184 So. 2d 473 | Fla. Dist. Ct. App. | 1966
Treverrow appeals from a judgment of conviction entered upon a jury verdict of guilty of the moonshine offenses of unlawful possession of a container containing mash, unlawful possession of a moonshine still, and unlawful possession of a piece and part of a moonshine still. The two points posed by appellant which give us concern involve the sufficiency of an affidavit as to probable cause for issuance of a search warrant and the failure of the trial court to require the disclosure of the name of the confidential informer.
At the outset, it is noted that a timely motion to suppress the fruits of this search was filed and same was overruled at the beginning of the trial. One L. B. Boyette, Jr., a Beverage Department Officer, executed an affidavit for a search warrant before the County Judge of Columbia County m which the following allegation was set forth:
“On Wednesday, January 6, 1965, a reliable confidential informer told me that about two days prior to this date, he saw two metal drums containing fermented mash inside the above described premises.”
At the beginning of the trial, the County Judge testified that Boyette executed the affidavit in his presence and that no other charges or statements were given as a predicate for the issuance of the search warrant. Thus, it is undisputed that the quoted language in the affidavit was the sole predicate considered by the County Judge for the issuance of the warrant.
Appellant insists that the search warrant was not properly issued since it was based solely upon hearsay evidence, or stated another way, that some circumstances other than information received from a confiden
In Chacon v. State,
In Harrington v. State,
In State v. Hardy,
The Third District Court of Appeal considered the problem in Baker v. State.
To summarize, it appears that in each Florida case, save the Baker case, the prosecution has not been required to disclose the name of the confidential informer; however, in each case the affidavit has contained independent information known to affiant over and beyond that which had been furnished by the informer. Conversely, it appears that if “probable cause” is to be found to exist solely by reason of hearsay, the Florida rule in the name of fair play might well require the prosecution to furnish a defendant the name of a confidential informer. However, it appears that the Florida decisions are based to a great extent upon the holding in Roviaro, so it is necessary to examine the United States Supreme Court decisions rendered on the subject subsequent to Roviaro.
The current landmark case of the United States Supreme Court is Jones v. United States
“The question here is whether an affidavit which sets out personal observations relating to the existence of cause to search is to be deemed insufficient by virtue of the fact that it sets out not the affiant’s observations but those of another. An affidavit is not to be deemed insufficient on that score, so long as a substantial basis for crediting the hearsay is presented.
* * * * * *
“We conclude therefore that hearsay may be the basis for a warrant. We cannot say that there was so little basis for accepting the hearsay here that the Commissiffner acted improperly. The Commissioner need not have been convinced of the presence of narcotics in the apartment. He might have found the affidavit insufficient and withheld his warrant. But there was substantial basis for him to conclude that narcotics were probably present in the apartment, and that is sufficient. It is not suggested that the Commissioner doubted Di-done’s word.”
After holding that hearsay may be the basis for a warrant, the Supreme Court, in examining Jones’s contention that the warrant was defective because affiant’s informers were not produced, noted that the objections raised did not allege that the affiant had misrepresented anything to the Commission who issued the warrant; since no such charge was made, it was not necessary that the names of the informers be revealed; and having decided that hearsay alone does not render an affidavit insufficient, the magistrate before whom the affidavit was filed need not have required the informers or their affidavits to be produced so long as there was a substantial basis for crediting the hearsay.
Thus, it appears that the facts in the case sub judice fall squarely within the doctrine of the Jones case, and such is evidenced by the admitted facts. Here affiant swore that a reliable informer had told him that he (the informer) had seen the contraband on the described premises within a short period of time prior to the execution of the affidavit. No attack was made by the defendant upon the creditability of this information. Although the magistrate might have found the affidavit insufficient and withheld his warrant, by a like token there was a sufficient substantial basis for him to conclude that two drums of mash were located on the described premises.
Aguilar v. State of Texas
“ * * * the petitioner’s residence at 509 Pinckney Street 'is a place where we each have reason to believe and do believe that [Aguilar] * * * has in his possession therein narcotic drugs * * * for the purpose of the unlawful sale thereof, and where such narcotic drugs are unlawfully sold.’ In addition and in support of their belief, the officers included in the affidavit the further allegations that they ‘have received reliable information from a. credible person and do believe that*477 heroin * * * and other narcotics and narcotic paraphernalia are being kept at * * * [petitioner’s] premises for the purpose of sale and use contrary to the provisions of the law.’ ”
The United States Supreme Court, in holding that the evidence procured as a result of a search warrant that was issued upon said affidavit was not admissible, stated that probable cause was absent because the affidavit not only contains no affirmative allegation that the affiant “spoke with personal knowledge of the matters contained therein, it does not even contain an ‘affirmative allegation’ that the affiant’s unidentified source ‘spoke with personal knowledge.’ For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner’s possession. The magistrate here certainly could not ‘judge for himself the persuasiveness of the facts relied on * * to show probable cause.’ He necessarily accepted ‘without question’ the informant’s ‘suspicion,’ ‘belief’ or ‘mere conclusion.’ ” In weighing the facts set forth in the instant cause it is readily seen that same are distinguishable from those that appear in Aguilar for here the unidentified source “spoke with personal knowledge.”
The last United States Supreme Court case that we have found upon the subject is United States v. Ventresca,
“This Court is alert to invalidate unconstitutional searches and seizures whether with or without a warrant. See Aguilar v. State of Texas, supra; Stanford v. State of Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777; Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142. By doing so, it vindicates individual liberties and strengthens the administration of justice by promoting respect for law and order. This Court is equally concerned to uphold the actions of law enforcement officers consistently following the proper constitutional course. This is no less important to the administration of justice than the invalidation of convictions because of disregard of individual rights or official overreaching. In our view the officers in this case did what the Constitution requires. They obtained a warrant from a judicial officer ‘upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the * * * things to be seized.’ It is vital that having done so their actions should be sustained under a system of justice responsive both to the needs of individual liberty and to the rights of the community.”
As to the remaining points raised by the appellant on this cause, a full review of the record discloses that the same are without merit.
The judgment appealed is affirmed.
. Chacon v. State, 102 So.2d 578 (Fla.1958).
. Roviaro v. United States of America, 353 Ü.S. 53, 77 S.Ct. 623, 627, 1 L.Ed.2d 639.
. Harrington v. State, 110 So.2d 495 (Fla.App.1st, 1959).
. State v. Hardy, 114 So.2d 344 (Fla.App.1st, 1959).
. Baker v. State, 150 So.2d 729 (Fla.App.3d, 1963).
. City of Miami v. Jones, 165 So.2d 775 (Fla.App.3d, 1964).
. An excellent discussion of this issue is found in Volume XVI, University of Florida Law Review, page 180, Trends of Search and Seizure in Florida, authored by Gene 'Williams, Judge, Criminal Court of Record, Dade County.
. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).
. Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.
. United States v. Ventresca, 380 U.S. 102, 85 S.Ct 741, 13 L.Ed.2d 684.