STATE OF FLORIDA, APPELLANT,
v.
JUAN NAVARRO REYES, LISA MARIE DUS, AND DAGOBERTO HERNANDEZ CHAVEZ, APPELLEES
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The court held that an affidavit supporting a search warrant was sufficient because the facts alleged demonstrated a controlled buy, thus establishing the informant's reliability.
[1] An affidavit for a search warrant must set forth facts from which a magistrate can find that the affiant had personal knowledge of the confidential informant's reliabilit…
[2] A controlled buy exception to the requirement of establishing an informant's reliability exists when the informant is personally supervised and constantly monitored by th…
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Join FLexlaw to unlock all legal intelligenceAppellees were charged with possession of cannabis and moved to suppress evidence obtained via a search warrant. The affidavit supporting the warrant …
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PER CURIAM.
The state challenges the trial court’s order granting the appellees’ joint motion to suppress. We find that the trial court erred in granting the motion to suppress and, accordingly, reverse.
The appellees were charged with one count of possession of cannabis contrary to section 893.13(l)(f), Florida Statutes (1991), and the appellees filed joint motions to suppress the evidence. The affidavit in support of the search warrant provided in part as follows:
Your affiant offers the following to show the trustworthiness and reliability of said confidential informant: 1) Confidential informant has assisted the Hillsborough County Sheriffs Office in the past and information provided by confidential informant has proven to be truthful and reliable. 2) Confidential informant is a past user of marijuana and can recognize marijuana in its various forms.
The affidavit stated that the informant was searched prior to entering the structure, was given money, and was observed by the affiant entering and exiting the structure. The affidavit also stated that the informant was monitored by the affiant with an electronic transmitting device and that upon exiting the structure that the informant turned over marijuana and was searched again.
The trial court granted the appellees’ joint motion to suppress and found that the affidavit in support of the search warrant was facially insufficient in that it faded to establish the reliability of the confidential informant. The trial court also found that the controlled buy exception to the required showing of the reliability of the confidential informant did not apply. The state filed a timely notice of appeal.
The state contends that the trial court erred in granting the appellees’ joint motion to suppress since the affidavit alleged sufficient facts regarding the confidential informant to support a probable cause determination. The state also contends that if the affidavit was insufficient then the controlled buy exception applied. We agree "with the state that the affidavit was a sufficient predicate for the issuance of the warrant because the controlled buy exception applied.
With regard to establishing the reliability of the confidential informant, an affidavit must set forth facts from which the magistrate could find the affiant had personal knowledge of the confidential informant’s reliability or facts which corroborate the reliability of the confidential informant from an independent source. Fellows v. State, 612 So. 2d 686 (Fla. 2d DCA 1993). The affidavit in the instant case did not indicate that the affiant had personal knowledge of the reliability of the informant and although the informant may have previously given reliable information to the sheriffs office, there was no indication to whom or how long ago it was. See Brown v. State, 561 So. 2d 1248 (Fla. 2d DCA 1990). We find that the trial court was therefore correct in finding that the affidavit failed to establish the reliability of the confidential informant.
While the absence of statements in an affidavit of probable cause as to the reliability of a confidential informant would normally render an affidavit deficient, there exists an exception when the informant makes a controlled buy. Polk v. Williams, 565 So. 2d 1387 (Fla. 5th DCA 1990). A controlled buy is one in which the confidential ihformant'is'personally supervised and constantly monitored by the affiant. Id. at 1389. In State v. Gieseke, 328 So. 2d 16 (Fla.1976), 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 affiant, was searched again revealing drugs, and was equipped with an electronic transmitting device which was monitored by the affiant. Since the facts contained in the affidavit were sufficient to show a controlled buy, we find that the trial court erred in suppressing the evidence.
We, accordingly, reverse the trial court’s order granting the appellees’ joint motion to suppress.
Reversed.
SCHOONOVER, A.C.J., and THREADGILL and BLUE, JJ., concur.
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Citator
Cited By
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McCALL v. State, 684 So. 2d 260 (Fla. 4th DCA 1996)…ieseke 328 So. 2d 16 (Fla.1976). A controlled buy is one in which the confidential informant is personally supervised and monitored by the affiant. This concept has been referred to in the cases as the “controlled buy exception.” See State v. Reyes, 650 So. 2d 52 (Fla. 2d DCA 1994); State v. Starks, 633 So. 2d 546 (Fla. 5th DCA 1994); Polk v. Williams, 565 So. 2d 1387 (Fla. 5th DCA 1990). Appellant argues that the buy was not sufficiently controlled since the Cl drove unaccompanied by an officer for a total…
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State v. Elkhill, 715 So. 2d 327 (Fla. 2d DCA 1998)…s given money, he was observed going into and coming out of the building, and he turned over the contraband to the affiant after he came out of the building. These facts were sufficient to show that a controlled buy was executed. See State v. Reyes, 650 So. 2d 52 (Fla. 2d DCA 1994); State v. Gieseke, 328 So. 2d 16 (Fla.1976). Elkhill contends that the controlled buy exception is inapplicable because Officer LaBelle did not personally supervise, and constantly monitor the informant’s actions. Instead, it was…
Authorities Cited
- State v. Gieseke, 328 So. 2d 16 (Fla. 1976)
- Polk v. Dorothea Williams, 565 So. 2d 1387 (Fla. 5th DCA 1990)
- Sonny E. Brown v. State, 561 So. 2d 1248 (Fla. 2d DCA 1990)
- Fellows v. State, 612 So. 2d 686 (Fla. 2d DCA 1993)
- State v. Ty William Schulze, 581 So. 2d 610 (Fla. 2d DCA 1991)
- Clark v. State, 635 So. 2d 1010 (Fla. 1st DCA 1994)