Pilieci v. State
| Decision Date | 09 April 2008 |
| Docket Number | No. 2D06-4255.,2D06-4255. |
| Citation | 991 So.2d 883 |
| Parties | Jonathan Calvin PILIECI, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Joe Caimano, Tampa, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa; and Sara Macks, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
Jonathan Calvin Pilieci appeals his judgments and sentences for several drug-related offenses. He pleaded nolo contendere to these charges after the trial court denied his dispositive motion to suppress evidence obtained as a result of a search of his apartment pursuant to a search warrant. We conclude that the trial court erred in ruling that the magistrate had probable cause to issue the warrant.1
The more difficult question is whether the evidence is nevertheless admissible under the good faith exception created in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). That exception is evaluated under an objective standard that can be determined by an appellate court. We are inclined to believe that the Leon standard does not save this evidence from exclusion. However, because the trial court also erred in evaluating whether material omissions were made when applying for this warrant, we are not convinced that the record allows us to make the Leon decision in this case. Accordingly, we reverse the order on appeal and remand for further proceedings in which the trial court can determine whether the evidence is admissible despite the violation of Mr. Pilieci's constitutional rights.
On March 14, 2006, a detective from the Hillsborough County Sheriff's Office obtained a search warrant from Hillsborough County Circuit Court Judge Martha Cook. The warrant was issued exclusively upon the detective's affidavit. Excluding only the information about the detective and his experience, the affidavit stated:
On February 13, 2006 at approximately 9:00 p.m. the Hillsborough County Sheriff's Office arranged for an under-cover purchase of cocaine from said residence described in Exhibit "A." Your affiant contacted John via Hillsborough County Sheriff's Office confidential informant # NA-0613. Your affiant was invited to come by the residence by John. Your affiant arrived at the residence and observed that door was opened from the inside. Your affiant then knocked on the front door where he met with John who invited your affiant to enter the residence. Once inside your affiant met with a white male who identified himself as John. Your affiant asked John for a quantity of cocaine. John handed your affiant a plastic bag containing a white, rock-like substance which appeared to be cocaine. John then asked your affiant to place the suspected cocaine on the scale. Your affiant then handed John a sum of United States Currency in exchange for the suspected cocaine.
Your affiant exited the residence and relocated to a secure location and conducted a field reagent test of the cocaine and it tested positive for cocaine content.
Your affiant conducted a records check through Tampa Electric Company and learned that the residence as described in Exhibit "A" receives service in the name of:
[A specifically identified person who is not named "John"] and has been so listed since October, 2005.
Based on the information listed [in] this search warrant, your affiant believes and has reason to believe that the residence as described in Exhibit "A" is being used as a distribution point and supply house for Cocaine....
Exhibit A described the residence as an apartment unit.
In essence, the affidavit sought a search warrant for the apartment based on a single sale of an undescribed quantity of cocaine from an unidentified person located at the apartment on one occasion at 9 p.m. on February 13, twenty-nine days prior to the issuance of the warrant. The affidavit provided no evidence that connected Mr. Pilieci to the apartment or the drugs, other than the fact his name is "Jonathan" and the person in the apartment identified himself as "John."
A search of the apartment described in exhibit A was performed the same day the warrant was signed, March 14. In addition to two Ziploc bags of cocaine and some cocaine residue, the officers found a Ziploc bag of marijuana, two plastic bags of methylenedioxy-methamphetamine (MDMA, commonly known as ecstasy), one pill bottle with alprazolam, drug paraphernalia, and a firearm that Mr. Pilieci was not authorized to possess because he was a convicted felon. Notably, no scale was seized as a result of the search. As a result of this search, Mr. Pilieci was charged with trafficking in cocaine (28 to 200 grams), a first-degree felony;2 trafficking in phenethylamines (10 to 200 grams), a first-degree felony;3 possession of a controlled substance, a third-degree felony;4 possession of cannabis (less than 20 grams), a first-degree misdemeanor;5 and possession of drug paraphernalia, a first-degree misdemeanor.6
Mr. Pilieci filed a motion to suppress the evidence seized as a result of the search warrant, arguing in part that the affidavit was insufficient to establish the probable cause necessary to support the search. At a hearing on the motion, the detective who sought the search warrant revealed additional information known to him when he sought the warrant but not included in the affidavit.
The detective explained that based on a tip from an informant he had begun an investigation of the possibility that Mr. Pilieci was selling illegal drugs in early 2006. The detective arranged for a confidential informant to make a "small purchase" from Mr. Pilieci at the pizza parlor where he worked. The details of that purchase are not contained in the record, but it apparently occurred sometime in mid January 2006. Significantly, the affidavit omitted all reference to this first small purchase at another location.
Thereafter, on February 13, 2006, the detective arranged a second controlled purchase of 3.6 grams of cocaine from Mr. Pilieci. This is the purchase that took place at 9 p.m. at the apartment. The confidential informant apparently arranged the purchase by telephone, but the conversation was not monitored by the detective and there is no indication that the telephone call was made to the apartment where the transaction ultimately took place.
The officer went to the apartment with the confidential informant to purchase these drugs. He explained that Mr. Pilieci, whom he apparently knew as "John," was in the apartment with a "female." According to the officer, Mr. Pilieci 7
The detective never explained the location from which Mr. Pilieci "pulled" the small bag, but in context it appears likely that the bag was on Mr. Pilieci's person and not hidden someplace in the apartment. In his testimony, the detective made clear that the scale described in the affidavit was possessed by Mr. Pilieci and was not brought to the sale by the detective. Again, the detective stated that Mr. Pilieci "pulled" the scale. Accordingly, it may have been a small scale that he carried on his person. The detective admitted that he did not see any other cocaine or contraband in the apartment. From the detective's affidavit, we know that he did not know Mr. Pilieci's identity at the time of this transaction. Indeed, from the record it is unclear when the detective discovered Mr. Pilieci's identity, but it had to have been discovered at some point after the warrant was issued.
The detective did not perform any surveillance on this apartment between February 13 and March 14. He did not obtain information, other than the electric bill, to establish who rented this apartment. The detective did not investigate whether "John" lived at the apartment or whether "John" was merely visiting the female in the apartment or the individual identified in the affidavit as the person responsible for the electric bill. In this respect, the affidavit is, at least, confusing because it describes the apartment as a "residence" without pointing out that the detective had no evidence that it was "John's" residence. The record is devoid of any evidence connecting Mr. Pilieci to the man who paid the electric bill. The detective never observed any other criminal activity at the apartment and had no further conversations with Mr. Pilieci.
Significantly, the officer testified that he and the confidential informant made a "couple" attempts to set up additional transactions but failed to make contact with Mr. Pilieci: "We couldn't get in touch with him." The detective admitted on cross-examination that he was aware that evidence could be regarded as stale after thirty days, and that part of the reason he applied for a warrant was because the "thirty days was coming up."
When Mr. Pilieci filed his motion to suppress, he had the burden of proof because the evidence had been seized pursuant to a warrant. See State v. Lyons, 293 So.2d 391, 393 (Fla. 2d DCA 1974). He argued that the warrant was issued without probable cause and as a result of material omissions within the affidavit. Because the affidavit was issued on the twenty-ninth day and case law tends to use the thirtieth day as an indicator of staleness, see Rodriguez v. State, 297 So.2d 15, 18 (Fla.1974); Haworth v. State, 637 So.2d 267, 267 (Fla. 2d DCA 1994); Hamelmann v. State, 113 So.2d 394, 396 (Fla. 1st DCA 1959), much of the trial court's focus was on the issue of staleness. The trial court determined that the affidavit established probable cause and that no...
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