Wolff v. State

• Decision Date: 12 February 1974
• Docket Number: No. 73--465,73--465
• Citation: 291 So.2d 15
• Parties: Robert Miller WOLFF, Jr., Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 15

291 So.2d 15

Robert Miller WOLFF, Jr., Appellant, v. The STATE of Florida, Appellee.

No. 73--465.

District Court of Appeal of Florida, Third District.

Feb. 12, 1974.

Rehearing Denied March 26, 1974.

Appleton, Ernst, Miller & Kirwan, Key West, for appellant.

Robert L. Shevin, Atty. Gen., and William L. Rogers, Asst. Atty. Gen., for appellee.

Before PEARSON, CARROLL and HENDRY, JJ.

PEARSON, Judge.

The appellant was found guilty by a jury upon five counts charging possession of illegal drugs and drug paraphernalia. All of the charges grew out of a single search of appellant's private dwelling. Without the evidence procured by the search of appellant's home, the State would have a doubtful case for possession of illegal drugs and drug paraphernalia. The appellant timely moved to suppress the evidence as the product of an illegal search relying upon Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), and Chacon v. State, Fla.1958, 102 So.2d 578. The motion was denied. Error is assigned upon the ruling, and the ruling provides the controlling question on this appeal. The question is whether the trial judge erred in denying appellant's motion to suppress the evidence upon the ground that the search warrant was void because the supporting affidavit was insufficient. See Pesce v. State, Fla.App.1974, 288 So.2d 264.

The record reveals the following facts relative to the issuance of the search warrant. A City of Miami police officer went to Monroe County and made an affidavit to the issuing judge. The allegations of the Miami police officer to support the search of a Marathon home were:

'That on December 8, 1972, in the afternoon hours your affiant purchased five bags of heroin for one hundred dollars in the living room of number seven Man-O-War road, Marathon, Monroe County Florida from a white male who was at the time a guest of Doctor Robert M. Wolff Jr.

'That on December 19, 1972 a confidential informant of your affiant who has proven himself to be reliable on at least seven previous occasions told your affiant that in the evening hours of December 18, 1972 while the confidential inforamant (sic) was visiting the residence of Doctor Robert M. Wolff Jr. at number seven, Man-O-War road, Marathon, Monroe County Florida, the informant observed Doctor Robert M. Wolff Jr. and approximatly (sic) five guests smoking marijuana and also observed approximatly (sic) two ounces of marijuana in the living room at that time.

'That on December 19, 1972 the same confidential informant also stated to your affiant that the informant had a conversation in the evening hours of December 19, 1972 with Doctor Robert M. Wolff Jr., at number seven, Man-O-War road, Marathon, Monroe County Florida, in which Doctor Robert M. Wolff Jr. stated to the informant that he needed some more cocaine but that he still had some cocaine in his possession.'

We hold that the affidavit was insufficient to authorize a search of the private dwelling. See Dunnavant v. State, Fla.1950, 46 So.2d 871; Cooper v. State, 106 Fla. 254, 143 So. 217 (1932); Panzavecchia v. State, Fla.App.1967, 201 So.2d 762. The legislature has expressed a particular regard for the necessity of careful compliance with the law when a private dwelling as distinguished from other buildings is to be searched. Fla.Stat. section 933.02, F.S.A., sets forth the grounds for issuance of a search warrant, but section 933,18 provides special conditions under which a search warrant may be issued for a private dwelling. The latter statute is in pertinent part as follows:

'933.18 When warrant may be issued for search of private dwelling.--No search warrant shall issue under this chapter or under any other law of this state to search any private dwelling occupied as such unless:

'(5) The law relating to narcotics or drug abuse is being violated therein;

'No warrant shall be issued for the search of any private dwelling under any of the conditions hereinabove mentioned except On sworn proof by affidavit of some creditable witness that he has reason to believe that one of said conditions exists, which affidavit shall set forth the facts on which such reason for belief is based.' (Emphasis supplied)

It will be observed from the emphasized portion of the above statute that in the case of a private dwelling the affidavit must be made by...