HomeMy WebLinkAbout31113 - MINUTES - City Commission f
MINUTES OF SPECIAL MEETING, CITY COMMISSION, CITY OF DANIA,
' FLORIDA, HELD AUGUST 23, 1967.
T The CityCommission of the Cityof Dania Florida met in
� '' Special Session in the Commission Room at the City Hall.
J Present were: MAYOR-COMMISSIONER RICHARD MARANT
z" COMMISSIONERS GUS S. BRICE
JAMES ADAMS F,
ROBERT KELLY
BOISY N. WAITERS _ .
® CITY ATTORNEY CDARKE WALDEN I"
9R CITY MANAGER STANLEY GOLDBERG (ABSENT)
'c;• CHIEF OF POLICE ANTHONY CARACCI (ABSENT)
BUILDING INSPECTOR HUBERT WALKER
CITY CLERK MARY THORNHILL
The meeting was called to order at 8:15 P.M. by Mayor Marant,
F_
after which time he turned the meeting over to City Attorney '
Walden. x?�
= City Attorney Walden: Ladies and Gentlemen, on behalf of the
.;d City Commission, I want to first apologize for being a little
late, and I take most of the responsibility for that. Monday
n,•i
...,.
or so it was called to my attention by some of the Commissioners
that certain allegations have evidently been made unofficially "
by a discharged police officer, as to conduct of the Police
' Department. And the Commission asked me again informally to
make a detailed recommendation based on my knowledge of the
® situation. I have been very busy yesterday and all of today
in making a written legal opinion. It is quite lengthy and
quite detailed, and it has a lot of legal citations and quota-
tions which perhaps the Commission and you might understand or
will not understand. At any rate we have it here in case some-
one wants to question the law. And further at the conference
® meeting with the City Commission Monday night the Chief of Police
made a written statement to the Commission, and the Chief has
asked that we read that statement tonight so that it can go on
record at this public meeting. Now in the conference meeting a
few minutes ago I think it was the consensus of opinion that I
should first read the Chiefts statement, that I should then read
the long legal opinion that I have prepared. So if you will bear
with me because the report that I have prepared is very lengthy.
Bill Brooks, from the audience: Mr. Attorney. . .
City Attorney Walden: Just a minute please, I have been given the
® authority to give my statement of my recommendations, and I am going
to do that without you interrupting.
Bill Brooks: I don't want to interrupt. . .
City Attorney Walden: Well, just please be quiet until I get through.
® I am not going to be interrupted. I am giviiig_rthis purely as a legal
opinion, I am not taking any part of any discussion or anything. I
want to state these rules to you, Mr. Brooks, if you want me to do it
I will call you down too. I am going to run this meeting while this
gavel is turned over to me.
Bill Brooks: I just want to ask a simple question.
City Attorney Walden: Well you are not going to ask it to me, at
this time. Now gentlemen, here is the statement that the Chief of
Police submitted to you Monday night.
"It has come to the attention of the undersigned Chief of
Police that certain out side groups have been making every
effort to hamper and undermine all the progress that has
been made by the Police Department in regards to getting
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rid of Crime and Corruption in the City of Dania. When I was
assigned as Chief of Police in November, 1966, I was ordered
to clean up the Dania Police Department to get rid of vice
such as prostitution, bookmaking, bolita, or any other illdga1
activities. I was appraised of the Girlie Shows that were
• operating in the City of Dania at that time, and as to area
of illegal activities. As you know, gentlemen, most of the
illegal activities stem from night clubs, Show Bar, Cabaret,
and so forth. On March 20, 1967, I was again ordered by the
Mayor and City Commission and City Manager to conduct an in-
vestigation concerning accusations made to the Commission con-
" ® cerning certain allegations as to a sewer line laid in the
Southeast section that was supp3sedly tied into Pirates World;
'. two new employees were hired and their salaries was public in-
formation before that salary was appfoved by the City Manager;
and also a direct phone line was added to the City Manager's
office with the City of Miami, when in fact this was a private
T; • line put in by the Chief of Police in the Chiefs office.
As a result of these allegations the Commission felt that
r. certain information was being disseminated from City Hall.
Therefore, statements were taken from all city employees.
