West v. State

• Decision Date: 21 September 1983
• Docket Number: No. 82-1276,82-1276
• Parties: Eddie Lee WEST, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 907

439 So.2d 907

Eddie Lee WEST, Appellant, v. STATE of Florida, Appellee.

No. 82-1276.

District Court of Appeal of Florida,

Second District.

Sept. 21, 1983.

Motion for Rehearing Denied; Motions to Certify Conflict

and to Stay Mandate Granted Nov. 9, 1983.

Mark Lipinski, Palmetto, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Ann G. Paschall, Asst. Atty. Gen., Tampa, for appellee.

HOBSON, Acting Chief Judge.

Eddie West appeals an order adjudicating him guilty and sentencing him for possession of cocaine which followed an order denying his motion to suppress cocaine, marijuana, and drug paraphernalia seized from his apartment pursuant to a search warrant. We reverse.

On January 15, 1982, Detectives Steube and Potts of the Manatee County Sheriff's Department executed an affidavit in support of a warrant for the search of appellant's Bradenton apartment. The affidavit, which they submitted to a circuit court judge, mentioned only that a confidential informant made a controlled purchase of six packets of cocaine from a person inside appellant's apartment on January 8, 1982. It did not apprise the court of a second confidential informant's unsuccessful attempt to make a controlled buy of cocaine inside appellant's apartment sometime between January 8 and 15, 1982. Detective Potts informed the judge orally at the time the detectives submitted the affidavit that he had received three anonymous telephone calls on December 13, 17 and 18, 1981, from a black female advising him that narcotics activity was transpiring at appellant's apartment. The judge expressly found that, based upon his consideration of the affidavit and oral examination of the affiants, probable cause existed to believe that the laws relating to possession and sale of controlled substances were being violated. He thereupon issued a warrant authorizing a search of appellant's dwelling "for any and all controlled substances found therein ...."

A January 22, 1982, search of appellant's apartment pursuant to the warrant resulted in the seizure of fourteen tinfoil packages of cocaine, a plastic baggie of marijuana and drug paraphernalia. The state subsequently charged appellant with possession of cocaine in violation of section 893.13, Florida Statutes (1981).

Appellant filed a motion to suppress all evidence seized during the search, arguing in relevant part that the detectives had deliberately omitted material facts from the affidavit; that the issuing judge had improperly considered testimony not contained in the affidavit in reaching his probable cause determination; and that the warrant was overbroad.

After conducting a hearing on appellant's motion to suppress, the court denied the motion. It ruled that no material facts had been omitted from the affidavit. It also decided that the search warrant was "well drawn and not overbroad," explaining that the issuing judge "had the right to assume that if a person might sell cocaine, they [sic] might sell some other kind of controlled substance." This language implicitly shows that the court believed that the affidavit, by itself, demonstrated probable cause to uphold the warrant.

Appellant thereafter pled nolo contendere, specifically reserving his right to appeal the denial of the motion to suppress. He was then adjudicated guilty of the charge and sentenced to a prison term of one year and one day. The state has stipulated that the search warrant issue is dispositive.

On appeal, appellant raises the three aforementioned arguments about the omission from the affidavit, the affiant's oral testimony, and the warrant's overbreadth. We shall address each contention in order.

Appellant submits that had the detectives included in the affidavit the information regarding the second confidential informant's futile attempt to make a controlled purchase of cocaine at appellant's residence, the issuing judge may have concluded that probable cause did not exist to believe that drugs would be found at his apartment. This argument was thoroughly discussed at the suppression hearing. After listening to the detectives' testimony, the court did not find that the information regarding the second confidential informant's unsuccessful attempt was omitted with an intent to deceive the magistrate or with reckless disregard for the truth. Further, the court found that the omission was not material. We therefore reject appellant's contention on this issue.

