State v. Drowne

436 So. 2d 916
CourtDistrict Court of Appeal of Florida
DecidedAugust 31, 1983
Docket82-908
StatusPublished
Cited by10 cases

This text of 436 So. 2d 916 (State v. Drowne) 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
State v. Drowne, 436 So. 2d 916 (Fla. Ct. App. 1983).

Opinion

436 So.2d 916 (1983)

STATE of Florida, Appellant,
v.
Joan DROWNE and George Drowne, Jr., Appellees.

No. 82-908.

District Court of Appeal of Florida, Fourth District.

April 13, 1983.
As Modified on Motion for Rehearing August 31, 1983.

Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, and Joy B. Shearer, Asst. Attys. Gen., West Palm Beach, for appellant.

Thomas A. Bratten of Bratten & Harris, P.A., West Palm Beach, for appellee.

GLICKSTEIN, Judge.

The state appeals from an order suppressing evidence obtained pursuant to execution of a search warrant at the residence of a law enforcement officer and his wife. We affirm the result and commend the effort and attention given by the trial judge to his order, which reflects his analysis. It is of immense assistance to this court to know the basis for a trial court's decision.

The case boils down to two basic issues: whether the affidavit which led to the search warrant was legally sufficient; and if so, whether there was a violation of the "knock and announce" requirement in its execution. Although we disagree with the trial court's analysis of the first issue, we agree with respect to the second.

I

We quote in large measure from the affidavit[1] because that is the only way to *917 explain to the trial court and the parties our analysis. The measure of an affidavit leading to a search warrant is set forth in former Justice Goldberg's significant opinion in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965):

These decisions reflect the recognition that the Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

The basis for the issuance of the search warrant has been described by this court in State v. Powers, 388 So.2d 1050, 1051 (Fla. 4th DCA 1980), petition for review dismissed, 397 So.2d 778 (Fla. 1981), as follows:

Search warrants are issued upon probable cause and facts constituting probable cause need not meet the standard of conclusiveness and probability required of circumstantial facts upon which a conviction may be based. State v. Heape, 369 So.2d 386 (Fla. 2d DCA 1979). Thus, interpretation of the facts in a "commonsense and realistic fashion," United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965), may result in an inference of probable cause to believe that criminal objects are located in a particular place to which they have not been tied by direct evidence. United States v. Valenzuela, 596 F.2d 824 (9th Cir.1979), cert. denied 444 U.S. 865, 100 S.Ct. 136, 62 L.Ed.2d 88 (1979).

(Emphasis original.)

We believe that application of the foregoing reduces the essence of the affidavit to three categories:

*918 1. Who the maker of the affidavit was and the circumstances under which he made it.

From the record, we glean the maker to be a very experienced, well-trained law enforcement officer and conclude that he was caught up in preparation for execution of the anticipated search warrant scheduled for the night of July 3, 1981; that some degree of accelerated activity was involved; and that there was little concern for paragraph structure. We have no way of knowing whether there was available to him a legal adviser, trained in such matters, to edit his work product or the time in which to do it.

2. What the informant was told by Joan Drowne and when.

She told him that she presently had marijuana in her residence; that she would have "dope" at her residence over the weekend of July 4, 1981; and that there were two machine guns on the premises. The circuit judge who subsequently issued the search warrant could have reasonably concluded that all of those statements were made on one occasion by Joan Drowne; and that reference to a forthcoming holiday weekend could have reasonably been made in close proximity to it. The disclosure by the informant to the law enforcement officer on July 2, 1981, rather than at the earlier meeting, would support this reasonable conclusion.

3. What the informant observed in the Drowne residence and when.

He saw numerous weapons — undescribed — in the Drowne residence in the three weeks prior to July 2, 1981; and, over the past two years, he had seen both appellees smoking marijuana. The former observation would strengthen the likelihood in the mind of the issuing circuit judge that Joan Drowne's reference to there being machine guns in the residence was made in the few weeks before the affidavit was presented to him.[2] The second observation would corroborate the likelihood of the presence of marijuana.

Without attempting to be quarrelsome, we question the interpretation given to an affidavit by the appellate court in Orr v. State, 382 So.2d 860 (Fla. 1st DCA 1980), upon which appellees rely. Therein it was held that the following affidavit did not sufficiently establish probable cause because it did not indicate when the informant observed the contraband:

Heretofore, within the past ten days a confidential informant, who has proven reliable in the past, said informant having led to the arrest of persons for drug violations, further it is known by your affiant that said confidential informant has knowledge of the appearance, texture and odor of marijuana, advised your affiant that a quantity of marijuana was inside the above described premises and that said marijuana was observed by said confidential informant. Therefore, your affiant has probable cause to believe that marijuana is now being kept in the above described premises. [Emphasis added.]

Id. at 861. Let us assume that in lieu of an affidavit the issuing circuit judge had sworn the affiant, asked him the following question and received the following answer:

Q. In the last ten days, what, if anything, did the informant advise you?
A. He advised me there was marijuana in the home.

In such dialogue, it seems reasonable to us that the questioning judge could have concluded that there was marijuana in the home at or about the time the informant relayed his information. We so conclude because people interchange "was" and "is" when they speak.[3] Were we to be more esoteric, we would refer to the third division *919 of "meaning"; namely, "pragmatics,"[4] which is described in R. Dickerson, Legal Drafting 34 (1981), as follows:

Pragmatics, which deals with the relation between words and their users or hearers.

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