State v. Peterson

• Decision Date: 17 June 1999
• Docket Number: No. 92,692.,92,692.
• Citation: 739 So.2d 561
• Parties: STATE of Florida, Petitioner, v. William E. PETERSON, Respondent.
• Court: Florida Supreme Court

739 So.2d 561

STATE of Florida, Petitioner, v. William E. PETERSON, Respondent.

No. 92,692.

Supreme Court of Florida.

June 17, 1999.

Rehearing Denied September 13, 1999.

Robert A. Butterworth, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, Florida, for Petitioner.

Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Respondent.

HARDING, C.J.

We have for review a district court decision on the following question certified to be of great public importance:

WHETHER AN AFFIANT OFFICER'S ASSERTIONS IN A SEARCH WARRANT AFFIDAVIT TO THE EFFECT THAT A CONFIDENTIAL INFORMANT HAS PROVIDED ACCURATE AND TRUE INFORMATION TO LAW ENFORCEMENT ON AT LEAST TWENTY OCCASIONS IN THE PAST REGARDING ILLEGAL CRIMINAL ACTIVITIES LEADING TO SUCCESSFUL ARRESTS AND CRIMINAL PROPERTY SEIZURES, TOGETHER WITH SUPPRESSION HEARING TESTIMONY FROM THAT OFFICER TO THE EFFECT THAT HE HAD PERSONAL KNOWLEDGE OF THE RELIABILITY OF THE CONFIDENTIAL INFORMANT WHEN HE BOTH SWORE OUT THE SEARCH WARRANT AFFIDAVIT AND WHEN HE HELPED EXECUTE THE SEARCH WARRANT, CAN SUPPORT A FINING THAT AN OFFICER IN THE AFFIANT/EXECUTING OFFICER'S POSITION COULD HAVE RELIED IN GOOD FAITH ON THE RESULTING SEARCH WARRANT AND THAT SUCH RELIANCE WOULD HAVE BEEN OBJECTIVELY REASONABLE FOR PURPOSES OF ESTABLISHING THE GOOD FAITH EXCEPTION TO THE EXCLUSIONARY RULE ANNOUNCED IN UNITED STATES V. LEON, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

Peterson v. State, 706 So.2d 936, 940 (Fla. 1st DCA 1998). We have jurisdiction pursuant to article V, section 3(b)(4) of the Florida Constitution. For the reasons expressed below, we decline to answer the certified question because we find that the affidavit in support of the search warrant in this case was valid on its face.

William Peterson was convicted of various drug offenses following the denial of his motion to suppress the narcotics seized from his residence pursuant to a search warrant. The facts surrounding the search are as follows:

In June 1996, Officer Greg Ne[S]mith of the Escambia County Sheriff's Department submitted an affidavit for a search warrant to an Escambia County judge for the premises known as 3005 West Desoto Street located in Escambia County, Florida. Officer Ne[S]mith alleged in his affidavit that the referenced premises were "occupied by or under the control of white male Jorge McCormick, and or persons unknown to your affiant" and that he believed, based on his qualifications as a narcotics investigator and information given to him by a confidential informant, that marijuana, LSD, drug paraphernalia, and evidence of drug sales would be found at the premises. Officer Ne[S]mith set forth the following assertions in his affidavit regarding the information obtained from the confidential informant:

Your affiant was contacted by a reliable confidential informant, hereafter referred to as RCI. The RCI has provided information to law enforcement on at least twenty occasions regarding illegal criminal activities occurring in Escambia County, Florida that has proven to be accurate and true. The RCI stated that the RCI has observed marijuana on at least 100 occasions and the RCI is familiar with its physical appearance and smell. The RCI is responsible for the arrest of four individuals and the seizure of $400.00 in illegal controlled substances. The RCI stated within the past ten days, the RCI was inside the above described location and observed Jorge McCormick in possession of a large quantity of marijuana. The RCI stated that Jorge McCormick lives at the above described location. The RCI stated that the RCI did observe ¼ to ½ pound of marijuana packaged for distribution. This is consistent with the quantities kept by distributors of marijuana. The RCI stated that the RCI has on several occasions observed Jorge McCormick within the past six months in possession of large quantities of marijuana. The RCI also stated to your affiant that the RCI has observed Jorge McCormick within the past 15 days in possession of a quantity of Acid (Lysergic acid diethylamide, LSD).

