State v. Paige

• Decision Date: 21 July 2006
• Docket Number: No. 5D05-2737.,5D05-2737.
• Citation: 934 So.2d 595
• Parties: STATE of Florida, Appellant, v. Cornelius D. PAIGE, Appellee.
• Court: Florida District Court of Appeals

934 So.2d 595

STATE of Florida, Appellant, v. Cornelius D. PAIGE, Appellee.

No. 5D05-2737.

District Court of Appeal of Florida, Fifth District.

July 21, 2006.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Appellant.

James S. Purdy, Public Defender, and Tomislav David Golik, Assistant Public Defender, Daytona Beach, for Appellee.

SHARP, W., Senior Judge.

The state appeals from an order which granted Paige's motion to suppress evidence seized pursuant to a search warrant. The trial court concluded the information in the affidavit was stale and otherwise insufficient to establish probable cause to issue the warrant. We respectfully disagree and reverse.¹

On October 8, 2003, law enforcement officers searched a residence at 350 Isabella Drive in Longwood pursuant to a warrant. Items seized from the residence included a kilogram of cocaine, packaging for cocaine, cannabis, a .357 Ruger revolver, ammunition (.9mm and .357 caliber) and drug paraphernalia.

Francheska Ward, one of the occupants of the residence, told officers she lived there with her boyfriend, Paige. Ward implicated Paige in the business of selling drugs.

Paige was charged with trafficking in cocaine (400 grams or more but less than 150 kilograms), possession of a firearm by a convicted felon, possession of not more than 20 grams of cannabis and use or possession of drug paraphernalia. Paige moved to suppress the evidence on the basis that the affidavit in support of the warrant was insufficient and based on stale information. The trial court agreed and suppressed the evidence.

In determining whether probable cause exists to justify a search, the trial court must make a judgment, based on the totality of the circumstances, as to whether, from the information contained in the warrant, there is a reasonable probability that contraband will be found at a particular place and time. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). As the Court in Gates explained:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing]" that probable cause existed.

462 U.S. at 238-239, 103 S.Ct. 2317.

Whether the state established probable cause prior to obtaining a search warrant is a question of law subject to de novo review. Pagan v. State, 830 So.2d 792 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); Martin v. State, 906 So.2d 358 (Fla. 5th DCA 2005). Thus this court looks only at the four corners of the affidavit to determine if, based on the totality of the circumstances and a common sense assessment, probable cause is shown. Id.²

Here the affidavit presented sufficient information to show a fair probability that contraband would be found at the residence. Briefly summarized, the affidavit stated the following:

— The home was the residence of Yvonda Brown, John Davis, Debra Sadler and Francheska Ward.

— The affiant, Seminole County Deputy Sheriff Chris Stronko, has been in law enforcement since 1996, satisfied the required Police Standards and Training Program in 1995, completed a 40 hour training course in Narcotics Identification and Investigation in 1999, attended the Federal Law Enforcement Training Center, Criminal Investigator Training Program, which included a 40 hour training on Narcotics Identification and Clandestine Drug Labs, and has conducted and assisted in numerous controlled substance investigations.

— In mid-July 2003, Stronko received information from Longwood police from a concerned citizen who wished to remain confidential regarding possible drug sales from the residence. The concerned citizen reported unusual amounts of short stay vehicular and pedestrian traffic and witnessed people placing trash bags in the passenger vehicles and removing trash bags from the residence.

— The regular trash pick-up days for the residence are Tuesdays and Fridays. Stronko went to the residence on Tuesday, July 29, 2003, Friday, August 8, 2003, and Tuesday, August 12, 2003 to collect refuse but no trash had been placed curbside on any of those days.

— It was common for persons engaged in the use and/or sale of controlled substances not to put their trash out for collection in an effort to hinder law enforcement.

— On August 26, 2003, Stronko saw about 20 black trash bags put out for refuse collection. Stronko removed 8 bags for inspection.

— The bags contained suspect cannabis, one suspect empty kilogram cocaine package, containing a large amount of suspect cocaine residue, and mail addressed to Yvonda Brown, John Davis, Debra Sadler and Francheska Ward at the address.

— Field presumptive tests indicated positive results for the suspect cannabis and cocaine.

