GETREU v. STATE

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Docket Number

No. 90-01661.

Advocates

Britt Whitaker, Tampa, for appellant. Robert A. Butterworth, Atty. Gen., Tallahassee, and Elaine L. Thompson, Asst. Atty. Gen., Tampa, for appellee.

Judges

THREADGILL, Judge.

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Smart Summary

Factual and Procedural Background

Carol Susan Getreu was convicted of trafficking in cocaine, possession of cannabis, and possession of drug paraphernalia. She appealed these convictions, challenging two trial rulings and the denial of her motion to suppress evidence obtained through a search warrant. The appeal centers on the validity of the probable cause affidavit supporting the search warrant for her home. The District Court of Appeal reviewed the affidavit and the underlying legal standards to determine whether the warrant was constitutionally and statutorily valid.

Legal Issues Presented

Whether the probable cause affidavit supporting the search warrant was legally sufficient, specifically in establishing when and where the informant observed the alleged contraband.
Whether the affidavit met the statutory requirement under Florida law that narcotics-related violations must be occurring within the dwelling to justify a search warrant.
Whether the good faith exception to the exclusionary rule, as established in United States v. Leon, applies to uphold the search despite deficiencies in the affidavit.

Arguments of the Parties

Appellant's Arguments

The probable cause affidavit was deficient because it failed to provide a factual basis showing when and where the informant observed the cocaine in possession of the subject "David."
The affidavit did not satisfy the constitutional requirements of probable cause under the Fourth Amendment and Florida Constitution.
The warrant was invalid because it did not establish that narcotics-related violations were occurring within the dwelling as required by Florida statute.

Appellee's Arguments

The affidavit was sufficient when viewed under the totality of the circumstances test from Illinois v. Gates, emphasizing the informant’s reliability and personal observation of cocaine.
Testimony not included in the record would support the magistrate’s issuance of the warrant based on officers’ testimony.
The search should be upheld under the good faith exception articulated in United States v. Leon, arguing that officers reasonably relied on the warrant.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Illinois v. Gates, 462 U.S. 213 (1983)	Totality of the circumstances test for probable cause in affidavits supporting search warrants.	The court considered but ultimately rejected the state's argument that the affidavit was sufficient under this test due to missing factual details about when and where the contraband was observed.
Rand v. State, 484 So.2d 1367 (Fla. 2d DCA 1986)	Invalidation of search warrants lacking temporal specificity regarding informant observations.	Used as precedent to highlight that failure to allege when the contraband was observed invalidates probable cause.
Brown v. State, 561 So.2d 1248 (Fla. 2d DCA 1990)	Requirement that affidavits support probable cause that contraband is inside the dwelling.	Supported the court's conclusion that the affidavit was insufficient for failing to show the cocaine was inside the residence.
Garcia v. State, 554 So.2d 1223 (Fla. 2d DCA 1990)	Same as Brown, emphasizing necessity of factual basis for contraband location.	Reinforced the principle that warrants must be supported by facts indicating contraband is within the dwelling.
United States v. Leon, 468 U.S. 897 (1984)	Good faith exception to the exclusionary rule for searches conducted under a warrant officers reasonably believe to be valid.	The court rejected application of the good faith exception because the affidavit was so deficient that a reasonably trained officer would know the warrant was invalid.
Panzavecchia v. State, 201 So.2d 762 (Fla. 3d DCA 1967)	Affidavit requirement cannot be supplemented by additional testimony outside the affidavit.	Supported the rejection of the state's argument that testimony outside the affidavit could justify the warrant.
State v. Martin, 539 So.2d 577 (Fla. 5th DCA 1989)	Same as Panzavecchia, affirming affidavit sufficiency requirements.	Further confirmed that affidavits must stand on their own for warrant issuance.
State v. Bernie, 472 So.2d 1243 (Fla. 2d DCA 1985)	Statutory requirement that narcotics violations must be occurring within the dwelling to justify search warrants.	Referenced to emphasize statutory prohibition against issuing warrants without evidence contraband is inside the residence.
King v. State, 410 So.2d 586 (Fla. 2d DCA 1982)	Temporal specificity in affidavits for search warrants.	Cited along with Rand to underscore the importance of alleging when contraband was observed.

