Bauder v. Gentile, 96-2265

• Decision Date: 04 June 1997
• Docket Number: No. 96-2265,96-2265
• Citation: 697 So.2d 1222
• Parties: 22 Fla. L. Weekly D1368 Gary BAUDER, Appellant, v. Barbara White GENTILE, Appellee.
• Court: Florida District Court of Appeals

Page 1222

697 So.2d 1222

22 Fla. L. Weekly D1368

Gary BAUDER, Appellant, v. Barbara White GENTILE, Appellee.

No. 96-2265.

District Court of Appeal of Florida,

Third District.

June 4, 1997.

Rehearing Denied Aug. 27, 1997.

Andre Rouviere, Coral Gables; Jepeway and Jepeway, Louis M. Jepeway, Jr., Miami, for appellant.

Robert A. Ginsburg, Dade County Attorney, Thomas H. Robertson, Assistant County Attorney, for appellee.

Before SCHWARTZ, C.J., and NESBITT and GODERICH, JJ.

PER CURIAM.

The plaintiff, Gary Bauder, appeals from an adverse final summary judgment. We reverse.

In Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), the United States Supreme Court held that "objective reasonableness ... defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest." Malley, 475 U.S. at 344, 106 S.Ct. at 1098. Further, "[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable ... will the shield of immunity be lost." Malley, 475 U.S. at 344-45, 106 S.Ct. at 1098.

In the instant case, where this Court previously found that "the affidavit given in support of a search warrant was totally devoid of factual recitations sufficient to raise the affiant-officer's suspicion to the level of probable cause," Bauder v. State, 613 So.2d 547 (Fla. 3d DCA), review denied, 624 So.2d 268 (Fla.1993), the shield of immunity is lost. Accordingly, we find that the trial court erred, as a matter of law, by granting the defendant police officer's motion for summary judgment.

Reversed and remanded.