Now gentlemen, I did not think I had to appraise you men as
to how this investigation was to be conducted, nor as to how
r" ® future investigations will be conducted . My investigations
have been legal in all respects, and in no way have I put
you gentlemen, your police department, or myself in jeopardy.
It is not the Chief 's responsibility to divulge any informa=
rri tion as to how his investigations are being conducted. And
gentlemen your police department has had no equipment for
','• • investigation purposes at any time. I have borrowed, rented,
and bought investigative equipment to conduct investigations
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that have been assigned to me by you gentlemen. I just want
to close gentlemen in saying it has been very difficult for me
to try to run the Police department under these trying condi-
tions that I have been placed under, but I can assure you that
• I will do my utmost to continue to work as your Chief of Police."
City Attorney Walden then read his lengthy legal opinion, a copy of
which is attached to and made a part of these minutes.
Clarke Walden: Gentlemen, if you want to accept my recommendation
• as presented, I recommend that souteone make a motion to adopt the
recommendations contained in this letter, and specifically the three
recommendations at the conclusion be made a part of the resolution.
Commissioner Adams: I'll move the adoption of that resolution.
• Commissioner Kelly: I'll second the motion.
City Attorney Walden asked City Clerk Thornhill to call the roll.
The roll being called, the Commissioners voted as follows:
• Adams Yes
<: Robert Houston, from the Audience: Mr. Mayor, can we have some dis-
cussion on this?
Brice Yes
• Kelly Yes
Waiters Yes
Marant Yes
Ft� City Attorney Walden: Mr. Mayor, I'll turn the meeting back to you.
Thee being no further business, the meeting adjourned.
Richard Marant -2- Mary Thornhill
Mayor-Commissioner CityClerk-Auditor
•
C LARIL L' WALDEN
ATTUNN ''Y AT LAW
DANIA, FLORIDA
ROBERT E.DUBOW
August 23, 1967
Mayor Richard Marant
• Commissioner James G. Adams
Commissioner Gus Brice
Commissioner Robert B. Kelly
Commissioner Boisy N. Waiters
Gentlemen:
An allegation has evidently been made by a discharged police offi-
cer to the effect that the police department has used an electronic listening
device to eavesdrop on the conversations and communications of the city
® clerk and that the device has also been hidden in the city commission con-
ference room. As I understand the accusation, the former policeman claims
that the device was hidden within the desk of the city clerk, without her know-
ledge, and was used to listen to her conversations from day to day. No
statement has been made as to the use which was made of the information.
• The charges of the former policeman are evidently inthe form of
verbal statements made unofficially to two city commissioners and to certain
citizens having no official connection with the city. However, as a result of
the allegations, the commission has agreed to hold a public meeting. I un-
derstand that there is some thought on the part of the commission that an ad-
O mistrative type of hearing or trial of a judicial nature should be held at a pos-
sible future date. The mayor has requested a letter or opinion from me as to
what position the city should take.
I have not discussed the matter with the chief of police. However,
• I am aware of certain investigations which the city authorized him to make
during the early part of the year and the chief referred to this authorization
in a statement made to the commission on August 21st. Otherwise, the chief
of police has not commented specifically on the charges and I do not know his
position in the matter.
• As I recall the situation during the early part of the year, certain
citizens made charges, for example, that a private telephone line ran into
the office of the city manager and that certain irregularities existed concern-
ing the construction of a sewer line. The commission directed the chief of
police to investigate these charges and, incidentally and perhaps informally,
• to investigate whether city employees were improperly releasing Information
of a confidential nature to unauthorized persons.
The allegations of the former policeman have neither been presented
nor proven and the only question at this time is a hypothetical one which can
• probably be stated as follows:
Does the police department of the city act properly
if it hides or conceals an electronic listening de-
vice in the office of the city clerk, without her
•
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.c- CLAI23C L'' WALDEN
Mayor Richard Marant
Commissioner James G. Adams
® Commissioner Gus Brice
" Commissioner Robert B. Kelly
+ ,r Commissioner Boisy N. Waiters
aa�
August 23, 1967
• Page Two.
knowledge and consent, for the purpose of
® listening to conversations and transactions
conducted by the city clerk?
