JOHN M. WEISBERG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Weisberg challenges a search warrant affidavit supporting a marijuana possession conviction. The court holds that the affidavit was defective because it merely labeled the confidential informant as "reliable" without providing underlying facts to support that conclusion, violating the Aguilar-Spinelli test.
The affidavit was defective because it failed to provide the factual basis necessary to support the affiant's conclusion that the informant was reliable, violating the second prong of the Aguilar-Spinelli test and the three-factor test established in State v. Wolff.
[1] An affidavit supporting a search warrant for a private dwelling may be based on hearsay information from a reliable informant.
[2] The term "creditable witness" in a statute governing search warrants refers to the truthfulness and integrity of the affiant, not necessarily direct personal knowledge of…
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Join FLexlaw to unlock all legal intelligence“the affidavit therein did not meet the second part of the two-part test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) as explained in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). One of the requirements is that the magistrate be provided with the factual basis upon which the affiant concludes the informant is reliable.”
Establishes the constitutional standard requiring factual support for informant reliability in search warrant affidavits
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWeisberg was charged with possession of more than five grams of marijuana following a search. The search warrant affidavit described the confidential …
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OTT, Judge.
Appellant pled nolo contendere to a charge of possession of more than five grams of marijuana. He specifically reserved his right to appeal the court’s denial of his two motions to suppress evidence. He contends that the affidavit in support of the search warrant was defective. We agree and reverse.
The confidential informant was described in the affidavit as a “reliable and trustworthy confidential informer. . There were no further allegations or facts supporting such a conclusion.
In Davis v. State, 346 So. 2d 141 (Fla. 1st DCA 1977), the First District Court of Appeal found an affidavit to be defective. With reference to the reliability of the confidential informant, the affidavit therein described him only as “an informant known by your affiant to be a reliable person . .” 346 So. 2d at 142. This affidavit was deemed to be defective “because although it alleged that the confidential informant who supplied the information on which the state relied for issuance of the warrant was reliable, there was no underlying factual information stated in the affidavit supporting his reliability.” 346 So. 2d at 141.
The Davis court held that the affidavit therein did not meet the second part of the two-part test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) as explained in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). One of the requirements is that the magistrate be provided with the factual basis upon which the affiant concludes the informant is reliable. The issuing magistrate cannot otherwise judicially determine probable cause for issuance of the writ.
Moreover, in State v. Wolff, 310 So. 2d 729, 732 (Fla.1975) the supreme court set down the “three distinct determinations” which an issuing magistrate must make before issuing a search warrant. The court stated:
He must evaluate (1) the truthfulness and integrity of the witness before him; (2) the reliability of the source of the hearsay information, if any; (3) the adequacy of the factual premises furnished from all sources to support the validity of the conclusion.
With reference to the second determination, the court noted that the magistrate “is judging from the facts of prior actions the reliability and trustworthiness of a non-swearing informant.” 310 So. 2d at 732.
The state’s reliance on State v. Compton, 301 So. 2d 810 (Fla. 2d DCA 1974) for the proposition that Florida courts have upheld search warrants based upon the simple assertion that an affiant consider his confidential informant to be reliable is without merit. On the contrary, the affidavit in Compton contained much more than such a “simple assertion.” Present were other allegations in the affidavit that the affiant had received information in the past from this particular source which had proven to be reliable and trustworthy.
Reversed and remanded for entry of an order granting defendant’s Motion to Suppress and affording the defendant the opportunity to withdraw his plea of nolo con-tendere.
HOBSON, Acting C. J., and SCHEB, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Barfield v. State, 396 So. 2d 793 (Fla. 1st DCA 1981)…s in Spinelli, a magistrate “could not credit it without abdicating his constitutional function ...” that warrants not issue but upon probable cause. Id. To the same effect, see Davis v. State, 346 So. 2d 141 (Fla. 1st DCA 1977); Weisberg v. State,' 348 So. 2d 385 (Fla.2d DCA 1977); Davis v. State, 376 So. 2d 479 (Fla. 1st DCA 1979). Clearly, the intrinsic evidence relating to the first disjunctive spur under the veracity prong did not establish the informant’s credibility. It remains to be seen, however, wh…
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State v. Lasswell, 385 So. 2d 668 (Fla. 2d DCA 1980)…must set forth the facts on which the reason for belief is based. An affidavit which sets forth mere conclusions is insufficient and evidence seized pursuant to a warrant issued in reliance on such an affidavit must be suppressed. Weisberg v. State, 348 So. 2d 385 (Fla. 2d DCA 1977). The majority, like the magistrate, seems to have been overwhelmed by the verbiage and therefore concludes: “No one can doubt that the contents of the affidavit demonstrated probable cause.” (See p. 670) The material allegations…
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LaCHANCE v. State, 376 So. 2d 932 (Fla. 4th DCA 1979)…istrate who issues the warrant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Rowe v. State, 355 So. 2d 826 (Fla. 1st DCA 1978); Weisberg v. State, 348 So. 2d 385 (Fla. 2d DCA 1977); State v. Gieseke, 328 So. 2d 16 (Fla.1976). In this case there is a search warrant which appears minimally sufficient on its face. That is, there are enough facts to support the finding of probable cause to believe there was an i…
Authorities Cited
- Aguilar v. Texas, 378 U.S. 108 (U.S. 1964)
- Spinelli v. United States, 393 U.S. 410 (U.S. 1969)
- State v. Wolff, 310 So. 2d 729 (Fla. 1975)
- Davis v. State, 346 So. 2d 141 (Fla. 1st DCA 1977)
- State v. Compton, 301 So. 2d 810 (Fla. 2d DCA 1974)