Search and Schnauzer
The narcotics unit of the North Miami Beach Police Department had just set up surveillance this past March 30, and already the operation had hit a snag. Overworked and pressing to keep up with their superiors' demands for increased arrests, Sgt. Steve Diaz's squad couldn't get anyone to sell their undercover informant crack cocaine. No one, it seemed, was selling -- or at least not to them. Then Diaz heard an odd sound.
The thirteen-year veteran had been crouching next to a fence near the Raffy K, a motel on Biscayne Boulevard just north of 163rd Street that was known for its transient and ne'er-do-well clientele. He'd thought he was hidden from view, but as he turned in the direction of the sound, he realized he was wrong. Sitting a few feet away, on the railroad tracks that run near the motel, was a woman.
"Officer, I see you," she said. "And I know what you're up to."
Fearing the woman might blow the undercover operation, Diaz told her to keep quiet.
"You're going to the wrong apartment," she persisted.
This, of course, was already apparent to Diaz.
"You want apartment number 27," she said, helpfully naming the occupant: Horace Brown.
Figuring he had nothing to lose, Diaz summoned his men and drew up a plan to target apartment 27. And sure enough, when the undercover informant knocked on Horace Brown's door and talked his way in, he came out twenty dollars poorer but carrying four rocks of crack cocaine. Diaz and his men burst in, wrestled Brown to the ground and sprayed him with pepper gas as he attempted to flee. Another man in the apartment was subdued and arrested as well.
Police also found Brown's girlfriend in the apartment and asked her where Brown stashed his crack.
According to Diaz, the woman said the drugs were in a briefcase under the bed. Whereupon he went to the bedroom, pulled out the canvas bag, and saw that it contained several dozen baggies filled with crack rocks.
Now the sergeant had a problem.
He didn't have a search warrant. While he could seize the 142 crack rocks as contraband, he knew they would be inadmissible as evidence against Brown if the State Attorney's Office wanted to charge him with high-volume drug trafficking.
Diaz closed the bag and put it back under the bed.
Then he radioed the dispatcher to send out a drug-sniffing dog, reporting that he suspected there might be additional suspects hiding in the apartment.
When Ofcr. John Francioni arrived, Diaz instructed him to have his dog Badger sweep the apartment. He didn't mention the drugs under the bed. If Badger were simply to "discover" the crack, it would be admissible in court.
Several minutes later, Francioni came out with his dog and surprised Diaz with the news that Badger had not found anything inside. After the officer put Badger in the squad car, the incredulous sergeant took Francioni into the room and told him there indeed were drugs. He went so far as to reach under the bed, pull out the briefcase, and show him.
With the bag once again concealed beneath the bed, Francioni fetched Badger for a second sweep.
In three separate police reports that were filed after Brown's arrest, Diaz and Francioni indicated that the cache of crack was found by the dog. "Defendant Brown was thereafter placed under arrest where another one hundred forty-two cocaine rocks were discovered in the south bedroom by drug K-9 Ofcr. Francioni and Badger," Diaz wrote on the arrest form.
"While arresting Brown, two more suspects were found in the apartment, and for our safety, a K-9 officer was summoned. While conducting his search, K-9 Ofcr. Francioni's dog 'alerted' to a canvas briefcase in the south bedroom, which contained $286 in cash and 142 pieces of crack cocaine," he wrote on the offense incident report.
Francioni filed a canine activity report, stating, "Upon arrival Sgt. Diaz advised that the subjects inside the apartment were selling crack rocks and it was possible that more crack cocaine was located inside. K-9 Badger and myself began a residential drug search and a short time later K-9 Badger alerted to the scent of narcotics coming from inside a brown in color satchel that was on the floor located in the south bedroom. Sgt. Diaz opened the satchel and discovered 142 [wrapped baggies of] crack cocaine."
Nine months after Brown's arrest, the reports are at the heart of a controversy that calls into question the propriety of North Miami Beach's drug unit, as well as that of the department's command staff, which, upon learning of the misdeeds in apartment 27 two months after they took place, took only minimal action against the officers involved and refused to conduct a formal Internal Affairs investigation.
