STATE OF NORTH CAROLINA



STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF ROCKINGHAM 01 DOJ 1771

ANDREW ARNOLD POWELL, JR. )

Petitioner )

)

v. ) PROPOSAL FOR DECISION

)

N.C. CRIMINAL JUSTICE EDUCATION )

AND TRAINING STANDARDS )

COMMISSION )

Respondent )

The above entitled matter was heard before North Carolina Administrative Law Judge Sammie Chess, Jr. on August 12, 2002 in High Point, North Carolina. This case was heard pursuant to a request under N.C.G.S. § 150B-40(e), for the designation of an Administrative Law Judge to preside at the hearing of a contested case under Article 3A, Chapter 150B of the North Carolina General Statutes.

APPEARANCES

Petitioner: Mr. Bill Hill for the Petitioner

Respondent: Amy Yonowitz, Assistant Attorney General and Counsel to the Respondent

Lorrin Freeman, Assistant Attorney General

ISSUE PRESENTED

Is the Respondent’s proposed suspension of Petitioner’s law enforcement officer certification supported by substantial evidence?

FINDINGS OF FACT

1. Both parties are properly before this Administrative Law Judge, in that jurisdiction and venue are proper, that both parties received Notice of Hearing, and that Petitioner received the Proposed Suspension of Law Enforcement Officer Certification letter mailed by Respondent on August 23, 2001.

2. The North Carolina Criminal Justice Education and Training Standards Commission (hereafter referred to as the Commission) has the authority granted under Chapter 17C of the North Carolina General Statutes and Title 12 of the North Carolina Administrative Code, Chapter 9, to certify criminal justice officers and to deny, revoke or suspend such certification.

3. Petitioner was granted certification as a Law Enforcement Officer on October 15, 1986. He is currently employed with the Madison Police Department. Petitioner also is the owner of two used car dealerships.

4. Investigator Gerald Cheney of the North Carolina Division of Motor Vehicles testified that on or about February 25, 2000, he conducted a routine business inspection of AA Auto Sales in Eden, North Carolina, a used car dealership owned by Petitioner. The inspection involved recording Vehicle Identification Numbers from vehicles and then reviewing the title documentation maintained by dealer for validation.

5. During this inspection, Investigator Cheney tried to examine a black 1993 Toyota Camry. Petitioner repeatedly told Investigator Cheney that the car was his personal vehicle despite the fact that the car had a dealer license tag on it. When Investigator Cheney persisted on getting the Vehicle Identification Number from the vehicle, Petitioner tried to provide Inv. Cheney with the VIN from a vehicle inspection document. Investigator Cheney repeatedly, and in a strong voice, had to ask Petitioner to open the hood of the vehicle so that he could check the confidential VIN on the firewall of the vehicle.

6. Inv. Cheney testified that every car has two VIN numbers, a confidential VIN usually on the firewall of the vehicle and a public VIN usually on the door and windshield of the vehicle, which correspond to each other. Upon recording the VIN that was listed on the door of the 1993 Toyota Camry and having examined the confidential VIN on the firewall of the vehicle, Inv. Cheney determined that the two VINs did not correspond.

7. Investigator Cheney informed Petitioner that a problem existed with the VINs on the vehicle and requested to see the title papers so that the situation could be resolved. Petitioner was not able to provide any documentation pertaining to title or a bill of sale on the 1993 Toyota Camry. Petitioner told Investigator Cheney that he did not know where the paperwork was. Inv. Cheney asked that Petitioner not let anything happen to the Camry until they could resolve the matter.

8. During his inspection on February 25, 2000, Investigator Cheney randomly selected 20 vehicles for inspection. Petitioner’s employee was able to provide the necessary documentation for every other vehicle checked.

9. Investigator Cheney testified that after leaving Petitioner’s car lot he was able to determine, using the confidential VIN, that the 1993 Toyota Camry had been reported stolen in 1993 by the Caldwell County Sheriff’s Office, that the car had not been recovered, and was the subject of an unresolved stolen vehicle case.

10. Investigator Cheney testified that on Monday, February 28th, 2000, he was informed by Petitioner’s employee, Mr. Ward, that Petitioner had reported the Camry stolen in Virginia on Saturday, February 26, when he traveled in that vehicle to property owned by Petitioner and left the car unattended. Investigator Cheney stated that he had specifically told Petitioner on or about February 25, 2002 not to let anything happen to the 1993 Toyota Camry until the matter of its title had been resolved.

11. Investigator Cheney testified that on March 1, 2000, he and First Lieutenant Collins returned to AA Auto Sales to question Petitioner about how he had come into possession of the vehicle and the existence of title documentation. Mr. Powell could not produce any documentation to prove that he had purchased the Camry. Petitioner informed Inv. Cheney and First Lt. Collins that he had come into possession of the vehicle sometime in late 1994, early 1995; that he could not remember how he had gotten the vehicle; and, that he remembered having some title documentation from a state other than North Carolina.

