Category Archives: Police

Details Released in Arrest of FMPD Captain – the Case Still Looks Like Garbage

Capt. Jay Rodriguez

The affidavit for the warrant in the arrest of FMPD Captain Jay Rodriguez has been released, and as we anticipated in the detailed post about the charges yesterday, it doesn’t look like the charges are legally sustainable. As expected, the Misconduct and Prostitution Charges both stem from actions that happened in 2013, several years beyond the statute of limitations.* One newly revealed detail is that the investigating Detective not only accuses Rodriguez of misconduct for being involved in a false report, but also for improperly receiving a benefit with city money for the alleged sexual act. That allegation might sound good, except that he was working in an undercover capacity for the city police department, and his acts led to two arrests. That is still not a prosecutable case. It definitely would have been better practice for Rodriguez to have stopped the suspect before actually receiving a sexual act, but that does not make his action criminal. In fact, it sends a bad message that if the City gets pissed at its cops, it’s going to try to prosecute them for doing their job.

As to the perjury charge, it appears the questions posed to Rodriguez were a little clearer than indicated in the earlier press release. Rodriguez was asked “were you ever involved in sex while on duty” and “have you ever engaged in sexual activity on duty with a sex worker or prostitute”, which Rodriguez denied. These questions are not as vague as “did you have sex”, but they are not so specific that there is not ambiguity. Definitely hard to prove beyond a reasonable doubt. More importantly, this confirms it was an internal affairs investigation, which does not appear to be an “official proceeding” to satisfy the required element of the perjury statute.

Captain Rodriguez may have been involved in wrongdoing, especially if he directed the fabricated statements that led to the arrests of the two individuals. Ultimately, charges were apparently dropped against both of them. However, these charges, under more detailed scrutiny, still look like garbage. If Detective Kendall Bores, who swore out this warrant, does not have a better understanding of the law, that Detective should be reviewed for incompetence. And even if the Detective didn’t catch the problems, it should have gone through the State Attorney’s office (of the 12th Circuit) for review before the warrant was sworn out. But caution gets thrown to the wayside when political pressure gets applied on a high-profile media case.

Also, NBC-2 spoke to another attorney who agrees that the old charges may be barred by the statute of limitations.

Here’s a link to yesterday’s even more detailed post as to why these charges are garbage. To reiterate, police misconduct, and especially lying or falsifying police reports, deleting evidence and the like are extremely bad… but that’s not what Rodriguez is being charged with. As it is, these charges are, in my humble legal opinion, bullcrap, and I call it like I see it.

*Update, the News-Press points out the charges may fit an exception to the statute of limitations, as the accused is a public employee. The charges are still crap, however. They have also posted the full affidavit for the warrant.

FMPD Captain Arrested, but the Charges may be Fatally Flawed

jay rodriguez

Capt. Jay Rodriguez

So often, the cover up is worse than the crime. That’s the case here, as FMPD Captain Jay Rodriguez is charged with perjury and falsifying a document – two felonies – to cover up for soliciting prostitution, which is only a second degree misdemeanor. However, these charges may not pass muster when we get a chance to look at them. The arrest affidavits are not publicly available yet, so information is limited to the press release and related media coverage. 

The charges apparently date to an undercover sting operation in which Capt. Rodriguez was involved all the way back in March, 2013. He supposedly received a sex act and then authored a falsified account of his actions. This appears to be the basis of the prostitution and falsifying document charges. However, it appears that these charges are outside of the statute of limitations, which would prevent him from being prosecuted. The statute of limitations for a felony, such as falsifying a document, is generally three years while it’s only one year for a second degree misdemeanor. So, prosecution for these charges is more than three years too late!

I contacted FDLE to see if they had any comment about the statute of limitations, but they say the State Attorney makes the filing decisions. These cases are being handled by the 12th Circuit State Attorney, not our local prosecutors.

