Julian v. State, 87-2604
| Decision Date | 15 June 1988 |
| Docket Number | No. 87-2604,87-2604 |
| Citation | 13 Fla. L. Weekly 1440,528 So.2d 427 |
| Parties | 13 Fla. L. Weekly 1440 John Michael JULIAN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Dan Phillip Brawley, Lakeland, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and James A. Young, Asst. Atty. Gen., Tampa, for appellee.
The appellant, John Michael Julian, challenges the trial court's order withholding adjudication of guilt and placing him on probation. Because the trial court erred in denying the appellant's pretrial motion to suppress evidence, we reverse.
On February 17, 1987, Officer James Allen of the Winter Haven Police Department applied for a warrant to search a private dwelling. Officer Allen indicated on the application that "[t]he law relating to narcotics or drug abuse is being violated therein" and that "[e]vidence relevant to proving that a felony has been committed is contained therein." He also listed "John Doe (Unknown)" as the occupant of that dwelling. Attached to the application were: (1) a description of the property to be seized, (2) a description of the place to be searched, and (3) a probable cause affidavit.
Officer Allen's probable cause affidavit indicated that during the previous ten day period, two reliable confidential informants had each successfully made controlled purchases of cocaine inside the subject dwelling, which was described as a mobile home located at 2407 Third Street Northeast, Winter Haven, Florida. The affidavit does not identify by name or physically describe any individual suspected of being involved in the alleged cocaine sales and does not describe any suspected illegal activity on the property surrounding the mobile home.
Officer Allen submitted the above described application, descriptions, and affidavit to a county judge who in turn issued a search warrant. The search warrant contained "boiler plate" language stating that the warrant application described the "person, place, places, thing or things to be searched" and authorizing the named law enforcement officers:
1. to search the afore-described (person) (thing) [, and]
2. to enter and search the afore-described place and premises together with the yard and curtilage thereof, ... and any person thereon reasonably believed to be connected with said illegal activity.
(Emphasis added.)
Having obtained the search warrant, Officer Allen proceeded to conduct a search on the following day. Before arriving at the subject premises, however, he and the other police officers involved formulated a plan to detain and search any persons standing in the yard outside the mobile home. This plan also called for a simultaneous search of the interior of the mobile home.
When the police arrived at the subject premises, the appellant and several other persons were standing in the yard. Although these individuals were not acting in a suspicious manner, they were not free to leave until they were searched. The search of the appellant's person resulted in the seizure of approximately eight grams of cocaine rock contained in a "zip lock baggie," a package of rolling papers, and $3,433 in cash. The search of the mobile home, on the other hand, revealed no contraband.
The appellant was charged with possession of cocaine in violation of section 893.13, Florida Statutes (1985), and he entered a plea of not guilty. The appellant subsequently filed a motion to suppress evidence alleging that he was searched in violation of his rights under the Fourth Amendment to the United States Constitution. At the hearing on the motion, Officer Allen testified that the appellant was a resident of the mobile home in question, but the record is unclear as to whether this information had been obtained before or after the appellant was searched. The trial court denied the motion to suppress, and the case proceeded to nonjury trial.
At trial, defense counsel renewed the motion to suppress, but it was again denied. The trial court found the appellant guilty as charged, withheld adjudication of guilt, and placed him on probation for a period of three years.
In this timely appeal, the appellant correctly contends that the trial court erred in denying his motion to suppress the evidence seized from his person. Since we find that the police exceeded the authority granted by the search warrant, we need not determine whether the warrant itself was invalid.
Although the search warrant involved in this case authorized the police to search any person on the premises who was reasonably believed to be connected with the suspected illegal activity, the police lacked such a reasonable belief before searching the appellant. While Officer Allen testified at the suppression hearing that the appellant was searched as part of the plan to search everyone in the yard, he failed to articulate any reason to believe that the...
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