Renckley v. State, 88-1394
| Decision Date | 17 February 1989 |
| Docket Number | No. 88-1394,88-1394 |
| Citation | 538 So.2d 1340,14 Fla. L. Weekly 488 |
| Parties | 14 Fla. L. Weekly 488 Edward RENCKLEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Stephen H. Donohoe, Jacksonville, for appellant.
Robert A. Butterworth, Atty. Gen., and Kurt L. Barch, Asst. Atty. Gen., Tallahassee, for appellee.
Appellant was charged with and convicted of possession of more than twenty grams of cannabis and possession with the intent to sell or deliver marijuana. Appellant pled nolo contendere to these charges reserving his right to appeal the denial of his motion to suppress. The trial court denied the motion to suppress finding that the search warrant was based upon sufficient probable cause stemming from the reliability of the informant coupled with the police surveillance activities. The court so concluded despite its contemporaneous holding that the "anticipatory elements" of the search warrant did not meet the requirements of the supreme court's decision in Bernie v. State, 524 So.2d 988 (Fla.1988). Because we consider that latter conclusion to be fatal to the warrant's validity, we must reverse.
The probable cause set forth in the affidavit for the search warrant related the following:
Your affiant is a member of the Jacksonville Sheriff's office and has been so employed for 10 years. Your affiant is assigned to the Narcotics Section and has been working in that section for four (4) months. Your affiant has received training and the recognition in identification of cannabis on numerous occasions.
On December 6, 1987, your affiant met with a white male known to him as Dave Ferrell. Your affiant knows that Ferrell has sold marijuana in the past. On this date Ferrell told your affiant, who was working in an undercover capacity, that he could supply 1/4 pound of marijuana for $700 and that his "source" would have at least that much in his home at any time. Ferrell further stated that "his man" could supply up to 200 pounds of marijuana in a single transaction.
Ferrell was surveilled traveling to 6264 Arthur Durham Drive, Jacksonville, Duval County, Florida. He entered the home and exited moments later with a white box. Ferrell then met with your affiant and handed to your affiant a white box which contained 1/2 pound of a substance your affiant believes to be marijuana. Your affiant knows from past surveillance of Ferrell that he, Ferrell, has obtained a substance your affiant recognizes to be marijuana from this residence within the past 60 days.
Ferrell told your affiant that he was a "middle man" for his "source", that his "source" owned the marijuana and that he, the "source", kept large quantities of marijuana on hand. Your affiant believes these statements to mean that large quantities of marijuana are stored at the residence at 6264 Arthur Durham Drive, Jacksonville, Duval County, Florida.
On January 14, 1988, your affiant contacted Dave Ferrell in order to arrange another sale of marijuana, as previously agreed. Ferrell agreed to supply 50 additional pounds of marijuana to your affiant to be delivered either January 19 or January 20, 1988. He stated to your affiant that he, Ferrell, would obtain the marijuana from the same "source" he had used in their previous deal. Ferrell further assured your affiant that his "source" would have the 50 pounds of marijuana in his, the source's, home on the agreed upon meeting date.
Your affiant believes these statements to mean that a quantity of marijuana will be located at 6264 Arthur Durham Drive, Jacksonville, Duval County, Florida, on or between the 19th day of January, 1988, and the 20th day of January, 1988.
[Emphasis added.]
We view the emphasized language in the above-cited last paragraph to suggest an anticipatory search. The supreme court in Bernie defined an anticipatory search "as one based upon an affidavit showing probable cause that at some future time, but not presently, certain contraband will be at the location set forth in the warrant." 524 So.2d at 991. Although the supreme court recognized that "[n]o language in either the Florida Constitution or the United States Constitution prohibits issuance of a warrant for service at a future time," id., nonetheless, section 933.18(5), Florida Statutes, requires that a search warrant shall not be issued for the search of a private dwelling unless, in pertinent part:
(5) The law relating to narcotics or drug abuse is being violated therein. (Emphasis added.)
The statute further provides:
No warrant shall be issued for the search of any private dwelling under any of the conditions hereinabove mentioned except on sworn proof by affidavit of some credible witness that he has reason to believe that one of said conditions exists, which affidavit shall set forth the facts on which such reason for belief is based.
However, in Bernie, the supreme court concluded that the facts of that case did not constitute "the type of in futuro allegation for a warrant that the legislature intended to prohibit by [section 933.18]." 524 So.2d at 992. The court stressed that the emphasized words in the statute
... allows a warrant to be issued when the evidence and supporting affidavit show that the drugs have already been discovered through a legal search and seizure and are presently in the process of being transported to the designated residence which is being used as the drug drop.
Id. In that sense, the contraband was considered to be in law enforcement's "constructive possession." Thus, as the trial court below noted, it would appear by the holding in Bernie that the police officers must have actual knowledge that the contraband will be on the premises eventually. See also Howard v. State, 483 So.2d 844 (Fla. 1st DCA 1986).
Based on the foregoing observations, the trial court below concluded that
... the anticipatory elements of the search warrant under review do not meet the requirements of the Bernie decision. The police did not have sufficient information in this case to justify a finding of probable cause based upon the anticipation of a drug delivery. They did not discover the contraband prior to obtaining the warrant as in the Bernie case.
We agree with the trial court's observation and conclusion but would hold, contrary to the trial court's order, that they are fatal to the warrant's...
To continue reading
Request your trial
-
Perez v. State
...DCA 1990); Sutton v. State, 556 So.2d 1211 (Fla. 2d DCA 1990); State v. Norman, 545 So.2d 465 (Fla. 4th DCA 1989); Renckley v. State, 538 So.2d 1340 (Fla. 1st DCA 1989); Wyche v. State, 536 So.2d 272 (Fla. 3d DCA 1988), review denied, 544 So.2d 201 (Fla.1989); State v. Smith, 529 So.2d 1226......
-
Dyess v. State, 1D07-1465.
...did not establish a fair probability that the laundry list of items to be searched for would be found there. See Renckley v. State, 538 So.2d 1340, 1342 (Fla. 1st DCA 1989) (explaining that the affidavit did not connect the marijuana obtained through a controlled buy to appellant's home whe......
-
State v. Diamond
...While it is true that probable cause cannot be based solely on unverified second or third-hand information (see Renckley v. State, 538 So.2d 1340 (Fla. 1st DCA 1989)), it is improper to determine that an affidavit for a search warrant is insufficient merely because it contains such informat......
-
State v. Howard
...was insufficient to establish probable cause to search the interior of the house are similarly distinguishable. Renckley v. State, 538 So.2d 1340 (Fla. 1st DCA 1989); Howard v. State, 483 So.2d 844 (Fla. 1st DCA), rev. denied, 494 So.2d 1153 The affidavit established probable cause to belie......