State v. McGill

• Decision Date: 08 November 2013
• Docket Number: No. 5D13–1895.,5D13–1895.
• Citation: 125 So.3d 343
• Parties: STATE of Florida, Appellant, v. Christopher James McGILL, Appellee.
• Court: Florida District Court of Appeals

125 So.3d 343

STATE of Florida, Appellant,
v.
Christopher James McGILL, Appellee.

No. 5D13–1895.

District Court of Appeal of Florida,
Fifth District.

Nov. 8, 2013.

[125 So.3d 346]

Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Appellant.

Daniel S. Ciener of The Law Firm of Ciener & Ciener, Merritt Island, for Appellee.

PER CURIAM.

The State of Florida appeals from an order granting Christopher McGill's motion to suppress evidence seized from his home pursuant to a search warrant. On appeal, the State argues that the trial court erred: (1) in finding that the affidavit in support of the search warrant did not contain sufficient facts to establish probable cause to issue the warrant; and (2) in ruling that the good faith exception to the exclusionary rule did not apply in this case. We agree and reverse.

On August 18, 2011, Deputy Stephen Dishong of the Brevard County Sheriff's Office submitted an affidavit requesting a search warrant for McGill's home, alleging that he had reason to believe cannabis was being used or kept on the premises. The affidavit alleged the following pertinent facts: In July 2011, a confidential informant (“CI”) identified McGill as a mid- to high-level cannabis dealer “who sells multiple pounds of cannabis on a daily routine from his residence....” The CI told Deputy Dishong that McGill left his residence in his personal vehicle and traveled to an unknown location to pick up and transport multiple pounds of cannabis from his cannabis supplier “on a daily routine.” In addition, the CI had observed approximately fifty pounds of cannabis and approximately

[125 So.3d 347]

$20,000 inside McGill's home. Based on the information obtained from the CI, Deputy Dishong and Agent Beuer began conducting surveillance at McGill's residence in July 2011. After approximately ten minutes of surveillance, they observed a vehicle arrive at the residence. The occupant of the vehicle entered McGill's home, where he stayed for about ten minutes; he then exited the residence and left the area. Another deputy conducted a traffic stop of that vehicle and, upon approaching the driver's door, immediately smelled “the distinct odor of fresh cannabis.” A quarter pound of cannabis was found in the occupant's waistband. The occupant advised the deputy that he “purchases approximately a quarter pound to a full pound of cannabis from [McGill] on a routine bas[i]s.” The occupant further advised that he “has never known [McGill] to have a shortage of supply of cannabis and believes that he possesses multiple pounds of cannabis in his residence on a routine basis.” The affidavit noted that the information obtained during the traffic stop “further corroborates the reliability of the confidential informant.”

The affidavit further alleged that on August 10, 2011, the Brevard County Sheriff's Office Special Investigation Unit and Deputy Dishong received information from “a confidential source” that a man named Timothy Michael Calderone was going to be at McGill's residence to purchase approximately two pounds of cannabis. While conducting surveillance of McGill's house that day, a vehicle was observed arriving at McGill's residence. The occupant, later determined to be Calderone, went inside for approximately thirty-five minutes and then left. Deputy Mark Myers conducted a traffic stop and smelled cannabis upon approaching the vehicle. A K–9 officer also gave a positive alert as to the presence of drugs. A search of the vehicle revealed approximately two pounds of cannabis. Although Calderone was unemployed, the deputy found $1,250 in cash on his person, which he believed supported his theory that Calderone was a street-level drug dealer. Once again, the affidavit noted that “this information further corroborates the reliability of the confidential informant.” Lastly, the affidavit set forth McGill's criminal history, which included a charge for possession of paraphernalia in 2005 and three charges for possession of less than twenty grams of cannabis in 2006, 2007, and 2010.

Based on the facts set forth in the affidavit, the magistrate issued a warrant to search McGill's home for evidence of possession or sale of cannabis. Upon execution of the search warrant, one to two pounds of cannabis were seized from McGill's residence, and he was subsequently arrested.

The State charged McGill with one count of possession of a controlled substance with intent to sell or deliver. McGill moved to suppress the evidence seized pursuant to the warrant, arguing, in pertinent part, that the affidavit in support of the warrant did not contain sufficient facts to establish probable cause to issue the warrant.

During a hearing on the motion, the trial court found that it could not consider the statement that the CI had observed fifty pounds of cannabis and $20,000 in McGill's home because the affidavit did not provide the date on which the CI made that observation. The trial court explained, “I cannot find that statement reliable. I don't know if that was this year, last year....” As to the first traffic stop conducted pursuant to the surveillance of McGill's home, the trial court noted that the car occupant did not specifically state that he obtained the cannabis found on his person from McGill that day. The court acknowledged

[125 So.3d 348]

that the occupant said that he purchases cannabis from McGill on a “routine basis,” but stated, “I don't know what ‘routine basis' means. It could mean ... every six months, or routine basis to someone else could mean every three days.” Thus, the trial court concluded that it could not rely on the information obtained during the first traffic stop in making its ruling. The trial court found that the information obtained during the second traffic stop was reliable because the CI had accurately predicted that Calderone would go to McGill's home to purchase two pounds of cannabis. The trial court ultimately ruled, however, that the information set forth in the affidavit did not provide probable cause for the issuance of the search warrant and that the good faith exception to the exclusionary rule did not apply. This timely appeal followed.

On appeal, the State argues that the trial court erred in finding that the affidavit did not provide probable cause to believe that cannabis would be found in McGill's house. McGill has chosen not to file an answer brief in this appeal.

We review the trial court's determination of the legal issue of probable cause de novo.¹Pagan v. State, 830 So.2d 792, 806 (Fla.2002). Limiting our inquiry to “the four corners of the affidavit,” we must determine whether, “based on the totality of the circumstances and a common sense assessment, probable cause is shown.” State v. Paige, 934 So.2d 595, 597 (Fla. 5th DCA 2006). “The magistrate's decision must be upheld unless there was no substantial basis for concluding that probable cause existed.” State v. Howard, 666 So.2d 592, 594 (Fla. 4th DCA 1996) (citing Schmitt v. State, 563 So.2d 1095, 1098 (Fla. 4th DCA 1990)).

To establish probable cause for issuance of a search warrant, a supporting affidavit must set forth facts establishing two elements: (1) the commission element—that a particular person has committed a crime, and (2) the nexus element—that evidence relevant to the probable criminality is likely to be located in the place to be searched. State v. Felix, 942 So.2d 5, 9 (Fla. 5th DCA 2006). To satisfy the nexus element, the affidavit must establish the particular time when the illegal activity that is the subject of the warrant was observed. Id. This court elaborated on this rule as follows:

A magistrate is required to know this specific time because the length of time between the activity and the date of issuance bears on whether there is probable cause to believe that the items to be seized will still be found at the place to be searched. The longer the time period, the...