State v. Hunwick

• Decision Date: 13 July 1983
• Docket Number: No. 82-2347,82-2347
• Citation: State v. Hunwick, 434 So.2d 1000 (Fla. App. 1983)
• Parties: STATE of Florida, Appellant, v. Bernard Barton HUNWICK, Appellee.
• Court: Florida District Court of Appeals

Page 1000

434 So.2d 1000

STATE of Florida, Appellant, v.Bernard Barton HUNWICK, Appellee.

No. 82-2347.

District Court of Appeal of Florida Fourth District.

July 13, 1983.

Rehearing Denied Aug. 10, 1983.

Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellant.

Harry Gulkin, Hollywood, for appellee.

DELL, Judge.

The State appeals from an order of the trial court granting appellee's motion to suppress drugs and drug paraphernalia.

Police legally entered appellee's home and executed a warrant for the arrest of appellee upon charges of armed robbery attempted murder and other crimes involving the use of a gun, described by the victim as an automatic weapon.The police also had a warrant for the arrest of appellee's alleged accomplice, and properly conducted a protective search of appellee's home for the accomplice.During the protective search the police saw, in plain view, an automatic handgun.On the facts of this case discovery of this weapon established probable cause for the issuance of a search warrant.

The officers, however, did not secure a search warrant at that time, but illegally extended their search and discovered other evidence of the crimes charged.At this point the officers applied for a warrant to search appellee's home.The affidavit in support of probable cause related events up to the discovery of the handgun, but omitted to mention the further, illegal search.The warrant issued, and during the search conducted pursuant to this search warrant, the officers discovered for the first time the drugs and paraphernalia which form the basis of the charges sub judice.

During the hearing on probable cause, the trial judge framed the issue for determination as whether the failure of the officers to inform the issuing magistrate of the second, illegal search rendered the warrant invalid.After hearing evidence and argument, the trial judge properly denied appellee's motion to suppress the handgun, but granted the motion with respect to the drugs and paraphernalia on the ground that

[T]hey didn't present the testimony actually to Judge Kaplan and the grounds upon which the warrant was issued were not fully given to Judge Kaplan and perhaps with this additional knowledge, Judge Kaplan might not have signed the warrant.

The issue presented for our decision is what effect, if any, the illegal search and concealment thereof had upon the validity of the subsequently secured search warrant, and the admissibility of evidence discovered solely from the search pursuant to warrant.

Appellant contends that the second, illegal search had no effect on the warrant or the admissibility of the drugs or paraphernalia for two reasons.First, if no illegal search had occurred, probable cause existed for the issuance of the search warrant because the initial entry and protective search by the police were legal, and they discovered the drugs and paraphernalia during the search pursuant to warrant.Second, if the police had revealed the illegal search to the issuing magistrate, he would have been required to excise all references to any information illegally obtained from the affidavit and determine probable cause based upon the remaining allegations.Those allegations would have been substantially the same as the allegations of the affidavit actually presented to the issuing magistrate, and the warrant would have issued.

Appellee contends that the failure to reveal the illegal search to the neutral magistrate issuing the search warrant so taints the entire warrant as to require exclusion of all evidence discovered pursuant thereto.

The inclusion of illegally obtained evidence in the supporting affidavit, where the affidavit contains other valid allegations sufficient to establish probable cause, does not invalidate a search warrant.Neary v. State, 384 So.2d 881(Fla.1980).The trial court's duty is to excise the invalid allegations and determine whether the independent and lawfully obtained information demonstrates probable cause....