For the purposes of the question, I will assume further that no
suspicion or probable cause existed to believe that the city clerk had com-
mitted a crime. Also, since we are dealing with a hypothetical factual sit-
cation, I will assume that the only reason for investigating the city clerk
concerns the question of whether she was improperly releasing information
to unauthorized persons. However, it is possible that such investigation
may have been made to investigate persons dealing with the city clerk.
• Every person has a well definedright to privacy and to the security
of his home or office and this right is a definite right which can be violated
through the commission of a trespass. The nature and extent of this right
usually comes into play on the question of whether evidence illegally obtained
` by a policeman can subsequently be used against a defendant in a criminal
® prosecution.
Historically, under the federal constituation, the objection to the
use of illegally obtained evidence is based on the fourth amendment and the
fifth amendment to the constitution.
i The fourth amendment provides:
"The right of the people to be secure in their
persons, houses, papers, and effects, against un-
reasonable searches and seizures, shall not be
• violated. . . "
The fifth amendment provides:
"No person . . . . shall be compelled in any
• criminal case to be a witness against himself. "
With the advent of the telephone, the practice of wiretapping on the
part of policemen came into existence and the wiretapping cases were but
another phase of the right to use illegally obtained evidence in a criminal-.
• prosecution. In all of these cases, there are two conflicting arguments which
are advanced. On the one hand, the prosecution and the police argue that the
end justifies the means and that all evidence, whether obtained legally or il-
legally, should be used to convict. On the other hand, those who favor the
protection of the defendant argue with equal force that a government should
I ¢�
xAgMk
® CLARHL•' WALDEN
" Mayor Richard Marant
Commissioner James G. Adams
Commissioner Gus Brice
! Commissioner Robert B. Kelly
Commissioner Boisy N. Waiters
August 23, 1967
Page Three.
not compound or encourage crime or a civil violation of the law through
allowing the use of unlawful evidence in a criminal prosecution. Over a
! period of many years and in a wide variety of cases, the courts have not
been consistent and have adopted both arguments from time to time. At the
present time, the United States Supreme Court seems to favor the rights of
a defendant over the demands of the prosecution.
One of the first wiretapping cases to reach the United States Su-
preme Court was Olmstead vs. United States (1928), 277 US 438, 48 Sup.
Ct. 564, where Justice Holmes characterized the entire practice of wire-
tapping as "dirty business" and wherein he made the following observations
on the age old conflict of whether unlawful evidence should be used:
! " . . . Therefore, we must consider the two
objects or desire, both of which we cannot have,
and make up our minds which to choose. It is
desirable that criminals should be detected, and
to that end that all available evidence should be
! used. It also is desirable that the government
should not itself'foster . . . crimes, when they
are the means by which the evidence is obtained
. . . We have to choose, and for my part I think
it is a less evil that some criminals should cis-
cape than that the government should play an
ignoble part. "
In the case, Justice Holmes was in the minority and the majority
opinion permitted the introduction of wiretapping evidence as evidence in a
• criminal prosecution. The particular case led to the passage of the Federal
Communications Act of 1934 which caused wiretapping.to become illegal un-
der the federal laws. Wiretapping is also illegal in Florida under state
statute (§822. 10, Florida Statutes).
Over a period of about thirty years, the United States Supreme
® Court had occasion to consider numerous wiretapping cases arising under
every conceivable circumstance and a basic set of principles came into,exis-
tence in the 1940's and the 1950's as the result of a major decision of the
Supreme Court issued in 1942 and cited as Goldman vs. United States, 316
US 129, 62 Sup. Ct. 993.
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Beginning in the middle 1950's, electronics arrived and the old
wiretapping cases became outdated. Thus, because of the marvels of elec-
tronic gadgetry which presented undreamed of possibilities to eavesdrop,
the Supreme Court started on another round of cases. The later cases are
!
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Affik
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,wt ® CLARxL WALDDN
' w. Mayor Richard Marant
o:
Commissioner James G. Adams
Commissioner Gus Brice
Commissioner Robert B. Kelly
Commissioner Boisy N. Waiters
i'
August 23, 1967
Page Four.
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sometimes referred to as "electronic eavesdropping" cases to distinguish
them from the old wiretapping cases which are characterized as "simple
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• eavesdropping" cases.