12. Investigator Cheney performed a complete title history check on the 1993 Toyota Camry. The last recorded title holder was Safeco Insurance Company, who in 1994, took assignment of the title upon paying out to the owners of the vehicle an insurance claim filed as a result of the theft of the vehicle. Inv. Cheney testified that there was no indication on the vehicle’s title history of any transactions involving the vehicle’s title following the assignment to Safeco.

13. Investigator George Hooker, with the Henry County Sheriff’s Office in Virginia, testified that he investigated Mr. Powell’s report of the stolen 1993 Toyota Camry on Feb. 26, 2000. Investigator Hooker testified that Mr. Powell indicated that he had parked the Camry at the trailer park owned by Mr. Powell. Mr. Powell told Investigator Hooker that he then left the Camry on foot to walk around the trailer park and examine water lines. When he returned to the place where the vehicle had been parked, it was missing.

14. Investigator Hooker testified that Mr. Powell gave him the VIN for the stolen vehicle as JT2SK12E3P0134412 during the investigation. Investigator Hooker testified that he was unable to enter the VIN into NCIC because something was wrong with the number. Investigator Hooker testified that he contacted Mr. Powell to verify the VIN once he discovered that NCIC would not take it and that Mr. Powell provided the same number a second time. Entering the correct number of the vehicle into NCIC would provide an alert to anyone who ran the number, including law enforcement conducting a stop of the vehicle, that the vehicle was stolen.

15. Investigator Hooker testified that, after several months, Mr. Powell told him that he did not wish to pursue the investigation and that the case be marked as inactive. Investigator Hooker testified that he never received any leads or any information to substantiate Petitioner’s claim that the vehicle had been stolen.

16. Richard Squires, an Investigator with the North Carolina Criminal Justice Training and Standards Commission, testified as to the role of the Commission and its rules and regulations. Investigator Squires testified that the Proposed Revocation/Suspension of Law Enforcement Officer Certification Letter was sent to Mr. Powell on August 23, 2001.

17. Investigator Squires testified that Mr. Powell received his probationary law enforcement certification on October 15, 1985 and his general certification one year later on October 15, 1986.

18. As part of his investigation, Inv. Squires conducted an interview of Petitioner during which Petitioner told him that he had kept the 1993 Toyota Camry in question for personal use; that Petitioner did not file any insurance claim when the vehicle was allegedly stolen; that Petitioner had no standard operating procedure for checking the validity of the VIN or title information for vehicles he purchased at an auction; that Petitioner had worked stolen vehicle cases in his capacity as a police officer and had used a vehicle’s VIN as a means of collecting information during these investigations.

19. Investigator Squires testified that Mr. Powell told him that when he went to leave the dealership during Investigator Cheney’s inspection that the Camry had a dead battery and that he had to jump start the vehicle. Mr. Powell then told Investigator Squires that he drove the 1993 Toyota Camry to Virginia the next day, where he alleges that it was stolen.

20. Mr. Powell testified that he has sold about 100 cars a year for the last 15 years.

21. Mr. Powell testified that he had conducted motor vehicle theft investigations in his capacity as a police officer and that he would have discovered the problem with the vehicle if he had run the VIN on the door. He further stated that, even though he knows stolen vehicles are sometimes sold at auctions, that he never looks into the titles nor makes any attempt to verify VIN numbers of the cars that he gets at auction. He testified that he accepts the title at face value.

22. Mr. Powell used the 1993 Toyota Camry all the time and drove it for personal reasons, driving it to and from work and on vacations. At all times while driving this vehicle, it had dealer tags on it. It was never registered to him as a personal car. Mr. Powell did not register this vehicle or have individual insurance on it as is required for personal vehicles under state law. Mr. Powell stated that the vehicle was for sale even though he stated that he loved the vehicle. Mr. Powell had not sold the vehicle in the six years he had owned it. Mr. Powell admitted that he would have had to be able to produce proof of title in order to sell the vehicle.

23. In a statement provided by Mr. Powell to Respondent and introduced at trial, Mr. Powell stated that, after driving the 1993 Toyota Camry home on February 25, 2000, he left it at his house because he was worried about the car not starting due to the fact that the battery had died and the vehicle needed to be jump-started prior to leaving the car lot on that day. Mr. Powell testified that he did not change the battery in the Camry between the time he left the car lot on February 25, 2000 and when he drove the car to Virginia the next day to examine his trailer park for water leaks. Petitioner further testified that he had any number of cars that he could have driven to Virginia.

24. The trailer park that Mr. Powell owns and traveled to on February 26, 2000 was known by Mr. Powell to have reported drug activity and other related crimes.

25. Mr. Powell testified that he doesn’t recall whether or not he locked the Camry before he set off on foot to inspect the trailer park.

26. After reporting the Camry stolen to the Henry County Sheriff’s Office, Mr. Powell checked back only once in the first five months to inquire about the status of the investigation into his missing Camry. Six months after the Camry was stolen, Mr. Powell told Investigator Hooker to mark the investigation as inactive and close the case. Marking a case as inactive will assure that there is no more active work done as part of the investigation.