Court's Reasoning and Analysis

The court found the affidavit deficient because it failed to establish the temporal and spatial nexus required for probable cause. Specifically, the affidavit did not state when the informant observed the cocaine in possession of the subject "David," nor did it sufficiently allege that the contraband was located within the dwelling to be searched. These omissions violated constitutional protections under the Fourth Amendment and Florida's constitutional and statutory requirements, particularly § 933.18(5) of the Florida Statutes.

The court rejected the state's reliance on the totality of the circumstances test from Illinois v. Gates, reasoning that the affidavit's deficiencies could not be cured by the informant’s reliability or the knowledge that David lived with the appellant. The court also dismissed the state's argument that oral testimony outside the affidavit could supplement the probable cause showing, citing statutory prohibitions requiring sworn affidavits to stand on their own.

Regarding the good faith exception from United States v. Leon, the court concluded that the affidavit was so lacking in indicia of probable cause that no reasonably trained officer could have believed the warrant was valid. The statutory mandates were clear, and a trained officer would be expected to know that the affidavit failed to meet them.

Accordingly, the court held that the warrant was invalid and the evidence obtained through the search must be suppressed, rendering the convictions unsupportable.

Holding and Implications

The court REVERSED the appellant's convictions.

The direct effect of this decision is the reversal of Carol Susan Getreu’s convictions due to the invalidity of the search warrant. The court did not set new precedent but reaffirmed established constitutional and statutory standards requiring affidavits for search warrants to provide a factual basis showing contraband is located within the dwelling and specifying when contraband was observed. The ruling underscores that affidavits must stand on their own without supplemental testimony and that the good faith exception does not apply when affidavits are facially deficient under clear statutory requirements.

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CAROL SUSAN GETREU, APPELLANT, v. STATE OF FLORIDA, APPELLEE.

THREADGILL, Judge.

Carol Susan Getreu appeals her convictions of trafficking in cocaine, possession of cannabis, and possession of drug paraphernalia. She challenges two trial rulings and the denial of her motion to suppress. We do not reach the trial issues, however, because our decision on the motion to suppress is dispositive. The appellant contends that the probable cause affidavit in support of the warrant to search her home was deficient. We agree and reverse.

The warrant issued on the basis of the following probable cause allegations appearing in an affidavit from two Hillsborough County Sheriff deputies:

During the week of December 6, 1987, confidential informant 87-26, hereby referred to as confidential informant, did contact your affiant and advised your affiant that a white male known by the confidential informant only as David, last name unknown, is in possession of approximately eighty-four (84) grams of cocaine, as personally observed by the confidential informant.

Confidential informant advised your affiant that subject David lives in the residence as described in exhibit "A", with a white female by the name of Carol Susan Norman, which was confirmed by a Tampa Electric Company address check.

Because the affidavit lacks a factual basis to show when and where the informant observed David in possession of the cocaine, it falls short of constitutional requirements for probable cause. U.S. Const. amend. IV; Art. I, § 12, Fla. Const. (1982).

Florida law specifically proscribes the issuance of a warrant to search a dwelling for narcotics unless "[t]he law relating to narcotics or drug abuse is being violated therein (emphasis added)." § 933.18(5), Fla. Stat. (1987); see State v. Bernie, 472 So.2d 1243, 1245-46 (Fla. 2d DCA 1985). Failure to allege facts from which a magistrate can find probable cause to believe there is contraband inside a dwelling renders the warrant invalid. See Brown v. State, 561 So.2d 1248 (Fla. 2d DCA 1990); Garcia v. State, 554 So.2d 1223 (Fla. 2d DCA 1990). We find therefore that the affidavit was legally insufficient for failure to show the cocaine was located within the dwelling.