The leading case on electronic eavesdropping seems to be Silver-
man vs. United States (1961), 365 US 505, 81 Sup. Ct. 679, which concerned
the use of a device known as a spike microphone. This case holds that all
® evidence obtained by means of electronic eavesdropping is illegal and not
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admissible if any type of trespass, or invasion of a protected area, is com=
mitted in order to install or conceal the device used to obtain the evidence.
Seemingly, the issue now is whether any type of trespass was committed
!F' and this evidently outweighs all other factors.
r�
® You should understand that many of the federal cases are confusing
and hard to distinguish. In a recent Florida eavesdropping case, Barber.
vs. State (1965), 172 So 2d 857, Judge Rawls, one of the leading state judges,
made the following comment on the recent federal cases:
• "After a full analysis of the Federal decisions,
I would be less than candid if I did not condede
that the Federal courts have fluctuated in their
decisions from day to day, from fact to fact,,
from constitutionality to unconstitutionality and
• from admissibility to inadmissibility. "
At any rate, it is my opinion that where any type of trespass is com-
mitted in order to install an electronic eavesdropping device, evidence ob-
tained through the use of such device is not admissible in a criminal prose-
cution, The most recent cases are discussed and annotated in 97 ALR 2d
1277, a 1964 annotation which considers all of the ramifications of the
Silverman case.
Under the charter of the city, the city clerk is more than a mere
employee. She occupies an executive or administrative position of substan-
tial importance in the municipal government and she is considered to be a
j; department head. She is required to maintain and have custody of numerous
t records of the city and she also serves as the treasurer or custodian of the
city's funds. Because of her duties, she is entitled to the use of an office
" and, in my opinion, her position as an executive of the city gives her a limi-
t, • ted, but exclusive, right to the possession and privacy of the physical office
which is furnished to her. As a matter of fact, many of the eavesdropping
cases concern the concealment of a listening device in an office rather than
in a home.
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CLARKE WALDEN
i.
? Mayor Richard Marant
Commissioner James G. Adams
Commissioner Gus Brice
® Commissioner Robert B. Kelly
. Commissioner Boisy N. Waiters
August 23, 1967
Page Five.
•
Under the doctrine of the Silverman case (the 1961 decision of the
United States Supreme Court on electronic eavesdropping), it is my opin-
ion that a technical trespass was committed as to the city clerk if an eaves-
dropping device was placed in her office without her consent. Therefore,
any evidence obtained as the result of the use of the device could never be
used against the city clerk in any type of prosecution. It is my opinion
that the fact that the city clerk isapublic official is immaterial. She is en-
0 titled to the protection of the law without regard to whether she is publicly
F° employed or privately employed. To say otherwise might justify the FBI
in concealing a listening device in the office of the president or might cause
the state police to feel encouraged in hiding such a device in the office of the
governor.
• There is an important exception or limitation to the rule which I
emphasize to you as the exception will form the basis of one of the main
recommendations which I make at the conclusion of this report. The excep-
tion is that any evidence obtained through the use of an eavesdropping de-
vice, if obtained without the commission of a trespass, is deemed to be law-
• fully obtained and is admissible in a criminal trial. In other words, there
is nothing illegal about the mere possession of a listening device by a police
department and its use in obtaining evidence may often by lawful and proper.
In the average case, the commission of a trespass is the feature which is
objectionable. However, the only person who can object is the one against
• whose property the trespass was committed.
Again, assuming that an eavesdropping device was placed in the of-
fice of the city clerk, I advise you that she has the absolute right to object to
any evidence obtained by use of the device. On the other hand, if some
• stranger makes statements while in the office or during a telephone conver-
sation with the city clerk and if such statements are picked up on the listen-
ing device, any evidence obtained as the result of the statements could be
lawfully used in subsequent criminal prosecution of the stranger. This is
because no type of trespass has been committed as to the stranger in con-
nection with the concealment of the listening device.
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Stated simply, evidence-obtained by the device as to one person may
be illegal but the same evidence obtained as to another person may be legal
and proper. The test is primarily one of whether a trespass was committed.
From a purely egal standpoint, the only basis for any objection by the for-
e mer police officer making the charges is the possible fear he may have that
the alleged device has been used illegally to obtain evidence which may be
used against him in some type of prosecution and I do not understand that
this is the situation at hand.
