the fact. 7 THE COURT: Well, the leaf will be in here in 8 this deposition, won't it? 9 MR. DEVLAMING: Unfortunately not. 10 MS. WARDELL: We didn't know about it until 11 two days later, but it is in the reports, judge, I can tell 12 you that as an officer of the court. So maybe you might 13 decide that you just want that one page or you may decide 14 that after you read the depo that dates are so confusing you 15 want the whole thing. 16 THE COURT: Okay. Anything else? 17 MS. WARDELL: No, sir. 18 THE COURT: All right. As it relates to 19 the -- I'm not sure if you termed it, made a motion as it 20 relates particularly to the testimony -- what was the 21 gentlemen's name? Who was your investigator -- 22 MS. WARDELL: Emmons. 23 THE COURT: -- Mr. Emmons. And as to 24 disclosure itself, I still at this point in time cannot rule 25 and do not rule that the privilege has been breached in any KANABAY COURT REPORTERS 15 1 way as it relates Mr.Emmons' testimony. I've had an 2 opportunity to read his deposition and in its entirety, and 3 he does from time to time within the deposition itself 4 specifically say that Mr. Prince told him this and Mr. 5 Prince told him that. 6 I don't think the deposition in and of itself, 7 however, automatically breaches the attorney/client 8 privilege. There is some case law on this. In fact 9 Professor Earhart enlightens us specifically saying that: 10 "Generally an attorney has the implied authority to make 11 disclosures in the course of the litigation that result in a 12 waiver of the attorney/client protection for matters that 13 are disclosed." 14 There's also a Florida Supreme Court case which is 15 James A. Morgan vs. State located at 639 So.2nd 6, wherein 16 the Supreme Court specifically states that the defense 17 decides to call a witness, in this case it was an expert, 18 but nonetheless an extension of the attorney for the purpose 19 of rendering legal services and had that expert testify to 20 any particular confidential communications that were made by 21 the defendant then the privilege is waived. 22 So the point is that if Mr. DeVlaming calls Mr. 23 Emmons and Mr. Emmons in any way discusses any particular 24 communications, any communications it seems to be suggesting 25 by the Florida Supreme Court regarding what conversations he KANABAY COURT REPORTERS 16 1 had with Mr. Prince that the State then gets to follow that 2 up and gets to walk the rest of the way through that door. 3 MS. WARDELL: Judge, that's fine. I'd just 4 like to know what the answer is ahead of time. I don't want 5 to have to ask him questions if he's just going to give me a 6 bunch of self-serving hearsay. 7 THE COURT: If you get self-serving hearsay, 8 the door is open; but now you can't set up a straw man. In 9 other words you can't go ask a question and then claim that 10 the privilege is breached because he answered your question. 11 MS. WARDELL: No. I'm saying if he on direct 12 opens the door and then I say, "Okay. Well, tell me about 13 how Mr. Prince described the relationship with Mr. Gaston." 14 Because that's basically what I'm trying to get at 15 is how does he describe it. I don't know what the answer's 16 going to be. What if it's, you know, he says that Gaston's 17 just the biggest bunch of crap in the whole wide world. 18 Well, that's not the answer I want to get. I'd like to know 19 ahead of time what Mr. Prince said so I know whether or not 20 I want to ask that question on cross. Do you see what I'm 21 saying? 22 THE COURT: I do. You want to take his 23 deposition. You want him to answer that question before you 24 come into court. 25 MS. WARDELL: Right. KANABAY COURT REPORTERS 17 1 THE COURT: Right and -- 2 MS. WARDELL: I'll accept that, but at least 3 once we decide -- if we decide the door's been opened can we 4 at least proffer it so I'll know whether or not I want to 5 ask it? If we get to that point? 6 THE COURT: I'm sorry if you decide that the 7 door's been opened -- 8 MS. WARDELL: If Your honor decides -- 9 THE COURT: Oh, you want to know what the 10 answer is. I see. You want to take the jury out and ask 11 the question and if you can, see if that's a question you 12 really want to ask again. In other words you don't want to 13 be surprised. 