The USA Network’s spy-drama series, Burn Notice, has resumed airing episodes for its sixth season. The series focuses on the life of Michael Westen, a former CIA spy who was “blacklisted” because of a burn notice. Due to his inactive status in the CIA, Michael was forced to move back to his hometown of Miami, Florida. Furthermore, in order to earn money Westen helps citizens of Miami deal with issues that they cannot handle themselves. These issues include, but are not limited to: going undercover to thwart crimes, attorneys having their children kidnapped, and neighborhoods being terrorized by gangs. In order to complete these tasks, Westen enlists the help of: Sam (Westen’s best friend/ex-Navy SEAL), Fiona (Westen’s girlfriend/former Irish Republican Army agent) and Jesse (Westen’s friend/ex-spy).
In the mid-season premiere episode, Desperate Measures (which aired on November 8, 2012), Ayn, an ex-convict, requests Westen’s help to deal with a crooked detective, Detective Garza, who planted false evidence on her. Furthermore, Ayn informs Westen that Garza looks for gang members to help him plant false evidence on ex-convicts, who Garza believes should not have been released from prison. Thus, Westen gets Jesse to pose as a gang member and approach Garza. Jesse subsequently approaches Garza and, after interviewing Jesse, Garza tells him that he needs help planting false evidence on a local crime boss. Garza further explains to Jesse that he wants to question the crime boss about his involvement in a recent string of crimes committed in the city, but that he has no justifiable reason to take the crime boss into custody. Thus, Garza wants Jesse to plant the false evidence on him. Additionally, Garza meets with Jesse a second time to tell Jesse what he has planned. Garza tells Jesse that he will give Jesse some marijuana to give to the crime boss, and Garza will subsequently pat down and arrest the crime boss, upon finding the marijuana. However, when Jesse meets Garza to obtain the marijuana, Garza tells him that he can’t go against his morals as a police officer. Thus, Garza decides against having Jesse plant the false evidence on the crime boss and tells Jesse that he never wants to see him again.
The legal issue raised by the above events is whether Detective Garza solicited Jesse to commit a crime. Burn Notice is set in Miami, Florida. Thus, Florida law applies.
In Florida, statute 777.04(2) states: “A person who solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of criminal solicitation…”
The first element of the crime is soliciting another to commit an offense prohibited by law. In the episode, Garza told Jesse that he would give him marijuana and have Jesse deliver the marijuana to the crime boss. Under Florida’s statute 893.13(1)(a), it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. Furthermore, one of the controlled substances listed by Florida statute 893.03(1)(c) is Tetrahydrocannabinol, the psychoactive element of cannabis/marijuana. Thus, when Garza asked Jesse to deliver the marijuana to the crime boss, Garza was soliciting Jesse to commit an offense prohibited by law.
Moreover, the second element of the crime is that the solicitor must command, encourage, hire or request another to engage in specific conduct that would constitute the offense. The second element is met because in Garza’s initial meeting with Jesse, Garza requested that Jesse help him plant marijuana on the crime boss. Furthermore, Garza had a second meeting with Jesse in which he told Jesse specific actions to take in delivering the marijuana to the crime boss. In each of these meetings, Garza communicated his desire to have Jesse deliver the marijuana to the crime boss. Garza explicitly requested Jesse to deliver marijuana to the crime boss, on more than one occasion. Hence, the second element of requesting another person to engage in speficic conduct, which constitutes a crime, is met.
However, the fact that Garza ultimately thwarted the crime from being committed works in favor of a defense to solicitation. According to Florida’s statute 777.04(5)(b), if the solicitor solicits another to commit a crime, but the solicitor completely and voluntarily renounces his/her criminal intent and persuaded the other person not to commit the crime or prevented the crime, the solicitor has a defense to criminal solicitation. When Garza and Jesse met up to execute the plan, Garza stated that he could not have the crime committed because it goes against his morals. Furthermore, Garza told Jesse that he never wanted to see him again, and Jesse complied. Thus, it is possible that Garza’s actions may have made the defense, to solicitation, available to him.
The Desperate Measures episode sheds light on a real world problem. In contemporary news, police officers have been accused of planting false evidence to make arrests. Two of the most recent cases involve Illinois police. The first case, taking place in Chicago, involves a police officer that allegedly planted weapons at a residence and subsequently arrested the tenants for making bombs. The Chicago police involved in this case deny that they planted evidence. Additionally, a police officer in Elgin confessed to planting a cell phone at the scene of a crime, in which the suspect was arrested for battery and robbery of a wallet and cell phone. Moreover, the Elgin officer acted as if he had discovered the cell phone at the scene, and alerted other investigators of his discovery. The officer involved in the Elgin case confessed that he planted the false evidence, so that he could repair his reputation as a police officer. These real world cases show the desperate actions that some police officers will take, in order to prove guilt or make an arrest (as Detective Garza did). Although, Burn Notice is a fictional show, the show’s writers may have attempted to make the audience aware that these issues really do occur.