EN CGUNTY 9F THE ELEVENTH JUDHCEAL EN AND FOR EQTUNTY, FLIGREDA STATE OF FLORIDA I CASE NO: B10- BIO-31311, BIO-40647, B10-40669, 5.5) BIO-40686, 1310?40531, vs. 0th? 5? 359% Plaintiff, GEORGE BAPTISTE, .. 1311-40156, B1 1410555, 1311-42642, Defendant. B1 1?44073, B1 1?47134, Bl 1?50403. Bil?54855, 1312?9552, 131244784. MIZH40848 and Mi3~55354 JUDGE: MARY JO FRANCIS {Mitt}: GRANTEIEIG MUTHQN RELEEF Mir. motion arises out of attests and subsequent cormictions from 2010 to 2013 for at a Quick Stop located in Miami, Gardens. Florida. Mr. Ai?fi Salish. has hoon the (minor of this stors since 1999. in C'dCi?l of this thirty?three incidents at issue.) the h/iiami (initials potion based the arrests on the ptii?pm'tzsd consont of "the owner, through the Miami 'Gt?tt't'i?ib} Euro Eons progrt-nn. Mr. Saleh enrolled in the program in 2008 with the \?vas 'tl'izitt ho had given the police authority to act on his behalf to anfest pomjiio for trespass only it?. in his Etif)S?t?1C?, it was authorized by his employees, or it his store was closed. After witnessing 3; pattern ofpoiics ?int-31's using the program to stop, search, and arrest his customers during; business hmn?s withoiit the consent ofhimsolfor his employoos ho ifoscintiocl ail in, this program in 2010. Despite Mix Saieh?s total Withdrawal from tho progmn'i. tViizisim ?ssdons polices: oiitiignzji?s cotitiniiacti, Witi?imt any aiithorii?ation from Sahih. to arrest his otistonhgirs. tor filorne of the arrests in Mr. litriptistes cases refer to a ?We Care? sign, or a ?Zero Tolerance Zone? sign as the source of police autl'iority to issue trespass warnings and make arrests 'l?or No evidence was presented at the hearing with respect to the content of either ot these signs. Mr. Saleh removed the Zero Tolerance Zone sign horn, his building after he withih?ew from the program. Alter Mr. iialeh removed the sign, a new sign was placed at the business without Mr. Saleh?s permission. Mr. Saleh also remtwed that sign, and again another was installed in its place._ again without his permission. While Mr. Saleh did not know who had been placing-the signs on the outside- or his business? the signs appeared to he the of?cial signs of the Miami Gardens police department. On Aargust ll, 2012, a newly-installed surveillance Video camera captured a Miami Gardens police officer placing yet another Zero Tolerance Zone sign on the outside of the Quick Stop. Mr. Saleh called the police department to complain, as he had not authorized the placement oti the sign (or the previous two signs). The following day, surveillance video captured a large group of police of?cers from the Miami Gardens police department entering the store white one police of?cer removed the sign. These videos were released to the public by the Miami l-"lerald on November 22., 2013 in an article reporting the pattern. of unauthorized arrests by the Miami Gardens police at the Quick Stop? Mr. Baptiste was always authorized by Mr. Saleh to enter and remain on the Quick Stop property . 1 In some of Mr. Baptist?e?s arrest atl'idavits the police referenced one ofthe necessary elements of trespass the authority to communicate an order to depart the property - by stating as Follows: ?the business has clearly posted signs stating ?No Trespassing?. All City of Miami Gardens Police Of?cers are authorized representatives of the owner. Documents on tile.? There was no evidence presented that there were any documents on ?le that Mr. liaieh had provided authority to the Miami Gardens police to make arrests while he or his employees were present. Alter the release ol the surveillance videos, Mr. Baptiste, through counsel, tiled a motion to vacate his cmivictions based on the newly discovered evidence that the purported authority for each (it? Mr. Baptiste?s arrests did not exist, and had been fabricated by officers ol? the ill/liami Gardens police department. On August 7, 30 4 this Court heard arguments from both counsel for Mr. Baptiste and counsel tor the state. The state did not dispute any of the factual allegations contained in the defendant?s motion, and declined the opportunity for an evidentiary hearing to contest the allegations. Both parties elected to rely on the written pleadings and the undisputed {actual allegations contained therein. STATEMENT 0F FACTS 1. On May 6, 2008, Amin ?Alex? Saleh, the owner of the Quick Stop store where Mr. Baptiste was repeatedly arrested, joined Miami Garden?s Zero Tolerance Zone program, with the understanding that it would to allow of?cers of the Miami Gardens Police Department to act on his behalf to direct unauthorized persons to leave the business only if the business was closed, or at his direction, or the direction of his employees. 2. All of Mr. Baptiste?s arrests occurred while the Quick Stop in question was open for business. 3. The Miami Gardens Police Department used this program as a justi?cation to stop, search and arrest customers and persons Visiting the Quick Stop during hours when business was open, and when neither Mr. Saleh nor his employees requested or authorized the police to arrest the defendant or others for trespassing. 