MARION F. SHEPPARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marion Sheppard was convicted of drug paraphernalia possession based on a search warrant. The court reversed the conviction, holding that the affidavit supporting the warrant lacked sufficient probable cause because the bulk of the information was stale (over 30 days old) and the fresh information relied on an unverified anonymous tipster.
The court held that the affidavit was insufficient to establish probable cause. The first 12 paragraphs, containing information more than 30 days old, could not support a probable cause finding. Paragraph 13, while more recent, relied on information from an unknown third person whose reliability was not established, and the anonymous tips themselves lacked indicia of reliability because there was no verification that the substance was actually cocaine or that the informant had reliable knowledge of its nature.
[1] A search warrant affidavit must demonstrate probable cause based on information that is not stale.
[2] Information relayed by a confidential informant who received it from an unknown third party is insufficient to establish probable cause for a search warrant without indep…
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Join FLexlaw to unlock all legal intelligence“the facts related in the affidavit were insufficient to justify a probable cause determination necessary for the issuance of the search warrant”
States the core holding that the affidavit lacked sufficient probable cause
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Join FLexlaw to unlock all legal intelligencePolice obtained a search warrant based on an affidavit containing 12 paragraphs with information ranging from several months to years old. Paragraph 1…
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ERVIN, Judge.
Appellant raises three issues in his appeal from a conviction for possession of drug paraphernalia. We reverse the conviction based on the failure of the trial court to grant a motion to suppress and therefore do not address the other issues raised in the appeal.
The affidavit on which the search warrant was based contained 12 paragraphs relating to events ranging from several months to several years preceding the time of the affidavit’s execution. Paragraph 13, the only paragraph that was not stale, contained information relayed to a confidential citizen by an unknown third person.1
We conclude, following the “totality of the circumstances” rule, stated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), that the facts related in the affidavit were insufficient to justify a probable cause determination necessary for the issuance of the search warrant. The first 12 paragraphs of the affidavit contain information that was more than thirty days old and cannot serve to undergird a probable cause finding. House v. State, 323 So. 2d 659 (Fla. 1st DCA 1975), cert. denied, 333 So. 2d 463 (Fla.1976); Hamelmann v. State, 113 So. 2d 394 (Fla. 1st DCA 1959). In paragraph number 13 the affiant repeats information relayed by a reliable, confidential citizen regarding events seen by him and statements made to him by an unknown third person. Although the affidavit attests to the reliability of the confidential citizen, it contains no information regarding the reliability of the unknown informant, and, without such information, paragraph 13 is insufficient to provide the probable cause required to justify a search. See Milete v. State, 439 So. 2d 337 (Fla. 3d DCA 1983). Moreover, the tips provided by the anonymous person themselves lacked any indicia of reliability. No search was made of the informant in order to ascertain whether the substance he later described as cocaine was in fact on his person before his entry. Neither do the facts given explain how the informant came about his knowledge that the substance was cocaine — no tests were run on the substance, nor was it shown that the informant, or indeed the citizen to whom the material was displayed, was experienced in the detection and examination of such substances.
In Milete, a warrant was based on information supplied by a confidential informant who in turn had received his information from an anonymous tipster regarding placement of bales of marijuana in the defendant’s trailer. The court concluded that although there was no reason to doubt the veracity of the affiant or the reliability of the informant, a warrant could not be based on nothing more than the unverified allegation of an anonymous tipster. See also Vasquez v. State, 491 So. 2d 297 (Fla. 3d DCA 1986), review denied, 500 So. 2d 545 (Fla.1986) (suppression of evidence seized in a search is required when the affidavit contains no information regarding the credibility of the confidential source).
The judgment appealed from is reversed with directions to discharge the defendant.
SMITH, C.J., and NIMMONS, J., concur. . The relevant paragraph states in pertinent part:
That within the past ten (10) days, your Affi-ant was contacted by a confidential citizen of Escambia County, Florida. The citizen told your Affiant that within ten (10) days of this application, the citizen had occasion to be at 14141 Canal Drive, in Escambia County, Florida. While at that location, the citizen observed a white male go into the residence of “Fred” Sheppard. The subject stayed in the residence a brief period of time and upon exiting the residence the subject displayed a quantity of Cocaine to the citizen. The citizen was advised by the subject that the material was Cocaine and further, that the Cocaine was purchased from "Fred" at the residence of 14141 Canal Drive.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Montgomery v. State, 584 So. 2d 65 (Fla. 1st DCA 1991)…ion is improper. State v. Moise, 522 So. 2d 1023 (Fla. 5th DCA 1988). We also note that the state in its brief did not cite one case on staleness or argue the applicability of the 30-day rule which is discussed herein. . See also Sheppard v. State, 521 So. 2d 288 (Fla. 1st DCA 1988), where the court cited to House and stated that information which was more than 30 days old could not be utilized to support a finding of probable cause.…
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Reyes v. State, 541 So. 2d 772 (Fla. 3d DCA 1989)…by observation of the controlled purchase. See State v. Barrett, 132 Vt. 369, 320 A. 2d 621, 625 (1974); Mills v. State, 177 Ind.App. 432, 379 N.E. 2d 1023, 1026 (1978); 1 W. LaFave, Search and Seizure § 3.3(f) (2d ed. 1987); cf. Sheppard v. State, 521 So. 2d 288, 289 (Fla. 1st DCA 1988) (information not reliable, inter alia, where no direct observation and no search). . Even if probable cause had not been shown to exist in this case, the search would nonetheless be valid under the good faith doctrine set f…
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KEY v. State, 553 So. 2d 301 (Fla. 1st DCA 1989)…te any of the details stated by the informant. Moreover, that occurrence was too remote in time to supply the officer with probable cause that Key possessed cocaine or was perpetrating any criminal act on this particular occasion. Sheppard v. State, 521 So. 2d 288 (Fla. 1st DCA 1988) (and cases cited therein). There simply was no corroboration of the details of the anonymous tip in any respect other than the fact that the officer found Key at the place indicated by the informant; but the officer did not perso…1 / 3
Authorities Cited
- Illinois v. Gates et ux., 462 U.S. 213 (U.S. 1983)
- Hamelmann v. State, 113 So. 2d 394 (Fla. 1st DCA 1959)
- Vasquez v. State, 491 So. 2d 297 (Fla. 3d DCA 1986)
- House v. State, 323 So. 2d 659 (Fla. 1st DCA 1975)
- Julita Marie Milete v. State, 439 So. 2d 337 (Fla. 3d DCA 1983)