14 MS. WARDELL: Right. With a bunch of -- 15 THE COURT: Imagine that. 16 MS. WARDELL: -- self-serving hearsay. 17 THE COURT: Imagine not wanting to be 18 surprised. All right. I might be willing to accommodate 19 that. 20 MS. WARDELL: All right. 21 THE COURT: It's only going to take three 22 days to try this case that's all. This is realistically 23 about a two day trial. Is that fair to say? All right. 24 Anything else? 25 MS. WARDELL: Can we approach? KANABAY COURT REPORTERS 18 1 THE COURT: Yes. 2 BENCH CONFERENCE 3 MS. WARDELL: I'm going to the doctor today 4 at 1:00. I've been doing my best to, you know, hang in 5 there; but I just wanted to give you a heads up. I may call 6 back with a problem. 7 THE COURT: Does that mean you're not going 8 to be going to trial tomorrow? 9 MS. WARDELL: Well, I'm going to be doing 10 everything I can to do it; but I'm going to run it by him 11 first. 12 THE COURT: Well, here's the thing. If it 13 ultimately means the date will change, you have June all 14 closed. 15 MR. DEVLAMING: Yes, sir. 16 THE COURT: So we'll have to do it in July 17 sometime. 18 MR. DEVLAMING: Yes. 19 MS. WARDELL: Well, I'm going to do my best; 20 but I need to get a test today and let him decide. 21 THE COURT: June was on this case. She's not 22 going to be trying it? 23 MR. DEVLAMING: No. She's got -- she just 24 had the same situation that she now has, you know. 25 THE COURT: You may be pregnant? KANABAY COURT REPORTERS 19 1 MS. WARDELL: Well, I am. I'm just sort of 2 been high risk this whole time. 3 MR. DEVLAMING: I'm sorry. I didn't mean to 4 disclose stuff or -- 5 MS. WARDELL: No, that's all right. 6 THE COURT: Okay. Well -- 7 MS. WARDELL: Well, I just didn't want you to 8 get a call and then be irritated that I'm not here tomorrow. 9 THE COURT: Well, here's the deal. If you 10 think this -- you know, I'd rather not spend my entire night 11 and try to read everything. In fact I'm going to teach a 12 class from 6:00 until 10:00 so that means I'm going to be up 13 until 1:00. What time will you know? 14 MS. WARDELL: I'm at my appointment at 1:00. 15 I'll know by 2:00. 16 MR. DEVLAMING: She can call you. 17 THE COURT: Yes. Because I'll be in trial 18 all day today. 19 MS. WARDELL: Well, are you going to need me? 20 MR. DEVLAMING: Well, he's not going to start 21 that before 1:00. 22 THE COURT: No way. 23 MR. DEVLAMING: No. 24 THE COURT: No. I'm going to the calendar 25 right now, and then I've got a trail all day, and I've got KANABAY COURT REPORTERS 20 1 to prepare for my class. 2 MS. WARDELL: If you decide you want that 3 report, you just need to let one of us know. 4 THE COURT: I already have a copy of his -- 5 MS. WARDELL: You have Gaston's? 6 THE COURT: Gaston's report? 7 MS. WARDELL: Uh-huh. 8 THE COURT: Yes. You filed it yesterday, did 9 you not? 10 MS. WARDELL: Well, you filed it -- 11 MR. DEVLAMING: He's right. 12 MS. WARDELL: -- for purposes of the record, 13 right. 14 THE COURT: You did file it or you will file 15 it? Which one was it? 16 MR. DEVLAMING: Will, will. 17 THE COURT: All right. That's that. 18 BENCH CONFERENCE CONCLUDES. 19 PROCEEDINGS CONCLUDE 20 21 22 23 24 25 KANABAY COURT REPORTERS 21 1 2 REPORTER'S CERTIFICATE 3 4 STATE OF FLORIDA ) 5 COUNTY OF PINELLAS ) 6 I, Robert William Wagner, certify that I was authorized to and did stenographically report the 7 proceedings herein, and that the transcript is a true and complete record of my stenographic notes. 8 I further certify that I am not a relative, 9 employee, attorney or counsel of any of the parties, nor am I a relative or employee of any of the parties' attorney or 10 counsel connected with the action, nor am I financially interested in the action. 11 12 WITNESS my hand and official seal this 30th day of May, 13 2001. 14 15 ______________________________ Robert William Wagner 16 Notary Public State of Florida at large. 17 18 19 20 21 22 23 24 25 KANABAY COURT REPORTERS