•
CLARKE WALDEN
Mayor Richard Marant
Commissioner James G. Adams
-_ Commissioner Gus Brice
r" ® Commissioner Robert B. Kelly
Commissioner Boisy N. Waiters
yT '
August 23, 1967
f ..
Page Six.
Within the past day or so, I have discussed the subject of this
letter informally with each of you. You state that you have no knowledge
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of the use by the police department of any electronic eavesdropping equip-
ment o PP� g ;
which may be in its possession. However, you recognize that you did
.:. authorize the chief of police to make specific investigations during the early
x„> part of the year and, of course,•he has the general duty of making continu-
ing investigations at all times as to possible criminal violations in the city.
d.:.
lsti •
You indicate to me that the chief of police has shown you his con-
fidential reports of matters under investigation. Particularly, I gather he r:
has shown you reports of the matters which you specifically authorized him
to check into during the earl art of the ear. You state that these reports
-� g Y P Y
*?' do contain information about certain individuals who may be suspected of
• possible criminal violations or of violations of the Dania Code of Ordinances.
While you do not know of the use of eavesdropping equipment by the police
department, you acknowledge the possibility that certain of the information
.z in the reports or files of the police department could have been obtained by
the use of such equipment. You state that the chief of police has not dis-
• closed to you the methods used in making his investigations. Obviously, any
information he has in his files may have been obtained from many sources
including, for example, informers and the use of eavesdropping equipment.
It is my belief that there is nothing illegal about the mere posses-
sion by a police department of eavesdropping equipment and its use, if car-
ried out in a lawful manner, is certainly proper. The same observation can be
made for the guns and other police weapons customarily used in police work.
The possession and lawful use of such weapons cannot be objectionable but
the improper use will naturally raise protests. I do not know if the police
department has any type of eavesdropping equipment but I think it is proper
• for any interested party to ask if such equipment is owned or used. If the
question is.asked, I will recommend to the chief of police that he give an
answer as, at the risk of being repetitious, there is nothing improper about
the possession of such equipment by any police department.
• I do not believe that a chief of police can be compelled at a public
hearing to disclose any details or specific facts which he may have obtained
through the use of eavesdropping equipment. Therefore, while a chief of
police can admit generally that he has eavesdropping equipment and that he
uses such equipment, he cannot be compelled to report publicly the circum-
• stances concerning the use of the equipment. Further, he cannot be forced
to state publicly the results or the information obtained through the use of
the equipment. Without going into too much discussion, there are many
areas of police work where courts cannot compel the disclosure of confiden-
tial information. For example, numerous Florida cases hold that a court
® CLARKE WALDEN
Mayor Richard Marant
Commissioner James G. Adams
Commissioner Gus Brice
® Commissioner Robert B. Kelly
Commissioner Boisy N. Waiters
C
August 23, 1967
Page Seven.
s
lacks the power, as a general rule, to compel the prosecution to disclose
the names of confidential informers. See City of Miami vs
165 So. 2d 775. . Jones (1964),
E. ®
r The above background constitutes one of the main reasons why I
am not inclined to recommend any type of public hearing or public trial
by the commission on the charges of the former police officer. If the com-
mission becomes involved in the swearing of witnesses and the taking of
testimony, it would be desirable and almost essential to follow all of the
niceties of a judicial type of trial or hearing and some attempt at the re-
ouirements of due process should be made. I foresee the immediate diffi-
culties of attempting such a hearing. The complaining witness would al-
lege the use of the eavesdropping equipment and the possible illegal use of
® same. The legal advisor to the commission would advise the chief of po-
lice to admit generally whether the department owned such equipment and
whether the department used such equipment in its investigative work.
You have stated to me that the confidential reports of the chief of
O police do not contain any information which questions the integrity and hon-
•
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R'r:z
CLARRE WALDEti
s Mayor Richard Marant
Commissioner James G. Adams
"w Commissioner Gus Brice
Commissioner Robert B. Kelly
Commissioner Boisy N. Waiters
August 23, 1967
Page Eight.
