DONALD R. STIPP AND CYNTHIA M. BOURKE, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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A municipal judge has the authority to issue search warrants for violations of city ordinances, even if those violations also constitute state misdemeanors, and vehicles within the curtilage are subject to search under such a warrant.
[1] A municipal judge's authority to issue search warrants can extend to violations of city ordinances that mirror state misdemeanors, even if the police suspect a felony.
[2] Vehicles located within the curtilage described in a search warrant and under the control of the suspects named in the warrant are subject to search under that warrant.
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Join FLexlaw to unlock all legal intelligenceAppellants were charged with narcotics and cannabis possession after a search warrant was executed. They moved to suppress the evidence, arguing the m…
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DOWNEY, Judge.
Appellant Donald R. Stipp was charged with possession of various narcotics, and appellant Cynthia M. Bourke was charged with possession of cannabis. Motions to Suppress filed on behalf of the appellants were denied after an evidentiary hearing. Thereupon, appellants pleaded nolo conten-dere, reserving the right to appeal the denial of their motion to suppress.
Appellants suggest eight points for consideration on appeal. We have duly studied each of them and conclude that only three of these points warrant discussion.
Appellants contend the trial court erred in denying their motion to suppress the contraband which was seized because the search giving rise to the seizure was conducted pursuant to a search warrant issued by the municipal judge of the City of Plantation, Florida. Appellants argue that the police thought they were working on a felony violation so they were not trying to uncover a violation of a city ordinance; that a municipal judge’s authority to issue search warrants is limited to misdemeanors within the municipal boundaries. Therefore appellants say the municipal judge had no authority to issue the search warrant in this case.
The search warrant in question authorized a search of premises located in the City of Plantation. Chapter 29446 Special Acts of 1953 authorized the Municipal Judge of the City of Plantation, to issue search warrants for violations of municipal ordinances. In addition Sec. 17.26 of the ordinances of the City of Plantation makes it a violation of city ordinance for any person to commit within the corporate limits of the City any act recognized by the law of the State of Florida as a misdemeanor. The affidavit in question stated that the affiant believed the premises in question were being used for the illegal possession of narcotics and that cannabis may be found thereon. In State v. Williams, 227 So. 2d 331 (Fla. 4th DCA 1969) this court held that evidence seized pursuant to a warrant properly issued by a municipal judge was admissible in a State Court felony prosecution.1 Upon the foregoing authority we see no reason why the search warrant issued in this case by a municipal judge should not be held valid.
Turning now to the second point to be treated, we note that the search warrant in question authorized the search of a particularly described house and the curtilage thereof. The affidavit described certain vehicles and a van which were observed in the curtilage and alleged to be leased by the suspects. Appellants complain that the trial court should have suppressed the evidence seized from a search of the vehicles and van found in the curtilage at the time of the execution of the search warrant. We find no fault with the trial court’s ruling. The two vehicles searched were leased to the suspects named in the warrant and the van was described in the affidavit for the warrant as being used for purposes that made it highly suspect that the van was hauling cannabis. In addition during the execution of the warrant appellant Stipp advised the officers the location in the house of the keys to the vehicles. Entrance to the van was had via an open door window. We think the search of these vehicles was authorized under the warrant since they were in the curtilage described and under the control of the suspects in the house. As was stated in Alexander v. State, 108 So. 2d 308 (Fla. 1st DCA 1959):
“The Point now under consideration has been directly passed upon in other jurisdictions, and it has been uniformly held that where a search warrant authorizes officers to search a described building, together with the yard or curtilage on which the building is located, parked automobiles or other vehicles found in the yard or within the curtilage are proper subjects of search under the warrant. It has accordingly been held that evidence obtained by the search of automobiles or vehicles under such circumstances is admissible to prove the offense with which the defendant is charged.” Id. at 309.
In a more recent case in Joyner v. State, 303 So. 2d 60 (Fla. 1st DCA 1974) the court held:
“If the driveway parking area was part of the curtilage, and we hold that it was, was the automobile owned by appellant, the key to which was obtained from appellant’s apartment during the search thereof, properly the subject of a search pursuant to a warrant authorizing a search of appellant’s apartment and the curtilage? We answer in the affirmative.”
