State v. Gieseke
| Decision Date | 18 February 1976 |
| Docket Number | No. 46804,46804 |
| Citation | 328 So.2d 16 |
| Parties | STATE of Florida, Petitioner, v. Mark GIESEKE et al., Respondents. |
| Court | Florida Supreme Court |
Robert L. Shevin, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., for petitioner.
Loyd C. Mosley, Clearwater, for respondents.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Second District, reported at 305 So.2d 6. Our jurisdiction is based on conflict 1 between the decision sought to be reviewed and State v. Smith. 2 The facts of the case are as follows.
Having been charged by information with possession of marijuana paraphernalia in violation of the Florida Drug Abuse Law, Respondents filed a Motion to Supress the Evidence and attacked the sufficiency of the affidavit upon which the search warrant was based, their main thrust being that this affidavit failed to include adequate allegations to establish probable cause for the search of a certain residence which was under the control and custody of one of the Respondents. The affidavit was sworn to by one Douglas H. Carey, detective of the Police Department of the City of Clearwater. The affidavit stated in part:
'Affiant's reasons for this belief are that in his capacity as a detective of the Clearwater Police Department, he had occasion within the past ten (10) days to supervise a controlled buy of marijuana wherein a reliable, confidential informant was searched, given twenty dollars ($20,00) in U.S. Currency, was observed entering the above described building and after a period of approximately fifteen (15) minutes the confidential informant was observed leaving the above described building and returning to the affiant, who again searched the confidential informant, who had in his possession one (1) baggie containing more than five (5) grams of suspected marijuana.
'Based on a conversation with the confidential informant, affiant believes that other dangerous drugs are located in the above described building.'
The trial court granted Respondent's Motion to Suppress, and the District Court of Appeal, Second District, affirmed percuriam without a written majority opinion but with a dissenting opinion filed.
Upon careful examination of the record and the argument of counsel we are compelled to reverse the decision of the District Court of Appeal for the following reasons.
It is clear that, when all reference to hearsay testimony is eliminated, the fact that Affiant personally supervised the controlled buy resulting in the purchase of contraband from the described premises was sufficient probable cause to justify the warrant. In this Court's recent opinion in Findlay v. State, 3 we quoted with approval the following excerpt from State v. Smith: 4
"We have carefully reviewed the decisions of the United States Supreme Court in Spinelli v. United States (393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637) and Aguilar v. Texas (378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723). The affidavits held insufficient in those cases were based almost entirely on reports received from informers without supporting factual allegations showing reliability and 'underlying circumstances.' The interpretation of Spinelli and Aguilar urged by respondents herein, would require the striking of a search warrant based on affidavits referring to tips from confidential informers not meeting Aguilar's test, even though the affidavit contained sufficient independent statements based on personal knowledge of the affiant. We are unwilling to adopt such a rule and do not believe Aguilar and Spinelli require it. An affidavit which is otherwise sufficient is not tainted by reference to a confidential tip, even though that tip be inadequate in itself under the Aguilar and Spinelli cases.' (Emphasis supplied)' Thus, the Findlay decision, supra, clearly indicates that superfluous hearsay information will not vitiate a determination of probable cause where that determination is sufficiently supported by direct testimony of an affiant who personally experienced events which by themselves generate...
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Williams v. Sec'y, Fla. Dep't of Corr.
...officers, and is searched again, revealing drugs. Clark v. State, 635 So. 2d 1010, 1011 (Fla. 1st DCA 1994) (relying on State v. Gieseke, 328 So. 2d 16, 17-18 (Fla. 1976)); Zaner v. State, 444 So. 2d 508, 510 (Fla. 1st DCA 1984).Here, the record reflects a proper controlled buy occurred wit......
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State v. Georgoudiou
...the following day for the purchase price of $1,400 per ounce. Both State v. Cohen, 442 So.2d 346 (Fla. 5th DCA 1983) and State v. Gieseke, 328 So.2d 16 (Fla.1976) would appear to justify the search warrant on this Finally, Judge Cowart has made a compelling argument that this case should no......
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Wingate v. State
...was clearly supported by probable cause. A recent controlled buy establishes "probable cause to justify the warrant." State v. Gieseke , 328 So. 2d 16, 17 (Fla. 1976). See also Clark v. State , 635 So. 2d 1010 (Fla. 1st DCA 1994) (holding that probable cause for issuance of a warrant existe......
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Bush v. State, s. 78-1043
...arrest, which was based entirely and independently upon what the officer himself saw, rather than what he was told. See State v. Gieseke, 328 So.2d 16 (Fla.1976); Findlay v. State, 316 So.2d 33 (Fla.1975); State v. Henderson, 318 So.2d 524 (Fla. 2d DCA 1975), cert. denied, 330 So.2d 18 (Fla......