4. In 2010, Mr. Saleh met with Captain Hughes of the Miami Gardens Police Department and rescinded his participation in the Zero Tolerance program. 5. Miami Gardens police of?cers continued to harass and arrest his customers for trespassing, claiming authority based on a Zero Tolerance sign af?xed to the building. Mr. Saleh removed the sign in 2010 in hopes of ending the harassment of his customers. 6. Versions of the Zero Tolerance sign then reappeared three times outside of the Quick Stop without Mr. Saleh?s permission. On the first two occasions, the person posting the signs was not seen, but the new signs appeared to be of?cial signs supplied by the Miami Gardens Police Department. Thanks to a recently installed surveillance camera, Mr. Saleh was able to conclusively demonstrate that on August 10, 2012, it was a Miami Gardens police of?cer who put up the new sign. This sign and the two that proceeded it were put up not just in the absence of Saleh giving permission, but in direct de?ance of his express wishes. Mr. Saleh complained, and the Miami Gardens Police Department appeared at the Quick Stop in force while one of?cer removed the sign the next day, August ll, 2012. 7. The Quick Stop is a store in the neighborhood where Mr. Baptiste lives. Between 2010 and 2012 Miami Gardens police arrested Mr. Baptiste for ?trespass after warning? at the Quick Stop at least thirty~seven 3 7) times. 8. . Mr. Baptiste always had Mr. Saleh?s full consent to enter and remain at the Quick Stop store in question. 9. in each one of the thirtyw-tln?ee arrests at issue, Miami Gardens police of?cers claimed in their arrest af?davits to be acting as authorized representatives of the owner, some speci?cally referencing a posted sign indicating the owner?s participation in the Zero Tolerance program a sign that is now known to have been posted by of?cers of the Miami Gardens police department without the permission of the owner, and in de?ance of the owner?s wishes. STATES/lilill?il?l till? LA The Defendant has requested the court vacate the convictions in the above cases. The ground for vacating the convictions is that they offend the due process clause of the Florida Constitution based on government misconduct.2 The government misconduct cited by the defense is the repeated arrest of the defendant by the Miami Gardens Police Department when they had no lawful authority for the arrests. The arrests would have been lawful only if the police had been acting on the authority of the owner of the store, or one of his agents, to arrest people for trespass when on his property. Police officers may not create crimes in order to make an arrest. State v. Glosson, 462 So.2d 1082, 1085 (Fla. 1985)3; State v. Williams, 623 So.2d 462 (Fla. 1993); State v. Finno, 643 2 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 US. 97, 105, 54 S. Ct. 330, 78 L. Ed. 674 (1933). 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.? Malinskl v. New York, 324 US. 401, 416?17, 65 S. Ct. 781, 89 L. Ed. 1029 (1945). De?ning 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.? J0th Anti~Fascist Refugee Comm. V. McGratlt, 341 US. 123, 162, 71 S. Ct. 624, 95 L. Ed. 817 (1951) (Frankfurter, 1., concurring). Rather, due process is a general principle of law that prohibits the goveriunent from obtaining convictions ?brought about by methods that offend ?a sense of justice.? Roehin v. California, 342 US. 165, 173, 72 S. Ct. 205, 96 L. Ed. 183 (1952). State v. Williams, 623 So.2d 462,465 (Fla. 1993). 3111 State v. Glosson, 462 So.2d 1082 (Fla. 1985), this Court (the Florida Supreme Court) developed its own due process analysis based on article 1, section 9 of theFloridaConstitution. 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 of 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 ?nancial stake in criminal convictions. State v. Williams, 623 So.2d 462 (Fla. 1993). In deciding Glossoii, this Court (the Florida Supreme Court) rejected the federal court?s narrow application of the federal due process defense. 1d. 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. Hoheasee, 650 268 (Mo. Ct. App. l982)(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 look-out); People v. Isaacson, 44 511, 378 78, 406 714 WY. l978)(reversing a predisposed defendant?s conviction for drug sales because the 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 5 So.2d 1166 (Fla. 4th DCA 1994); State v. Madei?a, 943 So.2d 960, 962 (Fla. 4th DCA 2006). Such government misconduct is so offensive to the due process mandate in the Florida Constitution that judicial power may not be exercised to obtain a conviction. Id. In the instant case, the circumstances used to justify the repeated arrest of Mr. Baptiste were fabricated by the Miami Gardens police department. Mr. Baptiste was repeatedly arrested for violating ?trespass warnings? given by officers who were never authorized by the owner of the prOperty to do so. The sign that may have given the appearance of authority to the Miami Gardens police department to issue such warnings was placed there, not by the owner, but by officers of the department without the owner?s