Further, it’s highly unlikely that Rodriguez could be prosecuted for receiving a sex act during an undercover operation. He was operating in his capacity as a police officer at the time, and that is a defense to criminal charges. For comparison, if an undercover officer buy drugs from a drug dealer during an undercover operation, the officer cannot be charged with buying the drugs. It may be unpleasant, but officers are given leeway under the law in these circumstances. The better practice is assuredly to make the bust before the actual sex act, once an agreement is in place, as indicated by the professor in this article. However, the officer is not prosecutable for his violation of the law. There have been several undercover operations locally where a sex act unfortunately took place, but those officers are not facing charges.

Even worse, the timing of this arrest makes these charges look politically motivated. Just 10 days ago, the News-Press ran an article about officers who have been on paid leave for a long time, prompting city councilmen in the article to say that they wanted to see some action. I cannot demonstrate that the FDLE was moved by political and media pressure, but here we are less than two weeks later with questionable charges. Now the city will likely commence termination proceedings. They got what they were looking for to try to stop paying Rodriguez.

The final charge appears to be perjury for lying in the internal investigation. FDLE indicates that Captain Rodriguez denied having “sex” while on duty. Even if the state can prove that a sexual act occurred (the alleged act was not on the video), they will have a hard time proving that he was committing perjury when he said he didn’t have sex on duty. The most common usage of “sex” would refer to sexual intercourse, and unless there was some better specificity in the interview… it’s not perjury. Further, an interview given in an internal investigation is almost certainly not an “Official Proceeding” as defined by the statute. Perjury usually means lying in court or to in some sort of formal hearing, not simply in a police interview. There is a separate misdemeanor charge for giving a false statement to a police officer, but unless there were some really specific questions being asked about the nature of the sexual activity, even that allegation would be difficult to prove. This charge is also unlikely to be provable beyond a reasonable doubt.

Another questionable issue related to these charges is that WINK news published what appears to be a mug shot of Captain Rodriguez. What’s interesting about that is that Florida Statute prohibits the release of mug shots of law enforcement officers. WINK is not in the wrong for publishing it, but the question is where did they get it? Was his mug shot illegally provided to the media? At this point, these charges, and the way they are carried out, create more questions than answers. I am electing not to republish the mug shot in this article, not so much because of the prohibition on dissemination, rather because I think the charges are bogus and have decided to only publish the professional photo that has previously been widely distributed.

Finally, these charges, and the likelihood they get dismissed, will end up serving as a cover for what should be the biggest scandal related to this whole thing. A Fort Myers police captain has been accused of lying, falsifying reports, instructing other officers to assist in his cover up, and possibly deleting video evidence of a criminal investigation. That is the issue we should be most concerned about, especially in light of the ongoing corruption probes at FMPD going back several years. While Captain Rodriguez shouldn’t be jailed for lying and saying he kept his bottoms on since it’s outside the statute of limitations, we should be terribly concerned that the department covered for his lie for six years. That’s a big lie, and if someone was charged with criminal acts, lying about it is far more serious for the effect it may have had on the integrity of our criminal justice system.

Here’s an edit of the video in question, from the News-press.

*UPDATE* NBC-2 reports he has been put on unpaid leave. I don’t blame Chief Diggs under the circumstances, but it shows that the arrest helped the City with their public pressure to take action.

Amazon is Sharing Ring Doorbell Info with Law Enforcement

Ring doorbells have video cameras on them that allow people to view and record things happening in front of their homes. They are online, so people can be notified and watch when someone approaches their door, even when they are not at home, thanks to mobile devices. They are becoming more and more popular, and since they are owned by Amazon, they can even be linked up with Amazon’s Echo smart home systems.

However, and this may come as a surprise to people considering them, Amazon has partnered with hundreds of law enforcement agencies to share the surveillance data. That means that law enforcement may literally have a live feed from your house, or other homes in your neighborhood. The technology has benefits and concerns. This video surveillance net could help law enforcement catch more crooks, and has become a frequently used tool for that effect. However, the privacy concerns abound, that the government can be watching with multiple eyes around your neighborhood. Some 67 Florida agencies have already signed on to the program, so it looks like it’s not going away any time soon.

