STATE OF FLORIDA, APPELLANT,
v.
ANTHONY E. GALLO, APPELLEE; STATE OF FLORIDA, APPELLANT, V. RICHARD KRANZ, APPELLEE
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Florida appealed a trial court's suppression order regarding evidence seized during a search warrant execution. The court held that a minor discrepancy in the apartment number on the warrant (listing "10" instead of the actual "11") did not invalidate the search because the physical description was sufficiently specific and the officers executed the warrant at the correct location.
The court held that the incorrect apartment number was surplusage and did not invalidate the search warrant because the detailed physical description of the premises was sufficiently specific to identify the apartment, and officers with reasonable effort could identify the correct location. The court reversed the suppression of the television set but affirmed the suppression of the pistol abandoned by throwing it out the window.
[1] A search warrant's description of premises is sufficiently specific when other descriptive elements, independent of a potentially erroneous numerical designation, allow a…
[2] An incorrect numerical designation in a search warrant may be considered surplusage if other details in the warrant adequately describe the premises to be searched.
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Join FLexlaw to unlock all legal intelligence“The description in the search warrant of the place to be searched, and which was in fact searched, would have been sufficiently specific without reference to the number on the door. Therefore, the incorrect designation of the number was surplusage”
Establishes that the apartment number discrepancy was immaterial surplusage that did not invalidate the warrant
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Join FLexlaw to unlock all legal intelligenceOfficers executed a search warrant at a second-floor apartment described in detail as being on the north side of the building, third door from the sta…
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The lower court entered its order suppressing as evidence a particularly described television set on the ground that the search warrant and supporting affidavit did not properly describe the premises searched. Appellant brings this interlocutory appeal to review that order.
The search warrant and affidavit described the apartment house in great detail, and the particular apartment as being “located on the second floor, third door on the north side from the stairway, the door of which is painted pink with the number TO’ affixed, . . . and said apartment or room TO’ being under the custody and control of one Richard H. Kranz.”
The discrepancy arises by virtue of the number on the door of the apartment. The search warrant and affidavit stated that the number posted on the door of the apartment to be searched was number “10”, whereas the apartment searched at the location described in the warrant and affidavit was designated as No. “11”.
The executing officer testified that he was guided to the particular apartment by information that he had received, and that the apartment searched was located on the north side of the building, second floor, three doors from the west, which was the only apartment located at that particular location. When he went into that apartment both appellees were inside and the television set described in the search warrant was in plain view in the premises. Subunit No. “10” was never approached by the officers.
The description in the search warrant of the place to be searched, and which was in fact searched, would have been sufficiently specific without reference to the number on the door. Therefore, the incorrect designation of the number was sur-plusage; State v. Lemon, Fla.App.1968, 212 So.2d 322; United States v. Contee, D.C.D.C.1959, 170 F.Supp. 26; United States v. Pisano, S.D.N.Y.1961, 191 F.Supp. 861; United States v. Sklaroff, S.D.Fla.1971, 323 F.Supp. 296, 319; see Annotation, 11 A.L.R.3rd 1330; and was of such a minor nature as not to invalidate the search warrant; Bonner v. State, Fla. 1955, 80 So.2d 683; Smith v. State, Fla. App. 1966, 182 So.2d 461.
By stating that the apartment was “under the custody and control of one Richard H. Kranz” the warrant designated one particular place to be searched to the exclusion of all others, and an officer, with reasonable effort, could identify the apartment as the one to be searched. Seymore v. State, Fla.App.1959, 110 So.2d 460; United States v. Contee, supra; see Annotation, 11 A.L.R.3rd 1330, 1340.
We hold that the lower court erred in granting appellees’ motions to suppress the television set, but correctly denied the motions to suppress the automatic pistol which was thrown out the window of the apartment searched. Even if the warrant were invalid, the occupants of the apartment at their own risk abandoned the pis*73tol by throwing it out the window in an area where anyone had a right to be. Riley v. State, Fla.App.1972, 266 So.2d 173.
The order appealed is reversed in part and affirmed in part.
McNULTY and BOARDMAN, JJ., concur.
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State v. Schultz, 388 So. 2d 1326 (Fla. 4th DCA 1980)…equently seized by the police. Mitchell v. State, 60 So. 2d 726 (Fla.1952); State v. Oliver, 368 So. 2d 1331 (Fla. 3rd DCA 1979); Freyre v. State, 362 So. 2d 989 (Fla. 3rd DCA 1978); Smith v. State, 333 So. 2d 91 (Fla. 1st DCA 1976); State v. Gallo, 279 So. 2d 71 (Fla. 2nd DCA 1973); Riley v. State, 266 So. 2d 173 (Fla. 4th DCA 1972); State v. Jackson, 240 So. 2d 88 (Fla. 3rd DCA 1970). For the most part, these cases involved attempts to dispose of contraband upon the approach of police authorities: Central…
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Nofs v. State, 295 So. 2d 308 (Fla. 2d DCA 1974)…ve been sufficiently specific without reference to the floor upon which the apartment was located, and therefore, such reference was surplusage and can be disregarded. State v. Lemon, Fla.App.2d 1968, 212 So. 2d 322; State v. Gallo, Fla.App.2d 1973, 279 So. 2d 71; United States v. Contee, D.C.D.C.1959, 170 F.Supp. 26. The evidence showed that the place searched had its main entrance on the second floor of the building, and that it was a single living unit, directly connected by an interior stairway. No intr…
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State v. Sanford Katz and Milton Prenner, 295 So. 2d 356 (Fla. 4th DCA 1974)…ley and Tobey are sufficient.3 As a matter of fact, it is our view that the general suggestion that Sal and Sonny readily speak of Prenner as a bookie is nothing more than surplus and simply adds a little flavor to the documents. See State v. Gallo, 279 So. 2d 71 (2d D.C.A.Fla.1973); State v. Lemon, 212 So. 2d 322 (2d D.C.A.Fla.1968). And so we have an unremarkable affidavit combined with the not unusual problem of balancing the rights of the accused with the rights of society. We know that the secrecy of t…
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
- Riley v. State, 266 So. 2d 173 (Fla. 4th DCA 1972)
- Bonner v. State, 80 So. 2d 683 (Fla. 1955)
- Smith v. State, 182 So. 2d 461 (Fla. 2d DCA 1966)
- Seymore v. State, 110 So. 2d 460 (Fla. 2d DCA 1959)
- Booth v. Darby Buick, Inc., 212 So. 2d 322 (Fla. 2d DCA 1968)
- State v. Lemon, 212 So. 2d 322 (Fla. 2d DCA 1968)