knowledge or consent. Where the government supplies all of the instrumentalities of a crime, there is no crime without the government involvement. State v. inn, 624 So.2d at 382. Unlike the defendants in some of the cases cited above, who undisputedly bought or sold cocaine or participated in burglaries, Mr. Baptiste never committed a crime the alleged trespasses committed by Mr. Baptiste were totally and completely created by the officers of the Miami Gardens police department. The resulting convictions were in violation of the due process provision of the Florida Constitution. The arrests of innocent citizens by renegade police cannot be condoned by the courts.4 Therefore, defendant?s predisposition, requires the dismissal of criminal charges.? Glosson, 462 So.2d at 1085, State v. Williams, 623 So.2d 462 (Fla. 1993). (In State v. Williams, 1d. a due process violation was found when a police department manufactured crack cocaine for use in a reverse sting.) 4 protection of due process rights requires that the courts refuse to invoke the judicial process to obtain a conviction where the facts of the case show that the methods used by law enforcement of?cials cannot be countenanced with a sense of justice and fairness. The illegal manufacture of crack cocaine by law enforcement of?cials violates this Court?s sense of justice and fairness. As Justice Brandeis pointed out in Olmsiead v. United States, 277 US. 438, 485, 48 S. Ct. 564, 72 L. Ed. 944 (1928) (Brandeis, J., dissenting): ?Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupuiously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the 6 this court ?nds that the defendantas convictions are properly vacated under Florida Rule of Criminal Procedure 3 .805(a)(l The state contends that, because Mr. Baptiste entered a plea of either guilty or nolo contendere in each of these cases, this court is prohibited from vacating the convictions unless it finds that the pleas were involuntary. While involuntariness is one ground upon which a court may allow the withdrawal of a plea, it is not the only ground allowed under the law. A court may vacate a conviction even after a plea of guilty where such action is ?necessary to correct a man?est injiisliCe.? Perez v. State, 118 So.3d 298, 301 (Fla. 3d DCA 2013) (emphasis supplied); Shanks v. State, 624 So.2d 381 (4-th DCA 1993); State v. Williams, 623 So.2d 462 (Fla. 1993). Given the outrageous conduct of the officers in the instant cases where each repeated arrest of Mr. Baptiste was based on circumstances entirely fabricated by the police, this Court finds that a manifest injustice has occurred which must be corrected by vacating the resulting convictions. The state also contends that this Court is prohibited from granting the defendant?s motion because all but two of the thirty?three convictions at issue were entered more than two years before the filing of the defendant?s motion and are, therefore, time?barred under theirule. However, rule 3.850 allows the filing of a motion for post?conviction relief after this two?year time limit when the grounds for relief are based on newly discovered evidence that could not have been ascertained by the exercise of due diligence. la. R. Crim. P. Here, the defendant?s claim for relief is based on evidence of outrageous government misconduct. Such evidence did not exist until it was captured on video by Mr. Saleh 011 August 10, 2012 and made whole people by its example. Crime is contagious. if the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himseif; it invites anarchy. To declare that in the administration of the criminal law the end justi?es the means to declare that the government may commit crimes in order to secure the conviction of a private criminal would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.?? Williams at 467. known to?the public through the dissemination of that video by the Miami Herald in November of 2013. Mr. Baptiste?s arrests were predicated on the officer?s authority to ?trespass? people on the property under the Miami Garden?s Police Department Zero Tolerance Program. An investigation of the factual allegations in each arrest form would have substantiated the officers? claims that Mr. Baptiste had been ?trespass warned? by officers of the Miami Gardens police department, that the sign giving the police the apparent authority to issue such warnings actually existed at the t?fguick Stop, and that despite the sign and the officers? warnings that Mr. Baptiste was found again on the property. What a reasonable investigation would not have revealed what was not revealed until it was caught on a newly-installed surveillance video was that the police officers themselves had posted and re-posted the sign to fabricate the circumstances to justify those arrests. Here. this Court finds, based on newly discovered evidence, that a manifest injustice has occurred. Therefore, the defendant?s motion to vacate the convictions and sentences in the above styled cases is granted. . fr Ea; DONE AND ORDERED at Miami?Dade County, Florida this 1-day of October, i HONORABLE MARY JO FRANCIS County Court Judge 2014. -