247 So. 2d 87 | Fla. Dist. Ct. App. | 1971
Coryell’s wife invited an FBI agent to enter their home, in the living room of which he saw some weapons. He knew that Coryell had previously been convicted of a felony, and upon his affidavit a search warrant was issued. Pursuant to that warrant marijuana found in a golf bag in a bedroom was seized during the search. This evidence was suppressed by the trial judge on the theory that the wife has no authority to consent to a search.
Our statutes allow the issuance of a warrant for the search of a dwelling in which “a weapon, instrumentality, or means by which a felony has been committed is contained therein.” Fla.Stat. § 933.18(6), F.S.A. An affidavit based upon information given by a reliable confidential informer would support a search warrant. State v. Smith, Fla.1970, 233 So.2d 396; State v. Lewis, Fla.App. 1969, 225 So.2d 170; Paula v. State, Fla.App.1969, 188 So.2d 388. An affidavit of the FBI agent who personally witnessed a firearm in the home of one he knew to be a convicted felon whose rights had not been restored is, a fortiori, sufficient basis for the warrant.
Coryell’s reliance on the statement of this court in State v. Blakely, Fla.App.1970, 230 So.2d 698, that the “husband and wife relationship itself, without more, does not impute authority to one spouse to waive the other’s constitutional right to demand a search warrant for the search of the premises” is misplaced. The search in this case was based on a warrant properly obtained on evidence gathered while the person on whose testimony it was based was not a trespasser. See Annotation, 10 A.L.R.3d 359 at 378, on the validity of warrants based on evidence gained while trespassing. Cf. Annotation, 31 A.L.R.2d 1078 at 1091 for the wife’s authority to consent to search of the husband’s premises. See also American Law Institute, Model Code of Pre-Arraignment Procedure, § SS 4.02 (Tent. Draft No. 3) 1970.
We expressly do not deal with the question of the wife’s authority to consent to a search of jointly possessed premises, nor do we foreclose the appellee’s right to raise other objections to admissibility, if he should have any, upon remand.
Reversed and remanded.