STATE OF FLORIDA, APPELLANT,
v.
TY WILLIAM SCHULZE, APPELLEE

Fla. 2d DCA | 1991-05-24
No. 90-02083
SCHOONOVER, C.J., and HALL and PATTERSON, JJ., concur.
581 So. 2d 610 Florida District Court of Appeal, Second District (1991) Positive Treatment
Cited by 9 cases

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Holding

A controlled drug buy alone is sufficient to establish probable cause for a search warrant, and omissions regarding informant reliability are not material if probable cause is otherwise established.


Headnotes

[1] A controlled drug buy from a residence is a sufficient factual premise for the issuance of a search warrant and demonstrates the probable reliability of the informant.

[2] When reviewing a search warrant for material omissions, the court should consider the affidavit as if the omitted facts were included and determine if probable cause stil…

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Facts & Procedural History

The State appeals an order suppressing evidence seized under a search warrant. The warrant was based on an affidavit detailing a controlled drug buy c…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The State of Florida challenges the trial court’s order granting a motion to suppress evidence seized during the execution of a search warrant. We reverse.

The state filed an information charging the appellee with possession of methamphetamine, cannabis, and drug paraphernalia. The appellee filed a motion to suppress the evidence on the ground that it was obtained as a result of an illegal search warrant.

At the hearing on the motion to suppress, Special Agent Linda Johnson of the Polk County Sheriffs Department testified concerning the circumstances that led to the issuance of the search warrant. Johnson received information from the Lake Wales Police Department that narcotics were being sold out of the residence in question and that the Lake Wales Police had a confidential informant with information concerning the residence. After meeting with Agent Johnson, the informant made a controlled buy of narcotics at the residence.

The statement of facts contained in the affidavit in support of the application for the search warrant recited that Johnson and other members of the Polk County Sheriffs Department met with the informant and set up a controlled buy at the targeted residence. The informant’s vehicle, as well as the informant, was searched prior to the buy. The agent provided the informant with money for the purchase and then observed the informant drive to and go inside the residence and then return with methamphetamine. Based upon this information, a search warrant was issued and the evidence in question was seized.

The affidavit failed to reveal anything about the informant, but evidence at the hearing established that the informant’s involvement was related to the resolution of criminal charges, and that the informant had made an unsupervised visit to the residence two days before the controlled buy. It was also established that Agent Johnson had no knowledge of the informant’s prior activities, or if this person had ever acted as a confidential informer before the incident under consideration.

At the conclusion of the hearing, the trial judge announced that there had been no showing that the confidential informant was reliable and granted the motion. In a subsequent written order, the judge found that the above mentioned omitted facts concerning the confidential informant were material. He also held that a substantial possibility existed that any of the omissions would have altered a reasonable magistrate’s probable cause determination so that a warrant would not have been issued. The state filed a timely notice of appeal from the order granting the appellee’s motion to suppress.

The facts contained in the affidavit in support of the search warrant detailed a controlled buy of drugs from the residence which was the subject of the search warrant. In State v. Gieseke, 328 So. 2d 16 (Fla.1976), the supreme court held that a controlled buy alone is a sufficient factual premise for the issuance of a search warrant and that it is a sufficient demonstration of the probable reliability of the informant. The affidavit in this case was, therefore, sufficient on its face to support the issuance of the search warrant.

The appellee contends, however, that omitted facts brought out at the suppression hearing supported the trial court’s ruling. We disagree. When there is a question concerning material omissions from a search warrant, a reviewing court should consider the affidavit as though the omitted facts were included in the affidavit and then determine whether the affidavit still provides probable cause. Sotolongo v. State, 530 So. 2d 514 (Fla. 2d DCA 1988). The omitted facts are only material if there is a substantial possibility that had the magistrate been aware of the omission he would not have found sufficient probable cause for issuance of a warrant. State v. Van Pieterson, 550 So. 2d 1162 (Fla. 1st DCA 1989).

In this case, the omitted facts dealt largely with the reliability of the confidential informant and did not, as in Sotolongo, concern evidence contradicting the probable cause established by the controlled buy. Furthermore, this is not a case where probable cause was established solely by information received from a confidential informant as occurred in Van Pieterson. The controlled buy was itself sufficient to establish probable cause for the issuance of the warrant. Gieseke. Because the controlled buy provided the probable cause, it was not necessary for the state to further establish reliability of the informant. So-tolongo. The omitted facts questioning the reliability of the informant in this case were, therefore, not sufficient to allow a finding that the omissions misled the issuing magistrate and that a substantial possibility existed that they would have altered the magistrate’s probable cause determination. See People v. Kurland, 28 Cal.3d 376, 618 P. 2d 213, 168 Cal.Rptr. 667 (Cal.1980), cert. denied, 451 U.S. 987, 101 S.Ct. 2321, 68 L.Ed.2d 844 (1981).

The trial court, accordingly, erred by granting the appellee’s motion to suppress, and we, therefore, reverse and remand for proceedings consistent herewith.

SCHOONOVER, C.J., and HALL and PATTERSON, JJ., concur.


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Cited By

  • Pagan v. State, 830 So. 2d 792 (Fla. 2002)
    …on of the fact that at one point Jackson was a suspect does not alter the fact that the information contained in the affidavit established probable cause for the search and the arrest. See Power v. State, 605 So. 2d 856 (Fla.1992); State v. Schulze, 581 So. 2d 610 (Fla. 2d DCA 1991). Pagan has failed to demonstrate that the trial court’s ruling on the motion to suppress was error. Scope of the Search Pagan next agues that the gold Honda ring, a gold cross, a black suede jacket, and a gold chain with a cruc…
  • State v. Reyes, 650 So. 2d 52 (Fla. 2d DCA 1994)
    …6), the supreme court held that an informant made a successful controlled buy where he was searched, given money, observed entering and leaving the building, returned to the affiant, and was searched again revealing drugs. See also State v. Schulze, 581 So. 2d 610 (Fla. 2d DCA 1991); Clark v. State, 635 So. 2d 1010 (Fla. 1st DCA 1994). As in Gieseke, the affidavit in the instant case stated that the informant was searched, was given money, was observed entering and exiting the building, returned to the affia…
  • State v. Billington, 627 So. 2d 138 (Fla. 3d DCA 1993)
    …R.Crim.P. 3.190(h)(1). Further, because we conclude that there were no material factual omissions, the trial court erred in finding that there were material omissions that would negate the magistrate’s probable cause determination. State v. Schulze, 581 So. 2d 610 (Fla. 2d DCA 1991). Therefore, the trial court erred both in determining that the affidavit for the search warrant lacked probable cause, and that there were material omissions negating probable cause. Accordingly, we reverse the order of suppressi…

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