State v. Moreno-Gonzalez, No. 3D08-1094.

CourtCourt of Appeal of Florida (US)
Writing for the CourtCortiñas
Citation18 So.3d 1180
PartiesThe STATE of Florida, Appellant, v. Alfredo MORENO-GONZALEZ, Appellee.
Decision Date30 September 2009
Docket NumberNo. 3D08-1094.
18 So.3d 1180
The STATE of Florida, Appellant,
v.
Alfredo MORENO-GONZALEZ, Appellee.
No. 3D08-1094.
District Court of Appeal of Florida, Third District.
September 30, 2009.
Rehearing Denied October 27, 2009.

Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellant.

Martin L. Roth, Fort Lauderdale, for appellee.

Before COPE, CORTIÑAS, and LAGOA, JJ.

CORTIÑAS, J.


We review a trial court order suppressing evidence on the ground that the officer did not sign the affidavit in support of the search warrant. Although the affidavit was not signed, it is undisputed that probable cause was shown by the officer swearing to the allegations in the affidavit under oath before the judge, initialing each of the pages of the affidavit, and also initialing

18 So.3d 1181

each of the three pages of the search warrant.

Article I of the Florida Constitution sets forth a declaration of certain rights. Among these is the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Art. I, § 12, Fla. Const. In order to protect this right, Article I, Section 12, of the Florida Constitution provides that:

No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.

Art. I, § 12, Fla. Const.

The sentence, requiring this right to "be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court," was added in a 1982 amendment to Article I, Section 12. The Commentary to this section details the history of the 1982 amendment as follows:

The exclusionary rule, which holds that evidence obtained in violation of a person's right to be secure against unreasonable searches and seizures is inadmissible as evidence, was recognized by Florida courts in 1927, Gildrie v. State, 94 Fla. 134, 113 So. 704 (1927), and was first placed in the state constitution in its 1968 revision.

From the mid-1970's to the early 1980's, federal courts began developing a good faith exception to the exclusionary rule such that evidence could be admitted when an officer reasonably and in good faith believed the search or seizure was lawful. See, e.g., Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979); United States v. Williams, 622 F.2d 830 (5th Cir.1980). In a series of state cases, Florida courts rejected the opportunity to adopt a good faith exception, finding that the citizens of Florida provided themselves with greater protection from governmental intrusion than that afforded by the federal constitution. State v. Sarmiento, 397 So.2d 643 (Fla.1981); Hoberman v. State, 400 So.2d 758 (Fla.1981). In response, the governor, attorney general, state prosecutors, and the law enforcement community supported a joint resolution in the 1982 Regular Session, which would have engrossed a good faith exception onto the constitutional exclusionary rule. Significant opposition precluded its passage in the regular session.

In Special Session H, the "conformity" language that was ultimately adopted was presented as a compromise and was approved for ballot placement. Opponents filed suit to enjoin the amendment from appearing on the ballot, asserting that the ballot summary was misleading and did not fully advise the electors of its effect. Grose v. Firestone, 422 So.2d 303 (Fla.1982). The Florida Supreme Court allowed the measure to remain on the ballot and it was adopted.

William A. Buzzett & Deborah K. Kearney, Commentary to 1982 Amendment, 25A, Fla. Stat. Ann., Art. I, § 12, Fla. Const. (2004).

Thus, prior to passage of the 1982 revisions to Article I, Section 12, Florida courts "were free to provide its citizens with a higher standard of protection from governmental intrusion than that afforded by the federal constitution." State v. Lavazzoli, 434 So.2d 321, 323 (Fla. 1983).

18 So.3d 1182

With this amendment, however, Florida courts became bound to follow the interpretations of the United States Supreme Court with relation to the Fourth Amendment, and provide no greater protection than those interpretations. See State v. Butler, 655 So.2d 1123, 1125 (Fla.1995) ("This Court is bound, on search and seizure issues, to follow the opinions of the United States Supreme Court regardless of whether the claim of an illegal arrest or search is predicated upon the provisions of the Florida or United States Constitutions.") (citations omitted); Bernie v. State, 524 So.2d 988, 992 (Fla.1988). Indeed, an exclusionary rule that was once constitutionally mandated in Florida can now be eliminated by judicial decision of the United States Supreme Court. Bernie, 524 So.2d at 990-91. We note that our Supreme Court has not addressed the post-1982 interplay of the above-quoted sentences in Article I, Section 12, where a search warrant was procured upon probable cause shown by an officer who swore to the allegations in the affidavit under oath before the judge, initialed each of the pages of the affidavit, and also initialed each of the three pages of the search warrant but did not sign the affidavit.

We are guided by the rule of statutory construction that all parts of a statute must be read together in order to achieve a consistent whole. Larimore v. State, 2 So.3d 101 (Fla.2008); Bush v. Holmes, 919 So.2d 392, 406-07 (Fla.2006); United Auto. Ins. Co. v. Salgado, ___ So.3d ___ (Fla. 3d DCA 2009). "Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another." Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992). While our colleague in dissent would have us exclusively focus our inquiry on the words "supported by affidavit," we are required to construe the right against unreasonable searches and seizures "in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court." Art. I, § 12, Fla. Const.