The affidavit also lacks a factual basis as to when the informant observed David in possession of cocaine. The sole allegation as to time pinpoints the date the informant spoke to the affiants, not the date he saw David in possession of cocaine.

The same deficiency invalidated a search warrant in Rand v. State, 484 So.2d 1367 (Fla. 2d DCA 1986). Rand's sole allegation as to time read: "within the last ten days he [the affiant] interviewed two confidential informants who claimed to have observed marijuana growing at a location on Pine Road in Lee County, Florida. . . ." Id. See also King v. State, 410 So.2d 586 (Fla. 2d DCA 1982). Thus the absence of an allegation as to when the cocaine was seen in David's possession also invalidates the probable cause affidavit.

The state urges that the affidavit is sufficient when the totality of the circumstances is examined, citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The totality of the circumstances test requires the magistrate "to make a practical, common-sense 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." 462 U.S. at 238, 103 S.Ct. at 2332. The state argues that the informant's reliability as evinced by his "personal" observation of the cocaine and knowledge that David lived with the appellant are circumstances that offset the lack of a factual basis. We do not agree because an additional factual basis cannot be inferred from these circumstances; thus, they add nothing to a magistrate's knowledge as to when and where the contraband was observed.

At oral argument the state asserted that testimony not transcribed for appeal would show that the magistrate issued the warrant based on the officers' testimony. This argument, however, overlooks the affidavit requirement of section 933.18(10), Florida Statutes (1987), which provides in part: "[n]o warrant shall be issued for the search of any private dwelling under any of the conditions hereinabove mentioned except on sworn proof by affidavit of some credible witness that he has reason to believe that one of said conditions exists, which affidavit shall set forth the facts on which such reason for belief is based." The state is not permitted to support an affidavit for search of a dwelling with additional evidence. Panzavecchia v. State, 201 So.2d 762 (Fla. 3d DCA 1967); see State v. Martin, 539 So.2d 577 (Fla. 5th DCA 1989). Therefore, we conclude that no other circumstances offset the facial deficiencies of the affidavit and the warrant was invalid for lack of probable cause.

The invalidity of the warrant notwithstanding, the state contends that the search can be upheld on the good faith exception enunciated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Leon reasoned that the exclusionary rule was intended to deter police misconduct, not to rectify an individual right. Id. at 906, 104 S.Ct. at 3411-12. Therefore, where the police act in good faith on a warrant they have no reason to believe is invalid, the deterrent effect of suppressing illegally seized evidence is minimal. 468 U.S. at 919-20, 104 S.Ct. at 3418-19. The test for good faith is "whether a reasonably trained officer would have known that the search was illegal despite the magistrate's authorization." 468 U.S. at 922 n. 23, 104 S.Ct. at 3420 n. 23. "Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit `so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" 468 U.S. at 923, 104 S.Ct. at 3421. The objective good faith standard requires officers to have a reasonable knowledge of what the law prohibits. Id. at 919 n. 20, 104 S.Ct. at 3419 n. 20.

The affidavit in this case precludes good faith reliance on the warrant because it omits requirements specifically prescribed by law. Subsection 933.18(5) prohibits the issuance of a search warrant to search a private dwelling unless "[t]he law relating to narcotics or drug abuse is being violated therein (emphasis added)." Subsection 933.18(10) prohibits the issuance of a warrant for a dwelling unless the affidavit contains a factual basis. A reasonably trained officer may be expected to know these requirements.

In summary, we find that the affidavit is facially deficient in failing to provide a factual basis to show where or when the contraband was observed. We also find that neither other circumstances nor the good faith exception of Leon overcome these deficiencies. We therefore reverse the appellant's convictions.

Reversed.

SCHEB, A.C.J., and PARKER, J., concur.