Appellant next argues that the issuing judge's finding of probable cause was improperly grounded in part upon a consideration of the affiant's oral testimony. Both parties concur that an affidavit, in and of itself, must demonstrate probable cause for the issuance of the search warrant and that such affidavit cannot be supplemented by oral testimony in order to establish probable cause for the issuance of the warrant. Article I, § 12, Fla. Const.; Orr v. State, 382 So.2d 860 (Fla. 1st DCA 1980). Notwithstanding the issuing judge's statement that his finding of probable cause was based upon an oral examination of the affiants and a study of the affidavit, the state poses that the affidavit by itself was sufficient to demonstrate probable cause to believe that "any and all controlled substances" were at appellant's residence. The court below apparently agreed, since it reasoned that the fact of a sale of cocaine justified a search for controlled substances. Therefore, we shall now turn to appellant's overbreadth argument.

Article I, section 12, of the Florida Constitution reads in relevant part:

[N]o warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, ....

(Emphasis added.) Similarly, the Fourth Amendment to the United States Constitution states:

No warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

(Emphasis added.)

The purpose of requiring that a search warrant particularly describe the things to be seized is to prevent an unconstitutional general search. See, e.g., Andresen v. Maryland, 427 U.S. 463, 480, 96 S.Ct. 2737, 2748, 49 L.Ed.2d 627, 642 (1976); Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583 (1971); Marron v. United States, 275 U.S. 192, 195-96, 48 S.Ct. 74, 75-76, 72 L.Ed. 231, 236-37 (1927); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

A search warrant which authorizes an unconstitutional general search can invariably be categorized as one which is overbroad on its face, overbroad in light of the facts, or both. A warrant is overbroad on its face when the description within the warrant of the items to be seized fails to adequately limit the discretion of the officer executing the warrant. See, e.g., Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965); Bloom v. State, 283 So.2d 134 (Fla. 4th DCA 1973); United States v. Quantity of Extracts, Bottles, etc., 54 F.2d 643 (S.D.Fla.1931). Declared the United States Supreme Court in Marron:

The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.

Marron, 275 U.S. at 196, 48 S.Ct. at 76, 72 L.Ed. at 237. (Emphasis added.) A search warrant is overbroad in light of the circumstances when the description within the warrant of the things to be seized is broader than the description presented in the affidavit. See, e.g., Pezzella v. State, 390 So.2d 97 (Fla. 3d DCA 1980), petition for review denied 399 So.2d 1146 (Fla.1981); Bloom; People v. Yusko, 45 A.D.2d 1043, 358 N.Y.S.2d 176 (1974). A warrant should not be any broader than the affidavit because the affidavit is a prerequisite to its issuance. See Joyner v. State, 303 So.2d 60 (Fla. 1st DCA 1974), cert. discharged 325 So.2d 404 (Fla.1976). As emphasized earlier, article I, section 12, of the Florida Constitution expressly provides that the warrant shall be "supported by affidavit."

In Pezzella, relied upon by appellant, the Third District Court of Appeal reversed a trial court's denial of the defendant's motion to suppress under analogous facts because it held that the search warrant was overbroad in light of the circumstances. There, the affidavit in support of the warrant referred to information that the defendant possessed and sold only methaqualone. The warrant, however, authorized officers to seize "[p]ossession of a controlled substance: In violation of F/S/S 896.13 [893.13]." Officers thereafter executed the warrant and seized various types of controlled substances from the defendant's residence. In reversing, the court stated:

A reading of the affidavit in support of the search warrant in the present case confirms its overbreadth. In the affidavit, the chronology, facts, and circumstances related through the medium of a confidential informant were all with respect to the defendant's possession, sale, and distribution of methaqualone. Since the supporting affidavit referred, with specificity, to a particular controlled substance, there was no need or purpose shown as to order the seizure of any controlled substances. The officers had the ability and the information to properly describe what they were looking for. Such a command gave the executing officers carte blanche authority to rove through the defendant's house, and with their lawful presence, conduct an exploratory search.

Pezzella, 390 So.2d at 100. (Emphasis in original.)

The state, while acknowledging Pezzella, relies upon Carlton v. State, 418 So.2d 449 (Fla. 5th DCA 1982), wherein the Fifth District Court of Appeal reached an opposite result under similar facts. There, the affidavit for...