State v. Felix

• Decision Date: 06 October 2006
• Docket Number: No. 5D05-3748.,5D05-3748.
• Citation: 942 So.2d 5
• Parties: STATE of Florida, Appellant, v. Victor FELIX, Appellee.
• Court: Florida District Court of Appeals

942 So.2d 5

STATE of Florida, Appellant, v. Victor FELIX, Appellee.

No. 5D05-3748.

District Court of Appeal of Florida, Fifth District.

October 6, 2006.

Rehearing Denied November 16, 2006.

COPYRIGHT MATERIAL OMITTED

Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellant.

William J. Sheaffer of William J. Sheaffer, P.A., Orlando, for Appellee.

MONACO, J.

The State of Florida seeks review of an order of the trial court granting the motion of the appellee, Victor Felix, to suppress the evidence of child pornography seized from his residence, and in particular, from his computer located within the residence, during a search by law enforcement officers pursuant to a search warrant. The trial court suppressed the evidence because it concluded that the affidavit supporting the search warrant failed to provide a sufficient basis upon which to find probable cause for issuance of the warrant. We conclude, however, that the warrant was properly issued and reverse.

The investigation of the alleged activities of Mr. Felix began when an officer of the Maryland State Police established a website to attract persons interested in child pornography as part of a child exploitation task force. In order to access the website, its message boards and its chat rooms, internet users would first have to send three images of child pornography. According to the Maryland officer, a person with the Yahoo! screen name, truebrother 999@Yahoo.com, contacted the website on April 16, 2004, and sent an email containing three digital images depicting very graphic child pornography. The Maryland officer investigated the Internet Protocol address associated with the Yahoo! user, and discovered a profile listing Orlando, Florida, as the user's address, and discovered, as well, a photograph of the user. Maryland eventually issued a subpoena to Bright House Networks, and subsequently discovered that truebrother999 was the appellee, Victor Felix III, who according to his Florida driver's license, resided in Orange County.

The Maryland authorities contacted the Orange County Sheriff's Office on September 10, 2004, which forwarded the information that it had received concerning Mr. Felix to a detective within the Orlando Police Department. The detective discovered that Mr. Felix had moved to a different address than the one listed on his driver's license. He also examined the internet profile associated with Mr. Felix, and found that the photograph included in the profile matched the picture on Mr. Felix's driver's license.

The detective eventually completed an affidavit in support of a search warrant based, in part, on this information. In addition to reciting these facts, the affidavit included the detective's background and experience, as well as a list of characteristics and tendencies that he identified as those common to "preferential child molesters." The detective indicated that he had been with the Orlando Police Department since 1989, and had worked in the Crimes Against Children Unit since 1993. The affidavit further related that the detective had personally investigated 1,200 cases involving physical and sexual abuse of children, and had taken courses involving physical and sexual abuse and exploitation of children, including classes entitled "Child Exploitation Via the Computer" and "Advanced Training on Preparing Search and Seizure Warrant for Crimes Against Children." Through the Florida Department of Law Enforcement, the detective was certified to conduct basic and advanced training on the physical and sexual abuse and exploitation of children, and had conducted such training at the Orlando Police Department, the Citizen's Police Academy, and at Orange County Public Schools. He had, according to the affidavit, also appeared on local and national television to discuss physical and sexual abuse and exploitation of children, and held membership in such organizations as the Florida Sex Crimes Investigators Association and the Central Florida Child Exploitation Task Force.

On September 29, 2004, about five and one-half months after the three images of purported child pornography were transmitted to the Maryland officer, law enforcement authorities in Orange County successfully sought a warrant from a circuit judge to seize Mr. Felix's computer and any other equipment or accessories that contained child pornography, or anything that would identify juvenile victims or witnesses to any illegal acts of abuse by Mr. Felix. The search warrant was executed a week later, and resulted in the police officers finding in excess of one hundred images of alleged child pornography on Mr. Felix's computer. Mr. Felix was subsequently charged by information with 103 counts of Unlawful Possession of Materials Depicting Sexual Performance by a Child, in violation of section 827.071(5), Florida Statutes (2005).