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esty of the city clerk. Therefore, while the possibility exists that informa-
tion in the reports as to others may have been obtained through the use of
® the device allegedly concealed in the city clerk's office, you each indicate
that such information does not reflect upon the loyalty and service of the
N4 city clerk. If this is the case and if such conclusions become a matter of
record, I confirm my recommendation that nothing could be served by a
x ; public hearing as one of the real reasons at any attempt at a public hearing
' would be to resolve the question of any unintended reflections on the city
4y clerk who, in my opinion, is the only person who could object to the use of
the listening equipment.
t I pause at this point to observe that we have been discussing the
use and legality of eavesdropping equipment as though some criminal prose-
cution were pending. Actually, I know of no pending trials where the alleged
use of the equipment will be at issue, and the real discussion concerns the
matter of whether such equipment should be used either for criminal inves-
tigations or for internal or loyalty investigations. All of the cases arise
over the evidentiary value in a criminal case of that evidence unlawfully ob-
• tained through the use of the equipment. Even though you are not called upon
to judge a criminal case, I recommend that you be influenced by the comments
and rulings of the courts in the various criminal cases on the subject.
To my knowledge, every law enforcement agency uses some type
® of eavesdropping equipment. In layman's language, every law enforcement
agency is guilty of spying through the use of the equipment. On a national
level, President Eisenhower was forced to admit the spying nature of the
U-2 airplane which flew over Russia a few years ago. Most of the federal
cases arise through the use of the equipment by the FBI or by the Internal
Revenue Service. While I am sure that federal agents and other police offi-
cers are embarassed when they are caught using the equipment, I am not
aware of any announced policy of the Justice Department, the Director of
the FBI, or the Director of Internal Revenue Service which orders and di-
rects an absolute discontinuance of the use of the equipment. The point I
make to you is that the equipment is used daily by every type of law enforce-
® ment agency in the country. For example, I recall that the murder of Judge
Chillingworth in Palm Beach County was solved a few years ago by the use
of such equipment by the Florida Sheriff's Bureau and the use of listening
devices presently seems to be a part of everyday police work. While the
use of modern electronic equipment by irresponsible persons certainly has
® grave risks to all of us, I do not suggest that you absolutely forbid the use
of such equipment by the Dania Police Department if it wants to use the
equipment in a lawful manner in the investigation of crime, where there is
some ground for probable cause and where each policeman understands
that he is proceeding at his peril and risk if he commits any type of tres-
s
® CLARKE WALDEN
i
Mayor Richard Marant
Commissioner James G. Adams
Commissioner Gus Brice
® Commissioner Robert B. Kelly
Commissioner Boisy N. Waiters
August 23, 1967
Page Nine.
O '
pass. At the same time, you should understand that the improper use of
such equipment has been severaly criticized on numerous occasions by the
O Florida courts. In a wiretapping case (which is simply one form of eaves-
dropping), one of our Florida appellate judges made an accurate state-
ment as to the risks and evils of eavesdropping. The case was Griffith vs.
State (1959), 111 So. 2d 282, where Judge Carroll said:
® "Our conclusion, therefore, under the au-
thorities discussed above, is that evidence ob-
tained through wiretapping is not inadmissible
in evidence in the state courts of Florida be-
cause obtained in violation of any general prin-
ciple of law, any federal or state statutory pro-
vision, or the United States Constitution. "
"Nevertheless, despite this conclusion,
we are so deeply concerned with the potential
dangers of wiretapping to our American way
O of life, to our sacred liberties and our demo-
cratic society, and to our concept of fair play,
that we have reached the further conclusion
that wiretapping violates Section 12 and 22 of
the Declaration of Rights of the Florida Con-
stitution. "
"Our decision on this'appeal is not to be
construed in any way as an approval of the
practice of wiretapping or unauthorized lis-
O tening to telephone conversations through
other devices by law enforcement officers or
anyone else. On the contrary, we condemn
the practice., It is a dangerous practice, and,
if used increasingly or extensively, could
O well help to lay the groundwork for the de-
velopment of a police state, which is abhor-
rent to all Americans, and help to destroy per-
sonal liberties. We agree with Justice
Musmanno in his vigorous dissenting opinion
in the case of Commonwealth,v� IChaitt, ,3$P,,.I,, ,• ,,. ., , .r
O Pa. 532, h2 A. 2d 379, in which,he points„ , ., ,i„11.. 1,y 111,:
out that. the;right of pr}vacy,whichlhpxybeen 1, „ ,II III , Iv, ;
achieved,through centuries) of struggle must,..,,, ,
not, in,the,hand of wilful n}edcjlersil,be.al- v,.1.: 1 ;1•i I I ii I,
O
1111,b r Ill. ;Ill
111.11 , v1d, u„ ,4,
I II„ , ,nll1 � n1 i. . u„I uLnllni. .. .11,l,
nl ,,, III i i, i ,lll'I:. „I I' II,I'111.1 I„•
.1 Hill 1,111. "
