NOEL FRANCIS KING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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An affidavit supporting a search warrant must specify the time the informant observed illegal activity to establish probable cause.
[1] An affidavit supporting a search warrant must specify the time or times when an informant observed illegal activity to establish probable cause.
[2] A search warrant affidavit is insufficient if it states only that the police met with an informant within a certain period, without specifying when the informant observed…
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Join FLexlaw to unlock all legal intelligenceA search warrant was issued based on an affidavit stating a confidential informant observed illegal activity within the last six days. The defendant m…
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RYDER, Judge.
Noel Francis King asks us to hold that the trial court erred by denying his motion to suppress contraband seized pursuant to a search warrant, alleging the supporting affidavit did not specify when a confidential informant observed an illegal act which formed the basis for issuance of the warrant.
The supporting affidavit to the search warrant issued herein reads in pertinent part:
[YJour affiant’s reason for his belief is that within the last six days he met with a confidential and reliable informant who advised him that inside 118 Lake Avenue, Apt. A, Largo, Pinellas County, Florida, he observed one Diana King rolling handmade cigarettes filled with what he believed to be cannabis (marijuana). The cannabis (marijuana) was obtained from a wooden box approximately four inches deep and ten inches long. At the time of said informant’s observation he saw what he believed to be fifteen to twenty marijuana cigarettes on the kitchen table.... (emphasis supplied)
Again we are faced with an effort on the part of law enforcement to protect the identity of informants who provide information utilized in affidavits in support of search warrants. Knowing that the accused will be furnished a copy of the search warrant and its supporting affidavit and being appropriately concerned about protecting their sources’ identity, peace officers oft times attempt to be as vague as possible regarding their informant, yet meet the letter of the law in this area. In such attempts, the use of the phrase “within the last six days” or “within the last fifteen days” or similar other periods has come into vogue. The purpose being, hopefully, that the accused will not recall who did what, where and when within the stated period, thus limiting the chance that the informant’s identity will be discovered.
The courts of this state have, sometimes, upheld and have on other occasions disapproved the use of the phrase “within the” such and such period. The courts approve its use if the information provides probable cause by indicating the informant made an actual purchase or other exchange or actually observed illegal acts within a certain stated period which is not remote to the date of application for the search warrant. State v. Schwarzbauer, 342 So. 2d 1085 (Fla. 2d DCA 1977); State v. Bishop, 395 So. 2d 238 (Fla. 1st DCA 1981). However, where affidavits to search warrants indicate merely that the police and the informant met or conferred within a certain given period of time, without noting when the informant observed the illegal act, then the courts have disapproved search warrants generally on the theory that the affidavit fails to 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 used the present tense to allege a violation which was continuing right up to the time the search warrant was issued. In support of its position, the state points out that the affidavit, sub judice, also contains a statement by affiant that, “Affiant believes that the laws of the state .. . are being violated.”
We believe Borras is distinguishable here since the affidavit therein dealt with a controlled buy of contraband and was, as stated, written in the present tense alleging a violation of our laws was continuing. Here, the tense appears to be past. Further, we here are confronted with the question of not when the informant meets the police, but when the informant actually observed the contraband which was the subject of this search. The affidavit givés us no guidance. The affidavit states only that the police officer met and received his information from his informant within the last six days of the date of the affidavit. It is silent regarding the date the illegal activity occurred.
We reembrace our position in Mills, adopt the reasoning in Orr, and hold again that an affidavit supporting a search warrant must contain the specific time or times when the informant observed the illegal activity.1 Therefore, the trial court having erred in denying appellant’s motion to suppress the evidence seized pursuant to the invalid search warrant, the judgment and sentence herein are REVERSED and the cause REMANDED for further proceedings consistent herewith.
SCHEB, A. C. J., and SCHOONOVER, J., concur. . Had the affidavit read that the informant observed the contraband or other illegal act within the last six days, ten days or such other time period so that the information was not stale then, as in State v. Schwarzbauer, 342 So. 2d 1085 (Fla. 2d DCA 1977), the result would be different. We would have affirmed inasmuch as a sufficiently clear and definite statement had been provided and the period encompassed would not be too remote in time for a search warrant to issue.
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Dufour v. State, 495 So. 2d 154 (Fla. 1986)…r crimes together,” and that he had seen in Taylor’s possession a .25 caliber automatic. Appellant initially argues that the weaknesses rendering the affidavits insufficient in Yesnes v. State, 440 So. 2d 628 (Fla. 1st DCA 1983), and King v. State, 410 So. 2d 586 (Fla. 2d DCA 1982), similarly inflict the instant affidavit. We disagree. A crucial factor distinguishes the affidavits in Yesnes and King from the instant affidavit. In the first two cases, the affidavits were based on the substantially uncorrobor…
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State v. Vanderhors, 927 So. 2d 1011 (Fla. 2d DCA 2006)…the controlled buys and surveillance occurred. In reaching this conclusion, the trial court relied on this court’s decisions in Getreu v. State, 578 So. 2d 412 (Fla. 2d DCA 1991); Rand v. State, 484 So. 2d 1367 (Fla. 2d DCA 1986); and King v. State, 410 So. 2d 586 (Fla. 2d DCA 1982). A search warrant must be based on probable cause supported by an affidavit. Art. I, § 12, Fla. Const. To establish probable cause, the affidavit must set forth two elements: (1) the commission element — that a particular person…1 / 2
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State v. Drowne, 436 So. 2d 916 (Fla. 4th DCA 1983)…heir users or hearers. This considers the psychological consequences of the fact that established meanings constitute verbal habits. (Emphasis added.) In contrast to the affidavit in Orr, however, that which the court invalidated in King v. State, 410 So. 2d 586, 586 (Fla. 2d DCA 1982), recited, in part: [Y]our affiant’s reason for his belief is that within the last six days he met with a confidential and reliable informant who advised him that inside 118 Lake Avenue, Apt. A, Largo, Pinellas County, Florid…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Borras v. State, 229 So. 2d 244 (Fla. 1969)
- ORR v. State, 382 So. 2d 860 (Fla. 1st DCA 1980)
- State v. Mills, 267 So. 2d 44 (Fla. 2d DCA 1972)
- State v. Schwarzbauer, 342 So. 2d 1085 (Fla. 2d DCA 1977)
- Comeau v. Safeco Ins. Co. OF Am., 342 So. 2d 1085 (Fla. 1st DCA 1977)
- State v. Bishop, 395 So. 2d 238 (Fla. 1st DCA 1981)
- Borras v. Florida, 400 U.S. 808 (U.S. 1970)
- H. H. Robertson Co. v. Newberry, 400 U.S. 808 (U.S. 1970)