FREDERICK DEBORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frederick Debord appealed his grand theft conviction, challenging the denial of his motion to suppress evidence obtained from an arrest warrant. The court reversed, finding that the arrest warrant was based on false statements in a police affidavit and therefore invalid.
The arrest warrant was invalid because the affidavit contained material false statements about Johnson's alleged interview and statements. When false portions of an affidavit are excised, the remaining allegations did not establish probable cause. Therefore, the arrest was unlawful and all evidence obtained as a result should have been suppressed.
[1] A search warrant affidavit containing false statements made knowingly or intentionally, or with reckless disregard for the truth, may be challenged under Franks v. …
[2] If false statements in a search warrant affidavit are excised, the remaining allegations must still establish probable cause for the warrant to be valid.
Previewing 2 of 4 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“Where an affidavit forms the actual basis of a warrant, the trial court has the duty to determine if the statements contained therein are, in fact, untrue. If so, the court is permitted to excise the false parts of the affidavit.”
Establishes the trial court's duty to examine affidavits for false statements and the ability to remove false portions.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePolice arrested Walter Johnson on a drug violation and discovered stolen items in his possession. Johnson told officers the items belonged to Debord. …
The full statement of facts, procedural history, and disposition for this case are member content.
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BOARDMAN, Judge.
Frederick Debord appeals a judgment and sentence for grand theft, contending that the trial court erred in denying his motion to suppress. We reverse.
On January 3, 1981, the police arrested one Walter Johnson for a drug violation. In a search incident to that arrest, certain stolen items were discovered in Johnson’s possession. Johnson informed the arresting officers that the stolen goods belonged not to him, but to appellant. This information was relayed to Detective Moore, who apparently was in charge of the investigation of the burglary in which the goods were stolen. Although Moore had not personally interviewed Johnson, he stated that he had in a sworn affidavit.
The affidavit indicates that Moore contacted Johnson and that Johnson told the affiant/officer that the stolen items had previously been in appellant’s possession. This was not so; the affiant had never contacted or interviewed Johnson. Based on this affidavit, an arrest warrant was served on appellant. In a search incident to the execution of that warrant, certain statements and tangible items were obtained from appellant. Appellant sought suppression of these statements and items.
Where an affidavit forms the actual basis of a warrant, the trial court has the duty to determine if the statements contained therein are, in fact, untrue. If so, the court is permitted to excise the false parts of the affidavit. If the remaining allegations of the affidavit will still support a probable cause determination, then the court may find that the warrant is valid. If not, then the warrant is invalid, and the arrest is unlawful. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); State v. Bogard, 388 So. 2d 1296 (Fla. 4th DCA 1980).
Under the circumstances here, the entire portion of the affidavit concerning Johnson’s alleged statements should have been excised. Without these statements, probable cause will not lie to support the warrant on the basis of the affidavit. Therefore, appellant’s arrest was unlawful. Since the aforementioned statements and items were a product of the unlawful arrest, they should have been suppressed as fruits thereof. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).
Accordingly, appellant’s judgment and sentence is REVERSED and the cause REMANDED for further proceedings consistent with this opinion.
HOBSON, A.C.J., and RYDER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Martin v. State, 424 So. 2d 994 (Fla. 2d DCA 1983)…xisting warrant cannot be the basis for a legal arrest and search. Pesci v. State, 420 So. 2d 380 (Fla. 3d DCA 1982). Since the contraband was seized pursuant to an unlawful arrest, it should have been suppressed as a fruit thereof. DeBord v. State, 422 So. 2d 881 (Fla. 2d DCA 1982). Based upon the specific facts of this case, we REVERSE the denial of appellant’s motion to suppress and subsequent judgment and sentence for possession of heroin. RYDER and CAMPBELL, JJ., concur.…
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State v. Beney, 523 So. 2d 744 (Fla. 5th DCA 1988)…the affi-ant did not expressly state that he “personally” spoke to or interviewed the informant, see e.g., Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); United States v. Davis, 714 F. 2d 896 (9th Cir.1983); Debord v. State, 422 So. 2d 881 (Fla. 2d DCA 1982), [therefore] the affiant’s statement is at least recklessly false; (2) The fact that probable cause existed or could have been readily shown by a truthful affidavit stating that the affiant’s information came from a fellow officer…
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State v. Marrow, 459 So. 2d 321 (Fla. 3d DCA 1984)…the affiant did not expressly state that he “personally” spoke to or interviewed the informant, see, e.g., Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); United States v. Davis, 714 F. 2d 896 (9th Cir.1983); Debord v. State, 422 So. 2d 881 (Fla. 2d DCA 1982), the affiant’s statement is at least recklessly false; (2) the fact that probable cause existed and could have been readily shown by a truthful affidavit stating that the affiant’s information came from a fellow officer does not c…
Authorities Cited
- Wong SUN v. United States, 371 U.S. 471 (U.S. 1963)
- Franks v. Delaware, 438 U.S. 154 (U.S. 1978)
- State v. Bogard, 388 So. 2d 1296 (Fla. 4th DCA 1980)