Churney v. State, 76-1504

Decision Date26 July 1977
Docket NumberNo. 76-1504,76-1504
Citation348 So.2d 395
PartiesJohn Joseph CHURNEY, Jr., Appellant, v. The STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Black & Denaro, Miami, for appellant.

Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.

Before PEARSON, NATHAN and HUBBART, JJ.

PER CURIAM.

John Joseph Churney was charged by information, tried without a jury and convicted of possession of cocaine, possession of more than five grams of marijuana and possession or sale of controlled substance implements. He was sentenced to 90 days in the county jail for possession of marijuana, and five years probation on the other two counts. His points on appeal concern the validity of the issuance and the execution of the search warrant and the sufficiency of the evidence.

The record reflects that on September 21, 1975, a detective with the public Safety Department narcotics unit observed approximately four marijuana plants growing on the fourth floor balcony of an apartment in a large Dade County apartment complex. The detective drew up an affidavit for a search warrant and presented it to a circuit judge who issued the warrant. The search warrant described the thing to be seized as "a quantity of marijuana," described the location of the apartment and commanded the police to search the entire apartment day or night. On September 25, 1975, at approximately 10:00 p. m., the detective and six or seven officers executed the warrant. A search of the entire apartment produced sixteen marijuana plants from the balcony in addition to cocaine and various paraphernalia for the use of a controlled substance. The defendant and two women were arrested.

Defendant's motion to suppress the evidence seized in the search was denied and the physical evidence and laboratory report were admitted into evidence pursuant to stipulation of counsel. Defendant reserved the right to appeal the denial of the motion to suppress. He was found guilty and sentenced whereupon this appeal ensued.

As one of his points on appeal, defendant contends that the affidavit for search warrant failed to set forth facts sufficient to establish probable cause for the issuance of a warrant to search the apartment. As a general rule, an affidavit in support of a search warrant for a private dwelling must show probable cause on its face. Section 933.18, Florida Statutes; Panzavecchia v. State, 201 So.2d 762 (Fla. 3d DCA 1967). Both federal and state constitutions require that search warrants be supported by affidavits which state facts sufficient to permit an impartial magistrate to determine whether probable cause exists; and to be sufficient, the affidavit must state facts, not conclusions. State v. Malone, 288 So.2d 549, 550 (Fla. 1st DCA 1974), and cases cited therein. Probable cause for issuance of a search warrant cannot be based on mere suspicion, but rather must be based on facts known to exist. In assessing whether an affidavit establishes probable cause, the test is not whether the evidence would be admissible for the purpose of proving guilt at trial, but whether the information would lead a person of prudence and caution to believe that the offense has been committed. The test depends on probabilities determined by the factual and practical considerations of everyday life on which reasonably prudent and cautious persons, not legal technicians, act. Dunnavant v. State, 46 So.2d 871 (Fla.1950); Gispert v. State, 118 So.2d 596 (Fla. 2d DCA 1960); Suiero v. State, 248 So.2d 219, 221 (Fla. 4th DCA 1971).

In our opinion, the affidavit in this case establishes probable cause to support a reasonable belief by the judge that marijuana was being secreted on the premises of the apartment to be searched. The affidavit stated pertinent...

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10 cases
  • Bova v. State
    • United States
    • Florida District Court of Appeals
    • 31 Diciembre 1980
    ...Reddish v. State, 167 So.2d 858 (Fla.1964), comes to this court clothed with a presumption of correctness, Churney v. State, 348 So.2d 395 (Fla. 3d DCA 1977). It is our duty to interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to su......
  • La Rocca v. State, 80-608
    • United States
    • Florida District Court of Appeals
    • 14 Julio 1981
    ...378 So.2d 348 (Fla. 1979) (trial court's determination will not be reversed unless clearly shown to be without basis); Churney v. State, 348 So.2d 395 (Fla.3d DCA 1977) (trial court's ruling on motion to suppress comes to appellate court with presumption of correctness). Under the totality ......
  • Younger v. State, 82-248
    • United States
    • Florida District Court of Appeals
    • 23 Junio 1983
    ...Generally, an affidavit in support of a search warrant for a private dwelling must show probable cause on its face. Churney v. State, 348 So.2d 395 (Fla. 3d DCA 1977). Search warrants must be supported by affidavits which state facts sufficient to permit an impartial magistrate to determine......
  • Barrios v. State
    • United States
    • Florida District Court of Appeals
    • 28 Abril 1981
    ...459 (Fla.1979); Segal v. State, 353 So.2d 938 (Fla.3d DCA 1978); Lovely v. State, 351 So.2d 1114 (Fla. 4th DCA 1977); Churney v. State, 348 So.2d 395 (Fla.3d DCA 1977); Jester v. State, 339 So.2d 242 (Fla.3d DCA 1976), cert. denied, 348 So.2d 948 (Fla.1977); Wigfall v. State, 323 So.2d 587 ......
  • Request a trial to view additional results

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