The accused, R.T. (not his real initials). was arrested on July 7. 2010. in Martin County, Florida, on charges of burglary, first degree grand theft and criminal mischief over $1,000. A detective concluded that R. T. committed these offenses when he entered the restaurant where he was employed “after hours”. The detective supposed that R.T. entered the restaurant with intent to attempt to steal from an ATM and intentionally cause extensive damage to the A TM as part of the theft effort.
On Monday night, June 21, 2010, R.T. entered the Jensen Beach eatery at 9:46 P.M. As an employee, R.T. had access codes to disable the alarm system. Alarm system records were able to pinpoint the time that entry to the restaurant was made, as well as the time R.T. left the restaurant (at which time, the alarm system was “rearmed”).
According to alarm records, R.T. was at the restaurant for 17 minutes, resetting the alarm at I 0:02 P.M. The time of R.T.’s entry into the restaurant did not correspond to the time that the detective supposed that the A TM machine was violated. The detective supposed that the A TM was damaged in a theft attempt at approximately 9: 11 P .M.
There was no direct evidence that the A TM machine had even been touched when R. T. was in the restaurant between 9:46 – 10:02 P.M. The detective assumed that the ATM had been unplugged, because it showed a “reset” at 9: 11 P .M. An A TM technician later noticed that the A TM was running approximately 40 minutes “slow” as compared to internet time. The A TM technician did not make this observation until June 29, 2010, which was eight days after the 9: 11 P.M. “reset” on June 21.
R.T. retained Jeffrey H. Garland shortly after his arrest. Mr. Garland commenced a defense investigation of these issues by requesting discovery and deposing witnesses.
A supervisor with the burglar alarm company described his company’s procedures. He said that system times are based upon the internet. The witness said that the times shown on the burglar alarm printouts are accurate.
Mr. Garland subsequently set depositions of two separate A TM technicians. The first technician, Clifton Roberts, said that the ATM’s internal clock was running 40 minutes “slow·· because of a battery issue. He said that the internal clock is not essential to the operation of the A TM and is not, therefore, closely monitored. He did not kno\,. \\·hen the battery may have begun to have ”issues”.
According to Mr. Roberts, actual financial transactions utilize network times. Other events, such as a “reset”. are based upon the internal clock.
Although Mr. Roberts observed the internal clock running slow by approximately 40 minutes on June 29, he did not know whether the internal clock was running slow on June 21, when the alleged incident occurred. He wanted to suppose that the internal clock was running slow on the earlier date, but he could not conclusively say so. If it were running slow on the earlier date, then the “reset” would have happened while R.T. was in the restaurant building. If it was not. then the “reset” would not have happened when R.T. was in the restaurant building. The issue was of utmost importance in this case.
Mr. Roberts stated that a reset will occur when there is a power interruption. He conceded, however, that a reset might occur when there is a power fluctuation or voltage irregularity. He also conceded that his training and experience did not qualify him to make such a sweeping. technical statement.
Another A TM technician, Robert Winterton, had examined the machine on Wednesday, June 23. In fact, Mr. Winterton is the technician who provided routine maintenance for the ATM over an extended period of time. Although well acquainted with this particular ATM. Mr. Winterton could not state whether the internal clock was running “slow” when h.e attended to the machine on Wednesday, June 23.
Like Clifton Roberts, Mr. Winterton wanted to say that the “reset” was caused by power failure or a tum off. He conceded that the manufacturer’s specifications called for a battery backup and voltage regulator. He admitted that he did not know what type of power fluctuations might cause a reset to occur. He recommended that we speak to an expert at the manufacturer for this information. Mr. Winterton agreed that the manufacturer’s specifications should be complied with. In this case, the A TM was installed without a battery backup or voltage regulator.
The State sought to prove that there was no power failure on June 21, between approximately 9 -11 :00 P .M. The State obtained a letter from FPL staring that there was, in fact, no power outage during this period of time. Unfortunately for the State’s position, FPL has specific definitions for different types of power disturbances. For example, a power outage is a complete interruption for at least 60 seconds. The FPL letter, therefore, did not rule out momentary power interruptions, voltage variations or electrical surges and spi1:<es. The FPL website identifies each of these and discusses them in detail.
Mr. Garland determined that the ATM was a Triton 9100. Triton provides specific technical information about the 9100 on the internet. The installation manual warns about the possibility of electrical surges and “lightning transients”. To protect the equipment, Triton recommends the use of a battery backup and surge suppressor.
The investigation established that the A TM was working during business hours on Monday. June 21. The A TM failed around noon time on Tuesday, June 22, when the ATM disbursed only part of the money that a customer requested.
R.T. told police that he attempted to help a customer retrieve a $10 bill which was “hung up .. in the ATM. Another restaurant employee confirmed that R.T. was messing with the A TM after the customer reported this problem. The employee also noticed that R.T. had taken a screwdriver in the attempt io fix the ATM. The ATM technician found a broken off tip of a screwdriver in the ATM. and the restaurant’s screwdriver had its tip broken off. This suggested that the screwdriver was used to damage the ATM.
The restaurant employee described R.T. as “intoxicated” on June 22, and not exercising good judgment.
The defense investigation led to the conclusion that the ATM had been damaged by R.T. during normal working hours on June 22. This conclusion ruled out burglary or grand theft as offenses.
Both ATM technicians described damage as far more extensive than might be explained by mere accident or negligence. However, they conceded that the repairs cost far less than $1,000.00.
Malicious mischief under $1,000.00 is a misdemeanor. R.T. pied out to the misdemeanor and received probation. The remaining charges were dropped.
Moral: In this case, the police said there was no power outage to explain the “reset”. That was not true. The reset could have been caused by a variety of other problems, such as power fluctuations, voltage variations. or electrical surges.
The police said the internal ATM clock was “slow”, based upon the observation of an ATM technician eight days after the event. The observation did not prove the internal clock was running slow at the time of the June 21 incident.
Don’t believe everything you are told. A thorough defense investigation can expose these sorts of evidence shortcomings.