Your affiant caused a criminal history inquiry to be conducted on Jorge McCormick. The criminal history inquiry revealed that Jorge McCormick has been arrested for possession with intent to distribute dangerous drugs to wit, Acid in 1989. Jorge McCormick was also arrested for possession with intent to distribute marijuana and LSD in 1991. In 1995 Jorge McCormick was arrested for possession of marijuana.

A subsequent search pursuant to the warrant, executed by Officer Ne[S]mith and other members of the Escambia County Sheriffs Department, resulted in the seizure of assorted drugs and drug paraphernalia.

Appellant challenged the search in a motion to suppress on grounds that the search warrant affidavit submitted by Officer Ne[S]mith had been fatally defective in that it had failed to set forth either facts from which a magistrate could have found that Officer Ne[S]mith had personal knowledge of the confidential informant's reliability or facts from an independent source which corroborated the reliability of the confidential informant's information. Appellant further argued in his motion that these defects in the affidavit precluded application of the good-faith exception to the exclusionary rule since no reasonable law enforcement officer would have in good faith executed such a warrant based on a defective affidavit.

At the suppression hearing, Officer Ne[S]mith testified that the confidential informant referred to in the affidavit had personally provided reliable information about illegal drug activity to him on at least ten occasions in the past and that he had been told by other members of the Escambia County Sheriffs Department that this same confidential informant had also provided them with reliable information about illegal drug activity on at least ten occasions in the past. The trial court orally denied the motion to suppress finding that the affidavit had been legally sufficient to support a finding of probable cause and that, even assuming its legal insufficiency, the good faith exception to the exclusionary rule applied.

Peterson, 706 So.2d at 937-38. On appeal, the district court reversed the convictions, holding that the search warrant was invalid on its face. The district court also held that the "good faith" exception articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), was inapplicable to this case.

The "good faith" exception becomes applicable only upon finding that the affidavit for a search warrant was insufficient to establish probable cause. Therefore, we begin our analysis in this case by assessing the validity of Officer NeSmith's affidavit. This Court is bound to follow the opinions of the United States Supreme Court concerning Fourth Amendment search and seizure issues. See Bernie v. State, 524 So.2d 988, 990-91 (Fla.1988)

. In determining whether probable cause exists to justify a search, the Supreme Court has held that the trial court must make a judgment, based on the "totality of the circumstances," as to whether the information given indicates a reasonable probability that contraband will be found at a particular place and time. See Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See also McCall v. State, 684 So.2d 260, 262 (Fla. 4th DCA 1996). The Gates Court stated:

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.

Gates, 462 U.S. at 238-39, 103 S.Ct. 2317.

Hearsay information provided by a confidential informant can be sufficient to support a search warrant, see State v. Wolff, 310 So.2d 729, 733 (Fla.1975),

provided the affidavit satisfies the Gates test. See State v. Butler, 655 So.2d 1123, 1126-30 (Fla.1995). "Veracity" and "basis of knowledge" are among the factors to be considered in assessing the reliability of an informant's information. See Vasquez v. State, 491 So.2d 297, 299 (Fla. 3d DCA 1986). The affidavit in this case adequately demonstrated the informant's basis of knowledge and that issue is not disputed on appeal. The question before this Court is whether the affidavit sufficiently established the informant's veracity. The district court, relying on its own previous decisions, stated that "a search warrant affidavit based on information obtained from a confidential informant must set forth either facts indicating that the affiant has personal knowledge of the confidential informant's reliability or facts from an independent source which corroborate the reliability of the confidential informant." Peterson, 706 So.2d at 938 (citing McNeely v. State, 690 So.2d 1337, 1339 (Fla. 1st DCA 1997); Smith v. State, 637 So.2d 351, 352-353 (Fla. 1st DCA 1994); and St. Angelo v. State, 532 So.2d 1346, 1347 (Fla. 1st DCA 1988)). See also Boyle v. State, 669 So.2d 330, 331-32 (Fla. 4th DCA 1996); Fellows v. State, 612 So.2d 686, 687 (Fla. 2d DCA 1993).

Officer NeSmith stated in his affidavit that the informant "has provided information to law enforcement on at least twenty occasions regarding illegal criminal activities occurring in Escambia County, Florida that has proven to be accurate and true." Generally, this level of previous contact is sufficient to establish veracity. See Butler, 655 So.2d at 1130

(stating that informant's veracity was "unquestioned" where the informant had provided information on at least twenty occasions, with 60% to 70% of the tips resulting in felony arrests)....