1 ■
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® CLARKE WALDEN
a Mayor Richard Marant
Commissioner James G. Adams
® Commissioner Gus Brice
Commissioner Robert B. Kelly
Commissioner Boisy N. Waiters
August 23, 1967
0 Page Ten.
lowed to be lost in the few seconds it takes
to tap a telephone wire. "
RECOMMENDED RULES ON USE OF EAVESDROPPING
EQUIPMENT:
Based on the above philosophy which you must attempt to reconcile
• with the acknowledged use of eavesdropping equipment by virtually every
police department in the country, I suggest that you adopt the following gen-
eral rules for the guidance of our police department if it wants to use the
equipment in Dania:
® 1. The equipment may be used in a lawful manner in the investi-
gation of a suspected crime where there is probably cause to believe, in
advance of the investigation, that a crime was actually committed. On such
occasions, the equipment shall be used in accordance with all current court
decisions which limit or restrict the use and no trespass of any type shall
ever be committed.
2. Except for areas specifically assigned to the police department
for the purposes of interrogation, the equipment shall never be used in any
office or area of the city hall or in any other public building of the city for
any purpose whatsoever.
•
3. Unless authorized in writing by all commissioners with the form
of authorization to be approved by the city attorney, the equipment shall
never be used for internal investigations, loyalty investigations or for the
purposes of obtaining general information as to municipal operations. While
A the authorization may be maintained on a confidential basis, the form of au-
thorization shall be filed with either the city manager or the city clerk.
4. Any eavesdropping equipment used by the police department
shall be retained in the direct custody of the chief of police and no persons
• shall be allowed to use, borrow or have possession of the equipment with-
out the written permission of the chief of police.
I .think it is important to make absolute restrictions on the use of
such equipment where conversations and communications from the public to
city employees can be intercepted. Otherwise, I fear the possible situation
where citizens may become afraid to contact municipal employees for fear
their lines are being tapped or their conversations are being overheard.
As I have tried to make clear throughout the letter, the city has no
M�
4^3:
CLARKE WALDEN
^3�Z Mayor Richard Marant a ;a Y
Commissioner James G. Adams
Commissioner Gus Brice
® Commissioner Robert B. Kelly
Commissioner Boisy N. Waiters
August 23, 1967
Page Eleven.
present evidence of improper use of eavesdropping equipment and this
letter is written based solely on a hypothetical set of facts which may or
• may not exist. I respectfully suggest that the city commission did author-
ize the chief of police to make certain investigations and that some of these
investigations were of an internal nature. While you did not instruct the
chief of police as to how to make the investigation and while you presently
"q indicate that you have had no knowledge of the use of any eavesdropping
® equipment, I believe the chief of police may have fairly interpreted his
general authorization as one which gave him the implied right to use eaves-
dropping
--� equipment by concealing the equipment in the office of the city
clerk if, as a matter of fact, such concealment actually happened. This
? should never happen in the future if you adopt the above restrictions on the
hT use of the equipment.
There are other reasons why I am reluctant to suggest you become
involved in any type of trial, hearing or proceeding of ajudicial type con-
cerning the allegations of the former police officer. The city commission
is primarily a legislative body and was not created to operate as a judicial
• body. Therefore, if you want to conduct a public hearing which will prob-
ably have the aspects of a judicial trial, you must adopt certain basic rules,
to comply with due process requirements. Probably, the allegations of the
former policeman should be in writing and under oath. If the charges are
directed against the chief of police, the chief must be furnished with a copy
• of the charges in advance of the hearing. You must adopt certain basic
rules in advance of the hearing so that all interested parties can be heard.
