Young v. State, 2D04-5186.
| Decision Date | 11 January 2006 |
| Docket Number | No. 2D04-5186.,2D04-5186. |
| Citation | 917 So.2d 415 |
| Parties | Jeffrey YOUNG, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Joe Episcopo, Tampa, for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
Jeffrey Young pleaded no contest to trafficking in cannabis and possessing a controlled substance, reserving the right to appeal the denial of his dispositive motion to suppress. Young argues that the affidavit in support of the warrant for the search of his residence failed to establish probable cause. We agree and reverse.
When considering an application for a search warrant, an issuing court must determine whether, based on the totality of the circumstances, the information contained in the application establishes a reasonable probability that evidence of a crime will be found at a particular place and time. Garcia v. State, 872 So.2d 326, 329 (Fla.2d DCA 2004). The reviewing court must ensure that the magistrate had a substantial basis for concluding that probable cause existed, and this determination must be made by examining the four corners of the affidavit. Id. However, when material information has been omitted from the affidavit and the omitted information might undermine the probable cause determination, the reviewing court must evaluate the sufficiency of the affidavit as though the omitted facts were included. See Sotolongo v. State, 530 So.2d 514, 516 (Fla.2d DCA 1988).
In this case, the affidavit was sworn to by the detective on November 4, 2003, and the warrant was executed on the same day. The affidavit contained the following factual allegations pertinent to this case:
5. During October of 2003 your affiant met with and interviewed a confidential source, hereafter referred to as CS1, of the City of Tampa Police Department. CS1 advised that a subject known to CS1 as Jeffrey Young is currently responsible for the distribution of large quantities of marijuana as well as cocaine within the City of Tampa and Hillsborough County. CS1 has observed Young with marijuana in excess of one-hundred (100) pounds in the past as well as cocaine in excess of four-hundred (400) grams. Young is known to keep the quantities of illicit drugs within his residence.
Your affiant conducted research of the criminal history of Jeffrey Myron Young and found that Young has been arrested in the past for marijuana possession in excess of ten (10) pounds. This information helps to corroborate the statements of CS1.
On October 22, 2003 I obtained a photographic copy of the driver license issued to Jeffrey Myron Young on August 21, 2003. The address listed on the license is 2928 West Paris Street, Tampa Florida. I allowed CS1 to view the photograph and asked if CS1 recognizes the captioned person on the photo. CS1 confirmed that the photograph is of the same Jeffrey Young. I conducted visual surveillance of this residence and have observed the subject identified as Jeffrey Young enter and exit the residence.
On November 4, 2003 Detective Dwight Buchanan and myself conducted a visual surveillance of the residence. We observed a white male subject exit the front door of the residence carrying a white plastic bag. This bag was an average shopping bag size. The white male entered a blue colored Chevrolet pick up truck [and] began to drive out of the area. We followed the subject until he stopped at 8406 North Tampa Street, Lot 20. The subject exited the vehicle carrying the same white plastic bag. We approached the subject without detaining him and asked if we may speak to him. The subject immediately dropped the white plastic bag and stepped away from it. As Detective Buchanan began to speak with the subject I looked at the plastic bag. Due to the bag's exterior walls being stretched by it's [sic] contents I was easily able to view what appeared to be a large amount of marijuana contained within. The subject was arrested and the contents of the bag chemically tested for substance analyses.
The substance seized was tested by chemical reagent analyses. Your affiant has observed and tested marijuana numerous times in the past. Based on your affiant's experience, training and the positive results of th[e] analyses, your affiant feels that the substance seized is in fact marijuana.
6. There has been no time known to...
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The state of our trash in Florida: the use of evidence found in residential garbage to establish probable cause to search a citizen's home.
...months and reflected persistent drug activity, the staleness claim relating to the trash pull lost any efficacy.) (18) State v. Young, 917 So. 2d 415, 416 (Fla. 2d D.C.A. 2006). But Cf. United States v. Jiminez, 224 F.3d 1243, 1249(11th Cir. 2000) (an arrest one year prior is not too remote......