State v. Malone, S--493

• Decision Date: 15 January 1974
• Docket Number: No. S--493,S--493
• Citation: 288 So.2d 549
• Parties: STATE of Florida, Appellant, v. James Curtis MALONE, Appellee.
• Court: Florida District Court of Appeals

Page 549

288 So.2d 549

STATE of Florida, Appellant, v. James Curtis MALONE, Appellee.

No. S--493.

District Court of Appeal of Florida, First District.

Jan. 15, 1974.

Rehearing Denied Feb. 15, 1974.

Donald Nichols, State's Atty., Richard G. Rumrell, Roger D. Merriam, Asst. State's Attys., and Robert L. Shevin, Atty. Gen., for appellant.

Louis O. Frost, Jr., Public Defender, John Southwood, Chief Asst. Public Defender, and James O. Brecher, Asst. Public Defender, for appellee.

SPECTOR, Judge.

James Curtis Malone was charged in Duval County, Florida, with first degree murder in two counts. The information alleged in one count that he killed one Wilbur Jones by stabbing, striking and beating him to death with an ice pick and an axe. The other count charged that he killed one Blanche Jones by striking and beating her to death with an axe.

In due course, a search warrant was procured by the State for Malone's residence. Following its execution, Malone moved to suppress the evidence seized pursuant thereto on the ground that the affidavit upon which the warrant was based was insufficient. The trial court granted the motion and this appeal ensued.

The affidavit made in support of the warrant reads as follows:

'Affiant's reasons for belief are as follows:

'James Curtis Malone, who is known to occupy the above described room 44, is presently in custody charged with the crimes of robbery and murder. The victim of the aforesaid crimes had in his custody prior to his death the abovementioned described items of property. After the commission of the crimes, these items could not be located. The evidence shows that the aforementioned James Curtis Malone's fingerprints were at the scene of the robbery-murder and the said fingerprints found form the basis for the charges against him. It is believed that the above-described property is located among his belongings in the above-described room 44. It is this affiant's belief that since the above-described room 44 is the residence of the said James Curtis Malone and that he did not have the above described property in his possession at the time of his arrest, that the said property could be at his residence.'

The question presented for decision is whether the foregoing affidavit contains sufficient information to show probable cause for the issuance of the search warrant. Counsel for both parties are in agreement that Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), stand for the principle that an affidavit in support of a search warrant must contain information which is sufficient for the magistrate to determine probable cause. To be sufficient the affidavit must state Facts, not Conclusions. Both federal and state constitutions make the same demand--search warrants must be supported by affidavits which state sufficient facts to permit an impartial magistrate to determine whether probable cause exists. Florida Statutes, Section 933.18, F.S.A., provides a like requisite.

In its order of suppression, the trial court relied heavily on Gelis v. State, 249 So.2d 509 (Fla.App.1971), wherein the court held that the following affidavit (in material part) was insufficient to fulfill the legal requirement that it must state facts giving rise to probable cause or establishing the grounds for the application for a search warrant, viz:

'(The defendant) has been arrested for B&E and Grand Larceny of said personal property based on known incriminating facts and and (sic) evidence in possession of affiant, wearing apparrel (sic) and other evidence used in connection with the commission of said crime has not been recovered and is believed to be at above premises.'

The exact ruling of the Gelis court was that the affidavit did not 'set forth the facts on which such reason or belief is based.' (At page 510.) We cannot agree with...