State v. Van Pieterson

550 So. 2d 1162, 1989 WL 117144
CourtDistrict Court of Appeal of Florida
DecidedOctober 6, 1989
Docket88-94
StatusPublished
Cited by17 cases

This text of 550 So. 2d 1162 (State v. Van Pieterson) 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. Van Pieterson, 550 So. 2d 1162, 1989 WL 117144 (Fla. Ct. App. 1989).

Opinion

550 So.2d 1162 (1989)

STATE of Florida, Appellant,
v.
John R. VAN PIETERSON, Appellee.

No. 88-94.

District Court of Appeal of Florida, First District.

October 6, 1989.

Robert A. Butterworth, Atty. Gen., and Gary L. Printy, Asst. Atty. Gen., Tallahassee, for appellant.

John P. DuBose, Pensacola, for appellee.

ZEHMER, Judge.

The State appeals an order granting John Van Pieterson's motion to suppress evidence. The State contends that the court erred in finding the search warrant invalid for lack of probable cause and in finding *1163 that the good faith exception did not apply to execution of the warrant. Finding no error, we affirm.

The charges against Van Pieterson stemmed from the death of Martin Sharron, Jr., who allegedly died as the result of a drug overdose. Cocaine with traces of Dimethyldiclorosilane, a toxic by-product of the cocaine production process, was found in the motorhome where, on July 22, 1987, Sharron was found unconscious. The medical examination conducted upon Sharron's hospital admission indicated that he possibly suffered a drug overdose. Sharron died on August 4, 1987.

During the police investigation of Sharron's death, Officer Brian Barton questioned Jeff Neal. Neal first denied any knowledge of the circumstances surrounding Sharron's death. However, after Officer Barton conducted a consent search of Neal's home and discovered 31.3 grams of marijuana, weighing scales, plastic baggies, beakers, syringes, isotol powder (commonly used as a drug-cutting agent), and other drug paraphernalia, Neal admitted in a recorded statement that on July 22 he purchased cocaine for Sharron from a man known to him as John Peterson. He stated that he delivered the cocaine to Sharron at the motorhome in which Sharron was found, and that Sharron injected the cocaine. Neal told Officer Barton that he had purchased cocaine from this man on prior occasions, and directed Officer Barton to the man's house.

Officer Barton determined the occupant of the house to be the defendant, John Van Pieterson, and attempted to make a controlled buy from defendant on three separate occasions. Defendant was not home on any of those occasions, and Officer Barton failed to accomplish such a buy. Despite this failure, Officer Barton applied for a warrant authorizing the search of defendant's house. The affidavit Officer Barton filed in support of this application recounted the information received from Neal in his recorded statement and stated that a criminal history check of defendant "indicated a prior arrest history of drug related arrests." On the basis of Officer Barton's application and supporting affidavit, the presiding magistrate issued the requested search warrant. Deputy Sheriff Mickey Jeffcoat thereafter searched defendant's house pursuant to the warrant. During that search, he discovered and seized a marijuana cigarette and five firearms, but no cocaine.

The State subsequently filed informations charging defendant with unlawful possession of firearms by a convicted felon, possession of cannabis, sale of cocaine, and murder. Defendant moved to suppress the evidence seized from his house on the ground that the search warrant was not based upon probable cause.

At the hearing on the motion to suppress, Neal testified that prior to giving the recorded statement, Officer Barton promised him that he would not be arrested for murder; he further testified that he received a grant of immunity in exchange for giving the recorded statement. Officer Barton testified at this hearing that he made a deal with Neal after Neal gave the recorded statement that if Neal would attempt to make a controlled buy of cocaine from defendant, Barton would not file charges against him. Barton testified that the purpose of these attempted controlled buys was to obtain additional probable cause in order to strengthen the basis for obtaining a search warrant. Barton also testified that he did not know Neal prior to the investigation and that this was the first time Neal had acted as an informant.

The trial judge granted defendant's motion to suppress, finding the search warrant invalid because the affidavit upon which it was based lacked probable cause. As grounds for this finding, the trial judge pointed to the lack of independent corroboration of Neal's reliability and concluded that Neal's recorded statement could not be considered a statement against penal interest since it was given in exchange for a grant of immunity and a promise that he would not be arrested for murder. The judge further found that the good faith exception did not apply to execution of the invalid search warrant.

*1164 On this appeal, the State argues that the trial judge erred in finding a lack of probable cause because Neal's recorded statement was given subject to penalty of perjury and was against his penal interest, and thus provided a sufficient basis for the magistrate's finding of probable cause. Appellee, however, counters that the trial court correctly found the affidavit insufficient to support a finding of probable cause because it did not show that Neal's statement was given under penalty of perjury, nor did it show that, in exchange for the statement, Officer Barton promised Neal he would not be arrested for murder and the state attorney promised Neal immunity from prosecution.

The trial court's duty upon reviewing the magistrate's decision to issue the search warrant was not to conduct a de novo determination of probable cause, but to determine whether substantial evidence supported the magistrate's finding that, based on the totality of the circumstances, probable cause existed to issue the warrant. Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984). When a material fact is omitted from the affidavit filed in support of the probable cause determination, such fact constitutes a material omission if a substantial possibility exists that the omission would have altered a reasonable magistrate's probable cause determination. People v. Aston, 39 Cal.3d 481, 216 Cal. Rptr. 771, 703 P.2d 111 (1985). In determining whether a material omitted fact should invalidate the search warrant, the reviewing court should view the affidavit as if it had included the omitted fact and then determine whether the affidavit provides sufficient probable cause. 216 Cal. Rptr. at 780, 781, 703 P.2d at 120, 121. See also Schmid v. State, 615 P.2d 565 (Alaska 1980) (material misstatement of fact in affidavit filed in support of search warrant invalidates search warrant if the affidavit without the untrue fact would not support a finding of probable cause); United States v. Lueth, 807 F.2d 719 (8th Cir.1986) (material omission from warrant affidavit treated same as material misstatement).

Here, the trial judge found as fact that, in exchange for the recorded statement, Officer Barton made a deal with Neal that Neal would not be arrested for murder and the state attorney promised Neal immunity. The record contains competent, substantial evidence supporting this finding. The affidavit, however, did not recite this fact. Likewise, the affidavit did not recite the fact that Neal had made conflicting statements to Officer Barton regarding his knowledge of the circumstances surrounding Sharron's death.

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Bluebook (online)
550 So. 2d 1162, 1989 WL 117144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-van-pieterson-fladistctapp-1989.