State v. Tolmie, 81-1964
| Citation | 421 So.2d 1087 |
| Decision Date | 22 September 1982 |
| Docket Number | No. 81-1964,81-1964 |
| Parties | STATE of Florida, Appellant, v. Pearl TOLMIE, Melodie Tolmie and Edwin Tolmie, Appellees. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
Bennett S. Cohn of Law Offices of Bennett S. Cohn, Lake Worth, and Steve Gomberg of Lubin & Hamill, P.A., West Palm Beach, for appellees.
Appellees were indicted for second degree murder. A motion to suppress was filed by appellees upon the ground that the affidavit for search warrant was not subscribed by the alleged affiant. The affidavit contained a jurat signed by the magistrate but was not signed by the alleged affiant nor does it contain any seal of the court. The State filed an affidavit of the magistrate who issued the warrant, which stated that he had placed the affiant under oath and that affiant swore to the truth of his statements made in the affidavit. However, the trial court felt the statement of the magistrate was insufficient to meet the requirements of the statute and granted appellees' motion to suppress.
We hold that the failure of an affiant to subscribe to an affidavit for search warrant as required by statute invalidates a warrant based thereon.
The statute in question, Section 933.06, Florida Statutes (1981), provides:
The judge or magistrate must, before issuing the warrant, have the application of some person for said warrant duly sworn to and subscribed, and may receive further testimony from witnesses or supporting affidavits, or depositions in writing, to support the application.
The application for, issuance of, and service of search warrants is serious business, which has been jealously controlled by statutes and Constitution. It is almost axiomatic that statutes and rules authorizing searches and seizures are strictly construed and affidavits and warrants issued pursuant to such authority must meticulously conform to statutory and constitutional provisions. State ex rel. Wilson v. Quigg, 154 Fla. 348, 17 So.2d 697 (1944); Hesselrode v. State, 369 So.2d 348 (Fla. 2d DCA 1979). Section 933.06, Florida Statutes (1981), mandates that, before the warrant issues, some person must subscribe and swear to the application therefor.
In the present case, the person seeking the warrant did not subscribe to the application--he was sworn but did not subscribe. Thus, the affiant omitted one of the two most important aspects of the procedure, the signing. In State v. McManus, 404 So.2d 757 (Fla. 4th DCA 1981), this court excused the magistrate's failure to complete and seal the jurat on a wiretap application as "mere administrative oversight." The magistrate later testified that the application had been signed and sworn to before him and that he simply failed to complete the jurat and place the seal of the court thereon. Here, the judge testified by affidavit that he recalled the application for search warrant, that the detective applying therefor did, in fact, swear to the application, and that he filled in the jurat. However, the judge could not rectify the oversight of no subscription because, in fact, it was never signed.
We are of the view that the law is better served by requiring strict compliance with the statute requiring issuance of a search warrant. Compliance should be required or the provision mandating subscription should be done away with in favor of simply swearing to the truth of the contents before the magistrate.
Accordingly, we affirm the order of suppression.
Section 933.06, Florida Statutes (1979), provides:
The judge or magistrate must, before issuing the warrant, have the application of some person for said warrant duly sworn to and subscribed, and may receive further testimony from witnesses or supporting affidavits, or depositions in writing, to support the application ....
Appellees argue that this section mandates a subscription. It is true that statutes authorizing searches and seizures must be strictly construed, and affidavits and search warrants issued thereunder must...
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Crain v. State
...warrants issued pursuant to such authority must meticulously conform to statutory and constitutional provisions." State v. Tolmie, 421 So.2d 1087, 1088 (Fla. 4th DCA 1982) (citations omitted). The courts have consistently adhered to this rule of strict compliance for quite some time.4 Accor......
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...and warrants issued pursuant to such authority must meticulously conform to statutory and constitutional provisions." State v. Tolmie, 421 So.2d 1087 (Fla. 4th DCA 1982) (citations omitted). The reason for this strict adherence is obvious. Aside from the constitutional ramifications of fail......
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State v. Moreno-Gonzalez
...by the United States Supreme Court." Art. I, § 12, Fla. Const. Our dissenting colleague inappropriately relies on State v. Tolmie, 421 So.2d 1087 (Fla. 4th DCA 1982), which was a 1982 case that was decided prior to the effective date of the 1982 amendment requiring Florida courts to follow ......