Sotolongo v. State
| Decision Date | 07 September 1988 |
| Docket Number | No. 86-3246,86-3246 |
| Parties | 13 Fla. L. Weekly 2122 Wilfredo SOTOLONGO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard Escobar of Jones & Escobar, Tampa, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Erica M. Raffel, Asst. Atty. Gen., Tampa, for appellee.
What was said in the affidavit underlying the search warrant in this case was sufficient to support a finding of probable cause by the judge who issued the warrant. The problem is not what the affidavit said, but what it didn't say.
The affiant was Detective Rodriguez of the City of Tampa Police Department. Detective Rodriguez described in the affidavit a confidential informant's "controlled buy" of drugs from the appellant's residence some time between March 17, 1986, and March 20, 1986. The appellant attacks the sufficiency of the affidavit for failure to show that the confidential informant was reliable. Our supreme court has held that a controlled buy alone is a sufficient factual premise from which the affiant and the issuing magistrate could conclude that contraband remained on the premises. State v. Gieseke, 328 So.2d 16 (Fla.1976). We agree with the state that in such a case, the reliability of the informant need not be established since information obtained from him is not the basis for the finding of probable cause.
Detective Rodriguez executed his affidavit on March 31, 1986, eleven to fourteen days after the controlled buy. The warrant was issued on the same date. The appellant's second challenge focuses on the length of time between the controlled buy and the issuance of the warrant. We reject the appellant's "staleness" argument because the length of time in this case was not so great as to detract from the probable cause established by the controlled buy. See Zaner v. State, 444 So.2d 508 (Fla. 1st DCA 1984); Hamelmann v. State, 113 So.2d 394 (Fla. 1st DCA 1959).
Thus, as we have said, we find the affidavit in this case to be sufficient on its face. However, the appellant has asserted a third point regarding the affidavit which we believe has merit. Detective Rodriguez testified that after the controlled buy, a further attempt was made to purchase drugs from the appellant's residence and that attempt failed. He said he felt the attempt failed because the persons might have gotten suspicious that the police were involved and had moved the drugs out of the residence. Thus, he said, he waited until March 31 "for everything to cool off for us to go there to make sure they had re-upped and when I went to the house there was cocaine there." In reading the testimony of Detective Rodriguez, we are convinced that he omitted this information from the affidavit in good faith. As he said,
We have found no Florida case dealing with a situation where relevant information has been omitted from a facially sufficient search warrant affidavit, and neither the state nor the appellant has suggested to us an appropriate analysis for resolution of the question. It is clear that a defendant may attack the veracity of the affidavit...
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State v. Pruitt
...faith. The rule should be applied if the omitted facts were nevertheless relevant and should have been included. Sotolongo v. State, 530 So.2d 514, 516 (Fla. 2d DCA 1988). The trial court also likened the instant case to Richardson, 787 So.2d 906, in which this court held that ten seconds w......
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McCall v. State
...misleading statements. We find that the trial court correctly followed the procedure for such cases as outlined in Sotolongo v. State, 530 So.2d 514 (Fla. 2d DCA 1988). [W]hen a question is raised as to material omissions from the search warrant affidavit, the court reviewing the matter sho......
- State v. Edwards, 87-2448
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Young v. State, 2D04-5186.
...the reviewing court must evaluate the sufficiency of the affidavit as though the omitted facts were included. See Sotolongo v. State, 530 So.2d 514, 516 (Fla.2d DCA 1988). In this case, the affidavit was sworn to by the detective on November 4, 2003, and the warrant was executed on the same......
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Citation form: keeping up with the times.
...are as follows: Fenelon v. State, 594 So. 2d 292 (Fla. 1992), signifies an opinion of the Florida Supreme Court, and Sotolongo v. State, 530 So. 2d 514 (Fla. 2d DCA 1998), signifies a district court of appeal decision. The only tricky rule here is that the citation to Second District opinio......