311 So. 2d 727 | Fla. Dist. Ct. App. | 1975
Concurrence Opinion
(concurring specially) :
I concur in this court’s determination that the search in question was unreasonable on the basis that at the time the search was made the officers did not have a search warrant in their possession.
The record reflects that at the time the private dwelling was searched by federal and state officers, a federal search warrant had been issued which fact was known by the officers but which warrant did not arrive at the premises in question until after the search began.
It simply does not comport with the constitutional and statutory guarantees against unreasonable searches for law enforcement officers to know that a warrant has been issued. Absent those circumstances where a search warrant is unnecessary, possession of the search warrant is an essential requirement to the performance of the search and the validity of the seizure. Cf. Benefield v. State, Fla.1964, 160 So.2d 706; Webster v. State, Fla.App.1967, 201 So.2d 789; State v. Hetzko, Fla.App. 1973, 283 So.2d 49.
Lead Opinion
Upon review of the record on appeal and after consideration of the briefs and oral argument of counsel for the respective parties, we determine that the instant search of the defendant’s residence, absent knowledge of the contents of the search warrant, was unreasonable. Therefore, the trial court erred in denying the defendant’s motion to suppress the evidence seized by said search. Accordingly, the order denying the motion to suppress is reversed.
The order of probation is vacated and set aside, and the cause remanded for further proceedings consistent with the views herein expressed.
