Hamelmann v. State, A-428
| Decision Date | 25 June 1959 |
| Docket Number | No. A-428,A-428 |
| Parties | William F. HAMELMANN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
A. K. Black, Lake City, and Hal A. Davis, Quincy, for appellant.
Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for appellee.
Appellant was indicted and convicted for the unlawful possession of a central nervous system stimulant described as amphetamine. He appeals from the judgment and sentence of imprisonment for a term of two years. The principal error assigned is the refusal of the trial court to quash the affidavit and search warrant and to suppress the evidence on which appellant was convicted.
The warrant in question was based upon an affidavit signed and filed on October 11, 1957. The affidavit recites that on April 14, 1957, affiant entered a certain described building occupied by defendant and others in which he observed stated activities indicating that defendant was engaged in the operation of a house of ill fame. Upon this affidavit a search warrant issued and was served by the sheriff. A search of the premises described in the warrant resulted in the seizure of an assortment of personal property among which was the amphetamine pills which formed the basis for this prosecution.
Prior to trial defendant filed a motion to suppress the evidence seized by the officers in their search of his premises on the stated grounds, among others, that no probable cause existed for the issuance of the search warrant, and because the affidavit upon which the warrant issued and the search was made is insufficient as a matter of law. A separate motion to quash the search warrant and affidavit was likewise filed, the grounds in support of which questioned their sufficiency as a matter of law.
Upon hearing, both of the mentioned motions were denied and the seized evidence sought to be suppressed was introduced by the State during the trial.
Appellant contends that the facts recited in the affidavit and search warrant are insufficient to show that at the time of their execution probable cause existed to believe that defendant was then engaged in the commission of a criminal offense on the described premises. He urges that the lack of probable cause patently appears from the recital in the affidavits that 181 days, or more than six months, had elapsed between the date on which the offense was allegedly observed by the affiant, and the date on which the affidavit was executed and the warrant issued. It is argued that such time lapse of six months precluded the court, as a matter of law, from finding that there was probable cause for belief by affiant that there existed grounds on which the search warrant could be validly predicated.
Our statutes provide that no search warrant shall be issued except upon probable cause, 1 supported by affidavit or other proof tending to establish the grounds of the application for warrant, or probable cause for believing that they existed. 2
Our search fails to reveal any decision in this jurisdiction which passes upon the precise point now under consideration. It has received the attention of courts in numerous jurisdictions outside of Florida.
It has been generally held, either expressly or by necessary implication, that while there is no strict rule as to the permissible number of days which may elapse between the date of the observed offense and the making of the affidavit upon which the search warrant is based, the nearer the time is at which the observation was made to the time when the affidavit is or was executed, the more probable it is that a conclusion of probable cause may be justified. The number of days which...
To continue reading
Request your trial
-
Pilieci v. State
... ... State, 297 So.2d 15, 18 (Fla.1974); Haworth v. State, 637 So.2d 267, 267 (Fla. 2d DCA 1994); Hamelmann v. State, 113 So.2d 394, 396 (Fla. 1st DCA 1959), much of the trial court's focus was on the issue of staleness. The trial court determined that the ... ...
-
State v. Murphy
... ... Defendant relies upon Hamelmann v. Florida, 113 So.2d 394 (Fla.App.1959), for the proposition that this period is limited in all but extraordinary cases to 30 days. Hamelmann does ... ...
-
Montgomery v. State
... ... Moise, 522 So.2d 1023, 1025 (Fla. 5th DCA 1988) ... In Hamelmann v. State, 113 So.2d 394 (Fla. 1st DCA 1959), this court adopted the so-called "30-day rule" to determine whether information is so stale as to not ... ...
-
Hudson v. State
... ... time is more than 30 days from the date of the observation to the date on which the affidavit is executed and the warrant issued.' " Hamelmann v. State, 113 So.2d 394, 396 (Fla. 1st DCA 1959) ... However, the court in Rodriguez, supra, hastened to point out that this 30-day ... ...