Peterson v. State, 96-4995

• Decision Date: 26 February 1998
• Docket Number: No. 96-4995,96-4995
• Citation: 706 So.2d 936
• Parties: 23 Fla. L. Weekly D649 William E. PETERSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 936

706 So.2d 936

23 Fla. L. Weekly D649

William E. PETERSON, Appellant, v. STATE of Florida, Appellee.

No. 96-4995.

District Court of Appeal of Florida First District.

Feb. 26, 1998.

Nancy A. Daniels, Public Defender; Terry Carley, Assistant Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Attorney General; Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for appellee.

WOLF, Judge.

Appellant challenges a final judgment and sentence for various drug offenses following the denial of his motion to suppress narcotics and contraband seized from his residence pursuant to a search warrant. Appellant raises two issues on appeal, one related to the trial court's failure to grant his motion to suppress evidence, and the other related to the improper imposition of investigative costs. We find that the reliability of the confidential informant was not sufficiently verified within the affidavit requesting the search warrant, and we are required to reverse the denial of the motion to suppress pursuant to McNeely v. State, 690 So.2d 1337 (Fla. 1st DCA 1997), and St. Angelo v. State, 532 So.2d 1346 (Fla. 1st DCA 1988). It is, therefore, unnecessary for us to reach the second issue raised by appellant. We do feel, however, there is some question concerning the applicability of the good-faith exception to the exclusionary rule identified in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In light of the closeness of the question and some conflict in this area among the various districts, we certify a question concerning the applicability of Leon.

In June 1996, Officer Greg Nesmith of the Escambia County Sheriff's Department submitted an affidavit for a search warrant to an Escambia County judge for the premises known as 3005 West Desoto Street located in Escambia County, Florida. Officer Nesmith alleged in his affidavit that the referenced premises were "occupied by or under the control of white male Jorge McCormick, and or persons unknown to your affiant" and that he believed, based on his qualifications as a narcotics investigator and information given to him by a confidential informant, that marijuana, LSD, drug paraphernalia, and evidence of drug sales would be found at the premises. Officer Nesmith set forth the following assertions in his affidavit regarding the information obtained from the confidential informant:

Your affiant was contacted by a reliable confidential informant, hereafter referred to as RCI. The RCI has provided information to law enforcement on at least twenty occasions regarding illegal criminal activities occurring in Escambia County, Florida that has proven to be accurate and true. The RCI stated that the RCI has observed marijuana on at least 100 occasions and the RCI is familiar with its physical appearance and smell. The RCI is responsible for the arrest of four individuals and the seizure of $400.00 in illegal controlled substances. The RCI stated within the past ten days, the RCI was inside the above described location and observed Jorge McCormick in possession of a large quantity of marijuana. The RCI stated that Jorge McCormick lives at the above described location. The RCI stated that the RCI did observe 1/4 to 1/2 pound of marijuana packaged for distribution. This is consistent with the quantities kept by distributors of marijuana. The RCI stated that the RCI has on several occasions observed Jorge McCormick within the past six months in possession of large quantities of marijuana. The RCI also stated to your affiant that the RCI has observed Jorge McCormick within the past 15 days in possession of a quantity of Acid (Lysergic acid diethylamide, LSD).

Your affiant caused a criminal history inquiry to be conducted on Jorge McCormick. The criminal history inquiry revealed that Jorge McCormick has been arrested for possession with intent to distribute dangerous drugs to wit, Acid in 1989. Jorge McCormick was also arrested for possession with intent to distribute marijuana and LSD in 1991. In 1995 Jorge McCormick was arrested for possession of marijuana.

A subsequent search pursuant to the warrant, executed by Officer Nesmith and other members of the Escambia County Sheriff's Department, resulted in the seizure of assorted drugs and drug paraphernalia.

Appellant challenged the search in a motion to suppress on grounds that the search warrant affidavit submitted by Officer Nesmith had been fatally defective in that it had failed to set forth either facts from which a magistrate could have found that Officer Nesmith had personal knowledge of the confidential informant's reliability or facts from an independent source which corroborated the reliability of the confidential informant's information. Appellant further argued in his motion that these defects in the affidavit precluded application of the good-faith exception to the exclusionary rule since no reasonable law enforcement officer would have in good faith executed such a warrant based on a defective affidavit.

At the suppression hearing, Officer Nesmith testified that the confidential informant referred to in the affidavit had personally provided reliable information about illegal drug activity to him on at least ten occasions in the past and that he had been told by other members of the Escambia County Sheriff's Department that this same confidential informant had also provided them with reliable information about illegal drug activity on at least ten occasions in the past. The trial court orally denied the motion to suppress finding that the affidavit had been legally sufficient to support a finding of probable cause and that, even assuming its legal insufficiency, the good faith exception to the exclusionary rule applied.

The affidavit in support of the search warrant was totally silent as to whether the affiant had personal knowledge of the confidential informant's prior activities with law enforcement or where or from whom this information had been obtained. A search warrant affidavit based on information obtained from a confidential informant must set forth either facts indicating that the affiant has personal knowledge of the confidential...