State v. Williams

• Decision Date: 01 July 1993
• Docket Number: No. 79507,79507
• Citation: 623 So.2d 462
• Parties: , 18 Fla. L. Week. S371, 18 Fla. L. Week. S491 STATE of Florida, Petitioner, v. Leon WILLIAMS, Respondent.
• Court: Florida Supreme Court

Page 462

623 So.2d 462

62 USLW 2098, 18 Fla. L. Week. S371,

18 Fla. L. Week. S491

STATE of Florida, Petitioner, v. Leon WILLIAMS, Respondent.

No. 79507.

Supreme Court of Florida.

July 1, 1993.

Rehearing Denied Sept. 16, 1993.

Robert A. Butterworth, Atty. Gen., Joan Fowler, Sr. Asst. Atty. Gen. and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for petitioner.

Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for respondent.

Marc A. Gordon, Law Office of Gordon & Spudeas, Fort Lauderdale, amicus curiae, for Broward Ass'n of Crim. Defense Lawyers.

HARDING, Justice.

We have for review Williams v. State, 593 So.2d 1064 (Fla. 4th DCA 1992), in which the Fourth District Court of Appeal certified the following question as one of great public importance:

DOES THE SOURCE OF ILLEGAL DRUGS USED BY LAW ENFORCEMENT PERSONNEL TO CONDUCT REVERSE STINGS CONSTITUTIONALLY SHIELD THOSE WHO BECOME ILLICITLY INVOLVED WITH SUCH DRUGS FROM CRIMINAL LIABILITY?

Id. at 1064. We accept jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution, and rephrase the question as follows:

Whether the manufacture of crack cocaine by law enforcement officials for use in a reverse-sting operation constitutes governmental misconduct which violates the due process clause of the Florida Constitution?

We answer the rephrased question in the affirmative and thus approve the decision of the district court below. We hold that the illegal manufacture of crack cocaine by law enforcement officials for use in a reverse-sting operation within 1000 feet of a school constitutes governmental misconduct which violates the due process clause of the Florida Constitution. Thus, we find that the defendant's conviction for purchasing the crack cocaine must be reversed.

On February 15, 1990, the police arrested Leon Williams (Williams) for allegedly purchasing crack cocaine within 1000 feet of a school. Williams filed a motion to dismiss the charges because of alleged police misconduct that violated his due process rights. The State and Williams entered the following stipulation of facts relevant to a hearing on Williams' motion to dismiss the charges: ¹

1. On April 21, 1988, [Detective] Mary Guess, of the Broward Sheriff's Office (B.S.O.), discovered 991.2 grams of cocaine in a Greyhound bus station locker, under case number BS88-4-10524.

2. [Detective] Guess turned this abandoned cocaine in to the B.S.O. Crime Lab where it was signed in by Sal Anzelone, an employee of the Broward Sheriff's Office.

3. The cocaine, which was in powder form, was placed into destroy case 4604X, it being the intention of B.S.O. at that time to destroy that cocaine as no arrests were made as a result of its discovery, there was no case pending regarding that cocaine, no medicinal use was contemplated for said cocaine, and no order by any court had been entered requiring or permitting any other use of said cocaine.

4. The normal procedure for the destruction of seized narcotic contraband would have been for aforementioned B.S.O. employee Sal Anzelone to sign the cocaine out of the lab, transport it to a local incinerator and have it burned there.

5. A decision was made by the B.S.O. Crime Lab technician to retain the cocaine for use in B.S.O. reverse sting operations.

6. Sometime prior to February 14, 1989, John Pennie, B.S.O. Crime Lab Supervisor, and Randy Hilliard decided it was necessary to convert the powder cocaine to "crack" cocaine. They cleared this procedure through the proper B.S.O. chain of command, and was approved by Sheriff Nick Navarro.

7. On February 14, 1989, B.S.O. chemist Randy Hilliard began cooking up "crack" cocaine in the B.S.O. lab....

8. Following the conversion procedure, B.S.O. chemist, Randy Hilliard cut the "crack" cocaine into small pieces, places [sic] the pieces into individual plastic ziplock bags, and heat-sealed the bags.

9. The individually packaged "crack" rocks were then distributed to B.S.O. deputies for reverse sting operations, by B.S.O. employee, Sal Anzelone.

10. These "crack" rocks were used in the reverse sting operation which resulted in the Defendant's arrest and prosecution in the above-styled case.

