STATE OF FLORIDA, APPELLANT,
v.
RAYMOND RICHARD POWERS, APPELLEE
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The State appealed a suppression order in a drug case, challenging whether a search warrant was sufficiently supported by an affidavit based on wiretapped conversations. The appellate court reversed, holding that the affidavit contained sufficient probable cause to establish that drug violations were occurring in the target residence.
The court held that the affidavit was sufficient to establish probable cause that contraband drugs were located in the residence. Because Powers stated he had drugs within his control and was speaking from his residence, it was reasonable to infer that contraband was in the house in question, satisfying the statutory requirement for searching a private dwelling.
[1] A search warrant for a private dwelling to search for narcotics or drug abuse violations may only be issued if the law is currently being violated within that dwelling.
[2] Probable cause for the issuance of a search warrant need not meet the standard of conclusiveness and probability required for a conviction.
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Join FLexlaw to unlock all legal intelligence“Section 933.18, Florida Statutes (1979) prohibits issuance of a search warrant for search of a private dwelling for violations of the law relating to narcotics or drug abuse unless the law is currently being violated within that private dwelling.”
Establishes the statutory standard the warrant must meet to be valid for searching a residence in drug cases
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Join FLexlaw to unlock all legal intelligenceLaw enforcement obtained a wiretap on Powers' telephone and recorded a conversation discussing quantities and prices of controlled substances. During …
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HERSEY, Judge.
The state appeals from an order granting a motion to suppress evidence in a case in which appellee, Powers, was charged with six counts of violation of The Drug Abuse Law (Chapter 893, Florida Statutes (1979)).
The evidence was found during the execution of a search based upon a warrant. The affidavit supporting issuance of the search warrant was made by law enforcement personnel based upon a telephone conversation between Powers and an individual whose telephone was the subject of an authorized wiretap. A transcript of that conversation was attached to the affidavit.
The telephone conversation involved a lengthy discussion of quantities and prices of several controlled substances. At various times during the conversation Powers indicated that he did not have the drug or the quantity requested but could obtain it. Powers did state that he had some “bootleg” tuinals (barbituates) and a pound and a half of “pot” (marijuana). He did not, however, specifically say that these drugs were located in his residence.
The trial court, in granting the motion to suppress, found that “the affidavit is insufficient to show that the violations of state law alleged were being committed at 260 N.W. 46th Court, Hollywood, Florida, a residence house, and that there is no demonstrable nexus between the alleged contraband and that place described above to support issuance of the within search warrant,
Section 933.18, Florida Statutes (1979) prohibits issuance of a search warrant for search of a private dwelling for violations of the law relating to narcotics or drug abuse unless the law is currently being violated within that private dwelling. Gerardi v. State, 307 So. 2d 853 (Fla. 4th DCA 1975). Search warrants are issued upon probable cause and facts constituting probable cause need not meet the standard of conclusiveness and probability required of circumstantial facts upon which a conviction may be based. State v. Heape, 369 So. 2d 386 (Fla. 2d DCA 1979). Thus, interpretation of the facts in a “commonsense and realistic fashion,” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965), may result in an inference of probable cause to believe that criminal objects are located in a particular place to which they have not been tied by direct evidence. United States v. Valenzuela, 596 F. 2d 824 (9th Cir. 1979), cert. denied 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1979).
In this case, the telephone conversation revealed that Powers had, within his control, marijuana and tuinal. The taped conversation was replete with references to drugs that Powers did and did not “have” and he was speaking from a telephone located in his residence. Therefore, it was reasonable to infer that there were contraband drugs in the house in question. That being so, the affidavit was a sufficient basis for issuance of the search warrant. The order suppressing use of the drugs as evidence is therefore reversed and the cause is remanded for such further proceedings as may be appropriate.
REVERSED and REMANDED.
LETTS, C. J., and ANSTEAD, J., concur.
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State v. Drowne, 436 So. 2d 916 (Fla. 4th DCA 1983)…de by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. The basis for the issuance of the search warrant has been described by this court in State v. Powers, 388 So. 2d 1050, 1051 (Fla. 4th DCA 1980), petition for review dismissed, 397 So. 2d 778 (Fla.1981), as follows: Search warrants are issued upon probable cause and facts constituting probable cause need not meet the standard of conclusiveness and probability requi…
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Williams v. State, 731 So. 2d 48 (Fla. 2d DCA 1999)…etation of the facts in a ‘common sense and realistic fashion’ ... may result in an inference of probable cause to believe that criminal objects are located in a particular place to which they have not been tied by direct evidence.” State v. Powers, 388 So. 2d 1050, 1051 (Fla. 4th DCA 1980). This reasoning is consistent with the view expressed by the United States Supreme Court in Gates that “probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such ac…
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State v. Famularo, 532 So. 2d 45 (Fla. 4th DCA 1988)…pport of the warrant contained ample reason to conclude that there was probable cause. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, rek’g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). See also, State v. Powers, 388 So. 2d 1050 (Fla. 4th DCA 1980), rev. dismissed, 397 So. 2d 778 (Fla.1981); State v. Jacobs, 437 So. 2d 166 (Fla. 5th DCA), rev. dismissed, 441 So. 2d 632 (Fla.1983). There is insufficient support in the record for deviating from the deference due the probable…
Authorities Cited
- United States v. Ventresca, 380 U.S. 102 (U.S. 1965)
- United States v. Valenzuela, 596 F.2d 824 (9th Cir. 1979)
- Peabody Coal Co. v. Mo. Pub. Serv., 444 U.S. 865 (U.S. 1979)
- State v. Heape, 369 So. 2d 386 (Fla. 2d DCA 1979)
- Tallbear v. State, 369 So. 2d 386 (Fla. 2d DCA 1979)
- Gerardi v. State, 307 So. 2d 853 (Fla. 4th DCA 1975)