CAROL VOLZONE HUNTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Carol Volzone Hunter appealed the denial of her motion to suppress evidence obtained from a search of her apartment, challenging the sufficiency of the warrant affidavit because it failed to allege where the officer was standing when he observed marijuana on her balcony. The court affirmed the denial, holding that while an affidavit need not affirmatively negate every possible constitutional defect, a defendant may challenge the warrant by presenting evidence at a suppression hearing to establish that the officer had no right to be in the location where he observed the contraband.
A search warrant affidavit need not affirmatively negate every possible constitutional defect, including the officer's right to be in the location where he observed the contraband. However, a defendant may challenge the warrant at a suppression hearing by presenting evidence to establish that the officer lacked the right to be in that location, in which case the court must suppress the evidence.
[1] An affidavit for a search warrant is not required to affirmatively allege the location of the officer when contraband was first observed.
[2] Evidence obtained by viewing contraband in plain sight may be suppressed if the viewer unjustifiably violated the right to privacy.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is true that information gained by viewing something that was in plain sight cannot be used for any purpose if, in order to see it, the viewer unjustifiably violated the right to privacy of the person in control of the premises.”
Establishes the core principle that observations made through unconstitutional intrusions into privacy rights are inadmissible.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA police officer spotted marijuana growing on the upper balcony of appellant's apartment. Based on this observation, the officer obtained a search war…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Search Warrant Affidavit Sufficiency cases and more on FLexlaw
OTT, Judge.
A police officer spotted marijuana growing on the upper balcony of appellant’s apartment. He obtained a warrant and searched the apartment. We affirm the order denying appellant’s motion to suppress, but feel the point involved warrants discussion.
Appellant’s attack on the search was addressed to the sufficiency of the affidavit upon which the warrant issued. The affidavit failed to affirmatively allege where the officer was standing when he first spotted the marijuana on appellant’s balcony. Appellant claims this is a fatal deficiency; that the affidavit is required to establish that the officer was in a place where he had a right to be when he first viewed the contraband.
It is true that information gained by viewing something that was in plain sight cannot be used for any purpose if, in order to see it, the viewer unjustifiably violated the right to privacy of the person in control of the premises. Morsman v. State, 360 So. 2d 137 (Fla. 2d DCA 1978); State v. Coryell, 247 So. 2d 87 (Fla. 2d DCA 1971).
At the hearing on her motion to suppress appellant could quite properly inquire into the location of the officer when he first discovered the marijuana. In addition, appellant was free to put on evidence that would at least raise the issue of an unconstitutional discovery. If it were thus established that the officer had no right to be in that location, the court would have been obliged to suppress any evidence seized in the search of appellant’s apartment. There would be no probable cause for the issuance of the search warrant, or to put it more aptly, the evidence would have revealed that the apparent probable cause for issuance of the warrant was not legally supportable. That is the accepted procedure for going behind the face of an apparently sufficient affidavit and disclosing its actual inadequacies. See State v. Jacobs, 320 So. 2d 45 (Fla. 2d DCA 1975); State v. Knapp, 294 So. 2d 338 (Fla. 2d DCA 1974).
Here, however, appellant relied solely on the failure of the affidavit to affirmatively allege a constitutional view. We find no requirement in Section 933.04, Florida Statutes, or in the cases construing it, that an affidavit for a search warrant must negate every possible attack upon it. We do find several cases upholding the sufficiency of affidavits which do not contain such information, although in no such case does the precise point appear to have been raised. But see, United States v. Burke, 517 F. 2d 377 (2d Cir. 1975); Rowe v. State, 355 So. 2d 826 (Fla. 1st DCA 1978); Churney v. State, 348 So. 2d 395 (Fla. 3d DCA 1977); State v. Compton, 301 So. 2d 810 (Fla. 2d DCA 1974).
The order denying the motion to suppress is affirmed together with the judgment and sentence.
GRIMES, C. J., and SCHEB, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Newberry v. State, 421 So. 2d 546 (Fla. 4th DCA 1982)…ope. However, there is no requirement that an affidavit in support of a warrant contain all facts that might have been mentioned, since such facts can subsequently be the subject of testimony at the hearing on the motion to dismiss. Hunter v. State, 375 So. 2d 1152 (Fla. 2d DCA 1979). And finally, the defendant contends that the state had the burden to establish that the police officer had a legal right to be in the location from which the observations were made and that, therefore, in accordance with Neary v…
-
State v. Adams, 378 So. 2d 72 (Fla. 3d DCA 1979)…y and correctly resolved the issues in controversy. Its treatment of the applicable law is supported, in addition to the authorities cited, by the comprehensive opinion in Morsman v. State, 360 So. 2d 137 (Fla.2d DCA 1978). See also Hunter v. State, 375 So. 2d 1152 (Fla.2d DCA 1979); State v. Oliver, 368 So. 2d 1331, 1335 (Fla.3d DCA 1979); cf. State of Texas v. Gonzales, 388 F. 2d 145 (5th Cir. 1968); Brock v. United States, 223 F. 2d 681, 685 (5th Cir. 1955). On the basis therefore of the findings and reaso…
Authorities Cited
- United States v. Burke, 517 F.2d 377 (2d Cir. 1975)
- State v. Knapp, 294 So. 2d 338 (Fla. 2d DCA 1974)
- State v. Compton, 301 So. 2d 810 (Fla. 2d DCA 1974)
- Churney v. State, 348 So. 2d 395 (Fla. 3d DCA 1977)
- State v. Eligaah Ardalle Jacobs, 320 So. 2d 45 (Fla. 2d DCA 1975)
- Seaborn H. Wade, Jr. v. Worth E. Johnson and Nancy A. Johnson, 355 So. 2d 826 (Fla. 3d DCA 1978)
- State v. Albert, 360 So. 2d 137 (Fla. 4th DCA 1978)
- Morsman v. State, 360 So. 2d 137 (Fla. 2d DCA 1978)
- State v. Coryell, 247 So. 2d 87 (Fla. 2d DCA 1971)