MICHAEL KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kelly challenged the validity of a search warrant where the supporting affidavit was not attached to the warrant itself. The Florida appellate court clarified that while an affidavit must be attached when relied upon to cure facial deficiencies in a warrant, no affidavit attachment is required when the warrant is sufficient on its face.
A supporting affidavit must be attached to a search warrant only if it is to be relied upon to cure a deficiency in the warrant that is not valid on its face. If the warrant is facially valid, no supporting affidavit attachment is required, as Florida's search warrant statute contains no mandate requiring affidavit attachment.
[1] A search warrant is not invalid solely because the supporting affidavit is not attached to it.
[2] An affidavit must be attached to a search warrant only when the warrant is not valid on its face and the affidavit is relied upon to cure the deficiency.
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Join FLexlaw to unlock all legal intelligence“An affidavit must be attached to a warrant only if it is to be relied upon when the warrant is not valid on its face.”
Establishes the core holding that affidavit attachment is conditional on the warrant's facial validity
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Join FLexlaw to unlock all legal intelligenceKelly was subject to a search warrant that was challenged on appeal. The supporting affidavit for the search warrant was not attached to the warrant d…
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CAMPBELL, Judge.
In this appeal, we are presented with two questions concerning the sufficiency of a search warrant. We only address the first issue which questions whether a search warrant is valid when the supporting affidavit is not attached to it. Appellant cites two cases out of this court which lend some confusion to that question.
In State v. Carson, 482 So. 2d 405 (Fla. 2d DCA 1985) and Booze v. State, 291 So. 2d 262 (Fla. 2d DCA), cert. denied, 297 So. 2d 836 (Fla.1974) (which Carson relied upon), the description in the actual search warrant of the premises to be searched was admittedly deficient. In both Carson and Booze, however, the supporting affidavit was not only referred to in the search warrant, it was attached to the search warrant and adequately described the premises to be searched. In Carson, other exhibits were also attached.
In Carson and Booze, this court sustained the search warrants in reliance upon the attached affidavits and exhibits. The issue in those cases was whether the supporting documents used to cure a deficient warrant were adequately made a part of or physically attached to the warrant, so as to allow a court to rely on the description in the attached documents. We seek here to remove any implication that a search warrant, valid on its face, must have a supporting affidavit attached to it and made a part of it.
An affidavit must be attached to a warrant only if it is to be relied upon when the warrant is not valid on its face. If a warrant is not facially valid, the supporting document may be referred to to cure the deficiency of the warrant. The confusion, if any, arises because of the statement in Booze that “[i]t is important to note the requirement that the affidavit be attached to and made a part of the warrant.” Booze, 291 So. 2d at 263. As support for that statement, Moore v. United States, 461 F. 2d 1236 (D.C.Cir.1972) is cited. Moore, however, involved a provision then existing in the District of Columbia Code § 23-301 that mandated, “The said warrant shall have annexed to it, or inserted therein, a copy of the affidavit upon which it is issued.” Moore, 461 F. 2d at 1239. Our statute, chapter 933, Fla.Stat. (1985), pertaining to search warrants, contains no similar mandate. Thus, while Carson and Booze do stand for the rule that an affidavit must be attached to and made a part of the search warrant where the affidavit is relied upon to cure a deficiency in the warrant, an affidavit is not required when the warrant itself is sufficient.
We find no merit in appellant’s other issue which questions whether the affidavit properly established probable cause.
Affirmed.
DANAHY, C.J., and SCHEB, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Nelson, 542 So. 2d 1043 (Fla. 5th DCA 1989)…tly contain a description of the premises to be searched. Affidavits describing the place to be searched and items to be seized must be attached to a warrant where the affidavit is relied upon to cure a deficiency in the warrant. See Kelly v. State, 508 So. 2d 568 (Fla. 2d DCA 1987); §§ 933.07 & 933.11, Fla.Stat. (1987). This is not a situation where the executing officer had a valid and complete warrant in his possession and served an incomplete duplicate on the defendant or the searched premises. Cf. State…
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State v. Gayle, 573 So. 2d 968 (Fla. 5th DCA 1991)…ogether in a folder, but the two had become separated. Officers retrieved the numerous bags of cannabis, and left copies of the warrant, but not the affidavit. A search warrant which is valid on its face needs no affidavit attached. Kelly v. State, 508 So. 2d 568 (Fla. 2d DCA 1987). However, a defective warrant can be cured by an affidavit which is referenced in the warrant and which is physically attached to the warrant. State v. Carson, 482 So. 2d 405 (Fla. 2d DCA 1985), rev. denied, 492 So. 2d 1330 (Fla.1…
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Perez v. State, 521 So. 2d 262 (Fla. 2d DCA 1988)…Wade. ISSUE I Attachment of Affidavit There is no dispute that neither the probable cause affidavit nor any copy was [*264] attached to the warrant when it was executed at the appellant’s residence. Under this court’s decision of Kelly v. State, 508 So. 2d 568 (Fla. 2d DCA 1987), if a warrant is valid on its face, which we find the warrant in the instant case to be, attachment of the supporting affidavit is not necessary. The. appellant’s cited cases of State v. Carson, 482 So. 2d 405 (Fla. 2d DCA 1985),…
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
- Moore v. United States, 461 F.2d 1236 (D.C. Cir. 1972)
- 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)
- Suggs v. State, 482 So. 2d 405 (Fla. 5th DCA 1985)
- State v. Carson, 482 So. 2d 405 (Fla. 2d DCA 1985)