Griffith v. State
| Decision Date | 18 October 1988 |
| Docket Number | No. 87-2539,87-2539 |
| Citation | 13 Fla. L. Weekly 2352,532 So.2d 80 |
| Parties | 13 Fla. L. Weekly 2352 Robert Milton GRIFFITH, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Mark King Leban, Miami, Simon Steckel, Coral Gables, for appellant.
Robert A. Butterworth, Atty. Gen. and Richard L. Polin, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and BARKDULL and HUBBART, JJ.
The defendant appeals his conviction and sentence for eight counts of attempted sexual battery which were entered below upon a plea of nolo contendere. His sole contention on appeal is that the trial court erred in denying his motion to suppress certain evidence seized from his business office pursuant to a search warrant, an issue which he expressly reserved below for appeal and which the state expressly stipulated below is dispositive of this case. 1 We agree with the defendant and reverse.
The trial court below found after a full evidentiary hearing that the affidavit upon which the instant search warrant was based contained intentionally false information purportedly received from an alleged witness (Kent Dicks). Accordingly, the trial court struck this intentionally false information from the affidavit, as required under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), but found that the remaining portion of the redacted affidavit contained sufficient probable cause for the issuance of the search warrant under Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). On that basis, the trial court denied the motion to suppress.
The defendant contends, and the state, in effect, concedes, that the redacted affidavit below does not state probable cause for the issuance of the instant search warrant based on our decisions in Blue v. State, 441 So.2d 165 (Fla. 3d DCA 1983); Vasquez v. State, 491 So.2d 297 (Fla. 3d DCA), rev. denied, 500 So.2d 545 (Fla.1986); and State v. Novak, 502 So.2d 990 (Fla. 3d DCA), rev. denied, 511 So.2d 299 (Fla.1987), as well as the First District's decision in Yesnes v. State, 440 So.2d 628 (Fla. 1st DCA 1983). We entirely agree because the redacted affidavit herein, like the search warrant affidavits involved in the above cases, was based entirely on information supplied by a confidential informer, with no stated basis for believing this information. The redacted affidavit states:
"Your affiant, Detective Oscar Callejas, has been a police officer with the City of Miami Police Department for 2 years and 8 months and has been assigned to the Metro-Miami Task Force on Missing and Sexually Exploited Children for 3 months.
A confidential ... informant indicated that Robert Milton Griffith has a passion for young girls and keeps a collection of photographs of girls under the age of 16 posing in ways as to expose their genitals in a lewd fashion. The informant stated that Robert Milton Griffith keeps this photo collection in his business office located at 715 S.W. 73 Avenue # 3, Miami, Florida, Dade County. The informant saw a selection of the photos on June 19, 1985. The informant stated that Robert Milton Griffith provides the juveniles with narcotics and money for sexual favors and posing in the nude, exposing their genitals." R. 24.
There is nothing in this affidavit to show that the informer was a reliable informer or that his information was otherwise worthy of belief. Under the above-stated decisions, this defect is fatal to the affidavit and, accordingly, it fails to state probable cause.
The state's basic argument on this appeal, however, is that the good-faith exception to the exclusionary rule as announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), is applicable to the instant case because the confidential informer in this case was in reality a reliable-type citizen, notwithstanding his erroneous designation as a confidential informer in the affidavit, and that the police acted in "good faith" in securing the search warrant based on this information. We cannot agree because the "good faith" exception to the exclusionary rule...
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...the Leon good faith exception should be applied. Garcia. Compare State v. Stokes, 550 So.2d 519 (Fla. 1st DCA 1989); Griffith v. State, 532 So.2d 80 (Fla. 3d DCA 1988); contra, Thompson v. State. 1 Rowell v. State, 544 So.2d 1089 (Fla. 1st DCA 1989); Howard v. State, 483 So.2d 844 (Fla. 1st......
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State v. Stokes, 88-3161
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