“We now hold that yards, courtyards, driveways and parking areas usually and customarily used in common by occupants of apartment houses, condominiums and other such complexes with other occupants thereof constitute a part of the curtilage of a specifically described apartment or condominium or other living unit thereof and that an automobile located on such common areas and identified by the use of keys obtained from the occupant of such specifically described apartment, condominium or other living unit is a part of that curtilage and subject to search upon the issuance of a valid warrant authorizing a search of the living unit and curtilage thereof.” Id. at 63, 65. See also Dunn v. State, 292 So. 2d 435 (Fla. 4th DCA 1974).
Finally, appellants contend that the motion to suppress should have been granted because the affidavit upon which it was issued contained a number of statements of fact which were shown at the hearing to be incorrect or false. An affidavit for a search warrant would be vulnerable to such an attack if elimination of the false statements denuded the affidavit of sufficient facts to show probable cause. But, if after deletion of those erroneous facts, the affidavit still contains sufficient facts to demonstrate probable cause the warrant should be upheld.2 We have examined the affidavit with the foregoing rule in mind and find that after eliminating from consideration the untrue statements there were sufficient true facts to justify issuance of the warrant.
In view of the foregoing the judgments and sentences appealed from are affirmed.
CROSS and DAUKSCH, JJ., concur. . See also Opinion of the Attorney General 073-161.
. State v. Knapp, 294 So. 2d 338 (Fla. 2d DCA 1974); United States v. Morris, 477 F. 2d 657 (5th Cir. 1973); United States v. Jones, 475 F. 2d 723 (5th Cir. 1973); United States v. Upshaw, 448 F. 2d 1218 (5th Cir. 1971).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Blair v. State, 406 So. 2d 1103 (Fla. 1981)…ent in the affidavit was admittedly incorrect, but after deletion of these erroneous facts, the affidavit still contains sufficient facts to demonstrate probable cause. These incorrect statements do not invalidate the search warrant. Stipp v. State, 355 So. 2d 1217 (Fla. 4th DCA), cert. denied, 364 So. 2d 893 (Fla.1978). From an examination of the record it appears that the magistrate who issued the warrant was presented with sufficient facts to properly and legally reach the conclusion that there was probable…
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Hudson v. State, 368 So. 2d 899 (Fla. 3d DCA 1979)…the testimony presented at the hearing on the motion to suppress. Secondly, measuring the affidavit against the above standard, any inaccuracies contained therein were not of such magnitude as to render the wiretap order invalid. See Stipp v. State, 355 So. 2d 1217, 1219 (Fla. 4th DCA 1978). Hudson’s third ground for her motion to suppress is that the application was deficient in providing a full and complete statement about other investigative techniques as required by Section 934.09(l)(c), Florida Statutes…
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State v. Musselwhite, 402 So. 2d 1235 (Fla. 2d DCA 1981)…parking area was within the curtilage when the search warrant so issued authorized the search of that appellant’s apartment and the curtilage. Even closer to the instant case is the decision of another sister court in the matter of Stipp v. State, 355 So. 2d 1217 (Fla. 4th DCA 1978). Therein, the search warrant authorized a search of a residence and the curtilage thereof. The court held that the parked vehicles within the curtilage were proper subjects to search under the warrant so issued. We agree with the…
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
- United States v. Upshaw, 448 F.2d 1218 (5th Cir. 1971)
- United States v. Jones, 475 F.2d 723 (5th Cir. 1973)
- State v. Knapp, 294 So. 2d 338 (Fla. 2d DCA 1974)
- United States v. Morris, 477 F.2d 657 (5th Cir. 1973)
- Joyner v. State, 303 So. 2d 60 (Fla. 1st DCA 1974)
- Baldwin v. Louie L. Wainwright, 303 So. 2d 60 (Fla. 4th DCA 1974)
- Archway Ocean Props., Inc. v. Lamparas Quesada Sales Corp., 108 So. 2d 308 (Fla. 3d DCA 1958)
- Dunn v. State, 292 So. 2d 435 (Fla. 4th DCA 1974)
- State v. Williams, 227 So. 2d 331 (Fla. 4th DCA 1969)