Bonilla v. State

• Decision Date: 09 May 1991
• Docket Number: No. 90-1256,90-1256
• Citation: 16 Fla. L. Weekly 1259,579 So.2d 802
• Court: Florida District Court of Appeals
• Parties: Angel Louis BONILLA, Appellant, v. STATE of Florida, Appellee. 579 So.2d 802, 16 Fla. L. Week. 1259

Page 802

579 So.2d 802

Angel Louis BONILLA, Appellant, v. STATE of Florida, Appellee.

No. 90-1256.

579 So.2d 802, 16 Fla. L. Week. 1259

District Court of Appeal of Florida,

Fifth District.

May 9, 1991.

Roger O. Mills, Tampa, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and David G. Mersch, Asst. Atty. Gen., Daytona Beach, for appellee.

DIAMANTIS, Judge.

Defendant, Angel Louis Bonilla, appeals his judgment and sentence imposed by the trial court after a jury found him guilty on two counts of fighting or baiting animals. ¹ On appeal defendant claims that the trial court erred in denying his motion to suppress evidence seized from his house pursuant to the execution of a search warrant. We hold that the trial court erred in denying defendant's motion to suppress evidence and we reverse and remand this case for a new trial.

Defendant was charged by information with two counts of baiting or using animals for the purpose of fighting or baiting another animal. Defendant filed a pretrial motion to suppress evidence seized during an April 13, 1989 search of his house, contending that the search warrant which authorized the search was invalid because the supporting affidavit lacked probable cause. Defendant argued below that the affidavit supporting the search warrant, which was delivered to defendant at the time of the search, lacked probable cause because the information set forth therein was stale. In response to defendant's contention the state explained that Sergeant Lee of the Hernando County Sheriff's Office had prepared the search warrant and affidavit because the sheriff's office had determined that defendant and another man, Louis Danna, were involved in illegal drug transactions. On April 13, 1989, based upon information the sheriff's office had compiled, two affidavits and two search warrants were prepared--one for defendant's dwelling and one for Danna's dwelling. The affiant was Sergeant Lee. The warrants were taken to Judge Tombrink's home for authorization and the judge signed both warrants. Sergeant Lee immediately proceeded to defendant's home to execute the warrant. As Lee read the warrant to defendant, Lee realized that the word processor had failed to print a vital paragraph on either the affidavit or the warrant--the omitted paragraph contained information concerning an alleged drug transaction which occurred at defendant's residence earlier that day. ² It was upon this specific paragraph that Lee based his claim of probable cause. Lee proceeded however to conduct the search of defendant's home. Pursuant to this search various pieces of evidence were seized.

At the suppression hearing the state maintained that the failure of the defendant's affidavit to contain the omitted probable cause paragraph did not render the search warrant invalid because the affidavit which was prepared in support of the search warrant for Danna's house contained the probable cause paragraph and both affidavits were presented to Judge Tombrink. The state argued that since the judge had all the vital information before him, defendant's warrant should be held valid.

The trial court concluded that it needed to determine whether Judge Tombrink had actually relied on the Danna affidavit to support the issuance of defendant's search warrant and thus ordered an evidentiary hearing on this matter. At the hearing the state first introduced the testimony of Sergeant Lee who testified that when he arrived at Judge Tombrink's house the judge placed him under oath to swear to the contents of the affidavits. Lee stated that the judge first reviewed the affidavit supporting the search warrant for Danna's residence and then pronounced that he found probable cause to justify the search. Lee then gave the judge the affidavit and search warrant for defendant's house. Lee testified that he and the judge conversed as to how the cases were connected and that the factual basis for each warrant was the same. The judge then signed the search warrant for defendant's house. As noted above, Lee then proceeded to defendant's house to execute the warrant.

Lee further testified that the next day he prepared an amended affidavit, included the probable cause paragraph, and then returned to Judge Tombrink for authorization of the amended warrant. Judge Tombrink authorized the amended warrant and Lee returned to defendant's house and conducted a second search on April 14, 1990. This latter search is not involved in this appeal.

The state then presented the testimony of Judge Tombrink. The judge testified that he could not remember with specificity what occurred on the night of April 13th but that he did recall that the "affidavits were supposed to be the same ... and essentially it was the same facts involving both individuals." He testified that upon review of all the evidence he was satisfied that probable cause existed to search defendant's residence.

Upon review of this testimony the trial court denied defendant's motion to suppress, concluding that (1) Judge Tombrink had considered and relied upon the information in the probable cause paragraph set forth in Danna's affidavit to support the issuance of defendant's search warrant and, therefore, the warrant was valid; and, (2) Detective Lee executed the warrant in good faith and in accordance with the law. The trial court then clarified its ruling:

THE COURT: My ruling specifically is that Judge Tombrink, based on his testimony, had both affidavits before him. That the affidavit in question, subject to this motion, is insufficient which leads me to conclude that the only way Judge Tombrink would have issued a warrant is having considered--and it's obvious when you read it that both men's names are mentioned.

Mr. Bonilla's name is mentioned in the affidavit regarding Mr. Danna. And when you take that in conjunction with--the Danna affidavit in conjunction with the Bonilla affidavit, which were before the court at the time the warrant was issued, I find that there was sufficient probable cause to justify the issuance of the warrant.

The matter proceeded to trial after which the jury found defendant guilty as charged. Defendant properly preserved the issue of the trial court's ruling on his motion to suppress by raising a contemporaneous objection. The trial court entered judgment in accordance with the jury's verdict and then sentenced defendant. This appeal followed.

The task of the magistrate when reviewing an application for a search warrant is to make a practical, common sense decision whether, given all the circumstances before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Price, 564 So.2d 1239 (Fla. 5th DCA 1990). The trial court's duty upon reviewing the magistrate's decision to issue a search warrant is not to conduct a de novo determination of probable cause, but instead, to determine whether substantial evidence supports the finding that based on the totality of the circumstances probable cause existed to issue the warrant. State v. Van Pieterson, 550 So.2d 1162 (Fla. 1st DCA 1989). A magistrate's determination of probable cause must be accorded a presumption of correctness and not be disturbed absent a clear demonstration that the issuing magistrate abused his discretion. State v. Price, 564 So.2d at 1241.

Similarly, a trial court's ruling on a motion to suppress comes to the appellate court clothed with the presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain the trial court's ruling. McNamara v. State, 357 So.2d 410 (Fla.1978).

The issuance of a search warrant for a private home is governed by Section 933.18 of the Florida Statutes (1989). Section 933.18 provides, inter alia, that no search warrant shall issue to search any private dwelling except upon sworn proof by affidavit of some credible witness that he has reason to believe that the law relating to narcotics or drug abuse is being violated therein and this fact must be alleged in the supporting affidavit. ³ Statutes and rules authorizing search and seizure must be strictly construed and affidavits and warrants issued pursuant to such authority must meticulously conform to statutory and constitutional provisions. State v. Tolmie, 421 So.2d 1087 (Fla. 4th DCA 1982). See also Gildrie v. State, 94 Fla. 134, 113 So. 704 (1927); Hurt v. State, 388 So.2d 281 (Fla. 1st DCA 1980); Hesselrode v. State, 369 So.2d 348 (Fla. 2nd DCA 1979); Leveson v. State, 138 So.2d...