Johnson v. State

• Decision Date: 14 April 2004
• Docket Number: No. 4D02-4958.,4D02-4958.
• Citation: 872 So.2d 961
• Parties: Boyd JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

872 So.2d 961

Boyd JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 4D02-4958.

District Court of Appeal of Florida, Fourth District.

April 14, 2004.

Rehearing Denied May 21, 2004.

Richard D. Kibbey of Kibbey & Barlow, Stuart, for appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for appellee.

FARMER, C.J.

Defendant seeks reversal of an order denying the suppression of evidence. He argues that the affidavit on which a search warrant was issued was fatally defective in not specifying when the informant met with defendant. He also contends that the police search was improper because the officers violated the "knock and announce" statute in not waiting longer than 20 seconds before breaking down his door. We affirm on both grounds.

The text of the affidavit in question is as follows:

"During the week ending 3/22/02, your affiants met with a[n] [informant] at a pre-determined location, the [informant] stated he was approached by a Hispanic male to help find about ten pounds of marijuana. The [informant] said the Hispanic male had ten thousand dollars in cash for the purpose of purchasing marijuana to take back to North Carolina. The [informant] stated the Hispanic male said he wanted the [informant] to check the marijuana for him to ensure its quality. The [informant] met the Hispanic male and drove to the aforementioned address. The [informant] said they went into the house where they met [a man known only as] Gustavo. Gustavo went to a shed behind the residence and brought back what was approximately twenty pounds of marijuana. Gustavo told the Hispanic male he was in possession of about forty eight pounds of marijuana which he kept in the shed. The [informant] said the Hispanic male bought about two pounds of the marijuana for two thousand dollars. The [informant] stated they personally handled the marijuana and positively identified the green substance as marijuana. The [informant] met with me and gave me a description of the residence. The [informant] said the shed was behind the house and that the house sat back off the road. The [informant] said the driveway had a green sign that had the letters `MC' next to a metal tube gate. Det. Davis, Flowers and I followed the [informant's] directions and found the description to be true and accurate."

Defendant argues that there is nothing stating or implying when the informant met with the person selling the contraband described. The only date or time frame referred to in the body of the affidavit is "the week ending 3/22/02"—when the officers met with the informant to discuss a drug transaction he claimed to have witnessed. March 22, 2002 is also the date on which the officers applied for the search warrant. The affidavit does not state an exact date when the informant allegedly saw contraband at defendant's residence.

We begin to assess the sufficiency of this affidavit by recognizing:

"a magistrate's determination of probable cause should be paid great deference by reviewing courts. After the fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. The duty of the reviewing court is to insure that the magistrate who has issued the search warrant had a substantial basis for concluding that probable cause existed." [c.o.]

Schmitt v. State, 563 So.2d 1095, 1099 (Fla. 4th DCA 1990), quashed on other grounds, 590 So.2d 404 (Fla.1991), cert. denied, 503 U.S. 964, 112 S.Ct. 1572, 118 L.Ed.2d 216 (1992); see also Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984)

. In reviewing this warrant, we also recognize:

"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place."

Schmitt v. State, 590 So.2d 404, 409 (Fla. 1991), cert. denied, 503 U.S. 964, 112 S.Ct. 1572, 118 L.Ed.2d 216 (1992). The evidence in the affidavit need not be conclusive; nor must it meet the "technical requirements of elaborate specificity" imposed upon legal pleadings. Schmitt, 563 So.2d at 1098.

In this case, although the affidavit fails to state the specific date the informant allegedly saw contraband at defendant's residence, it sets forth sufficient circumstances to justify the issuance of a search warrant. First, in paragraph 2, the affidavit sets forth a basis for accepting the informant's reliability:

"The [informant] has provided your affiants with information on numerous known drug traffickers in St. Lucie County. The [informant] has provided information on no less than ten different occasions, during these occasions the [informant] provided information regarding in excess of fifteen individuals and their activities involving narcotic trafficking in St. Lucie. The information regarding each individual has been corroborated as accurate and reliable.... The [informant] has made twenty controlled buys of cocaine and marijuana. The information provided by the [informant] has been investigated by your affiants and determined to be reliable and accurate. The [informant] has provided information which has resulted in more than five arrests. A result of the arrests has led to the seizure of cocaine, marijuana, U.S. currency and vehicles.... The [informant] has handled narcotics and can identify narcotics such as marijuana.... As a result of the information provided by the [informant], the Police Dept. has arrested more than five individuals on assorted narcotic violations."

Moreover, it is plausible to conclude that the phrase, "during the week ending 3/22/02," refers to the time when the informant went to defendant's residence where the informant saw the contraband and drug transaction. Yet it may also mean something else. In this regard the affidavit is merely ambiguous. If so, we are charged to defer to the trial court's probable cause determination, for:

"[a]lthough ... it may not be easy to determine when an affidavit demonstrates the

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