State v. Jones

110 So. 3d 19, 2013 WL 645854, 2013 Fla. App. LEXIS 2933
CourtDistrict Court of Appeal of Florida
DecidedFebruary 22, 2013
DocketNo. 2D11-5924
StatusPublished
Cited by3 cases

This text of 110 So. 3d 19 (State v. Jones) 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. Jones, 110 So. 3d 19, 2013 WL 645854, 2013 Fla. App. LEXIS 2933 (Fla. Ct. App. 2013).

Opinion

CASANUEVA, Judge.

The State of Florida appeals the trial court’s order granting Jacqueline Faye Jones’s motion to suppress evidence found in her residence pursuant to a search warrant. Although the affidavit filed in support of the application for a search warrant set forth facts describing two controlled buys occurring outside the residence, Ms. Jones’s motion to suppress contended the search warrant was issued without probable cause. While the record reflects that the trial court granted the motion, it does not disclose the trial court’s specific rationale for doing so. Accordingly, we proceed on the grounds articulated in Ms. Jones’s motion. After [21]*21carefully reviewing the affidavit, we conclude that it contained sufficient probable cause to support the warrant’s issuance. Accordingly, we reverse.

Affidavit for Search Warrant

In the affidavit for the search warrant, Detective Bernardo Velazquez testified that a confidential informant (Cl) informed him that illegal narcotics were being sold from the residence at 1871 33rd Street. Detective Velazquez testified that the Cl had been associated with the Sarasota Police Department for approximately five months and during that time had provided narcotics intelligence, had purchased narcotics under controlled circumstances, and had been the instrumental informant in obtaining numerous search warrants which had resulted in the arrests of persons for narcotics violations. Detective Velazquez testified that he knows the Cl to be proven reliable.

Based on the information received from the Cl, Detectives Velazquez and Fran-gioni began an investigation of the residence and set up two controlled buys there. The affidavit states that within a forty-eight-hour period of December 10, 2010, the two detectives met with the Cl, searched the Cl, and gave him twenty dollars with instructions to purchase illegal narcotics from any individual located inside or on the curtilage of the residence. The Cl waited outside the residence and a black female known to the Cl as “Fye [sic] Jones,” born July 14,1961, came out of the residence and sold two baggies of powder cocaine to the Cl in exchange for twenty dollars. After the controlled buy, the Cl was again searched. Surveillance and perimeter security for the controlled buy was conducted by Detectives Frangioni and Howell in addition to a third detective. An identical second controlled buy was conducted within a forty-eight-hour period of December 21, 2010, during which Ms. Jones again sold two baggies of powder cocaine to the Cl in exchange for twenty dollars. Based on these facts, a search warrant was issued on January 11, 2011, and it was executed on January 13, 2011.1

Analysis

In determining whether the search warrant was properly issued, the trial court was required “to examine the four corners of the supporting affidavit” to decide if there was a substantial basis for issuing the warrant. State v. Williams, 46 So.3d 1149, 1152 (Fla. 1st DCA 2010). “The trial court should afford ‘great deference’ to the magistrate’s decision and should not review the magistrate’s decision de novo.” State v. Exantus, 59 So.3d 359, 361 (Fla. 2d DCA 2011). The present case is unique because the judge who issued the search warrant was the same judge who later granted the motion to suppress evidence found during the search. The judge offered no explanation as to why she determined that the warrant had been wrongly issued. Regardless, the trial judge’s determination regarding whether probable cause existed to support the issuance of the warrant is examined by this court using the de novo standard of review. See Pagan v. State, 830 So.2d 792, 806 (Fla.2002). [22]*22Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see also Pagan, 830 So.2d at 806 (“In determining whether probable cause exists to justify a search, the trial court must make a judgment, based on the totality of the circumstances, as to whether from the information contained in the warrant there is a reasonable probability that contraband will be found at a particular place and time.”). “[A]n applicant is not required to provide a magistrate with direct proof the objects of the search are located in the place to be searched.” Williams, 46 So.3d at 1152. This court held in Burnett v. State, 848 So.2d 1170, 1173 (Fla. 2d DCA 2003), “the affidavit in the warrant application must satisfy two elements: first, that a particular person has committed a crime — the commission element, and, second, that evidence relevant to the probable criminality is likely located at the place to be searched — the nexus element.” (citing United States v. Vigeant, 176 F.3d 565, 569 (1st Cir.1999)).

[21]*21The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

[22]*22We believe that the case at bar is controlled by State v. Kennon, 901 So.2d 375 (Fla. 2d DCA 2005). There, the Cl advised law enforcement that he was able to purchase narcotics at a specific residence. Id. at 376. Acting on that information, the officers observed the Cl approach the residence and observed Kennon exit the residence, hand a baggie of cocaine to the Cl, and walk back inside the residence. Id. The trial court granted the motion to suppress based on its finding that there was no nexus between the criminal behavior and the residence. This court reversed, holding that the “affidavit properly alleged that Kennon possessed drugs within the residence,” and therefore, the trial court erred in finding that the nexus element had not been met. Id.

The affidavit in the present case contains more information regarding the reliability of the Cl who supplied the information and conducted the controlled buys than the affidavit in Kennon. See Gates, 462 U.S. at 230, 103 S.Ct. 2317 (holding that the reliability, veracity, and “basis of knowledge” of an informant are all extremely relevant and should be considered in a totality of the circumstances analysis in determining whether there is probable cause to believe that narcotics are located at a particular residence). Further, there were two controlled buys in the present case, whereas in Kennon there was just one.

We also conclude that the affidavit in the present case satisfied both elements noted in Burnett, 848 So.2d at 1173. First, it showed that a particular person had committed a crime — Ms. Jones sold cocaine to the Cl on two occasions. Second, it showed that evidence relevant to the probable criminality was likely located at the residence — the Cl informed the detective that illegal narcotics were being sold from the residence and Ms. Jones had cocaine in her possession when she stepped outside of the residence on two separate occasions to sell it to the Cl, which sales occurred approximately eleven days apart. Therefore, there was a fair probability that contraband would be found in the residence. See Gates, 462 U.S. at 238, 103 S.Ct. 2317.

Ms.

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Related

Williams v. State
130 So. 3d 757 (District Court of Appeal of Florida, 2014)
State v. Young
111 So. 3d 942 (District Court of Appeal of Florida, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
110 So. 3d 19, 2013 WL 645854, 2013 Fla. App. LEXIS 2933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jones-fladistctapp-2013.