McCall v. State
| Decision Date | 04 December 1996 |
| Docket Number | No. 95-4374,95-4374 |
| Parties | 21 Fla. L. Weekly D2552 Sebastian McCALL, Appellant, v. STATE of Florida, Appellee. Fourth District |
| Court | Florida District Court of Appeals |
Patrick C. Rastatter of Glass & Rastatter, P.A., Fort Lauderdale, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Aubin Wade Robinson, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Sebastian McCall, was convicted of possession of cocaine and challenges the trial court's order denying his motion to suppress cocaine, which was seized during the execution of a search warrant. The main issue on appeal is whether a search warrant may properly be based on a so-called "controlled buy" where some elements of "control" over the confidential informant are lacking. We hold that, depending on the particular circumstances, it may; and that, in the instant case, the trial court did not abuse its discretion in finding probable cause on the facts presented.
We initially consider appellant's claim that the search warrant was issued upon an affidavit that omitted some relevant facts and that contained misleading statements. We find that the trial court correctly followed the procedure for such cases as outlined in Sotolongo v. State, 530 So.2d 514 (Fla. 2d DCA 1988).
[W]hen a question is raised as to material omissions from the search warrant affidavit, the court reviewing the matter should consider the affidavit as though the omitted facts were included and then evaluate the presence of probable cause in light of the added facts. This is true whether the facts were intentionally omitted or omitted in good faith. The rule should be applied if the omitted facts were nevertheless relevant and should have been included.
Id. at 516 (citing State v. Lehnen, 403 So.2d 683 (La.1981)). We therefore review the instant case accordingly and consider the underlying facts in support of the warrant as they evolved at the motion to suppress hearing.
Detective Tim Doughty of the Broward County Sheriff's office was informed by a confidential informant (CI) that cocaine was being sold from appellant's residence. The CI agreed to make a controlled buy. Detective Doughty and the CI met at a location about two and a half miles from appellant's house. Doughty searched the CI who had no contraband or money. The CI was then given funds with which to make the buy. The CI drove his own vehicle to appellant's house. Doughty followed in a separate vehicle and parked about a quarter mile away to maintain surveillance. Doughty did not search the CI's vehicle prior to allowing him to drive alone to appellant's house.
After the buy, Doughty and the CI met at the location where the CI was initially searched. Doughty searched the CI again but did not search the car. The CI gave Doughty some cocaine rocks and told Doughty that he had purchased them inside of the house. The CI did not see any further quantities of cocaine in the house. Doughty stated that the CI had been reliable in the past. Further, Doughty testified that there was no reason why he didn't search the CI's vehicle, he "just didn't."
In the instant case, the affidavit and the testimony at the suppression hearing failed to set forth sufficient facts from which the trial judge could have determined that the confidential informant was reliable. See Brown v. State, 561 So.2d 1248 (Fla. 2d DCA 1990) (). However, our supreme court has held that a "controlled buy" obviates the need for the affidavit to establish the reliability of the informant because the monitored buy itself corroborates the informant's credibility. State v. Gieseke 328 So.2d 16 (Fla.1976). A controlled buy is one in which the confidential informant is personally supervised and monitored by the affiant. This concept has been referred to in the cases as the "controlled buy exception." See State v. Reyes, 650 So.2d 52 (Fla. 2d DCA 1994); State v. Starks, 633 So.2d 546 (Fla. 5th DCA 1994); Polk v. Williams, 565 So.2d 1387 (Fla. 5th DCA 1990).
Appellant argues that the buy was not sufficiently controlled since the CI drove unaccompanied by an officer for a total of approximately five miles in his personal vehicle, which the police had not searched either before or after the...
To continue reading
Request your trial
-
State v. Peterson
...place and time. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See also McCall v. State, 684 So.2d 260, 262 (Fla. 4th DCA 1996). The Gates Court The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the......
-
Murray v. State, 4D13–2527.
...Martin v. State, 906 So.2d 358, 360 (Fla. 5th DCA 2005) (citing Pagan v. State, 830 So.2d 792, 806 (Fla.2002) ; McCall v. State, 684 So.2d 260, 262 (Fla. 4th DCA 1996) ); State v. Rabb, 920 So.2d 1175, 1180 (Fla. 4th DCA 2006) (citing United States v. Soderstrand, 412 F.3d 1146, 1152 (10th ......
-
State v. New, No. A03-128 (Minn. App. 3/30/2004), No. A03-128.
...have not required strip searches for controlled purchases, holding that pat-down searches are sufficient. See, e.g., McCall v. State, 684 So.2d 260, 262 (Fla. Ct. App. 1996); State v. Johnson, 665 So.2d 1237, 1248 (La. Ct. App. 1995); United States v. Harper, 802 F.2d 115, 120 (5th Cir. 198......
-
Raucho v. State
...the monitored buy itself corroborates the informant's credibility. State v. Gieseke, 328 So.2d 16, 18 (Fla.1976); McCall v. State, 684 So.2d 260, 261 (Fla. 4th DCA 1996). In this matter, the affidavit established that the CI participated in a controlled buy. The CI was searched both before ......