Findlay v. State
| Decision Date | 04 June 1975 |
| Docket Number | No. 45097,45097 |
| Citation | 316 So.2d 33 |
| Parties | Thomas FINDLAY, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
L. B. Vocelle, Vero Beach, and Joe M. Mitchell, Jr., Melbourne, for petitioner.
Robert L. Shevin, Atty. Gen., and Frank B. Kessler, Asst. Atty. Gen., for respondent.
This cause is before us on petition for writ of certiorari to the Fourth District Court of Appeal, which affirmed per curiam without opinion the petitioner's lower court conviction of possession of marijuana. 1 We originally granted certiorari because of alleged conflict with Wolff v. State, 291 So.2d 15 (Fla.App.3d 1974), which was subsequently reversed by this Court in State v. Wolff, 310 So.2d 729 (Fla.1975). At issue is the legal sufficiency of an affidavit containing alleged informant information to support a search warrant of the petitioner's home.
From our examination of the search warrant, it is clear that the affiant, Detective Joseph J. Sardella, personally conducted a surveillance of the petitioner's premises after receiving information from neighbors and other confidential informants. On at least eight different occasions the affiant personally observed known users of drugs going to and from the premises carrying small paper or plastic bags of an unknown substance, believed to be marijuana. The affiant further stated that the petitioner, owner of the premises to be searched, was known to the affiant as a dealer and user of marijuana, having previously been arrested for possession of marijuana in Indian River County. Finally, the affiant observed several vehicles going to the premises, with the occupants carrying small bags from the premises to their vehicles.
Petitioner alleges that the affidavit is insufficient as a matter of law because of the use of informant information contrary to the Third District Court's decision in Wolff v. State, supra. Petitioner further alleges that the affidavit failed to establish the reliability of the neighbors and confidential informants contrary to Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The first contention is without merit, having been disposed of in our reversal of the District Court's decision in Wolff v. State, supra.
The second argument would have merit under the standards set down by this Court in Wolff and in the federal cases cited if the affidavit had contained material reliance upon tips from neighbors and confidential informants for issuance of a search warrant without establishing the informants' reliability. But, as this Court stated in State v. Smith, 233 So.2d 396, 398 (Fla.1970):
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