College QB charged with Drugs for the Bird Poo on his Hood

This poor kid literally got arrested for some shit on his car…

screen capture of body cam of the car hood

Shai Werts, who is the starting QB for Georgia Southern University, and has a game scheduled against LSU in a few weeks, was pulled over for speeding in South Carolina, near his home. Officers noticed a white substance on his hood, and thought it was cocaine. Why somebody would drive down the highway with their cocaine on the hood is beyond me, but officers tested it with a presumptive field test which gave them a positive result for the presence of cocaine. Presumptive field tests are not reliable and, for that reason, are not admissible in court. Fortunately, the poo was sent to a lab which has confirmed that it is not drugs, and charges against Wert have been dropped.

Werts was suspended from the team, though he passed a drug test and has since been reinstated. You can watch the in-car video on News Maven here around the 15-minute point. Bonus on the car video, the cops start interrogating Werts in custody without informing his Miranda rights, which they don’t read until near the end of this clip. Even if he had made an admission, it would have been inadmissible thanks to poop-cops’ eagerness to confront him. Body cam clip on WTOC here.

Sarasota Police try to Charge an Attorney Defending Her Client

Sarasota defense attorney, and friend of the firm, Varinia Van Ness had criminal charges sought by the Sarasota Police against her for her representation of her client. The mere fact that officers would even consider trying to charge a defense attorney for zealously doing her job is shocking. It’s petty, retaliatory, and an affront to our adversarial system of justice. Fortunately, the officer’s multiple attempts to file charges were rebuffed by cooler heads.

Attorney Varinia Van Ness, via
http://www.vannesslawgroup.com/

It started when two Sarasota detectives sought to serve search warrants on Ms. Van Ness’ client and his phone. The parties agreed to meet at Van Ness’ office but about 10 minutes into the meeting, it was revealed that a Detective Derek Galbraith had activated a recording device without notifying Ms. Van Ness. When she found out, she insisted he either terminate the recording, or to leave the office. He declined to turn it off, but he also declined to leave the office. She indicated he was trespassing, but he still wouldn’t leave and Van Ness eventually called 911 to get him to leave.

After detectives left, they tried to serve the warrants again at the client’s work, at his brother’s house, and even at his ex-girlfriend’s home. Van Ness and her client agreed to meet at the police department. When the Detectives read the phone warrant, a spelling error was noticed in the client’s name, and Van Ness and her client left the room, though they ultimately did submit a DNA sample. Later that day, Detective Dan Riley from the Sarasota PD requested that a warrant be issued for the arrest of attorney Van Ness for obstruction of justice.

Fortunately, the warrant was never issued. It was submitted to a judge who recognized that the case involved a defense attorney doing her job, which would be a valid challenge to the warrant. He said it would have to be reviewed the State Attorneys office to see if formal charges were warranted. Sarasota PD didn’t give up, and submitted the warrant request to the State Attorney’s office. The local SAO had a conflict of interest, and the case was reassigned to the 20th Judicial Circuit SAO, who also declined to file charges. Sarasota PD took one more shot, submitting the case to FDLE, who also declined to pursue charges. The case was reviewed by three separate independent judges/agencies, who all agreed there was no merit to bringing charges.

This type of attack on an attorney is shocking and very problematic to the justice system. Ultimately, the fear would be that if cops can go charge an attorney for advocating for their clients, the chilling affect on the job of defense attorneys would harm our criminal justice system and is an affront to the Constitutional protection to the right to be represented by an attorney. The Sixth Amendment guarantees the right to assistance of counsel, and it applies at every level of a criminal investigation.

It’s rare that law enforcement would seek to charge an attorney for advocacy in the normal course of their work. Usually, it takes something really egregious, the Paul Bergrin case in New Jersey springs to mind, where he assisted gangsters placing hits against witnesses. Only something extreme that goes beyond advocacy should even be considered, and even then, it should be reviewed by attorneys before being submitted for a warrant.

