Schmitt v. State, No. 89-0187

CourtCourt of Appeal of Florida (US)
Writing for the CourtPOLEN
Citation563 So.2d 1095
Parties15 Fla. L. Weekly D1575 Kenneth D. SCHMITT, Appellant, v. STATE of Florida, Appellee.
Decision Date13 June 1990
Docket NumberNo. 89-0187

Page 1095

563 So.2d 1095
15 Fla. L. Weekly D1575
Kenneth D. SCHMITT, Appellant,
v.
STATE of Florida, Appellee.
No. 89-0187.
District Court of Appeal of Florida,
Fourth District.
June 13, 1990.

Page 1097

Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and John Tiedemann, Asst. Atty. Gen., West Palm Beach, for appellee.

POLEN, Judge.

Schmitt appeals his conviction for lewd and lascivious behavior, sexual performance by a child, promotion of a sexual performance by a child and possession of child pornography. He raises five points on appeal. We affirm in part and reverse in part.

In January 1988 the Martin County Sheriff's Office received information that appellant was taking nude photographs of his twelve-year-old physically well developed daughter in Port Salerno. Sheriff's deputies interviewed the child and learned that the nude photography occurred over a four-year period. The interview revealed that appellant recently videotaped the child and another female child dancing topless. The child informed the deputies that appellant took nude photographs of an adult woman in her presence. Appellant also instructed the child to take nude photographs of him. The child indicated that appellant walked around his residence in the nude and in her presence.

Based upon this information, deputies applied for and obtained a search warrant for appellant's residence. The deputies executed the warrant and discovered numerous pieces of incriminating evidence. Appellant moved to dismiss several counts of the information. The trial court denied these motions. Appellant then entered a plea of nolo contendere reserving his right to appeal.

Appellant's first point argues that there was insufficient evidence to indicate any type of criminal activity which would establish probable cause for the issuance of the warrant. We disagree.

The deputy's affidavit in support of the application for the search warrant alleged in pertinent part:

Page 1098

Kenneth Schmitt, had taken numerous nude photographs of her in various poses ... that her father had a nude adult white female pose for nude photographs in her presence. The juvenile victim also stated that she has taken nude photographs of her father numerous times.

....

[T]he father obtained a VHS video recording system. During this time ... the father utilized the camera to record the juvenile victim and a white female friend disrobe, or as the juvenile described it, stripping down to their panties.... During the same time frame ... the father utilized the same VHS camera to record the juvenile victim swimming in the nude.

Based upon this activity, the affidavit alleged violations of section 827.071, Florida Statutes (1987), sexual performance of a child; section 800.04, lewd or lascivious acts or indecent assault or act upon or in the presence of a child; section 827.04, child abuse; and chapter 847, obscene literature or profanity. The affidavit further indicates that the officer had been a sheriff's deputy for six years; that he was assigned to the criminal investigations division; and that he previously investigated a number of child abuse and sexual battery cases.

Probable cause exists if a reasonable man, having the specialized training of a police officer, in reviewing the facts known to him, would consider that a felony is being or has been committed by the person under suspicion. Mayo v. State, 382 So.2d 327 (Fla. 1st DCA 1980), review denied, 388 So.2d 1116 (Fla.1980). In dealing with probable cause as the very name implies, the process does not deal with certainties but with probabilities. These are not technical niceties. They are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In Gates, the Supreme Court wrote:

Long before the law of probabilities was articulated as such, practical people formulated certain common sense conclusions about human behavior; jurors as fact finders are permitted to do the same and so are law enforcement officers. Finally the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Id. at 231-232, 103 S.Ct. at 2328-2329, 76 L.Ed.2d at 544, quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

Thus, "probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules. (Emphasis added). Gates, 462 U.S. at 232, 103 S.Ct. at 2329, 76 L.Ed.2d at 544.

