STATE OF FLORIDA, APPELLANT,
v.
GEORGE NELSON, APPELLEE
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A search warrant executed without its supporting affidavit, which is incorporated by reference and describes the premises, is fundamentally improper and mandates suppression of evidence.
[1] A search warrant is invalid without its supporting affidavit if the affidavit is relied upon to cure a deficiency in the warrant and is not physically attached at the tim…
[2] The particularity requirement for search warrants prevents general searches and arbitrary invasions of privacy by ensuring that the warrant adequately specifies the premi…
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Join FLexlaw to unlock all legal intelligenceA search warrant was issued but the supporting affidavit was not physically attached at the time of execution. The executing officer did not have the …
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COBB, Judge.
ON MOTION FOR REHEARING
We withdraw the prior opinion in this case and issue the following in its place.
The issue is whether the execution of a search warrant without the supporting affidavit is fundamentally improper so as to mandate suppression of evidence irrespective of any showing by the defendant of actual prejudice. The instant warrant was properly issued but the supporting affidavit, which was incorporated by reference, was thereafer removed and not physically attached at the time of execution. The search warrant as executed was invalid without the supporting affidavit because the warrant did not independently 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 v. Gaunt, 456 So. 2d 534 (Fla. 2d DCA 1984); Harden v. State, 433 So. 2d 1378 (Fla. 2d DCA 1983); and State v. Henderson, 253 So. 2d 158 (Fla. 4th DCA 1971). In such cases, suppression should be denied absent a showing of prejudice. The officer who conducted the instant search did not have the requisite exhibit describing the location in his possession at the time of the search. Moreover, he also failed to serve a copy of the affidavit on the defendant or leave one at the locus of the search.
In State v. Riley, 462 So. 2d 800 (Fla.1985) police officers entered and secured the premises to be searched pursuant to a valid and previously issued search warrant; the search transpired after the executing officers had the warrant physically in hand. The Florida Supreme Court, in upholding the search, restated the certified question so as to emphasize the fact that the search of the premises did not proceed “until the search warrant [was] physically available at the premises for execution.” Riley at 801. Where a search warrant fails to adequately specify material to be seized, and leaves the scope of the seizure to the discretion of the executing officer, it is constitutionally over-broad. The policy consideration is that nothing should be left to the discretion of the officer executing the warrant. The purpose of requiring particularity in the description of things to be seized under a warrant is to prevent “general searches.” Pezzella v. State, 390 So. 2d 97, 99 (Fla. 3d DCA 1980), review denied, 399 So. 2d 1146 (Fla.1981).1 This same reasoning applies where the deficiency in the search warrant relates to a description of the premises to be searched; the particularity requirement prevents searches and seizures at a location not intended by the search warrant, thus safeguarding the privacy and security of individuals against arbitrary invasions by governmental officials. Jackson v. State, 87 Fla. 262, 99 So. 548 (1924); State v. Brooker, 449 So. 2d 386 (Fla. 1st DCA 1984) (the description of the place to be searched must identify the place to be searched to the exclusion of all others and on inquiry lead the officers unerringly to it); Shedd v. State, 358 So. 2d 1117, 1118 (Fla. 1st DCA 1978) (a search of a citizen’s residence must be based on the description set forth in the warrant and not left to the discretion of an officer).
In the instant case, Agent Grady procured the search warrant and delivered it to another agent to execute the search. Grady retained the affidavits contrary to section 933.11.2 While service of an incomplete copy of the search warrant is not a legitimate basis for suppression of evidence in the absence of a showing of prejudice by a defendant, this assumes that the executing officer has a valid and complete search warrant physically in his possession at the time of the search. Gaunt; Harden; Henderson. By the state’s admission, the executing officer in this case had an incom-píete warrant in his possession at the time of the search. Accordingly, we grant rehearing and find that the decision of the trial court suppressing the evidence must be
AFFIRMED.
COWART, J., and GLICKSTEIN, H.S., Associate Judge, concur. . In Carlton v. State, 449 So. 2d 250 (Fla.1984), the court disapproved of Pezzella’s strict requirement of particularity concerning controlled substances, but at the same time recited with approval the general policy considerations as outlined above.
. Section 933.11 states that a duplicate shall be delivered to the executing officer "with the original warrant.”
Cases With Similar Vibessemantic neighbors from the corpus
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Polakoff v. State, 586 So. 2d 385 (Fla. 5th DCA 1991)…s a crime under RICO section 895.03(3). . Even if the supporting affidavit was sufficiently detailed, it would not cure the defective search warrant unless it was physically attached to the warrant so as to constitute one document. State v. Nelson, 542 So. 2d 1043 (Fla. 5th DCA 1989); Bloom v. State, 283 So. 2d 134 (Fla. 4th DCA 1973); see also Booze v. State, 291 So. 2d 262 (Fla. 2d DCA 1974), cert. denied, 297 So. 2d 836 (Fla.1974). . See, Joyner v. City of Lakeland, 90 So. 2d 118 (Fla.1956); Carlton v. St…
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Ingraham v. State, 811 So. 2d 770 (Fla. 2d DCA 2002)…apartment again. . The supporting affidavit does not cure the deficiency in the search warrant because the items it listed as objects of the search were described with no more particularity than they were in the search warrant. See State v. Nelson, 542 So. 2d 1043 (Fla. 5th DCA 1989). . The State's argument that the drill set and the flag are admissible because they were discovered in plain view during the search is without merit because the plain view doctrine only applies when law enforcement is lawfully o…
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State v. Gayle, 573 So. 2d 968 (Fla. 5th DCA 1991)…ments for a search warrant, including an express finding of probable cause. We conclude that the failure of the police to leave a copy of the affidavit with the warrant does not invalidate the search, absent a showing of prejudice. State v. Nelson, 542 So. 2d 1043 (Fla. 5th DCA 1989). In order to challenge a search on this ground, a defendant must show that he was prejudiced by the fact that the officer did not give him a copy of the affidavit. Harden v. State, 433 So. 2d 1378 (Fla. 2d DCA 1983). No showing o…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jackson v. State, 87 Fla. 262 (Fla. 1924)
- Carlton v. State, 449 So. 2d 250 (Fla. 1984)
- Pezzella v. State, 390 So. 2d 97 (Fla. 3d DCA 1980)
- Deland State Bank v. BIG Muddy Corp., 358 So. 2d 1117 (Fla. 1st DCA 1978)
- Joyce v. P. G. C. Corp., 253 So. 2d 158 (Fla. 4th DCA 1971)
- State v. Riley, 462 So. 2d 800 (Fla. 1984)
- Kelly v. State, 508 So. 2d 568 (Fla. 2d DCA 1987)
- Harden v. State, 433 So. 2d 1378 (Fla. 2d DCA 1983)
- State v. Brooker, 449 So. 2d 386 (Fla. 1st DCA 1984)
- State v. Gaunt, 456 So. 2d 534 (Fla. 2d DCA 1984)