Hesselrode v. State

Decision Date14 February 1979
Docket NumberNo. 78-371,78-371
Citation369 So.2d 348
PartiesHarold C. HESSELRODE, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

W. Daniel Kearney of Kearney & Mulock, Bradenton, and Ginsburg & Byrd, P. A., Sarasota, for appellant.

Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.

RYDER, Judge.

After a lengthy hearing on a motion to suppress resulted in the trial judge granting portions of the motion but denying other portions, appellant pleaded nolo contendere to a charge of possession of over 100 pounds of marijuana. He preserved his right to appeal and presents us with six points, only one of which merits discussion.

Again we are confronted with a question of search and seizure and we are immediately reminded somewhat of the case of Wilson v. State, 363 So.2d 1146 (Fla.2d DCA 1978), except there the police failed to obtain a search warrant and here they sought advice in obtaining a search warrant, faulty as that advice turned out to be. The record on appeal discloses that representatives of the Longboat Key Police Department, having what they felt to be probable cause, contacted a representative of the State Attorney's Office who drafted and had prepared a search warrant for the use of the police. However, the author of the warrant so strictly structured the warrant's terms as to have it issued and directed to an extremely closed category of persons, namely: "To: All and singular the Sheriff and/or Deputy Sheriffs of Manatee County, . . . ." The record is silent as to why the search warrant was so strictly structured, but be that as it may, that was how and to whom it was issued to Sheriffs and we emphasize, not to any other category of peace officers.

The affidavit for the warrant, so issued, was executed by officers of the Longboat Key Police Department. The execution of the warrant and the ensuing search and seizure of contraband located within the described premises was conducted solely by members of the Longboat Key Police Department.

Section 933.08, Florida Statutes, (1977) reads:

"The search warrant shall In all cases be served by any of the officers mentioned in its direction, but By no other person except in aid of the officer requiring it, said officer being present and acting in its execution." (Emphasis added)

Appellant urges that the warrant is fatally defective because it is directed to one category of peace officers and yet another category of police executed the warrant. We agree.

First, we should remark that on this point there is little case law, and we perceive the reason simply is that this point is rather basic and there has been little litigation because most law enforcement agencies comply with the obvious and plain directions of the statute.

Before traveling further, we should also observe what the people of Florida adopted in an even more organic part of our law in Florida relating to searches and seizures. In our Constitution, Article I, Declaration of Rights, Section 12, entitled Searches and Seizures, we find the following:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall issue except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communications to be intercepted, and the nature of evidence to be obtained. Articles or information obtained in violation of this right shall not be admissible in evidence."

It has been long well-settled law that statutes authorizing searches and seizures must be strictly construed and affidavits and search warrants issued thereunder must strictly conform to the constitutional and statutory provisions authorizing their making and issuance. State ex rel. Wilson v. Quigg, 154 Fla. 348, 17 So.2d 697 (1944); Gildrie v. State, 94 Fla. 134, 113 So. 704 (1927); Hart v. State, 89 Fla. 202, 103 So. 633 (1925); Jackson v. State, 87 Fla. 262, 99 So. 548 (1924); Carter v. State, 199 So.2d 324 (Fla.2d DCA 1967).

Valiantly as did the State Attorney's Office try here, it could not cure the original sin initiated by the hand of one of its members. The State would have us say that because there were members of the Manatee Sheriff's Office out...

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16 cases
  • Daniels v. State
    • United States
    • Court of Special Appeals of Maryland
    • December 26, 2006
    ...of the van invalid. Appellant relies on the decision of the Florida District Court of Appeal, Second District, in Hesselrode v. State, 369 So.2d 348, 349-51 (1979). There, officers of the Longboat Key Police Department contacted a representative of the State's Attorney's Office who had draf......
  • Crain v. State
    • United States
    • United States State Supreme Court of Florida
    • November 18, 2005
    ...statutory provisions authorizing their issue.'") (quoting Jackson v. State, 87 Fla. 262, 99 So. 548, 549 (1924)); Hesselrode v. State, 369 So.2d 348, 350 (Fla. 2d DCA 1979) ("It has been long well-settled law that statutes authorizing searches and seizures must be strictly construed and aff......
  • Vargas v. State
    • United States
    • Court of Appeal of Florida (US)
    • June 1, 1994
    ...67 (Fla. 4th DCA 1993); State v. Griffis, 502 So.2d 1356 (Fla. 5th DCA), review denied, 513 So.2d 1063 (Fla.1987); Hesselrode v. State, 369 So.2d 348 (Fla. 2d DCA 1979), cert. denied, 381 So.2d 766 (Fla.1980). In Morris, the district court concluded there had been an unauthorized search con......
  • Bernie v. State
    • United States
    • United States State Supreme Court of Florida
    • January 7, 1988
    ...4th DCA 1982); Hurt v. State, 388 So.2d 281 (Fla. 1st DCA 1980), pet. for rev. denied, 399 So.2d 1146 (Fla.1982); Hesselrode v. State, 369 So.2d 348 (Fla. 2d DCA 1980), cert. denied, 381 So.2d 766 (Fla.1980); Leveson v. State, 138 So.2d 361 (Fla. 3d DCA 1962).3 That statute reads:933.18 Whe......
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