— The empty cocaine package had an outer wrapper of brown paper heavily taped on both the inner and outer surface with packing tape. The outer layer appeared to be opened in a very delicate manner (sectioned in four quadrants opening from the middle). This is a common method for opening a kilogram cocaine package where possible spillage of the contents could occur.

— The next layer consisted of a heavy layer of plastic wrap taped with packing tape. The third layer consisted of plastic wrap smeared with petroleum based automotive grease. The use of grease or other items to mask the scent of illegal drugs is very common among drug traffickers to avoid detection by canines trained to detect illegal drugs by scent. The final layer consisted of some form of rubber and heavy plastic wrap.

— Through his training and experience, it was common knowledge that cocaine, as packaged in the empty kilogram package, was not indicative of personal use or consumption.

— Cocaine in the kilogram amount is normally reduced to smaller quantities from the kilogram weight, then multiplied with cutting agents and distributed for street level sales in ounce and gram quantities.

— On August 27, 2003, Judge Eaton signed a search warrant based on the above facts.

— Law enforcement decided to conduct surveillance of the residence in an effort to develop intelligence regarding a possible distribution network related to the quantity of cocaine discovered in the original investigation.

— On September 3, 2003, at about 1:15 pm, agents observed Anthony Mays leave the residence in a 2000 Chrysler Concorde and go to the Oviedo area. At about 3:00 pm, agents observed Elton Paige leave the residence in a 1999 Ford Mustang. Agents followed him to a middle school.

— On September 4, 2003, at about 2:05 pm, Francheska Ward and an unknown black female arrived at the residence. About an hour and 10 minutes later, Ward left the residence and went to Gore Avenue and Parramore Street. Due to counter-surveillance in the neighborhood, surveillance on Ward was terminated.

— On September 5, 2003, at about 10:49 am, a Gold Buick arrived at the residence with Ward, Elton Paige and Cornelius Paige. All three went into the house and then returned to the Buick. Agents followed them to the intersection of SR434 and 17/92 where they arranged for Longwood police to conduct a traffic stop. One of the police officers smelled the strong odor of burnt cannabis. The vehicle went to a subdivision for a short period of time and left. The vehicle started to drive erratically and surveillance was terminated.

— On September 8, 2003, at about 10:35 am, agents observed Elton Paige put trash outside the residence. At about 3:00 pm, agents observed an unknown older black male carrying a white plastic bag leave the residence on a bicycle. Agents followed him to the East Altamonte area. The man returned to the residence without the white plastic bag.

— On September 9, 2003, at about 7:00 pm, agents followed a black male (later identified as Earley Lee Cooper) in a gold Buick, which had been parked in the driveway of the residence, to the intersection of Jackson and Oak Streets in the East Altamonte area. The man met Rodney Florence at an apartment there.

— On September 10, 2003, at about 11:16 am, agents observed an unknown black female exit the residence with a white plastic bag and leave the area on a bicycle. Agents followed her to the East Altamonte Springs area. Surveillance was discontinued when the woman entered the Jackson Street area.

At about 12:05 pm, agents observed Cornelius Paige arrive at the residence in a 2003 Cadillac. A few minutes later, Ward arrived. At about 12:28 pm, Paige left the residence and was seen talking on his cell phone. Agents followed Paige to the Orlando area but surveillance was terminated because of Paige's erratic driving.

At about 9:00 pm, Cooper left the residence on a bicycle. Marked units stopped Cooper who gave his address as the Isabella residence.

— On September 12, 2003, at about 9:20 am, Mays arrived at the residence. Cooper opened the door and the two had a brief conversation. Mays then left the area.

— On September 15, 2003, at about 1:25 pm, Ward and Paige arrived at the residence in the Cadillac. About 20 minutes later, Cooper left the residence, got into the Cadillac and left the area. About 20 minutes later, Cooper returned to the residence in the Cadillac. About 35 minutes later, a tall thin black male left the residence. Ward and Paige left the residence in the Cadillac at about 3:20 pm.

— On September 24, 2003, agents executed a search warrant at the Oak Street apartment where Cooper had met with Florence on September 9th. The search yielded 16.5 grams of suspect crack cocaine and 55.5 grams of suspect cannabis.

— The East Altamonte community is a designated federal "Weed and Seed" prosecution area well known for street level...