Asking a Detective to leave your office because they recorded you without permission is not obstruction of justice. Declining to have your client turn over his phone password when his name is spelled wrong on the warrant is not obstruction of justice. That’s advocacy. Zealous advocates like Varinia Van Ness are the first check against government overreach and the primary protection of individual Constitutional rights. We are lucky to have defense attorneys like Varinia.

via Sarasota Herald-Tribune

FMPD Sued for Arresting and Tasing a Man for No Legal Reason

jones taser

Jones, about to be tased from behind

Two FMPD officers had no legal reason to arrest Holley Jones in April, 2018, but when he tried to walk away, they tasered him. The officers indicate they responded to a third-party complaint about a disorderly person, which apparently did not identify Jones. The whole incident is on body cam, and Mr. Jones is not causing a disturbance when officers come in and tell him they want to talk to him. When he declines to come outside, he tries to shake the officer’s hand, and the officer gets angry, and starts yelling at him not to touch him, pulls out his taser, and orders him outside. Jones says he did nothing wrong, and the officer says you’re real close to doing something wrong.

An officer is not allowed to detain someone, or order them around, unless he has evidence that they’ve done something wrong. Jones’ refusal to come outside isn’t improper because the officer doesn’t have evidence of a crime to have the authority to order him outside. People like to say you don’t have to consent to officers if you’ve done nothing wrong, but it results in poor Mr. Jones getting tased when he eventually runs away from the officers.

Something that’s nearly as bad as the unnecessary violence is that the officers mislead in their report to try to justify their actions. They indicate in their report that Jones did not seem to understand what they wanted him to do. The video is clear that he understood, but did not consent to following them outside or being searched. Then the officers say that when he ran back inside, he turned around in a “defensive posture with his arms raised,” and “a closed fist as if he was going to strike” the officer. The video clearly shows the officer is lying, as Jones is simply trying to evade the illegal arrest. The irony is that experienced criminal attorneys will recognize the “defensive posture” language as a phrasing that cops frequently use to justify use of force. In this case, thanks to the body-worn cameras, the truth is exposed. NBC-2 uploaded the video here, and it is somewhat graphic.

The case went to court, and on a motion to suppress, the state could not show a lawful detention, and the evidence was suppressed, leading to the case being dropped. Officers are allowed to talk to people in a consensual encounter, but they can’t just order people around who aren’t breaking the law. This should be a teaching tool, and body cams will help improve police and citizen interactions. In the meantime, this poor police work will probably lead to Mr. Jones getting paid. Not only that, they found substantial amounts of drugs on him, but he cannot be prosecuted due to the poor police work.

Alleged Cop-Killer Desmaret to be Evaluated for Competency

wisner desmaret

Wisner Desmaret

The man charged in the killing of Fort Myers police officer Adam Jobbers-Miller has been ordered to undergo a competency evaluation to determine if he is able to stand trial at this time. Wisner Desmaret will be evaluated by qualified doctors to determine whether his current mental state can support going to trial a this time. One has to be severely impaired to be found incompetent, essentially the experts would have to find that he was unable to understand the charges, the court process, or to effectively assist his attorneys in his defense. If he is found incompetent at this time, that does not mean that he can not be prosecuted, as the state can attempt to restore his competency (through medication and counseling) and he can be brought to trial if his competency is restored.

The evaluation was expected, as there have been previous questions of his competency in his previous cases. He has been found incompetent multiple times, and on one occasion, the court found that his competency was not restorable, based on expert testimony presented. However, another judge found that after restoration treatment, that his competency had been restored, which led to his release from a Sarasota county jail not long before he killed Officer Jobbers-Miller. If he is found incompetent, he will likely remain in custody until his competency is restored, at which point he will face trial for First-Degree Murder. The state has filed their intention to seek the death penalty against him.