STATE OF FLORIDA, APPELLANT,
v.
MICHAEL FAMULARO, APPELLEE; STATE OF FLORIDA, APPELLANT, V. JOHN VITO MASTRONARDO, APPELLEE
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The court held that the trial judge's findings regarding appellees' standing and the insufficiency of the search warrant affidavit were supported by substantial competent evidence.
Appellees rented a bedroom in an apartment and moved to suppress evidence seized under a warrant, arguing the affidavit was insufficient. A prior case…
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DOWNEY, Judge.
The state seeks reversal of two non-final orders finding that appellees had standing to attack the validity of a search warrant and suppressing the evidence seized thereunder. The apartment searched was leased by a person named Yawt, who allowed a friend, Farlin, to stay there at times. Yawt also rented a bedroom to appellees, which they used during the daytime only (allegedly for gambling purposes). In a prior case, the trial court, presided over by another judge, granted a motion to suppress the evidence discovered via the search warrant on the grounds that the affidavit upon which it was issued was insufficient. This court affirmed that decision.
In these cases appellees also moved to suppress the evidence on the same grounds —insufficiency of the affidavit — and the motion was granted by a different trial judge. The court also found that appellees herein had standing to attack the warrant based upon the evidence adduced.
Our review of the record presented to the trial court convinces us that there is substantial competent evidence to support the trial judge's findings. Accordingly, we affirm the orders appealed from.
WALDEN, J., concurs.
STONE, J., dissents with opinion.
STONE, Judge,
dissenting.
I would reverse the order suppressing the evidence. In my judgment the affidavit in support of the warrant contained ample reason to conclude that there was probable cause. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, rek’g denied, 463 U.S. 1237, 104 S.Ct. 33, 77 L.Ed.2d 1453 (1983). See also, State v. Powers, 388 So. 2d 1050 (Fla. 4th DCA 1980), rev. dismissed, 397 So. 2d 778 (Fla.1981); State v. Jacobs, 437 So. 2d 166 (Fla. 5th DCA), rev. dismissed, 441 So. 2d 632 (Fla.1983). There is insufficient support in the record for deviating from the deference due the probable cause determination by the issuing judge. See Illinois v. Gates; United States v. Strauss, 678 F. 2d 886 (11th Cir.), cert. denied, 459 U.S. 911, 103 S.Ct. 218, 74 L.Ed.2d 173 (1982). In any event, I would also reverse on the authority of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677, reh’g denied, 468 U.S. 1250, 105 S.Ct. 52, 82 L.Ed.2d 942 (1984). I do concur in the conclusion that appellees had standing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Illinois v. Gates et ux., 462 U.S. 213 (U.S. 1983)
- United States v. Leon, 468 U.S. 897 (U.S. 1984)
- Strauss v. United States, 459 U.S. 911 (U.S. 1982)
- Ochoa-Sanchez v. United States, 459 U.S. 911 (U.S. 1982)
- United States v. Strauss, 678 F.2d 886 (11th Cir. 1982)
- State v. Jacobs, 437 So. 2d 166 (Fla. 5th DCA 1983)
- Atkins v. Parker, 468 U.S. 1250 (U.S. 1984)
- Illinois v. Gates et ux., 463 U.S. 1237 (U.S. 1983)
- Gray v. Lucas, 463 U.S. 1237 (U.S. 1983)
- State v. Powers, 388 So. 2d 1050 (Fla. 4th DCA 1980)