Bauder v. Gentile

District Court of Appeal of Florida

Bauder v. Gentile

697 So. 2d 1222, 1997 Fla. App. LEXIS 6137, 1997 WL 295187

CourtDistrict Court of Appeal of Florida

DecidedJune 4, 1997

DocketNo. 96-2265

StatusPublished

Cited by1 cases

This text of 697 So. 2d 1222 (Bauder v. Gentile) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bauder v. Gentile, 697 So. 2d 1222, 1997 Fla. App. LEXIS 6137, 1997 WL 295187 (Fla. Ct. App. 1997).

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Opinion

PER CURIAM.

The plaintiff, Gary Bauder, appeals from an adverse final summary judgment. We reverse.

In Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), the United States Supreme Court held that “objective reasonableness ... defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest.” Malley, 475 U.S. at 344, 106 S.Ct. at 1098. Further, “[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable ... will the shield of immunity be lost.” Malley, 475 U.S. at 344-45,106 S.Ct. at 1098.

In the instant case, where this Court previously found that “the affidavit given in support of a search warrant was totally devoid of factual recitations sufficient to raise the affiant-officer’s suspicion to the level of probable cause,” Bauder v. State, 613 So.2d 547 (Fla. 3d DCA), review denied, 624 So.2d 268 (Fla.1993), the shield of immunity is lost. Accordingly, we find that the trial court erred, as a matter of law, by granting the defendant police officer’s motion for summary judgment.

Reversed and remanded.

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PER CURIAM.

The plaintiff, Gary Bauder, appeals from an adverse final summary judgment. We reverse.

In Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), the United States Supreme Court held that “objective reasonableness ... defines the qualified immunity accorded an officer whose request for a warrant allegedly caused an unconstitutional arrest.” Malley, 475 U.S. at 344, 106 S.Ct. at 1098. Further, “[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable ... will the shield of immunity be lost.” Malley, 475 U.S. at 344-45,106 S.Ct. at 1098.

In the instant case, where this Court previously found that “the affidavit given in support of a search warrant was totally devoid of factual recitations sufficient to raise the affiant-officer’s suspicion to the level of probable cause,” Bauder v. State, 613 So.2d 547 (Fla. 3d DCA), review denied, 624 So.2d 268 (Fla.1993), the shield of immunity is lost. Accordingly, we find that the trial court erred, as a matter of law, by granting the defendant police officer’s motion for summary judgment.

Reversed and remanded.

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Bluebook (online)

697 So. 2d 1222, 1997 Fla. App. LEXIS 6137, 1997 WL 295187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bauder-v-gentile-fladistctapp-1997.

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