State v. Smith
| Decision Date | 25 March 1970 |
| Docket Number | No. 38931,38931 |
| Citation | 233 So.2d 396 |
| Parties | STATE of Florida, Petitioner, v. Russell SMITH, Stanley Smith, and Donna Smith, Respondents. |
| Court | Florida Supreme Court |
Earl Faircloth, Atty. Gen. and Charles W. Musgrove, Asst. Atty. Gen., for petitioner.
Edward R. Kirkland, Orlando, for respondents.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, Fourth District, affirming the order of the trial court quashing a search warrant and suppressing evidence obtained thereunder. 1 The District Court, in a brief per curiam opinion, stated:
Conflict is alleged with Paula v. State 2 and State v. Lewis. 3
A search warrant was issued by the Criminal Court of Record, Orange County on February 2, 1968, for the search of Apartment E--7, La-Aloma Apartments on Aloma Avenue for 'lottery tickets, records, implements, devices and paraphernalia used for the purpose of promoting and conducting a lottery.'
The search warrant was issued on the affidavit of Officer Louis Lowery and was based on surveillances of Stanley Smith by the affiant and other officers. The affidavit alleged that on two consecutive Saturday afternoons one of the respondents met an unknown colored male to receive a brown paper bag and take it to an apartment; that on the second of these Saturdays the unknown colored male had first been followed and was seen stopping at various places in colored sections of town; that on one occasion his stop included a known bolita operator; that Officer Lowery and others had seen Smith meet known lottery violators and Smith had been seen to receive a brown paper bag on more than one occasion from these known lottery violators; a confidential informant had seen one of the lottery violators being given a paper bag containing lottery tickets just prior to meeting with Smith; that Lowery had additional cause to suspect the apartment because other officers had observed that the lights came on for the first time when Smith arrived at night suggesting that the apartment was a front for other activities. A few days after the last surveillance, a search warrant was obtained and executed resulting in the seizure of lottery paraphernalia.
Respondents' motions to quash the search warrant and suppress the evidence was granted on the grounds that the warrant was insufficient to show probable cause. On interlocutory appeal, the District Court affirmed.
The District Court of Appeal, Second District, in the Paula and Lewis cases, supra, upheld search warrants issued for lottery paraphernalia despite the fact that the supporting affidavits were based in whole or in part on information received from informers. In the instant case, the affidavit is based in part on direct personal observation by the affiant, Officer Lowery, and in part on information from other officers and a reliable confidential informer. The only information added to the affidavit by the confidential informer was 'that the said known lottery violator was given a paper bag containing lottery tickets prior to the meeting with Stanley Smith.' Taken as a whole the affidavit describes activities generally known to law enforcement officers and to courts as followed by those engaged in lottery operations.
The Paula and Lewis cases correctly state the law regarding sufficiency of affidavits for search warrants based on information received from confidential informers. The decision of the District Court of Appeal, Fourth District, in the instant cause conflicts with those decisions and is erroneous.
We have carefully reviewed the decisions of the United States Supreme Court in Spinelli v. United States 4 and Aguilar v. Taxas. 5 The affidavits held insufficient in those cases were based almost entirely on reports received from informers without supporting factual allegations showing reliability and 'underlying circumstances.' The interpretation of Spinelli and Aguilar urged by respondents herein, would require the...
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