State v. Petroni

123 So. 3d 62, 2013 WL 3853226, 2013 Fla. App. LEXIS 11762
CourtDistrict Court of Appeal of Florida
DecidedJuly 26, 2013
DocketNo. 1D12-0884
StatusPublished
Cited by5 cases

This text of 123 So. 3d 62 (State v. Petroni) 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. Petroni, 123 So. 3d 62, 2013 WL 3853226, 2013 Fla. App. LEXIS 11762 (Fla. Ct. App. 2013).

Opinion

CLARK, J.

This is an appeal by the State of Florida from an order suppressing cocaine found during a search of Paul A. Petroni’s house. Petroni also cross-appeals from an order denying in part his motion to suppress statements he made to police. We reverse the trial court’s order suppressing the cocaine and affirm its order denying in part Petroni’s motion to suppress statements.

I.

Petroni’s house was searched pursuant to a warrant. The affidavit in support of the search warrant detailed that a confidential informant had twice, “within the past fifteen (15) days” purchased cocaine from Petroni. The affiant, Detective C.A. Bates, described the buys as “controlled.” On the first buy, he explained that he searched the informant and his vehicle before the buy to make sure he and the vehicle were clean; Bates then followed/tailed the informant to Petroni’s home. Bates averred that another detective, Detective Torres, saw the informant “walk towards the front door of the Premises,” saw Petroni arrive at the home on a motorcycle, and then watched Petroni “enter the front door of the Premises.” Shortly thereafter, Torres saw Petroni and the informant “exit the front door of the Premises.” Afterwards, the informant met Bates at a pre-arranged location and “turned over a plastic bag that contained an off-white substance believed to be cocaine”; Bates searched the informant and his vehicle again, finding no further contraband. The substance field-tested positive as cocaine. Further, Bates averred the informant stated that while obtaining the cocaine, Petroni had told the informant, “in substance, that Petroni has a source of cocaine supply and therefore Pe-troni maintains a supply of trafficking amounts of cocaine for sale.”

For the second buy, Bates detailed the same search procedure; this time another detective accompanied the informant to Petroni’s home. That detective then watched the informant “walk through a gate attached to the side of the Premises.” Shortly thereafter, Bates averred that the detective saw Petroni and the informant exit from that gate; the informant returned to the vehicle and the two met [64]*64Bates at the pre-selected location. Bates averred the informant gave him “a plastic bag that contained an off-white substance”; Bates again searched the informant, finding no controlled substances. The informant claimed “he met Petroni on a deck right outside Petroni’s bedroom.”

Given these facts, Bates averred that he believed additional cocaine was present in the home, and sought a search warrant for cocaine. A judge found probable cause, signed the warrant, and police ultimately recovered forty-two grams of cocaine during the search of Petroni’s home.

Petroni moved to suppress the cocaine through, pertinent to this appeal, two separate motions. He first argued the affidavit supporting the search warrant “intentionally or recklessly misrepresent[ed] certain factual matters,” and probable cause would not exist with their redaction. Petroni explained other material was “intentionally or recklessly omitted from the affidavit.” And finally, he claimed the affidavit included false statements as well. Petroni titled his motion, Franks, referring to the United States Supreme Court case, Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).

Franks permits defendants to attack a warrant where police intentionally lie or misstate information material to the probable cause determination in the affidavit supporting the warrant in order to deceive the judge into issuing the warrant. Id. at 171-72, 98 S.Ct. 2674. The “central problem” in Franks concerned these falsehoods or misstatements “that may be said to have resulted in deception.” See id. at 168-71, 98 S.Ct. 2674; Johnson v. State, 660 So.2d 648, 655-56 (Fla.1995) (citing United States v. Colkley, 899 F.2d 297, 301 (4th Cir.1990)). Franks has a “limited scope” and only applies where there are non-conclusory “allegations of deliberate falsehood or of reckless disregard for the truth” — “negligence or innocent mistake are insufficient.” Franks, 438 U.S. at 168, 171, 98 S.Ct. 2674. Second, the defendant must show that the affidavit, without the deliberate falsifications, fails to provide probable cause. Id. at 168, 171-72, 98 S.Ct. 2674. Only when a defendant shows that the officer was attempting to deceive the judge with false information and the remaining allegations are insufficient to support a probable cause finding, is a full hearing even necessary. Id.

Franks, however, did not concern omissions made to a judge in an attempt to influence the judge’s action; it was limited to deceptive falsehoods and misstatements. The Florida Supreme Court considered the “fundamentally ... different problem” of omissions in affidavits in Johnson. As applied to omissions, defendants must show: (i) the omitted material, if added, would have eviscerated probable cause, and (ii) “intentional or reckless police conduct that amounts to deception.” Johnson, 660 So.2d at 656. Absent a preliminary showing of both the deception prong and the materiality prong, the court should summarily deny a Franks motion. Id.

Omissions, the court points out, may be wholly reasonable, “in the sense that they exclude material [that] police in good faith believed to be marginal, extraneous, or cumulative. Such an exclusion is a valid and necessary part of the warrant process.” Id. Additionally, parties reasonably may disagree as to the import and effect of the large amount of information that necessarily will be omitted in the warrant process, since police routinely collect far more information than goes into the affidavit. Id. (citing 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 4.4(b) (2d ed. 1987 Supp.1995)); see also id. (quoting with approval United States v. Colkley, 899 F.2d 297 (4th Cir.1990)).

[65]*65In short, to meet the Franks test, police conduct must rise to the level of hoodwinking or bilking, duping the issuing judge or magistrate into signing the warrant; that is, an allegation the affiant had information she knew should be included in the affidavit and failed to include it either intentionally or recklessly with the idea the omission would then sway the issuing judge or magistrate in her favor. See id. at 655-56.

Petroni argues the following misrepresentations and omissions meet this rigorous standard:

In the affidavit, the affiant represents that an informant reported that “Petroni told the informant, in substance, that Petroni has a source of cocaine supply and therefore Petroni maintains a supply of trafficking amounts of cocaine for sale.” ...
However, in truth, as the affiant subsequently testified at deposition, the informant in fact did not observe any further supply of cocaine in the residence on the occasion in question and was not told by Mr. Petroni that additional cocaine was in the residence. Rather, the informant told the affiant merely that he had at some unspecified time in the past observed cocaine present in the residence.

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Cite This Page — Counsel Stack

Bluebook (online)
123 So. 3d 62, 2013 WL 3853226, 2013 Fla. App. LEXIS 11762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-petroni-fladistctapp-2013.