Rand v. State, 85-1076
| Decision Date | 14 March 1986 |
| Docket Number | No. 85-1076,85-1076 |
| Citation | 11 Fla. L. Weekly 659,484 So.2d 1367 |
| Parties | 11 Fla. L. Weekly 659 James A. RAND, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Peter D. Ringsmuth of Smith & Ringsmuth, Fort Myers, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
Appellant James A. Rand was charged in a one count information with the manufacture or possession of cannabis in excess of twenty grams in violation of sections 893.13(1)(a) and (e), Florida Statutes (1983). Appellant filed a motion to suppress evidence seized pursuant to a search warrant on the basis that the affidavit supporting the warrant failed to allege sufficient probable cause. After a nonevidentiary hearing, the trial judge granted appellant's motion. Later, however, the trial judge advised counsel for appellant and the state that he had changed his mind and retracted his order granting the motion to suppress. An evidentiary hearing was then held, after which the trial judge denied appellant's motion. Appellant pled no contest to the charge, reserving his right to appeal the denial of his motion to suppress evidence. The trial court found appellant guilty as charged and placed him on probation for five years. This timely appeal followed. We agree with appellant that the trial court erred in denying his motion; therefore, we reverse appellant's conviction and remand for further proceedings consistent with this opinion.
The affidavit in support of the warrant issued here reads in pertinent part:
1. That within the last ten days he [the affiant] interviewed two confidential informants who claimed to have observed marijuana growing at a location on Pine Road in Lee County, Florida.... (emphasis supplied)
The affidavit contained no allegation of when the informants observed the marijuana on appellant's premises.
In King v. State, 410 So.2d 586 (Fla. 2d DCA 1982), we held that an affidavit supporting a search warrant must contain the specific time or times when the informant observed the illegal activity. Id. at 587. The affidavit held insufficient in King stated only that the officer met and received his information from the informant within the last six days of the date of the affidavit. There was no allegation regarding the date the illegal activity occurred.
There is no meaningful distinction between the affidavit in question here and the one held insufficient in King. Accordingly, we hold that the affidavit in support of the search warrant issued in the present case was insufficient for failing to allege the specific time or times when the marijuana was observed on appellant's premises.
The state urges that even if we find the affidavit insufficient, we should nevertheless affirm the trial court's order on the basis of the so-called "good-faith" exception to...
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