State v. Rivera
| Decision Date | 31 March 1994 |
| Docket Number | 93-869,No. 93-868,93-868 |
| Citation | 634 So.2d 302 |
| Parties | 19 Fla. L. Weekly D721 STATE of Florida, Appellant, v. William RIVERA and Elio Ojeda, Appellees. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, and Robin Compton Jones, Asst. Atty. Gen., Daytona Beach, for appellant.
James B. Gibson, Public Defender, and Nancy Ryan, Asst. Public Defender, Daytona Beach, for appellees.
The state has appealed an order suppressing evidence obtained during the execution of a search warrant at a private residence. The basis of the lower court's ruling was that the affidavit on which the search warrant was based lacked facts showing the veracity or reliability of the informant whose information was relied upon in procuring the warrant. We reverse.
On November 6, 1992, Judge Michael Cycmanick issued a search warrant for the residence located at 221 Fairlane Avenue, Orlando. The subsequent search of that address produced approximately 81 grams of cocaine, a volume of cannabis, drug paraphernalia, and U.S. currency in the amount of $876.00. During the search, William Rivera and Elio Ojeda ["Appellees"] were arrested and were each charged with one count of trafficking in cocaine 1 and one count of possession of more than twenty grams of Cannabis 2. Appellees moved to suppress the evidence obtained through the search.
At the hearing on the motion to suppress, Narcotics Agent Irwin, of the Orange County Sheriff's Department, testified that while conducting surveillance at a location known as Lancaster Market, he noticed that Emerito Naranjo often left the Market as a passenger in various persons' automobiles. Over a two week period, Officer Irwin followed Naranjo several times and each time the car in which he was a passenger travelled to 221 Fairlane Avenue. Once at 221 Fairlane, Naranjo would go inside for a short period. Naranjo would then return to the car, leave 221 Fairlane and be returned to Lancaster Market. Shortly thereafter, a confidential informant introduced Officer Irwin to Naranjo, and Naranjo sold the officer fifty dollars worth of heroin, although Irwin did not know where or how Naranjo came into possession of the heroin.
Agent Irwin testified that shortly thereafter he and Agent Duke observed two suspects, Figueroa and Quijano, loitering near Lancaster Market. He had never seen Figueroa and Quijano before. He observed Figueroa paging someone from a pay phone. Figueroa then waited for the return call and answered when he was called back. Figueroa and Quijano then walked across the street to a drug store and Agent Irwin followed them. Quijano waited outside the drug store while Figueroa went inside and purchased ten syringes. Figueroa and Quijano then went to 221 Fairlane. They were inside the residence at 221 Fairlane for approximately fifteen minutes; the two then exited the apartment and headed back toward Lancaster Market.
Agent Irwin and Agent Duke stopped the suspects and identified themselves. Figueroa threw a cigarette package containing cocaine on the ground and fled. Quijano threw his bicycle at Officer Irwin. The officers pursued the two subjects, and, during pursuit, Quijano threw down a baggie of cocaine. Quijano and Figueroa were captured and arrested.
Officer Irwin testified that while he was writing up the charging documents, Quijano spontaneously stated that he went to the house at 221 Fairlane "every Friday" to buy cocaine. It had been Figueroa's idea to go there that day to buy cocaine. Since Quijano was already there with Figueroa, he decided to go ahead and buy that day. Officer Irwin testified that he had suspected there was drug activity at 221 Fairlane, but that he could not confirm his suspicions until Quijano made this statement.
The affidavit filed by Agent Irwin in support of the search warrant recounts roughly the same information adduced at the hearing. The affidavit contains no facts to support Quijano's veracity or reliability as a source of truthful information about activities at 221 Fairlane other than the facts previously developed in the ongoing investigation at Lancaster Market. The issue thus presented is whether the statements of Quijano in conjunction with the previous observations by Sheriff's agents provided the requisite probable cause to issue a search warrant. Appellees contend that since law enforcement lacked probable cause before the arrest of Quijano, and since nothing was done to verify Quijano's veracity as an informant, the combination of the two sets of facts cannot give rise to probable cause. In granting the motion to suppress, the lower court ruled that because the affidavit failed to set forth any facts to show Quijano's veracity or reliability, it cannot be considered as part of the "totality of the circumstances" to establish probable cause. 3 This matter was well presented by counsel below and carefully considered by the lower court; nevertheless the issue is purely one of law and we are compelled to disagree with the lower court.
The only case cited by the lower court for its conclusion that Quijano's statement could not be considered because of the failure to determine Quijano's veracity was Roper v. State, 588 So.2d 330 (Fla. 5th DCA 1991). Roper is relevant to the extent that the informant involved is not an ordinary citizen, mere eyewitness, disinterested bystander or victim whose statements are entitled to a presumption of veracity. 588 So.2d at 332. However, the two cases are dissimilar in one material respect. In Roper, there were no other facts to support the credibility of the informant's statements. In the present case, there are. Indeed, in Roper the court noted:
Under Gates, the sufficiency of an...
To continue reading
Request your trial
- State v. Clark, 94-03276
-
Dudley v. State, 95-00106
...of narcotics dealings at appellant's residence. This is insufficient to corroborate the informant's information. See State v. Rivera, 634 So.2d 302 (Fla. 5th DCA 1994). Since the affidavit underlying the search warrant was deficient in that it failed to contain facts regarding the informant......