In October Sergeant Diaz was promoted to the rank of commander, and he is now in charge of all the department's drug operations. North Miami Beach Police Chief William Berger defends the promotion and blames disgruntled Anglo officers in his department for trying to embarrass Diaz, a Hispanic, by leaking to the press the allegations of wrongdoing in the Raffy K search. "I think this is ethnically motivated," Berger says. (Neither Diaz nor Francioni could be reached for comment for this story.)
Berger argues that last May, when the allegations surfaced, they were investigated and found to be unintentional mistakes on Diaz's part and not a deliberate attempt to file a false report or hide an illegal search -- both of which are potentially felonious offenses. "He made a stupid mistake and that was it," says the chief.
Berger's position would be stronger if his department had conducted a more thorough review of the incident in the spring. The allegations had come to light after Francioni's supervisor, Sgt. Helen Morrison, heard complaints that the officer was not handling his dog properly and was having trouble locating drugs. Sgt. Morrison began asking other officers if they had noticed this problem, and when she approached Diaz, he recounted the Raffy K incident, saying he'd had to show Francioni where the drugs were hidden before Badger managed to locate them.
When Sgt. Morrison reviewed the files pertaining to the incident, she saw that none of the reports matched what Diaz had told her. She then confronted Francioni. "He advised that his dog did not find the drugs and that he came back into the room later after the drugs were found by VIN [Vice Intelligence Narcotics] officers on the scene," reads Morrison's subsequent report of the conversation. "I asked him why he wrote a 'find' report when his dog did not find the drugs. He said that he was told to write it up as a find by Sgt. Diaz. He said that the probable cause was needed for the search and that's why he was told to write it up as a find."
In a two-paragraph statement on May 16, Diaz acknowledged that Francioni and his dog had been unable to find the drugs on their own and that they had to be shown where the crack was hidden. But Diaz denied ordering Francioni to file a false report. "I did not order or tell officer Francioni to show the narcotics as a find or alert on his report," Diaz wrote, "although I did say that for probable-cause purposes he would be listed on the offense incident report as having found the narcotics."
With both officers admitting that they filed false reports, the matter was forwarded to Assistant Chief Tom Ribel. It was his job, Ribel says, to evaluate the evidence and determine if an Internal Affairs investigation should be launched, which could lead to charges being filed by the State Attorney's Office. After interviewing Diaz and Francioni, Ribel determined that a formal investigation was not warranted. Instead, a letter of reprimand was placed in each officer's personnel file. Francioni was removed from the K-9 unit.
"The circumstances of this case initially looked bad," admits Ribel. But he's satisfied there was no criminal wrongdoing on the part of either officer. He points out that Horace Brown was charged with resisting arrest, sale of a controlled substance, and possession of a controlled substance -- the crack cocaine found in his pockets. He was never charged for the crack in the briefcase, the assistant chief explains, because there had been too many people in the apartment and the officers couldn't prove it was Brown's stash.
Given that the briefcase was not used as evidence against Brown, Ribel reasons that the methods the officers employed to retrieve it caused no harm. If they had tried to have that cocaine entered into evidence through their false reports, Ribel says, they would have faced perjury charges.
Ribel also believes Diaz's and Francioni's actions didn't stem from any bad intent; it was Diaz himself who exposed the transgression by discussing it with Helen Morrison, the assistant chief notes.
As to Francioni's allegation that Diaz ordered him to file a false report in order to legitimize the search, both Ribel and Chief Berger consider that to be one man's word against another's. And in that matchup, says Berger, there is no contest: Diaz is one of the department's most outstanding officers, while Francioni, who has been with the department since 1987, has lately been undergoing what the chief describes as "personal problems". "Francioni should have made the allegation from day one and not waited until he was confronted," the chief argues. "You don't have to obey an unlawful order."
For all the havoc that his case brought, Horace Brown never spent a day in jail. To the surprise of his public defender, Robert Alvarez-Rudolph, prosecutors offered a year's probation. (Alvarez-Rudolph, incidentally, disputes Diaz's contention that the defendant's girlfriend revealed where the drugs were; he says the police found the briefcase when they performed their warrantless search.)
Horace Brown's current whereabouts are unknown. He certainly no longer resides at the Raffy K, which has been torn down.
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