In the same vein, affidavits for search warrants must be tested and interpreted by magistrates and courts in a commonsense fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. State v. Cook, 213 So.2d 18 (Fla. 3d DCA 1968), citing United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The facts constituting cause need not meet the standard of conclusiveness and probability required of circumstantial facts upon which a conviction must be based. State v. Drowne, 436 So.2d 916 (Fla. 4th DCA 1983). Reaffirming these premises, the Supreme Court in New York v. P.J. Video, Inc., 475 U.S. 868, 876, 106 S.Ct. 1610, 1615, 89 L.Ed.2d 871, 881 (1986), concluded:

Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision.

....

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before

Page 1099

him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Accordingly, a magistrate's determination of probable cause should be paid great deference by reviewing courts. After the fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). The duty of the reviewing court is to insure that the magistrate who has issued the search warrant had a substantial basis for concluding that probable cause existed. State v. Jacobs, 437 So.2d 166 (Fla. 5th DCA 1983).

In applying these time tested standards to the instant case, we believe that the magistrate had a substantial basis for concluding that there was a fair probability that contraband or...

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34 practice notes
  • Chavez v. State, No. SC94586.
    • United States
    • United States State Supreme Court of Florida
    • November 21, 2002
    ...and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Schmitt v. State, 563 So.2d 1095, 1098 (Fla. 4th DCA See also McCarter v. State, 463 So.2d 546, 548-49 (Fla. 5th DCA 1985) ("Probable cause to arrest exists when facts and circums......
  • Hayward v. State, No. SC07-1234.
    • United States
    • United States State Supreme Court of Florida
    • August 27, 2009
    ...and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Schmitt v. State, 563 So.2d 1095, 1098 (Fla. 4th DCA Id. at 312. Utilizing these criteria here, we conclude that the police had probable cause to detain Hayward for further questi......
  • Francis v. State, No. SC94385.
    • United States
    • United States State Supreme Court of Florida
    • December 20, 2001
    ...and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Schmitt v. State, 563 So.2d 1095, 1098 (Fla. 4th DCA Moreover, when reviewing a trial court's determination of historical facts as occurred here in connection with the motion to s......
  • Montanez v. Sec'y, Fla. Dep't of Corr., Case No: 5:11-cv-527-Oc-27PRL
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • January 24, 2014
    ...picture or videotape had never been exhibited before an audience. Ladd v. State, 715 So. 2d 1012 (Fla. 1st DCA 1998); Schmidt v. State, 563 So. 2d 1095 (Fla. 4th DCA 1990), modified on other grounds, 590 So. 2d 404 (Fla. 1991). The Defendant has failed to meet his evidentiary burden of proo......
  • Request a trial to view additional results
34 cases
  • Chavez v. State, No. SC94586.
    • United States
    • United States State Supreme Court of Florida
    • November 21, 2002
    ...and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Schmitt v. State, 563 So.2d 1095, 1098 (Fla. 4th DCA See also McCarter v. State, 463 So.2d 546, 548-49 (Fla. 5th DCA 1985) ("Probable cause to arrest exists when facts and circums......
  • Hayward v. State, No. SC07-1234.
    • United States
    • United States State Supreme Court of Florida
    • August 27, 2009
    ...and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Schmitt v. State, 563 So.2d 1095, 1098 (Fla. 4th DCA Id. at 312. Utilizing these criteria here, we conclude that the police had probable cause to detain Hayward for further questi......
  • Francis v. State, No. SC94385.
    • United States
    • United States State Supreme Court of Florida
    • December 20, 2001
    ...and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Schmitt v. State, 563 So.2d 1095, 1098 (Fla. 4th DCA Moreover, when reviewing a trial court's determination of historical facts as occurred here in connection with the motion to s......
  • Montanez v. Sec'y, Fla. Dep't of Corr., Case No: 5:11-cv-527-Oc-27PRL
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • January 24, 2014
    ...picture or videotape had never been exhibited before an audience. Ladd v. State, 715 So. 2d 1012 (Fla. 1st DCA 1998); Schmidt v. State, 563 So. 2d 1095 (Fla. 4th DCA 1990), modified on other grounds, 590 So. 2d 404 (Fla. 1991). The Defendant has failed to meet his evidentiary burden of proo......
  • Request a trial to view additional results

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