DEBORAH ORR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Deborah Orr was convicted of marijuana possession based on evidence seized under a search warrant. The appellate court reversed, holding that a search warrant affidavit must independently establish probable cause without supplementation by oral testimony, and the affidavit here was insufficient because it failed to specify when the confidential informant observed the marijuana.
An affidavit forming the basis of a search warrant must, in and of itself, demonstrate probable cause and cannot be supplemented by oral testimony. The affidavit here was insufficient because it failed to specify the particular time or times when the informant observed the marijuana, only that the information was received within the past ten days.
[1] A search warrant affidavit must, on its face, establish probable cause and cannot be supplemented by oral testimony to prove probable cause.
[2] An affidavit supporting a search warrant must contain specific information regarding the time of observation of contraband by a confidential informant.
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Join FLexlaw to unlock all legal intelligence“An affidavit forming the basis of a search warrant must, in and of itself, demonstrate probable cause for the issuance of the warrant and cannot be supplemented by oral testimony to prove the probable cause.”
Establishes the core legal principle that search warrant affidavits must be self-supporting without oral supplementation.
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Join FLexlaw to unlock all legal intelligenceAn officer applied for a search warrant supported by an affidavit stating that a reliable confidential informant, with prior successful drug arrests a…
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PER CURIAM.
Appellant was convicted of possession of more than five grams of marijuana and this appeal is taken from the judgment entered on the jury verdict and the resulting sentence. Appellant contends the trial court erred in denying her motion to suppress the marijuana seized pursuant to a search warrant. We agree and reverse.
The application for a search warrant was supported by an officer’s affidavit, supplemented by the officer’s testimony before the magistrate which was recounted by the officer at the suppression hearing. The trial court refused to suppress the marijuana, ruling that the affidavit and the additional testimony of the affiant constituted probable cause for the issuance of the search warrant. Appellant urges, however, that the affidavit on its face must establish probable cause for the issuance of the search warrant and that the present affidavit does not do so.
We hold that the trial court erred when it considered the officer’s testimony outside the affidavit in order to determine the validity of the search warrant. An affidavit forming the basis of a search warrant must, in and of itself, demonstrate probable cause for the issuance of the warrant and cannot be supplemented by oral testimony to prove the probable cause. Article I, Section 12, Florida Constitution; Swartz v. State, 316 So. 2d 618 (Fla. 1st DCA 1975), cert. den., 333 So. 2d 465 (Fla. 1976).
Turning to the issue of whether the affidavit is sufficient to establish probable cause for the search warrant, we find that it is not sufficient. The affidavit states:
Heretofore, within the past ten days a confidential informant, who has proven reliable in the past, said informant having led to the arrest of persons for drug violations, further it is known by your affiant that said confidential informant has knowledge of the appearance, texture and odor of marijuana, advised your affiant that a quantity of marijuana was inside the above described premises and that said marijuana was observed by said confidential informant. Therefore, your affiant has probable cause to believe that marijuana is now being kept in the above described premises. (Emphasis added.)
The affidavit states only that the affiant received information from the confidential informant within the past ten days that marijuana was observed inside appellant’s house. There is no indication as to when the informant actually observed the marijuana. The affidavit should have contained the specific time or times when the informant observed the marijuana. State v. Mills, 267 So. 2d 44 (Fla. 2d DCA 1972). Consequently, the trial court erred in denying appellant’s motion to suppress the evidence seized pursuant to the invalid search warrant. The judgment and sentence are
REVERSED.
ROBERT P. SMITH, Jr., BOOTH and SHAW, JJ., concur.
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Buddy Earl Justus v. State, 438 So. 2d 358 (Fla. 1983)…l basis supporting the officers’ determination that they had probable cause for arrest. Appellant argues that the trial court should have held that the invalidity of the warrant was determinative of the legality of the arrest. He cites Orr v. State, 382 So. 2d 860 (Fla. 1st DCA 1980), where the court applied the rule that a magistrate should only consider the supporting affidavit when issuing a warrant. In the present case, however, we are not concerned with the question of whether the warrant was valid — the…
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Bonilla v. State, 579 So. 2d 802 (Fla. 5th DCA 1991)….18. We also hold that since section 933.18 specifically states that proof by affidavit is required, Judge Tombrink was not permitted to rely on the sworn testimony of Sergeant Lee that the factual basis for both warrants was the same. Orr v. State, 382 So. 2d 860 (Fla. 1st DCA 1980); State v. Jacobs, 320 So. 2d 45 (Fla. 2d DCA 1975); Swartz v. State, 316 So. 2d 618 (Fla. 1st DCA 1975). We have examined the April 13, 1990 affidavit submitted in support of the search warrant issued for the search of Danna’s p…
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King v. State, 410 So. 2d 586 (Fla. 2d DCA 1982)…provide the issuing magistrate probable cause to believe the crime occurred and is continuing to occur in the premises to be searched at the time of the issuance of the search warrant. State v. Mills, 267 So. 2d 44 (Fla. 2d DCA 1972); Orr v. State, 382 So. 2d 860 (Fla. 1st DCA 1980). The state argues the affidavit was sufficient, drawing our attention to Borras v. State, 229 So. 2d 244 (Fla.1969), appeal dismissed, 400 U.S. 808, 91 S.Ct. 70, 27 L.Ed.2d 37 (1970), which held an affidavit sufficient which use…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Swartz v. State, 316 So. 2d 618 (Fla. 1st DCA 1975)
- State v. Mills, 267 So. 2d 44 (Fla. 2d DCA 1972)