ROBERT ELBA THOMPSON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the affidavit supporting the search warrant was insufficient to establish probable cause for searching the appellant's house trailer, and the good faith exception to the exclusionary rule did not apply.
[1] A bare assertion that a dwelling is being used for the sale of narcotics will not support the issuance of a search warrant for the dwelling unless the affidavit demonstra…
[2] An assertion that contraband has been observed growing immediately outside a dwelling is not sufficient in itself to support a warrant for a search of the dwelling.
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Join FLexlaw to unlock all legal intelligenceOfficers obtained a warrant to search appellant's house trailer and attached greenhouse based on an affidavit from informants who claimed to have seen…
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WENTWORTH, Judge.
Appellant seeks review of a judgment of conviction and sentence for possession of marijuana. We find that the physical evidence should have been suppressed as the product of an unlawful search. We further find that the circumstances do not justify a good faith exception to the exclusionary rule. We therefore reverse the judgment of conviction and vacate appellant’s sentence.
Appellant entered a nolo plea reserving the right to appeal the denial of his motion to suppress physical evidence, and the state conceded that the issue would be disposi-tive. In the motion to suppress appellant contended that evidence was unlawfully seized from the interior of his house trailer pursuant to a warrant which issued without probable cause to search the dwelling. The warrant was based upon an affidavit identifying appellant’s house trailer and “attached” greenhouse as premises on which marijuana was being kept. The affidavit, made by a deputy sheriff, recited that the affiant:
... has reason to believe and does believe that the trailer ... is being used for the sale of Cannabis and the curtilage of same is being used for cultivation of Cannabis. This belief is the result of information provided by two sources of information. Confidential Informant A reported ... that he had observed Cannabis plants in the greenhouse attached to the ... trailer. This observation took place during the past 5 days while the Cl was walking past the trailer. Confidential Informant B reported to this officer that during the past 5 days while visiting the house next door ... he observed Cannabis plants in the greenhouse and also observed [appellant] removing something for [sic] the greenhouse and taking it inside the trailer. The affidavit also recited the informants’ familiarity with marijuana plants, and the prior reliability of one of the informants.
At a hearing on the motion to suppress appellant acknowledged that the greenhouse is next to his trailer door. Photographs depicted the greenhouse as an A-frame structure of wood framing covered by opaque plastic and located immediately adjacent to the trailer. It was established that in executing the warrant the officers first searched the greenhouse but discovered no marijuana or other incriminating evidence. They then searched the interior of appellant’s house trailer where they found marijuana. The warrant authorized a search of both the greenhouse and the trailer, and in addition to arguing the sufficiency of the affidavit to support this warrant the state also asserted that the officers acted in good faith reliance upon the warrant. After the parties concluded their presentations the court denied the motion to suppress.
Section 933.18, Florida Statutes precludes the issuance of a warrant to search a private dwelling unless certain specified occurrences are shown. The statute authorizes the issuance of a warrant to search a dwelling if the “law relating to narcotics or drug abuse is being violated therein.” See Section 933.18(5), Florida Statutes. While the affidavit in this case asserts a belief that appellant’s trailer was being used for the sale of marijuana, this bare assertion will not support the issuance of a warrant for a search of the dwelling unless the affidavit demonstrates a factual basis for the belief. See generally, Griffith v. State, 532 So. 2d 80 (Fla. 3d DCA 1988).
Probable cause should be determined upon a common sense assessment of the totality of the circumstances. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
The affidavit contains a factual predicate indicating the presence of marijuana in appellant’s greenhouse. But an assertion that marijuana has been observed growing immediately outside a dwelling is not sufficient in itself to support a warrant for a search of the dwelling. See Howard v. State, 483 So. 2d 844 (Fla. 1st DCA 1986).
The only further allegation involving the dwelling in the present case is that one of the informants had seen appellant “removing something for [sic] the greenhouse and taking it inside the trailer.” The affidavit does not suggest what this “something” was, and there is no indication that only contraband was contained in the greenhouse. Absent some more specific indication of what was removed and taken inside, the affidavit was insufficient to support a warrant for a search of the trailer. Howard v. State, supra, also indicates that the good faith exception delineated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), does not apply where a supporting affidavit is so deficient in establishing a substantial basis for probable cause that reliance thereon is not objectively reasonable. See also, Renckley v. State, 538 So. 2d 1340 (Fla. 1st DCA Feb. 17, 1989); St. Angelo v. State, 532 So. 2d 1346 (Fla. 1st DCA 1988).
Renckley cautions that the objective good faith standard “requires officers to have a reasonable knowledge of what the law pro-mbits, citing United States v. Leon, supra. Assessing the officers’ actions in the present case in light of Howard, their reliance upon the warrant which authorized a search of appellant’s trailer pursuant to an affidavit lacking a substantial basis to establish probable cause with respect to the trailer was not objectively reasonable and does not constitute good faith.
The court should have granted appellant’s motion to suppress the physical evidence seized within his house trailer. We therefore reverse the judgment of conviction and vacate appellant’s sentence.
ERVIN and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bonilla v. State, 579 So. 2d 802 (Fla. 5th DCA 1991)…on in cases where the supporting affidavit clearly fails to establish probable cause sufficient to justify a search. Garcia v. State, 554 So. 2d 1223 (Fla. 2d DCA 1990); State v. Van Pieterson, 550 So. 2d 1162 (Fla. 1st DCA 1989); Thompson v. State, 548 So. 2d 806 (Fla. 1st DCA 1989); Dixon v. State, 511 So. 2d 1094 (Fla. 2d DCA 1987); Howard v. State, 483 So. 2d 844 (Fla. 1st DCA 1986). We conclude that the evidence establishes that Sergeant Lee’s reading of the April 13, 1990 affidavit and warrant revealed…
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Smith v. State, 637 So. 2d 351 (Fla. 1st DCA 1994)…8 U.S. at 923, 104 S.Ct. at 3421. The St. Angelo, Brown, and Fellows courts all refused to apply the good faith exception under the circumstances of those cases as outlined above, all similar to the circumstances herein. See also Thompson v. State, 548 So. 2d 806 (Fla. 1st DCA 1989) (good faith does not apply where the supporting affidavit is so deficient in establishing a substantial basis for probable cause that reliance thereon is not objectively reasonable). Here, the affidavit is based entirely on hears…
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State v. Carreno, 35 So. 3d 125 (Fla. 3d DCA 2010)…urveillance sufficient); Lopez v. State, 775 So. 2d 1007-08 (Fla. 3d DCA 2001) (multiple tips regarding drug dealing and single trash pull yielding “a considerable amount of drug paraphernalia and cocaine residue” sufficient); cf. Thompson v. State, 548 So. 2d 806, 808 (Fla. 1st DCA 1989) (finding a “bare assertion” insufficient “unless the affidavit demonstrates a factual basis for the belief’). In both Raulerson and Gesell, unlike the instant case, “the officers did not conduct any surveillance or independ…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Illinois v. Gates et ux., 462 U.S. 213 (U.S. 1983)
- United States v. Leon, 468 U.S. 897 (U.S. 1984)
- Howard v. State, 483 So. 2d 844 (Fla. 1st DCA 1986)
- ST. Angelo v. State, 532 So. 2d 1346 (Fla. 1st DCA 1988)
- Rengkley v. State, 538 So. 2d 1340 (Fla. 1st DCA 1989)
- State v. Hampton, 532 So. 2d 80 (Fla. 3d DCA 1988)