STATE OF FLORIDA, PETITIONER,
v.
RONALD DONALD SMELT, RESPONDENT
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Florida's Supreme Court reversed a circuit court decision that had suppressed evidence from a search warrant, holding that an affidavit incorporated by reference into a search warrant sufficiently describes the items to be seized even if the incorporation language does not appear in the specific section of the warrant listing those items.
The court held that incorporation by reference is a perfectly acceptable means of describing the items to be seized in a search warrant, and the location of the incorporation language within the warrant is immaterial so long as an officer armed with the warrant and attached affidavit could unambiguously identify the specific property to be seized.
[1] A search warrant may incorporate an affidavit by reference, even if the incorporation clause is not located in the section describing the items to be seized, as long as t…
[2] Incorporation by reference is a permissible method to avoid repetition of language in a search warrant, provided the incorporated document is clearly identified and attac…
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Join FLexlaw to unlock all legal intelligence“Incorporation by reference is a perfectly acceptable means of avoiding the repetition of language set forth elsewhere. Any officer armed with this warrant, to which the affidavit was attached and, by the issuing judge, made a part of the warrant, could go unerringly to the property and seize the property particularly described.”
Establishes that incorporation by reference satisfies the particularity requirement of a search warrant
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Join FLexlaw to unlock all legal intelligenceA search warrant was issued specifying premises to be searched and describing items to be seized as 'obscene, lewd and lascivious motion pictures film…
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PER CURIAM.
This certiorari petition is brought from an appellate decision of the circuit court reversing a judgment of the county court. The circuit judge held the county court improperly denied a motion to suppress evidence seized in connection with a search.
The search was made pursuant to a warrant which specified the premises to be searched but which went on to describe the items to be seized as follows:
[A]nd there is now being kept on said premises certain OBSCENE, LEWD AND LASCIVIOUS MOTION PICTURES FILMS
which is being kept and used in violation of the Laws of the State of Florida, to-wit: the Laws prohibiting CERTAIN ACTS IN CONNECTION WITH OBSCENE, LEWD AND LASCIVIOUS MATERIALS F.S.A. 847.011 AND IN-STRUMENTALITIES USED IN PERPETRATION OF A CRIME SUBJECT TO SEIZURE UNDER 933.02
That the facts tending to establish the grounds for this application and the probable cause of affiant believing that such facts exist are as follows:
SEE ATTACHED EXHIBIT “B” WHICH IS HEREBY INCORPORATED BY REFERENCE AND MADE A PART HEREOF. Exhibit “B” is an affidavit of a detective which specifically describes the content of certain films alleged to be obscene.
The state argues that the affidavit, attached to the search warrant, cured the vagueness of the warrant. The circuit judge disagreed on the ground that “.. . the fact that the affidavit in support of the search warrant is incorporated in various parts of the search warrant does not cure the deficiency in that the affidavit was not incorporated or made part of the aforesaid portion of the search warrant which was designed to describe the items to be seized.”
We find this case is controlled by Booze v. State, 291 So. 2d 262, 263 (Fla. 2d DCA 1974), cert. denied, 297 So. 2d 836 (Fla.1974), cert. denied, 419 U.S. 997, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974), holding as follows:
An admittedly sufficient affidavit resulted in the issuance of a search warrant in which the description of the premises to be searched and the property to be seized were not stated above the judge’s signature. The warrant did state, however, that “the affidavit for search warrant made by Officer George William Leake and Randy Rabe is hereby made a part of this search warrant and a copy is attached.”
We hold this a good warrant. Incorporation by reference is a perfectly acceptable means of avoiding the repetition of language set forth elsewhere. Any officer armed with this warrant, to which the affidavit was attached and, by the issuing judge, made a part of the warrant, could go unerringly to the property and seize the property particularly described. Joyner v. City of Lakeland, Fla.1956, 90 So. 2d 118.
There is no mention or importance attached in Booze as to which section of the search warrant contained the clause which incorporated the affidavit by reference. A fair reading of this entire warrant and incorporated affidavit leaves no doubt as to the specific items to be seized. Here, as in Booze, “any officer armed with this warrant, to which the affidavit was attached and, by the issuing judge, made a part of the warrant, could go unerringly to the property and seize the property particularly described.”
Accordingly, we find that the circuit judge departed from the essential requirements of law in reversing the county court judgment. Certiorari is granted with instructions to reinstate the judgment of the county court.
BOARDMAN, A. C. J., and CAMPBELL and SCHOONOVER, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Ferris, 422 So. 2d 35 (Fla. 2d DCA 1982)…PER CURIAM. Certiorari granted on the authority of State v. Smelt, 417 So. 2d 1154 (Fla. 2d DCA 1982). HOBSON, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.…
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Everette Lamar Sims v. State, 483 So. 2d 81 (Fla. 1st DCA 1986)…aint referred to in the warrant had been incorporated by reference and attached to the warrant, and if it had so particularly described the property as to preclude the possibility of seizing any other, it would have met the test. See State v. Smelt, 417 So. 2d 1154 (Fla. 2d DCA 1982) (incorporation by reference in the search warrant to an attached exhibit particularly describing the property is sufficient). As was observed in Booze v. State, 291 So. 2d 262, 263 (Fla.2d DCA 1974), cert. denied, 297 So. 2d 836 (…
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State v. Wade, 544 So. 2d 1028 (Fla. 2d DCA 1989)…pprove the manner in which the warrant was executed. Accordingly, we reverse. The search warrant in this case was a printed form which was utilized in almost exactly the same manner as the search warrant which this court approved in State v. Smelt, 417 So. 2d 1154 (Fla. 2d DCA 1982). The warrant described the premises to be searched by reference to an Exhibit A “which was incorporated and made a part hereof for all purposes” and described the premises as being occupied by or under the control of the appellee.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Akron Presform Mold Co. v. McNeil Corp., 419 U.S. 997 (U.S. 1974)
- Gooch v. Skelly Oil Co., 419 U.S. 997 (U.S. 1974)
- Lennie Lee Joyner v. City OF Lakeland, 90 So. 2d 118 (Fla. 1956)
- Booze v. State, 291 So. 2d 262 (Fla. 2d DCA 1974)
- Booze v. State, 297 So. 2d 836 (Fla. 1974)
- Lapsley R. Caldwell v. Caldwell, 297 So. 2d 836 (Fla. 1974)