Mathes v. State, II-366

• Decision Date: 12 September 1979
• Docket Number: No. II-366,II-366
• Citation: 375 So.2d 1084
• Parties: Hans Peter MATHES and Robert Gerard Mass, Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1084

375 So.2d 1084

Hans Peter MATHES and Robert Gerard Mass, Appellants, v. STATE of Florida, Appellee.

No. II-366.

District Court of Appeal of Florida, First District.

Sept. 12, 1979.

Rehearing Denied Nov. 8, 1979.

Michael J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, for appellants.

Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.

McCORD, Judge.

Appellants pleaded nolo contendere to charges of possession of controlled substances, to wit: cocaine and opium, reserving the right to appeal and to urge that the trial court erroneously denied their motions to suppress evidence. Appellants challenge the validity of a search warrant for their residence because the affidavit supporting the issuance of the search warrant contained factual misstatements made by the government affiant. We affirm.

The search warrant was issued based upon the affidavit of Jacksonville Police Officer J. R. Spicer which indicated he believed controlled substances were contained in appellants' house for the following reasons Within the past 60 days your affiant has been working with a previously reliable confidential informant. Within the past ten (10) days, said confidential informant advised your affiant that he had been inside the above-described dwelling within the past ten (10) days and at that time personally observed a quantity of demerol in sealed vials with the word demerol imprinted on each vial.

Your affiant believes the information furnished him by said informant to be true and correct as said informant has furnished information to your affiant which has resulted in the arrest of seven (7) individuals over the past 60 days on drug charges and the seizures of a quantity of marijuana and other controlled substances.

In deposition, Spicer testified that he had been mistaken when he stated in his affidavit that the information furnished by the informant had resulted in the arrest of seven individuals. Actually, the information provided by this informant had resulted in the arrest of two individuals. Although they acknowledged that the misrepresentation was the result of an honest mistake on the part of Spicer, appellants, relying on United States v. Thomas, 489 F.2d 664 (5th Cir. 1973), Cert. denied, 423 U.S. 844, 96 S.Ct. 79, 46 L.Ed.2d 64 (1975), argued that the misrepresentation vitiated the warrant since the erroneous statement was material to the establishment of probable cause.

We hold that the warrant was not invalid. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court addressed the issue of whether a defendant has the right, under the Fourth and Fourteenth Amendments, subsequent to the ex parte issuance of a search warrant, to challenge the truthfulness of factual statements made in an affidavit supporting the warrant. The court held such right exists and held that "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request." Id. at 155-156, 98 S.Ct. at 2677. Further the Court stated:

To mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should...