Mr. Felix filed a motion to suppress. Without conducting an evidentiary hearing, the trial judge concluded that the search was violative of the Fourth Amendment, and granted the motion. The basis for the suppression was two-fold. First, the court determined that the information within the affidavit was stale. Second, the court concluded that the affidavit did not set forth crime specific facts to support the likelihood that the computer used to send the images would be in Mr. Felix's home. The court did note, however, that the inclusion of the detective's experiential and expert data within the affidavit was appropriate, and that "the affiant had the experience and expertise to believe the facts in his affidavit." The State seeks review of the suppression order.

Since the trial court based its decision to grant the motion to suppress solely on an examination of the affidavit, and without an evidentiary hearing, the issue of whether the State established probable cause sufficient to obtain a search warrant presents a question of law that is reviewable using a de novo standard. See Pagan v. State, 830 So.2d 792 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); State v. Paige, 934 So.2d 595 (Fla. 5th DCA 2006); Martin v. State, 906 So.2d 358 (Fla. 5th DCA 2005). Using that standard, and giving, as we must, "great deference" to the issuing judge's determination that probable cause existed (provided there is a substantial basis for the determination), we conclude that the trial court erred in granting the motion to suppress. See United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

Article I, Section 12 of the Florida Constitution requires that a search warrant be supported by a sworn affidavit, and that the search be in conformity with the Fourth Amendment to the United States Constitution. In issuing a search warrant a magistrate looks only within the four corners of the affidavit and must find based on that affidavit that a reasonable probability exists, given the totality of the circumstances and a common sense assessment, that evidence of a crime will be found at the place to be searched. Salyers v. State, 920 So.2d 747, 749 (Fla. 5th DCA 2006). In order to establish probable cause to issue a search warrant, the affidavit must show: (1) that a particular person has committed a crime (the "commission element"), and (2) that evidence of the probable criminal activity is likely to be found at a particular location to be searched (the "nexus element"). Id. at 749; see also State v. Jenkins, 910 So.2d 934, 936 (Fla. 2d DCA 2005) (an affidavit in support of a search warrant must contain a commission element and a nexus element).

The first basis for the trial court's suppression of the fruits of the search in the present case was that the information contained in the affidavit supporting the warrant was stale. The period that had elapsed between the transmission of the three images to the officer in Maryland and the execution of the search warrant in Orlando was about five and one-half months. Although the issuing magistrate obviously felt that this elapsed time was not excessive, the trial judge concluded that information that old was legally stale. While we certainly understand the position adopted by the trial judge, we think the magistrate got it right.

It is well-accepted, of course, that an affidavit must establish the particular time when the illegal activity that is the subject of the warrant was observed. See Jenkins, 910 So.2d at 937. A magistrate is required to know this specific time because the length of time between the activity and the date of issuance bears on whether there is probable cause to believe that the items to be seized will still be found at the place to be searched. Id. The longer the time period, the less likely it is that the items sought to be seized will be found at the place listed in the affidavit. Id. As the time period increases, it is said that the evidence becomes stale. A rule of thumb that seems to be recognized by courts as the standard for staleness is thirty days. Fletcher v. State, 787 So.2d 232, 234 (Fla. 2d DCA), review denied, 796 So.2d 537 (Fla.2001). There is nothing particularly magical about thirty days, however. As our sister court in the Fourth District has indicated, "whether information is too stale to establish probable cause to support a search warrant is not to be determined solely by the rigid application of a pre-determined time period." Cruz v. State, 788 So.2d 375 (Fla. 4th DCA 2001). Depending on the particularized circumstances as evaluated by an impartial magistrate, an acceptable elapsed time may certainly be more or less than thirty days. A specific lapse of time is not controlling on the issue of staleness and does not invariably render a search warrant stale. Brachlow v. State, 907 So.2d 626, 629 (Fla. 4th DCA 2005). We have judges making this determination because it requires an exercise of judgment.

Staleness should be evaluated in light...