Our dissenting colleague inappropriately relies on State v. Tolmie, 421 So.2d 1087 (Fla. 4th DCA 1982), which was a 1982 case that was decided prior to the effective date of the 1982 amendment requiring Florida courts to follow the interpretations of the United States Supreme Court with relation to the Fourth Amendment. Unless otherwise stated, the effective date for an amendment to the Florida Constitution is the first Tuesday after the first Monday in January following the election. Art. XI, § 5(e), Fla. Const. Thus, Tolmie was decided prior to January 4, 1983, the effective date of the 1982 amendment, at a time that the Florida Constitution permitted Florida courts to more strictly interpret the Fourth Amendment and thus require that the failure to sign a search warrant affidavit was fatal. However, through a constitutional amendment approved by Florida voters, since January 4, 1983 to the present, that is no longer the law. Instead, as the Florida Supreme Court has held, "the 1982 amendment to article I, section 12, of the Florida Constitution brings this state's search and seizure laws into conformity with all decisions of the United States Supreme Court rendered before and subsequent to the adoption of that amendment...." Bernie v. State, 524 So.2d at 992.

The Fourth Amendment to the United States Constitution provides as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation,

18 So.3d 1183

and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const. amend. IV.

In construing the Fourth Amendment, the United States Supreme Court has stated that "courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner." United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); see United States v. Mendoza, 491 F.2d 534, 539 (5th Cir.1974). The Court has held that

T]he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.

Ventresca, 380 U.S. at 108, 85 S.Ct. 741 (emphasis added).

To argue that this holding is not binding on Florida courts after the approval of the 1982 amendment to our Constitution is to ignore the will of the people. The very first words of the Florida Constitution provide that "[a]ll political power is inherent in the people." Art. I, § 1, Fla. Const. The people have spoken and required that, under our Constitution, the right against unreasonable searches and seizure "shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court." Art. I, § 12, Fla. Const. Yet, our dissenting colleague would do precisely what the United States Supreme Court dictated should not be done, that is, invalidate the warrant by interpreting the affidavit in a "hypertechnical" manner despite the fact that the...

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3 practice notes
  • Moreno–gonzalez v. State , No. SC09–2163.
    • United States
    • United States State Supreme Court of Florida
    • July 7, 2011
    ...J. This case is before the Court for review of the decision of the Third District Court of Appeal in State v. Moreno–Gonzalez, 18 So.3d 1180 (Fla. 3d DCA 2009). The district court expressly construed a provision of the Florida Constitution and, therefore, we have jurisdiction. See art. V, §......
  • Germer v. Churchill Downs Mgmt., No. 3D14–2695.
    • United States
    • Court of Appeal of Florida (US)
    • September 7, 2016
    ...a whole, and interpret the specific provision consistent with the theme evidenced by its statutory structure. State v. Moreno–Gonzalez, 18 So.3d 1180, 1182 (Fla. 3d DCA 2009) (stating that courts are “guided by the rule of statutory construction that all parts of a statute must be read toge......
  • Germer v. Churchill Downs Mgmt., No. 3D14-2695
    • United States
    • Court of Appeal of Florida (US)
    • July 13, 2016
    ...a whole, and interpret the specific provision consistent with the theme evidenced by its statutory structure. State v. Moreno-Gonzalez, 18 So. 3d 1180, 1182 (Fla. 3d DCA 2009) (stating that courts are "guided by the rule of statutory construction that all parts of a statute must be rea......
3 cases
  • Moreno–gonzalez v. State , No. SC09–2163.
    • United States
    • United States State Supreme Court of Florida
    • July 7, 2011
    ...J. This case is before the Court for review of the decision of the Third District Court of Appeal in State v. Moreno–Gonzalez, 18 So.3d 1180 (Fla. 3d DCA 2009). The district court expressly construed a provision of the Florida Constitution and, therefore, we have jurisdiction. See art. V, §......
  • Germer v. Churchill Downs Mgmt., No. 3D14–2695.
    • United States
    • Court of Appeal of Florida (US)
    • September 7, 2016
    ...a whole, and interpret the specific provision consistent with the theme evidenced by its statutory structure. State v. Moreno–Gonzalez, 18 So.3d 1180, 1182 (Fla. 3d DCA 2009) (stating that courts are “guided by the rule of statutory construction that all parts of a statute must be read toge......
  • Germer v. Churchill Downs Mgmt., No. 3D14-2695
    • United States
    • Court of Appeal of Florida (US)
    • July 13, 2016
    ...a whole, and interpret the specific provision consistent with the theme evidenced by its statutory structure. State v. Moreno-Gonzalez, 18 So. 3d 1180, 1182 (Fla. 3d DCA 2009) (stating that courts are "guided by the rule of statutory construction that all parts of a statute must be rea......

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