State v. Jacobs
| Decision Date | 28 July 1983 |
| Docket Number | No. 82-807,82-807 |
| Citation | 437 So.2d 166 |
| Parties | STATE of Florida, Appellant, v. Leslie Paul JACOBS, et al., Appellees. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant.
J. Cheney Mason, P.A., Orlando, and Edwin H. Duff, III, Daytona Beach, for appellees.
The state appeals from an order suppressing evidence seized in the search of a residence occupied by appellees Jacobs and Newman. Two issues have been presented: whether the affidavit was sufficient to establish probable cause for issuance of the warrant and whether the warrant was properly executed. We hold that the affidavit was sufficient and that the warrant was properly executed and accordingly reverse the suppression order.
In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court recently reaffirmed the "totality of the circumstances" analysis that traditionally had formed the basis of probable cause determinations. As the Court points out, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.
The affidavit in the present case, submitted by Detective Barber provided as follows:
Your Affiant has personally conducted an investigation into these alleged activities of the occupants of nine-zero-one (901) Bonita Drive, Winter Park, Orange County, Florida. I Detective Earl David Barber assigned to the Special Investigation Unit on 07/28/81 had the Winter Park Sanitation Department pick up the garbage from nine-zero-one (901) Bonita Drive, Winter Park, Florida, keep it separate and deliver it to the Winter Park City garage. On 07/28/81 I, Detective Barber personally opened one green plastic bag taken from nine-zero-one (901) Bonita Drive, Winter Park, Florida. Inside the bag your Affiant found personal papers belonging to Nord Bower Newman, also located in the bag by your Affiant was a small amount of marijuana seeds. On 08/18/81 your Affiant again requested that the garbage from nine-zero-one (901) Bonita Drive be picked up. On 08/18/81 several minutes before the garbage was picked up your Affiant observed the garage door open up and a yellow Mustang with a convertible top back out of the drive way. Your Affiant then ran a computer check on the tag number GYF 722, the tag came back to a Nord B. Newman, address nine-zero-one (901) Bonita Drive, Winter Park, Orange County, Florida. On 08/25/81 at 7:00 A.M., I, Detective Barber observed a white male open the garage door of nine-zero-one (901) Bonita Drive walk out and place two plastic trash cans out on the curb. At approximately 9:00 A.M. after the white male left the residence I, Detective Barber along with Officer Crampton picked up the two plastic trash cans and emptied them into a City truck. Upon arrival at the City garage your Affiant found Cannabis seeds. These seeds were placed into a clear plastic bag and sealed. A Becton Dickinson test was performed by this Detective with positive results. The Cannabis seeds will be sent to the crime lab for analysis. Your Affiant has probable cause to believe and does believe, based on information received from a confidential source and personal observation made by Affiant and Officer Crampton that one or more of the occupants of nine-zero-one (901) Bonita Drive, Winter Park, Orange County, Florida is in possession of a controlled substance to wit: Cannabis which is in violation of Florida State Statute 893.13.
Whether an affidavit based primarily on the evidence found in the defendant's trash may be sufficient to support a finding of probable cause does not appear to have been addressed in Florida.
We have, however, reviewed several federal cases in which the supporting affidavits were based, in part, on evidence found in the defendant's trash. For example, in United States v. Dzialak, 441 F.2d 212 (2d Cir. (1971), cert. denied, 404 U.S. 883, 92 S.Ct. 218, 30 L.Ed.2d 165 (1971), the defendant Dzialak, a driver...
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Pilieci v. State
...language "abuse of discretion" in this context is the Fifth District's opinion in Price, 564 So.2d at 1241. Price cited State v. Jacobs, 437 So.2d 166 (Fla. 5th DCA 1983), to support this standard of review. Jacobs, however, did not utilize the "abuse of discretion" language adopted in Pric......
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State v. Sinapi, COA03-821.
...United States v. Shelby, 573 F.2d 971 (7th Cir.1978), cert. denied, 439 U.S. 841, 99 S.Ct. 132, 58 L.Ed.2d 139 (1978); State v. Jacobs, 437 So.2d 166 (Fla.App.1983), pet. dismissed, 441 So.2d 632 (1983); State v. Kyles, 513 So.2d 265 (La.1987), cert. denied, 486 U.S. 1027, 108 S.Ct. 2005, 1......
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United States v. Morales, 19-11934
...turning up marijuana in the trash might be a fluke, two indicate a trend." Leonard, 884 F.3d at 734 ; compare State v. Jacobs, 437 So. 2d 166, 168 (Fla. Dist. Ct. App. 1983) ("The fact that marijuana and cannabis seeds were found on two separate occasions within one month's time suggests a ......
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State v. Charles, No. COA03-821 (N.C. App. 5/4/2004)
...Cir. 1986); United States v. Shelby, 573 F.2d 971 (7th Cir. 1978), cert. denied, 439 U.S. 841, 58 L. Ed. 2d 139 (1978); State v. Jacobs, 437 So. 2d 166 (Fla. App. 1983), pet. dismissed, 441 So. 2d 632 (1983); State v. Kyles, 513 So. 2d 265 (La. 1987), cert. denied, 486 U.S. 1027, 100 L. Ed.......