House v. State, Y--94

• Decision Date: 29 October 1975
• Docket Number: No. Y--94,Y--94
• Citation: 323 So.2d 659
• Parties: Raymond HOUSE and Pat House, Appellants (Defendants), v. STATE of Florida, Appellee (State).
• Court: Florida District Court of Appeals

Page 659

323 So.2d 659

Raymond HOUSE and Pat House, Appellants (Defendants), v. STATE of Florida, Appellee (State).

No. Y--94.

District Court of Appeal of Florida, First District.

Oct. 29, 1975.

Rehearing Denied Jan. 16, 1976.

William B. Richbourg, Pensacola, for appellants.

Robert L. Shevin, Atty. Gen., Donald K. Rudser, Asst. Atty. Gen., for appellee.

MILLS, Judge.

The question presented by this appeal is whether the affidavit, on which the search warrant was issued, justified a finding of probable cause.

The affidavit contained the following statements to support the search of defendants' dwelling:

'That the facts tending to establish the grounds for this application and the probable cause of affiant believing that such facts exist are as follows: The affiant was contacted by informant Juanita Nichols who told the affiant that Heroin was kept and sold at the above described location. To verify this information, the affiant had the informant make a controlled buy of Heroin from the above described location. This was done by first searching the informant for drugs and finding none, then going with the informant to the above described location on October 11, 1974 at 8:45 p.m. The above described location was kept under observation at all times until the informant left and met with the affiant at 8:55 p.m. and turned over to the affiant a substance sold as Heroin. The informant told the affiant that she had observed more of the substance at the above described location and had been sold the substance as Heroin for $100.00.

'Present during and participating in the transaction was Pat House, With the substance being sold to the informant by Raymond House. Within the last week, this informant has been told that Raymond House has more Heroin for sale.

'From the avove information the affiant does believe that Heroin is being kept and sold at the above described location and has obtained an arrest warrant for Raymond House for possession and sale of Heroin and an arrest warrant for Pat House for Principal in the first (1st Degree) to sale of Heroin.'

The search warrant was issued on 28 October 1974, and was executed on 30 October 1974. During the search, less than five grams of marijuana was seized.

Defendants moved to suppress the evidence seized under the warrant, contending that the supporting affidavit was insufficient because (1) it was based on hearsay of an informer; (2) it failed to state that heroin was contained in the dwelling; and (3) the time period between the alleged criminal activity and the issuance of the warrant was too great for probable cause to still exist. The trial court denied the motion.

Thereafter, defendants pled nolo contendere to the offense of possession of less than five grams of marijuana; they were adjudged guilty; and they were sentenced to time in the county jail. This appeal resulted. We affirm.

Under Section 933.18, Florida Statutes, a warrant for the search of a dwelling may be based on reliable hearsay information. The reliability of the source of the hearsay information is determined by the...