11. Powder form cocaine and "crack" form cocaine are separate and distinct chemical structures. Powder form cocaine is represented chemically as C17 H21 NO4 HC1 . "Crack" cocaine is represented chemically as C17 H21 NO4 .

12. B.S.O. Chemist, Randy Hilliard is not a "pharmacist" as defined in Chapter 893.02(14), Florida Statutes (1989).

13. B.S.O. Chemist, Randy Hilliard is not a "practitioner" as defined in Chapter 893.02(16), Florida Statutes (1989).

In denying Williams' motion to dismiss, the trial court found that the Broward County Sheriff's Office manufactured crack cocaine for "a bonafied [sic] and legitimate law enforcement purpose" and that the Sheriff's Office acted pursuant to section 893.13(5)(b)(5), Florida Statutes (1989), and State v. Bass, 451 So.2d 986 (Fla. 2d DCA 1984). Williams proceeded to trial and the jury convicted him of purchasing a controlled substance within 1000 feet of a secondary school. Sec. 893.13(1)(e), Fla.Stat. (1989).

On appeal, the district court reversed Williams' conviction, citing its decision in Kelly v. State, 593 So.2d 1060 (Fla. 4th DCA), review denied, 599 So.2d 1280 (Fla.1992). In Kelly, the district court stated:

We have reconsidered the issue of the police manufacture or reconstitution of powdered cocaine into "crack" rocks, and we find that the practice is illegal. We hold that the use by the police of such reconstituted "crack" infringed on the appellant's right to due process of law. In other words, the police agencies cannot themselves do an illegal act, albeit their intended goal may be legal and desirable.

Id. at 1061. Consequently, the district court in Kelly reversed the defendant's conviction. Following the district court's reversal in the instant case, the State filed a motion for certification which the district court granted. We accepted jurisdiction to answer the certified question.

In State v. Glosson, 462 So.2d 1082 (Fla.1985), this Court developed its own due process analysis based on article I, section 9 of the Florida Constitution. ² In Glosson, the State and an informant entered a contingent-fee agreement in which the informant would receive ten percent of all civil forfeitures resulting from criminal prosecutions in which the informant provided testimony and cooperation. Id. at 1083. As this Court stated:

We can imagine few situations with more potential for abuse of a defendant's due process right. The informant here had an enormous financial incentive not only to make criminal cases, but also to color his testimony or even commit perjury in pursuit of the contingent fee. The due process rights of all citizens require us to forbid criminal prosecutions based upon the testimony of vital state witnesses who have what amounts to a financial stake in criminal convictions.

Accordingly, we hold that a trial court may properly dismiss criminal charges for constitutional due process violations in cases where an informant stands to gain a contingent fee conditioned on cooperation and testimony in the criminal prosecution when that testimony is critical to a successful prosecution.

Id. at 1085. In deciding Glosson, this Court rejected the federal court's narrow application of the federal due process defense. ³ Id. This Court also cited opinions from two other states for the proposition that the courts could use the due process defense to overturn criminal convictions as a check against outrageous police conduct. State v. Hohensee, 650 S.W.2d 268 (Mo.Ct.App.1982) (reversing a predisposed defendant's conviction for burglary because the police violated state due process rights in sponsoring and operating a burglary in which the defendant acted as a lookout); People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78 (N.Y.1978) (reversing a predisposed defendant's conviction for drug sales because police misconduct and trickery violated state due process rights). This Court also agreed with the courts in Hohensee and Isaacson that "governmental misconduct which violates the constitutional due process right of a defendant, regardless of that defendant's predisposition, requires the dismissal of criminal charges." Glosson, 462 So.2d at 1085.

Due process of law is a summarized constitutional guarantee of respect for personal rights which are "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934). Due process of law imposes upon a court the responsibility to conduct "an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice." Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 788-89, 89 L.Ed. 1029 (1945). Defining the limits of due process is difficult because " 'due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Joint Anti-Facist Refugee Comm. v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). Rather, due process is a general principle of law that prohibits the government from obtaining convictions "brought about by methods that offend 'a sense of justice.' " Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 210, 96 L.Ed. 183 (1952).

This Court is also aware of the difficulties that law enforcement officials face in detecting and stopping narcotic trafficking in our state. As Justice Powell stated in Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976):

One cannot easily exaggerate the problems confronted by law enforcement authorities in dealing effectively with an expanding...