State v. Gieske

• Decision Date: 11 December 1974
• Docket Number: 74-20,Nos. 74-19,s. 74-19
• Citation: 305 So.2d 6
• Parties: STATE of Florida, Appellant, v. Mark GIESEKE et al., Appellees.
• Court: Florida District Court of Appeals

Page 6

305 So.2d 6

STATE of Florida, Appellant, v. Mark GIESEKE et al., Appellees.

Nos. 74-19, 74-20.

District Court of Appeal of Florida, Second District.

Dec. 11, 1974.

Rehearing Denied Jan. 15, 1975.

Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellant.

Loyd C. Mosley, Clearwater, for appellees Gieseke, Gieseke, Kulaas, Morris and Stone.

No appearance for appellee Saputo.

PER CURIAM.

Affirmed.

McNULTY, C. J., and SCHWARTZ, ALAN R., Associate Judge, concur.

BOARDMAN, J., dissents with opinion.

BOARDMAN, Judge (dissenting).

With due deference to my fellow jurists, the Honorable Judge McNulty and the Honorable Judge Schwartz, associate judge, and because of the importance and significance that I place on the question involved in this case, I feel compelled to state my reason for differing with the result reached by the majority opinion.

Appellees were charged by information with possession of marijuana paraphernalia, in violation of the Florida Drug Abuse Law. The appellees filed a motion to suppress the evidence and attacked the sufficiency of the affidavit upon which the search warrant was based, the main thrust being that the said 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 appellees.

The said affidavit was made on May 21, 1973, by Douglas H. Carey, detective of the Police Department of the City of Clearwater. The pertinent part of the affidavit is set out here:

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 judge granted the motion to suppress on the ground that the reliability of the confidential informant was not established in the affidavit supporting the search warrant. Further, the able trial judge reasoned that not having established the reliability of the informant, the affidavit failed for lack of an allegation that any more contraband was left on the said premises after the buy was made.

The court is presented with the question of whether a controlled buy is sufficient to support the issuance of a search warrant. In...