ORLANDO, Fla. – An Orlando Police Department search and seizure training bulletin contained "numerous misstatements of law," according to a memo written by a veteran attorney who helped train OPD officers on the topic for more than 20 years.
[WEB EXTRAS: Criticized training bulletin issued in April | Retired attorney's training bulletin that wasn't issued]
OPD's training bulletin sent to sworn staff on April 23 amounted to "the dissemination of misinformation to hundreds of sworn officers," according to an internal memo obtained by News 6, which was sent by Lee Ann Freeman, the department's retired attorney, who was rehired to do part time contract work for the agency.
Freeman pointed out in the June 3 memo to Deputy City Attorney Jody Litchford how it's a mistake for the training bulletin to tell officers: "Probable cause for an arrest means there are facts and circumstances within a law enforcement officer's knowledge sufficient … to believe that a person … is about to commit, a crime."
"This is a complete misstatement of law," Freeman wrote, pointing out the bulletin mixed up two very different standards. One allows someone to be detained, while the other allows someone to be arrested.
"Probable cause is not ‘is about to commit a crime.' That's ‘reasonable suspicion' … to detain an individual for investigative purposes," Freeman added.
Orlando Criminal Defense Attorney Lyle Mazin shared Freeman's concerns.
"Hopefully police officers are smart enough to know that has to be a mistake," Mazin said. "But young police officers, officers who aren't sure what's going on, they're not sure what decision to make, they're going to refer to this and think to themselves, ‘Well, I can arrest them.'"
That wasn't the only concern with the training material. Freeman pointed out pages of problems, including obsolete law, misinformation, inaccuracies and even style issues. Other issues Freeman pointed out included when police may need a warrant and concerns with how OPD's bulletin encourages police to obtain identification from vehicle passengers during traffic stops.
"This is a misstatement of fact," Freeman wrote. "Officers are NOT encouraged to ask passengers for identification. They are free to ask, but if they don't, that's perfectly fine. In fact, we really shouldn't be in the business of that unless the officer thinks it is necessary in the context of a particular stop or encounter."
Mazin agreed, saying it could cause problems for prosecutors and help defense attorneys.
"Now, when I'm arguing that my client shouldn't have had to give over ID, and there's a question before the court of whether officer is right or wrong, it is going to help me when I can take this training bulletin and say, ‘Your honor, look. The training bulletin told him to do it. He did it. It's going to help my argument for sure. It's going to be hard for police to deny they did something when training bulletin told them to do it."
The internal OPD records obtained by News 6 also showed all sworn employees were sent the training bulletin on April 23, and were required to sign off documenting they "received and read the directive."
Orlando Police Chief John Mina declined News 6's request to be interviewed about the situation, but Alex Karden, a recently hired OPD attorney, along with OPD spokeswoman Michelle Guido, discussed the matter on the phone and issued a statement pointing out the training bulletin is just one of many ways officers are trained, especially when there are new updates on the law. OPD indicated the other training officers got was correct.
However, the OPD statement did not address several questions, including the timetable for when the search and seizure training bulletin all officers were required to sign will be corrected and reissued.
OPD's statement also did not address questions about public records obtained by News 6, which indicated the issue could have been avoided. The internal OPD records revealed Freeman sent a completed, updated training bulletin to deputy city attorney Litchford in February, which never made it to the OPD attorney in charge of issuing bulletins until after News 6 filed the public records request.
"This is the Training Bulletin draft Lee sent me recently, and she says she sent it to me in February, but I can't find it in my in box (sic) and frankly have no independent recollection of this, so perhaps it got lost in cyberspace (or in my inbox… I wouldn't rule out human error on my part)," Litchford wrote in an email to OPD attorney Natasha Williams on July 24.
Later on July 24, Williams responded: "I'd like to discuss this with you. Are you in the office? BTW, I've never seen this."
On August 26, when responding to a follow up News 6 records request, Williams sent Litchford an email stating: "The [requested] emails confirm that I was never sent the revisions prepared by Lee Freeman to TB 1307 until I received it from you on July 24, 2015."
While there's no timetable on when a corrected training bulletin will be reissued, OPD indicated in its statement it will be broken up into smaller, more digestible pieces.