State Of Fla. v. Sabourin
| Decision Date | 27 July 2010 |
| Docket Number | No. 1D10-483.,1D10-483. |
| Citation | 39 So.3d 376 |
| Parties | STATE of Florida, Appellant,v.William D. SABOURIN, Appellee. |
| Court | Florida District Court of Appeals |
COPYRIGHT MATERIAL OMITTED
Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, for Appellant.
Curtis S. Fallgatter, for Appellee.
The State of Florida seeks review of a trial court order suppressing evidence of child pornography found in the Defendant's residence. The trial court suppressed evidence of the Defendant's child pornography collection and a related confession in which he admitted to repeatedly committing sexual battery on his six-year-old niece. The trial court found the affidavit supporting the warrant for the search of the Defendant's residence was void of probable cause and the confession was obtained as a result of the illegal search. We conclude: (1) The county judge had a substantial basis for issuing a warrant for the search of the Defendant's residence; and (2) Even if the warrant was technically flawed, the good faith exception to the exclusionary rule would apply. Consequently, we reverse.
On Thursday, December 11, 2008 the parents of the victim, a seven-year-old child named M.S., contacted the Jacksonville Sheriff's Office (JSO) reporting that the Defendant took pornographic photos of M.S. During a forensic interview conducted by members of the JSO's Child Protection Team, M.S. gave the following information:
On November 23, 2008, she was riding in the Defendant's car with the Defendant and his six-year-old niece. The Defendant had noticed that M.S. spilled water on her pants and convinced her to pull down her pants and underwear. The Defendant then took out a “gray camera” and instructed M.S. to pose in the back seat of his vehicle so that he could take “a good picture of her rear.” He proceeded to take photographs of her buttocks and vaginal area. After taking a picture, he would look at the camera and say “that's a good picture.” M.S. further explained that as the Defendant was encouraging her to pull down her pants for the photographs, M.S.'s friend, the Defendant's six-year-old niece, tried to reassure her by saying: “It's ok, he takes pictures of me like that all the time.” Detective Soehlig, a member of the JSO “Sex Crimes Unit,” observed the interview.
The following Monday, four days after she learned of the crime and twenty-two days after the criminal activity occurred, Detective Soehlig applied to the county judge for a warrant to search the Defendant's residence for evidence of child pornography. She included a synopsis of the above interview in her supporting affidavit. The synopsis did not include the specific date of the car trip. Before she submitted the affidavit to the county judge, she had the affidavit reviewed by an Assistant State Attorney, who approved it. In the affidavit, Detective Soehlig requested authority to search the Defendant's home and to seize computers, electronic storage devices and photography equipment.
After reviewing the affidavit, the county judge issued a search warrant authorizing the JSO to search the Defendant's residence. The judge simultaneously issued a warrant to arrest the Defendant for violating section 827.071, Florida Statutes, Sexual Performance by a child.
Detective Soehlig and other members of JSO executed the warrant and arrested the Defendant on December 19, 2008. From the Defendant's home, the officers seized several electronic storage devices and pieces of photography equipment. During a subsequent interview with Detective Soehlig, the Defendant admitted taking photographs of M.S. and also confessed to committing sexual battery on his six-year-old niece over one hundred times in the two years since she turned four. He also admitted to taking digital photographs and video of the encounters, which he stored on his home computers.
Prior to trial, the Defendant filed a motion to suppress all evidence seized in the search of his residence, as well as his confession. In his motion, he claimed the supporting affidavit was fatally flawed in that it failed to provide the exact date of the car ride which provided the information for the affidavit on which the search was based; and, further, that the affidavit lacked any probable cause to believe the illegal photographs would be found in his home.
The trial court granted the Defendant's motion to suppress, finding as follows:
The trial court subsequently declined to apply the good faith exception to the exclusionary rule, stating:
I think good faith is one of those instances where the officers usually believe the contents of the affidavit were acceptable. I don't think good faith falls within the category of, shall we say, less than adequate advice by counsel, you know, going into great details about that. I just don't think this is a situation where the good-faith exception applies much.
Article I, Section 12 of the Florida Constitution provides that a search warrant must be based on probable cause, supported by a sworn affidavit, and effectuated in conformity with the Fourth Amendment to the United States Constitution. To establish the requisite probable cause for a search warrant, the affidavit included in the warrant application must set forth two elements: (1) the commission element-that a particular person has committed a crime; and (2) the nexus element-that evidence relevant to the probable criminality is likely located at the place to be searched. See Salyers v. State, 920 So.2d 747, 749 (Fla. 5th DCA 2006); see also Burnett v. State, 848 So.2d 1170, 1173 (Fla. 2d DCA 2003).
The task of an issuing magistrate, here the county judge, is to review all circumstances set forth in an affidavit supporting a search warrant and make a “practical, common-sense decision” as to whether there is probable cause to issue the warrant. State v. Gonzalez, 884 So.2d 330, 333 (Fla. 2d DCA 2004). The task of a court charged with reviewing a magistrate's decision to issue a warrant is to examine the four corners of the supporting affidavit and determine whether the magistrate had a “substantial basis” for making its “practical, common-sense decision” regarding probable cause. Salyers v. State, 920 So.2d at 749; Garcia v. State, 872 So.2d 326, 329 (Fla. 2d DCA 2004).
Our task is to review the trial court's ruling regarding whether the issuing magistrate made a proper probable cause determination prior to issuing a search warrant. Therefore, our review is de novo. See Pagan v. State, 830 So.2d 792, 806 (Fla.2002); see also State v. Jenkins, 910 So.2d 934, 936-37 (Fla. 2d DCA 2005).
There is no dispute that the affidavit establishes probable cause to satisfy the commission element, the first of the two elements that must be satisfied before a warrant may issue. The second element the nexus element was contested. The trial court accepted the Defendant's argument that the supporting affidavit failed to establish a nexus between the evidence sought and the Defendant's residence. We disagree. It was reasonable for the county judge to determine there was a fair probability that a search of the Defendant's residence would uncover electronic storage devices containing pornographic photographs of the seven-year-old victim.
When attempting to secure a valid search warrant, an applicant is not required to provide direct proof that the objects of the search are located in the place to be searched. See State v. Weil, 877 So.2d 803, 804 (Fla. 5th DCA) review denied, 889 So.2d 72 (Fla.2004). Nor is the affiant obligated to rebut every possible hypothetical a defense attorney may later imagine. Rather, the applicant must supply a sworn affidavit setting forth facts upon which a reasonable magistrate could find probable cause to support such a search. Id. The issuing magistrate will then analyze the information contained in the affidavit, consider the type of crime being investigated, examine the nature of the items sought, and make a “practical, common sense decision” as to whether there is a “fair probability” evidence of a crime will be found at a particular place. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see also State v. Felix, 942 So.2d 5 (Fla. 5th DCA 2006).
In the case at bar, the Defendant was suspected of creating and possessing child pornography. Various courts have recognized the reality that the act of possessing child pornography is a “solitary and secretive crime.” See State v. Felix, 942 So.2d at 10-11. As such, it is widely recognized that collectors of child pornography tend to retain their materials in secure places, including their homes. See id. This principle was succinctly articulated in the federal case of U.S. v. Lamb, which stated:
Since [child pornography] materials are illegal to distribute and possess, initial collection is difficult. Having succeeded in obtaining images, collectors are unlikely to quickly destroy them....
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