If you become involved in a public hearing of the above nature, I
would want some understanding as to what extent the credibility of any wit-
0 ness should be attacked. For example, the record of the former police
officer during his employment would probably be material on the matter of
credibility and he should understand in advance the extent to which the re-
cord might be used at the hearing,
RECOMMENDATIONS AGAINST PUBLIC ADMIMTRA-
• TIVE HEARING OR TRIAL:
' After considering all of the factors and matters which are involved,
I do not recommend that you attempt to conduct any type of administrative
hearing of a quasi-judicial nature concerning the the allegations which have
• evidently been made unofficially by the former policeman for the following
reasons:
1. The former policeman has not made the allegations in writing
and, to my knowledge, has not formally or officially requested any type of
O
isi''ac r
A
CLARKE WALDEN
r;
j
s Mayor Richard Marant
=r ' Commissioner James G. Adams
Commissioner Gus Brice
x' 0 Commissioner Robert B. Kelly
Commissioner Boisy N. Waiters
r August 23, 1967
= : Page Twelve.
0
R41;..
=" hearing, meeting or judicial proceeding by the city commission or any
of its committees.
2. A mere allegation or assertion that the police department
owns or uses eavesdropping equipment does not raise any issue or fact
that can be tried or heard at a public administrative hearing, as there is
nothing illegal or unlawful, per se, about the ownership ox the legal use
.:.::
of such equipment.
r;
3. The former policeman has not indicated that he or the public
generally have been damaged if my understanding of his unofficial allega-
tions is torrent. If the allegations are correct, the person who should ob-
ject is the city clerk.
:53 0
4. In any public hearing of a comprehensive nature which involves
F' the taking of testimony, the city will be limited as to what extent it can com-
pel the chief of police to disclose confidential information. He can be re-
quired to disclose whether the department owns or uses eavesdropping
0 equipment and he can be required to answer generally whether eavesdropp-
ing equipment was installed in the office of the city clerk without her know-
ledge. However, if he admits that he has learned nothing of a derogatory
or questionable nature concerning the city clerk, I feel the questioning
should not proceed further. Again, while the city clerk has the right to ob-
0 ject if a trespass was committed, I do not believe information learned as
to other persons could be an issue since the eavesdropping in the city
clerk's office would be legal as to such persons.
5. That the basic purpose of any attempted hearing would be to
0 remove any possible reflection against the city clerk as she is the only per-
son against whom an illegal eavesdropping may have taken place. If this
reflection can be corrected by other means, there is no substantial need
for any type of public hearing.
0 6. That the city commission is primarily a legislative body and
has limited authority and experience in conducting an administrative
hearing of a judicial nature. The conduct of such a hearing would require
the formulation of a basic set of procedural rules and would be relatively
expensive and time consuming.
0 AFFIRMATIVE RECOMMENDATIONS:
I make the following affirmative recommendations to you:
1. That the chief of police be requested to advise the city com-
0
•
® CLARKL WALDEN
ai
Mayor Richard Marant
Commissioner James G. Adams
® Commissioner Gus Brice
Commissioner Robert B. Kelly
Commissioner Boisy N. Waiters
E August 23, 1967
• Page Thirteen.
mission by letter, in general language, whether the police department
owns and uses electronic investigative or eavesdropping equipment at the
• present time. Based on the general practices prevalent throughout the
nation among federal, state and local police organizations, there is no-
thing illegal about the ownership of such equipment. Therefore, I feel that
the public is entitled to know whether the equipment is owned or used in
Dania.
2. That because some members of the public may feel that the
honesty, integrity, loyalty and reputation of the city clerk have been ques-
tioned or placed at issue by the allegations of the former policeman and
by the attendant publicity, the city commission and the chief of police
• should openly acknowledge that they have received no information as the
result of any investigations or police department reports which serves to
reflect unfavorably on the city clerk. If the recommendations herein are
adopted by general resolution, said resolution shall be deemed to show that .
the city commission and chief of police make such acknowledgment concern-
ing the city clerk.
•
3. That you immediately adopt the rules that I have suggested in
the earlier part of this letter concerning the future use of electronic eaves-
dropping equipment in Dania. If the recommendations herein are adopted
by general resolution, same shall be deemed to show that the city commis-
• sion does hereby adopt such rules.
Sincerely yours,
Clarke Walden
CW/sc
•