Blue v. State, 82-2674

• Decision Date: 15 November 1983
• Docket Number: No. 82-2674,82-2674
• Parties: Fabia BLUE and Theresa Blue, Appellants, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 165

441 So.2d 165

Fabia BLUE and Theresa Blue, Appellants, v. The STATE of Florida, Appellee.

No. 82-2674.

District Court of Appeal of Florida,

Third District.

Nov. 15, 1983.

Frank A. Rubino, Coconut Grove, for appellants.

Jim Smith, Atty. Gen. and Penny Hershoff Brill, Asst. Atty. Gen., for appellee.

Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.

DANIEL S. PEARSON, Judge.

The Blues were convicted of possession with intent to sell or deliver cannabis upon their pleas of nolo contendere, specifically reserving the right to appeal the denial of their motions to suppress. They contend that the sole evidence against them was seized from their premises (a wholesale plant nursery open to the public) pursuant to a warrant issued without probable cause. We agree and reverse.

The affidavit for search warrant executed by a narcotics detective asserts as probable cause for believing that marijuana was on the premises that:

"On 07-27-82, affiant was contacted by a U.S. Customs Agent (Glen Sandino) that he had been contacted by a confidential informant who had information on the premises. The confidential informant contacted affiant and stated a large quantity of marijuana was being grown and cultivated on the premises, in various locations on the premises. Confidential informant stated that a sample of the marijuana from the premises was obtained by confidential informant. The sample was then given to affiant. A field test of sample was positive indicating the sample was marijuana. The remainder of sample was impounded and sent to Metro Dade Police Dept. Laboratory for analysis. Affiant requested confidential informant obtain a second sample from the premises on 07-28-82. Confidential informant was then sent to the premises where a second sample was obtained on 07-28-82. At 6:00 p.m. on 07-28-82, confidential informant turned the second sample of marijuana from the premises over to affiant, second sample was given a field test which was positive, with remainder being sent to Metro Dade Police Dept. Laboratory for analysis. Confidential informant states several hundred marijuana plants are being cultivated on the premises and that the marijuana plants will soon be harvested and sold.

Confidential informant also states the marijuana plants are approximately six feet tall. All information given by confidential informant has been accurate and true. Affiant wishes to search all buildings and rooms on premises as confidential informant states plants are scattered about at different locations on premises where marijuana is being cultivated and readied for harvest."

Simply stated, the affidavit says (1) an informant told the detective that several hundred marijuana plants approximately six feet in height were being grown in the nursery and would soon be harvested; (2) the informant gave the detective a "sample" which he said came from the nursery and, at the later request of the detective, gave him another "sample" which the informant again said he obtained from the nursery; and (3) the samples proved to be marijuana. ¹

Even accepting the State's argument that the affidavit must be analyzed under the totality of circumstances test revived in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), ² we are compelled to conclude that the affidavit in question utterly fails that test. Although with Gates' abandonment of the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), "veracity" and "basis of knowledge" are now merely circumstances, among others, to be considered, they nonetheless must be considered.

Clearly the affidavit tells us nothing of the informant's credibility or of the reliability of his information. While it is certainly arguable that when, as the affidavit states, the "confidential informant turned the second sample of marijuana from the premises over to affiant," the police could have reasonably inferred that the informant himself observed that about which he spoke, ³ compare Rutherford v. Cupp, 508 F.2d 122 (9th Cir.1974), cert. denied, 421 U.S. 933, 95 S.Ct. 1663, 44 L.Ed.2d 92 (1975), with Terrell v. State, 429 So.2d 778 (Fla. 3d DCA 1983), there is not a single circumstance set forth in the affidavit from which the issuing magistrate could conclude that it was probable that the informant was speaking the truth. The fact that one can infer from the informant's statement that he personally observed marijuana on the premises does nothing to further the probability that marijuana was in fact on the premises in the absence of some circumstance from which we can credit the informant's story. In other words, while the informant's basis of knowledge may be used to supplement his otherwise proven veracity it is the informant's veracity, not his stated basis of knowledge, which remains the sine qua non of the probability of marijuana being on the premises.

Moreover, there is not the slightest detail of innocuous activity in the affidavit which, even if corroborated, would lead one to believe that the informant's assertions of criminal activity on the defendants' premises were true. ⁴ As the court recognized in Illinois v. Gates, "[o]ur decisions applying the totality of circumstances analysis ... have consistently recognized the value of corroboration of details of an informant's tip by independent police work." 462 U.S. at ----, 103 S.Ct. at 2334, 76 L.Ed.2d at 550. Yet here the only fact that was corroborated is that the substance given to the detective by the informant was marijuana, a fact which proves nothing about the reliability of the informant. See State v. Adams, 355 So.2d 194 (Fla. 1st DCA), cert. denied, 359 So.2d 1220 (1978) (affirming trial court finding of no probable cause where affidavit for warrant set forth that informant purchased marijuana in defendant's residence and brought it to police, who identified substance as marijuana; reliability of informant not established); State v. Bond, 341 So.2d 218 (Fla. 2d DCA 1976), cert. denied, 348 So.2d 953 (1977) (same). As it has been succinctly stated in a similar context, "[t]here is no logical connection between the fact that the test showed the powder was cocaine and the reliability of the informant's statement that it was taken from the defendant's apartment." People v. Carton, 51 Ill.Dec. 339, 346, 95 Ill.App.3d 937, 946, 420 N.E.2d 753, 760 (1981) (Stouder, J., dissenting). But see State v. Hayward, 18 Or.App. 128, 523 P.2d 1278 (1974); State v. Evans, 1 Or.App. 489, 463 P.2d 378 (1970).

The critical inquiry, then, is not whether the substance was probably marijuana, but whether there is a demonstrated probability that this marijuana came from the defendants' nursery as the informant alleged. Quite obviously, this inquiry could have been, but was not, answered, for example, by an undercover agent of the police going on the open-to-the-public premises to see for himself or, alternatively, by corroborating the fact that the informant, when he obtained the second sample, entered the premises empty-handed and came out with the marijuana, see, e.g., Mills v. State, 177 Ind.App. 432, 379 N.E.2d 1023 (1978); State...