27. Mr. Powell testified that he had told Inv. Cheney on February 25, 2002 that the title to the 1993 Toyota Camry and other paperwork which could resolve the issue were located at his other Used Car Dealership. Mr. Powell did not go to that car lot to attempt to find the paperwork despite the fact that he knew production of such paperwork could resolve any problems.

28. After Petitioner reported the 1993 Toyota Camry stolen, Mr. Powell stated that the blue file folder with the documents and title must have been in the trunk of the Camry when it was stolen. At the hearing, Mr. Powell admitted that he made no attempt to look in the trunk or body of the 1993 Toyota Camry for the vehicle’s title either during or after Investigator Cheney’s inspection and prior to the vehicle allegedly being stolen.

29. Investigator David King, with the Henry County Sheriff’s Department in Virginia, testified that Mr. Powell’s trailer park was a known high drug activity area. Investigator King stated that he had notified Mr. Powell of the ongoing problems with the park and that a notice of an investigation of the possibility of seizing his property was sent to him in July of 2001 if the drug problem was not corrected.

30. Mr. Powell was aware at all times that producing documentation proving title of the 1993 Toyota Camry would resolve the investigation into whether he was knowingly in possession of stolen property. Mr. Powell also was told by Inv. Cheney not to let anything happen to the 1993 Toyota Camry until this matter could be resolved. Petitioner was aware that his law enforcement career of nearly twenty years was in jeopardy if the question of the vehicle’s title was not resolved.

CONCLUSIONS OF LAW

1. The parties are properly before the undersigned Administrative Law Judge and jurisdiction and venue are proper.

2. 12 NCAC 9A .0204(a)(1) provides that “the Commission shall revoke the certification of a criminal justice officer when the Commission finds that the officer has committed or been convicted of a felony offense”.

3. 12 NCAC 9A. 0205(a)(1) provides that the period of sanction shall be permanent when the Commission revokes a criminal justice officer’s certification on the basis of the commission or conviction of a felony offense.

4. On or about February 26, 2000, Petitioner committed the felonious offense of “Receiving or Transferring Stolen Vehicles” when the Petitioner unlawfully, willfully and feloniously did possess a vehicle, to wit, a 1993 black Toyota Camry, having reason to believe said vehicle has been stolen or unlawfully taken in violation of N.C.G.S. § 20-106.

5. 12 NCAC 9A. 0204(b)(3) provides that the “Commission may suspend, revoke or deny the certification of a criminal justice officer when the Commission finds that...the certified officer has committed or been convicted of a criminal offense or unlawful act defined in 12 NCAC 9A .0103 as a Class B misdemeanor.”

6. The offense of common law obstruction of justice is a Class B misdemeanor pursuant to 12 NCAC 9A .0103(20)(b).

7. 12 NCAC 9A. 0205(b)(1) provides that the period of sanction shall be not less than five years when the Commission revokes a criminal justice officer’s certification on the basis of the commission or conviction of a Class B misdemeanor.

8. On or about February 25, 2000, Petitioner committed the misdemeanor offense of obstruction of justice in violation of common law by failing to cooperate with investigators. Petitioner delayed Investigator Cheney by attempting to prevent him from obtaining the confidential VIN on the firewall of the Toyota Camry, requiring Investigator Chaney to repeatedly and forcefully ask Petitioner to open the hood of the vehicle. After being told not to let anything happen to the 1993 Toyota Camry and being informed that a title was needed to resolve the discrepancies in VINs, Petitioner drove the vehicle to a known high drug activity area in Virginia. Further, Petitioner failed to properly secure the vehicle and then reported the vehicle stolen. He subsequently requested that the stolen vehicle investigation be closed despite the vehicle not being recovered.

9. Respondent’s proposed revocation of Petitioner’s certification as a law enforcement officer is supported by substantial evidence.

PROPOSAL FOR DECISION

Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned proposes that Respondent revoke Petitioner’s law enforcement officer certification permanently as specified in Rule 12 NCAC 9A .0205(a)(1), for commission of the felony offense of “Receiving or Transferring Stolen Vehicles” in violation of N.C.G.S. § 20-106. Further, the undersigned proposes that Respondent revoke Petitioner’s law enforcement officer certification for a period of not less than five years as specified in Rule 12 NCAC 9A .0205(b)(1), for commission of the Class B misdemeanor offense of “Common Law Obstruction of Justice”.

ORDER

IT IS HEREBY ORDERED that the agency serve a copy of the final decision of the Officer of Administrative Hearings, Post Office Drawer 27447, Raleigh, North Carolina 27611-7447, in accordance with North Carolina General Statute 150B-36(b).

NOTICE

Before the agency makes the FINAL DECISION, it is required by N.C.G.S. §150B-40(e) to give each party an opportunity to file exceptions to this Proposal for Decision, and to present oral and written arguments to those in the agency who will make the final decision.

This agency is required by N.C.G.S. §150B-36(b) to serve a copy of the Final Decision to all parties and to furnish a copy to the Parties’ attorney of record.

This the 26 day of November, 2002.

________________________

Sammie Chess, Jr.

Administrative Law Judge

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