State v. Drowne

Decision Date13 April 1983
Docket NumberNo. 82-908,82-908
PartiesSTATE of Florida, Appellant, v. Joan DROWNE and George Drowne, Jr., Appellees.
CourtFlorida District Court of Appeals

Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, and Joy B. Shearer, Asst. Attys. Gen., West Palm Beach, for appellant.

Thomas A. Bratten of Bratten & Harris, P.A., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

The state appeals from an order suppressing evidence obtained pursuant to execution of a search warrant at the residence of a law enforcement officer and his wife. We affirm the result and commend the effort and attention given by the trial judge to his order, which reflects his analysis. It is of immense assistance to this court to know the basis for a trial court's decision.

The case boils down to two basic issues: whether the affidavit which led to the search warrant was legally sufficient; and if so, whether there was a violation of the "knock and announce" requirement in its execution. Although we disagree with the trial court's analysis of the first issue, we agree with respect to the second.

I

We quote in large measure from the affidavit 1 because that is the only way to These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic 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. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

explain to the trial court and the parties our analysis. The measure of an affidavit leading to a search warrant is set forth in former Justice Goldberg's significant opinion in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965):

The basis for the issuance of the search warrant has been described by this court in State v. Powers, 388 So.2d 1050, 1051 (Fla. 4th DCA 1980), petition for review dismissed, 397 So.2d 778 (Fla.1981), as follows:

Search warrants are issued upon probable cause and facts constituting probable cause need not meet the standard of conclusiveness and probability required of circumstantial facts upon which a conviction may be based. State v. Heape, 369 So.2d 386 (Fla. 2d DCA 1979). Thus, interpretation of the facts in a "commonsense and realistic fashion," United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965), may result in an inference of probable cause to believe that criminal objects are located in a particular place to which they have not been tied by direct evidence. United States v. Valenzuela, 596 F.2d 824 (9th Cir.1979), cert. denied 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1979).

(Emphasis original.)

We believe that application of the foregoing reduces the essence of the affidavit to three categories:

1. Who the maker of the affidavit was and the circumstances under which he made it.

From the record, we glean the maker to be a very experienced, well-trained law enforcement officer and conclude that he was caught up in preparation for execution of the anticipated search warrant scheduled for the night of July 3, 1981; that some degree of accelerated activity was involved; and that there was little concern for paragraph structure. We have no way of knowing whether there was available to him a legal adviser, trained in such matters, to edit his work product or the time in which to do it.

2. What the informant was told by Joan Drowne and when.

She told him that she presently had marijuana in her residence; that she would have "dope" at her residence over the weekend of July 4, 1981; and that there were two machine guns on the premises. The circuit judge who subsequently issued the search warrant could have reasonably concluded that all of those statements were made on one occasion by Joan Drowne; and that reference to a forthcoming holiday weekend could have reasonably been made in close proximity to it. The disclosure by the informant to the law enforcement officer on July 2, 1981, rather than at the earlier meeting, would support this reasonable conclusion.

3. What the informant observed in the Drowne residence and when.

He saw numerous weapons--undescribed--in the Drowne residence in the three weeks prior to July 2, 1981; and, over the past two years, he had seen both appellees smoking marijuana. The former observation would strengthen the likelihood in the mind of the issuing circuit judge that Joan Drowne's reference to there being machine guns in the residence was made in the few weeks before the affidavit was presented to him. 2 The second observation would corroborate the likelihood of the presence of marijuana.

Without attempting to be quarrelsome, we question the interpretation given to an affidavit by the appellate court in Orr v. State, 382 So.2d 860 (Fla. 1st DCA 1980), upon which appellees rely. Therein it was held that the following affidavit did not sufficiently establish probable cause because it did not indicate when the informant observed the contraband:

Heretofore, within the past ten days a confidential informant, who has proven reliable in the past, said informant having led to the arrest of persons for drug violations, further it is known by your affiant that said confidential informant has knowledge of the appearance, texture and odor of marijuana, advised your affiant that a quantity of marijuana was inside the above described premises and that said marijuana was observed by said confidential informant. Therefore, your affiant has probable cause to believe that marijuana is now being kept in the above described premises. [Emphasis added.]

Id. at 861. Let us assume that in lieu of an affidavit the issuing circuit judge had sworn the affiant, asked him the following question and received the following answer:

Q. In the last ten days, what, if anything, did the informant advise you?

A. He advised me there was marijuana in the home.

In such dialogue, it seems reasonable to us that the questioning judge could have concluded that there was marijuana in the home at or about the time the informant relayed his information. We so conclude because people interchange "was" and "is" when they speak. 3 Were we to be more esoteric, we would refer to the third division Pragmatics, which deals with the relation between words and their users or hearers. This considers the psychological consequences of the fact that established meanings constitute verbal habits.

of "meaning"; namely, "pragmatics," 4 which is described in R. Dickerson, Legal Drafting 34 (1981), as follows:

(Emphasis added.)

In contrast to the affidavit in Orr, however, that which the court invalidated in King v. State, 410 So.2d 586, 586 (Fla. 2d DCA 1982), recited, in part:

[Y]our affiant's reason for his belief is that within the last six days he met with a confidential and reliable informant who advised him that inside 118 Lake Avenue, Apt. A, Largo, Pinellas County, Florida, he observed one Diana King rolling handmade cigarettes filled with what he believed to be cannabis (marijuana).

(Emphasis added.) Again, assume the issuing judge had sworn the affiant, asked the following question and received the following answer:

Q. In the last six days, what, if anything, did the informant tell you?

A. That he saw Diana King inside the house rolling cigarettes with what he thought was marijuana.

In the latter hypothetical, unlike the first, "saw" is not practically interchangeable in modern speech with "see" as "was" with "is." Accordingly, we can understand the result in King. Like the first hypothetical, however, the affidavit in the present case is reasonably tied to a time frame, in that it is in close proximity to July 2, 1981.

ON MOTION FOR REHEARING

We withdraw the latter part of the earlier opinion State v. Drowne 436 So.2d 916 (4th DCA Apr. 13, 1983) that commences with the discussion of II and substitute therefor the following: 1

II

As for the second issue, the trial court found:

Pursuant to said Affidavit, a Search Warrant was authorized by a Judge. Thereafter, in the evening hours of July 3, a plain-clothes investigator from the State Attorney's office, together with a SWAT team surrounded the Drowne residence and prepared to execute the Search Warrant. As the investigator and the SWAT team approached the house, an 11 to 13-year-old son of the Drownes opened the front door and yelled at two of the family dogs located in the garage to be quiet. At that time, the investigator for the State Attorney's office and one or more members of the SWAT team began running toward the front door apparently unseen by the boy. The boy started to close the door and in fact had moved it from a position of approximately 90 degrees open to approximately 45 degrees open when one of the officers grabbed the door, opened it further, and the investigator and members of the SWAT team stepped to the door where they were met immediately by Mrs. Drowne, who became hysterical, screaming and yelling at the officers. She was advised that they were in fact police officers and was shown a Search Warrant and told that the Warrant was going to be executed. They entered the house with Mrs. Drowne still inquiring as to how she should be assured that they were in fact police officers. Following the finding of the evidence from the rear portion of the house, Mrs. Drowne was shown identification that the investigator was with...

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