Cruz v. State
| Decision Date | 20 June 2001 |
| Docket Number | No. 4D00-2460.,4D00-2460. |
| Citation | 788 So.2d 375 |
| Parties | Arsenio CRUZ, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard G. Bartmon of Law Offices of Bartmon & Bartmon, P.A., Boca Raton, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Arsenio Cruz, Jr., challenges the denial of his motion to suppress evidence recovered from his residence pursuant to a search warrant. Holding that the affidavit submitted in support of the search warrant lacked sufficient probable cause for the issuance of the warrant, we reverse.
On November 3, 1999, Detective Jennifer DiMatteo of the Port St. Lucie Police Department prepared an application and an affidavit for a search warrant of appellant's residence. Detective DiMatteo sought the issuance of a search warrant to locate cannabis at appellant's residence. As grounds therefor, Detective DiMatteo alleged the following in pertinent part:
1) On September 24, 1998, she received an anonymous narcotic-related complaint that the subject residing at 549 SE Cliff Road is "living well beyond his means" and "may be involved in illegal drug activity."
2) On April 4, 1999, in an attempt to ascertain whether there was illegal drug activity taking place at the residence, Detective DiMatteo conducted a garbage search or trash pull at appellant's residence. The search revealed "less than one gram suspect cannabis pieces (stem, seeds, and cannabis cigarette butt) which field tested positive for the presence of cannabis and miscellaneous mailings with the names "Mr. and Mrs. Sammy Cruz" and Susan and Arsenio Cruz, Jr." at 549 SE Cliff Road.
3) On October 28, 1999, a second trash pull was conducted at appellant's residence. The search disclosed "one suspect cannabis cigarette butt" which field tested positive for the presence of cannabis, and miscellaneous mailings.
4) Detective DiMatteo checked several police data bases, including NCIC, and learned that appellant had been arrested on October 17, 1992 for possession of marijuana and possession of drug paraphernalia.
5) Detective DiMatteo also alleged that "periodic surveillance" of appellant's residence showed the presence of vehicles belonging to Arsenio or Susan Cruz and Budget Tree Company.
Based on this affidavit, the Magistrate issued a search warrant of appellant's residence on November 3, 1999, and the warrant was executed on November 10, 1999. The items seized from appellant's residence included: approximately 1 gram cannabis; approximately 1 gram cannabis (stems and seeds) and 2 baggies with cannabis residue.
Appellant filed a motion to suppress evidence alleging that the application was legally insufficient on its face or that it failed to establish probable cause to justify the issuance of a search warrant. Appellant claimed that there was no probable cause of ongoing criminal activity at the residence or probable cause to believe that cannabis would be found on the premises. He also argued that Detective DiMatteo intentionally misled the Judge by excluding from the search warrant application material facts obtained in the course of the investigation. According to appellant, Detective DiMatteo failed to include in her affidavit that a second trash pull was conducted at appellant's residence on October 25, 1999, 29 weeks after the first trash pull was conducted on April 4, 1999, in which no illegal substances were recovered. A third trash pull was conducted on October 28, 1999, which located one suspect cannabis cigarette butt.
At the suppression hearing, Detective DiMatteo conceded that her affidavit provided no information regarding any investigation conducted during the 7½ months between the initial complaint and the first trash pull. Detective DiMatteo agreed that a very small amount, less than one gram of suspected marijuana (seeds and cannabis cigarette butt), was recovered from the first trash pull on April 4, 1999, and that there was no other evidence of drug dealing. Detective DiMatteo admitted that a second trash pull conducted on October 25, 1999, yielded no evidence of marijuana, and was not included in her application. The third trash pull conducted on October 28, 1999, yielded one suspect cannabis cigarette butt, less than one gram, and no other evidence of drug dealing.
Detective DiMatteo admitted that she could not provide specific dates to support her reference to periodic surveillance of appellant's residence and that the surveillance did not yield anything which would indicate drug dealing going on in the home. The officer also acknowledged a disposition of appellant's 1992 criminal charge was not included in her application.
In denying the motion to suppress, the trial court acknowledged that this was a "marginal case," but denied the motion based solely on the dicta in State v. Stevenson, 707 So.2d 902, 903 (Fla. 2d DCA 1998)(citing Illinois v. Gates, 462 U.S. 213, 237 n. 10, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)), which noted that the resolution in marginal cases should be largely determined by the strong preference for searches conducted pursuant to a warrant.
Appellant argues that suppression is warranted based on the authority of Raulerson v. State, 714 So.2d 536 (Fla. 4th DCA 1998), and Gesell v. State, 751 So.2d 104 (Fla. 4th DCA 1999). We agree.
In Raulerson, appellant appealed the denial of a motion to suppress contraband found in her home pursuant to a search warrant. In that case, the police received an anonymous complaint that drug activity was occurring in the defendant's home. The police recovered six trash bags from the curb in front of her home. They found two cannabis cigarette butts, stems, seeds, and pieces of suspected cannabis. Based upon these facts, a warrant was issued, and contraband recovered. This court reversed the denial of the motion to suppress, finding that although the affidavit contained relevant information that a substance found in the one-time trash pull tested positive for cannabis, the affidavit "lacked other sufficient facts" to indicate a fair probability that cannabis would be found in the defendant's home. 714 So.2d at 537. The court further held that the information contained in the affidavit did not suggest a pattern of continuous drug activity. See id.
In Gesell v. State, 751 So.2d 104 (Fla. 4th DCA 1999), appellant challenged the denial of his motion to suppress evidence recovered from his residence based on a lack of sufficient probable cause in the affidavit submitted in support of the issuance of a search warrant. In that case, officers acted...
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State v. Felix
...to support a search warrant is not to be determined solely by the rigid application of a pre-determined time period." Cruz v. State, 788 So.2d 375 (Fla. 4th DCA 2001). Depending on the particularized circumstances as evaluated by an impartial magistrate, an acceptable elapsed time may certa......
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State Of Fla. v. Sabourin
...where the affidavit must specifically list every date that each of the events described in the affidavit occurred. See Cruz v. State, 788 So.2d 375 (Fla. 4th DCA 2001). In other words, a magistrate is not required to leave common sense at the courthouse door when evaluating whether or not t......
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State v. Green
...drugs in someone's trash does not reliably signal that more contraband would be found inside the home. See, e.g. , Cruz v. State , 788 So. 2d 375, 376, 379 (Fla. 4th DCA 2001) (holding that an anonymous tip, two trash pulls uncovering a small amount of drugs, and a prior arrest for possessi......
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State v. Paige
...police officer and magnetic tape eraser was item ordinarily used in law office). The "trash pull" cases cited by Paige, Cruz v. State, 788 So.2d 375 (Fla. 4th DCA 2001), Gesell v. State, 751 So.2d 104 (Fla. 4th DCA 1999) and Raulerson v. State, 714 So.2d 536 (Fla. 4th DCA 1998), are disting......