State v. Lewis
| Decision Date | 27 June 1969 |
| Docket Number | 68--476,Nos. 68--475,s. 68--475 |
| Citation | 225 So.2d 170 |
| Parties | STATE of Florida, Appellant, v. Anna Lee LEWIS, Appellee. STATE of Florida, Appellant, v. Willie LEWIS, Appellee. |
| Court | Florida District Court of Appeals |
Earl Faircloth, Atty. Gen., Tallahassee, William D. Roth, Asst. Atty. Gen., Lakeland, for appellant.
Robert E. Pyle, Lake Alfred, for appellees.
Appellant appeals from an order of the trial judge granting appellees' motions to suppress evidence seized during a search conducted pursuant to a search warrant. The judge ruled that this warrant was invalid. These cases have been consolidated on appeal because the same search warrant is involved in each.
The affidavit upon which the search warrant issued was executed by a deputy sheriff of Polk County. It stated that the affiant had reason to believe that a lottery was being conducted at address to be searched. This belief was based upon 'information from a reliable and trustworthy confidential informant, who has given information in the past (concerning lottery law violations) that have (sic) proven to be true * * *' This unidentified informant's information that the premises were being used to sell interests in a lottery was based upon the fact that the informant himself had (1) purchased an interest in a lottery at that address, and that he had (2) personally observed other people buying such interests on 'numerous occasions.' The trial judge held that the search warrant issued pursuant to this affidavit was invalid and cited Borrego v. State, Fla.1952, 62 So.2d 43; White v. State, Fla.1950, 47 So.2d 863; and Shaw v. State, Fla.1951, 53 So.2d 772, as authority.
The rule applied in each of those cases was that the affidavit must 'state facts or sufficient reasons upon which the officer believed, or had reason to believe, that the laws were being violated by the (defendant).' White v. State, Fla.1950, 47 So.2d 864. In applying this test we arrive at a different result than the trial judge reached in this case and must reverse.
Before comparing these cases with the instant case, we note that an affidavit based upon information received from a reliable confidential informant is proper. Harrington v. State, Fla.App.1959, 110 So.2d 495, appeal dismissed, Fla.1959, 113 So.2d 231. In fact, such an affidavit need not even allege that the informant is a reliable source. Ludwig v. State, Fla.App.1968, 215 So.2d 898. In the present case the affiant did allege the reliability of the informant and tendered this as the factual bases for his belief that the building was being used for unlawful purposes.
Furthermore, we note that the rule set forth in the Borrego case, supra, to the effect that the factual basis for the affiant's belief must possess evidential quality sufficient to render it admissible into evidence at a trial of the cause, was expressly receded from in Perez v. State, Fla.1955, 81 So.2d 201. That case demonstrates that the test to be applied is not the test of admissibility into evidence, but is whether a prudent man, knowing all the facts which the affiant knows, would conclude that the building was being used for lottery purposes. See Paula v. State, Fla.App.1966, 188 So.2d 388.
In the Borrego, White, and Shaw cases, supra, the affiant's belief that the laws were being violated was based upon either a personal 'investigation,' 'information' based upon another person's investigation, the 'belief' of the affiant, or other equally conclusory data. No genuine underlying circumstances for these beliefs were ever stated.
In the present case, however, the affiant's conclusion that the premises were being used for lottery purposes was based upon information from an allegedly reliable informant, which in turn was based upon the direct and personal actions of the informant with regard to the alleged lottery operations. Thus the underlying factual circumstances necessary to support the affiant's belief were present in the affidavit. There is no doubt that a reasonable man, when confronted with the above factual allegations, would conclude that probable cause existed to support issuance of the search warrant.
Reversed and remanded.
I recognize the august authority upon which the majority opinion is bottomed, 1 and I am aware of the chains of stare decisis which bind me. But I have never agreed with the theory that search warrants may issue solely on hearsay evidence and, since my recent ascendency to the appellate bench, this is my first opportunity to say so. I pray, then, that I be forgiven this extravagance, and will hereafter forever hold my peace.
The 4th Amendment to the Constitution of the United States, and its companion provisions in the constitutions of the various states, 2 requires that 'probable cause' for a search warrant be supported by 'oath or affirmation'. This is an obvious safeguard against one who might arbitrarily or maliciously seek to invade the privacy of another. If the procedure approved by the majority opinion remains the law, (and it's but a late innovation in the history of searches and seizures), 3 the affiant could never be responsible, under pain or perjury, for the falsity of the 'underlying facts' which give rise to probable cause. He merely swears that the informant is, to him, reliable and that said informant related to him the hearsay in question. Obviously the truth or falsity of these statements is immaterial to the truth or falsity of the 'underlying facts', and they constitute no more than an assertion under oath that the affiant believes his informant. How does this support 'probable cause' by 'oath'? Surely the issuing magistrate himself would be without authority to issue the warrant solely on such unsworn information from the informant; and I submit that the affiant's oath to the effect that he believes his informant cannot, by some alchemistical metamorphosis, transform the informant's story into sworn testimony or the equivalent thereof.
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Suiero v. State
...173 So.2d 708; see also 2 Fla.Jur., Appeals §§ 207, 224.2 See also Paula v. State, Fla.App.1966, 188 So.2d 388, and State v. Lewis, Fla.App.1969, 225 So.2d 170. ...
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Pesce v. State
...reasons upon which the officer believed or had reason to believe that the laws were being violated by the defendant. State v. Lewis, Fla.App.1969, 225 So.2d 170; Paula v. State, Fla.App.1966, 188 So.2d 388; Suiero v. State, Fla.App.1971, 248 So.2d 219. An affidavit which is based upon infor......
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...to the premises to be searched. State v. Lemon, Fla.App.1968, 212 So.2d 322, 323. I would reverse on the authority of State v. Lewis, Fla.App.1969, 225 So.2d 170. ON PETITION FOR PER CURIAM. The petition for rehearing is granted and the order appealed from is reversed with directions to den......
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