State v. Novak

• Decision Date: 17 February 1987
• Docket Number: No. 86-1789,86-1789
• Citation: 502 So.2d 990,12 Fla. L. Weekly 551
• Parties: 12 Fla. L. Weekly 551 The STATE of Florida, Appellant, v. James Howard NOVAK, Appellee.
• Court: Florida District Court of Appeals

Page 990

502 So.2d 990

12 Fla. L. Weekly 551

The STATE of Florida, Appellant, v. James Howard NOVAK, Appellee.

No. 86-1789.

District Court of Appeal of Florida Third District.

Feb. 17, 1987.

Robert A. Butterworth, Atty. Gen., and Mark S. Dunn, Asst. Atty. Gen., for appellant.

Frank A. Rubino, Coconut Grove, for appellee.

Before BARKDULL and DANIEL S. PEARSON and JORGENSON, JJ.

DANIEL S. PEARSON, Judge.

The question on this appeal is whether, as the State contends, a warrant authorizing the search of certain premises is made valid by the mere fact that the police officer's affidavit, pursuant to which the warrant issued, identified the informant by name, notwithstanding that the affidavit, in all other pertinent parts, recounted only that the affiant was told by this sixteen-year-old, first-time informant that there was cocaine in the subject premises and contained no allegation whatsoever respecting the informant's veracity or that the information supplied had been corroborated in any way. As the question suggests, it is the State's theory that naming the informant in the affidavit is a circumstance which, by itself, enables the affidavit to pass muster under the binding totality of circumstances test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). As did the trial court, we reject the State's contention and affirm the order granting the defendant's motion to suppress.

I.

The defendant was arrested when City of Miami police officers found cocaine while executing a search warrant at his residence. The warrant was issued based on an affidavit of a City of Miami police officer who asserted that he had probable cause for believing that cocaine was to be found on the described premises because:

"Your affiant Detective Robert Fielder is a City of Miami Police Officer with more than ten (10) years of experience. Your affiant has had training and experience in undercover narcotics investigations and narcotics recognition.

"On Friday March 22nd 1985, your affiant met with Officer Bill Martin of the Coral Gables Police Department. Officer Martin introduced your affiant to a White Male name[d] D______ C______. ¹

"D______ C______ told your affiant that he was sixteen (16) years old and he is a student of Coral Gables High School. D______ C______ also told your affiant that he had knowledge regarding Cocaine dealing by a known drug dealer named Thomas Marrone.

"Your affiant and other members of the Miami Police Department and the Coral Gables Police Department have extensive files documenting Criminal Activity by Thomas Marrone. In November of 1984, Thomas Marrone was arrested by your affiant and other officers for the charge of trafficking in cocaine. After the arrest Thomas Marrone was used as a Confidential Informant in several large drug investigations.

"On December 14th 1984, your affiant and other officers met with Judge Harold Solomon in regards to requesting that Thomas Marrone received a sentence of probation in exchange for his cooperation and drug investigations. Judge Solomon placed Thomas Marrone on probation for a period of forty-two months with the special condition that he not have any involvement with juveniles or any illegal drugs.

"D______ C______ told your affiant that he has known Thomas Marrone for two (2) years, and that during the relationship C______ has received amounts of cocaine from Marrone at least seventy-five (75) times. C______ told your affiant that he was told by Marrone that "The Premises" is maintained for the purposes of storing and packaging of cocaine.

"C______ told your affiant that he last met with Marrone at "The Premises" on Sunday March 18th 1985, between the hours of 2:00 a.m., and 6:00 a.m. C______ told your affiant that at that time Marrone gave him approximately 8 grams of cocaine. C______ stated that he, Marrone and two (2) other males consumed a quantity of cocaine at "The Premises" at that time.

"C______ told your affiant that Marrone supplies the cocaine to him free of charge because he has worked for Marrone in the past in the capacity of a cocaine courier. C______ stated that while he was at "The Premises" Marrone showed him a large clear plastic bag that contained a kilogram of cocaine.

"C______ told your affiant that Marrone is a homosexual with the preference for teenage boys. C______ states that Marrone induces them by offering free cocaine.

"C______ has admitted to using cocaine in the past and is able to identify cocaine." ²

II.

The State argues that because the informant was identified by name, he became in the eyes of the law a so-called "citizen-informant," a status that relieved the State from supplying any information about the informant's veracity to the issuing magistrate. ³ Although there is considerable, if not unanimous, support for the proposition that the veracity of citizen-informants need not be substantiated, young C______, as is evident from the affidavit, could hardly be characterized as a citizen-informant despite being named in the affidavit. In deciding whether a search warrant affidavit contains probable cause, numerous cases have held that the still highly relevant inquiry about the informant's veracity, see Blue v. State, 441 So.2d 165 (Fla.3d DCA 1983), is satisfactorily answered by the mere showing that the informant is an ordinary citizen, an eyewitness, a disinterested bystander, or a victim of the crime. See W. LaFave, Search & Seizure § 3.4(a) (2d ed. 1987). The various justifications for the rule presuming the trustworthiness of this type of witness are that: the absence of a prior relationship between the witness and the accused makes remote a motive to falsely accuse; unlike the informant involved in the accused's "criminal milieu," the public-spirited citizen gives his information out of his interest in law enforcement, not out of vindictiveness against the accused or for concessions or payments; in the usual case, the information given concerns the identification of the perpetrator of a recently completed crime, where the reliability of the information can be promptly and readily ascertained; and, as a practical matter, the usual method of proving veracity used with professional informants--that is, past performance--is not available when the informant is a one-time, non-professional. Id. But an informant who, as C______, is intimately involved in the commission of the crime is a person said to be within "the criminal milieu" and is the antithesis of the disinterested, impartially-motivated citizen-informant. See State v. Kurland, 130 N.J.Super. 110, 325 A.2d 714 (App.Div.1974). See also United States v. Campbell, 732 F.2d 1017 (1st Cir.1984). Should it then make any difference that the affidavit tells us his name?

III.

The declaration in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), that an affidavit based solely on the hearsay report of an unidentified informant must set forth circumstances showing that the informant is credible, obviously does not mean that an affidavit based solely on the hearsay report of an identified informant need not set forth circumstances showing that the informant is credible.

"It does not follow ... that if the name of the person providing the information is disclosed, then he is by virtue of that fact alone properly characterized as a citizen-informer entitled to the presumption of reliability. 'That a person is named is not alone sufficient grounds on which to credit one factor which may be weighed in determining the sufficiency of an affidavit.' Thus, if the person giving the information to the police is identified by name but it appears that this person was a participant in the crime under investigation ... then the more strict rules regarding the showing of veracity applicable to an informer from the criminal milieu must be followed."

W. LaFave, Search & Seizure § 3.4(a), at 726-27 (footnotes omitted).

We think it clear in the present case that C______--according to the affidavit, an admitted long-standing courier and consumer of drugs on the premises to be searched--is not entitled to the presumption of reliability accorded to the citizen-informant. Although...