Wednesday, December 28, 2011

Florida Illegally Searches Grow House for Cannabis

The following case comes to DAD thanks to the watchful eyes of Florida attorney Michael Kessler. Many of the Collegemembers also handle other criminal or drug-related cases, so DAD thought this might be helpful there. It involves a motion to suppress a search warrant for grow house search, based upon a confidential informant's information.In Mesa v. State, --- So.3d ----, 2011 WL 6373006 (Fla.App. 4 Dist.) As Michael describes the holding:

The trial court erred in denying a motion to suppress where:

CI had no direct knowledge that defendant grew marijuana (rather the CI had direct knowledge than a neighboring house grew marijuana); 

CI claimed that the neighbor who grew marijuana frequently used the defendant’s pickup truck and made frequent stops at defendant’s house; 

Affiant gave no particulars to explain his claim that FPL records for defendant’s residence displayed “erratic/abnormal patterns of electrical usage for the neighborhood” when compared to other homes of the same size and in the immediate area; and

Surveillance of defendant’s house revealed a wood fence around the outside air conditioning unit, and there were no facts indicating that the air conditioning unit was oversized or commercial grade.

The appellate court also found that the good-faith exception did not apply:

"We also do not agree that the good faith exception applies in this instance. Garcia v. State, 872 So.2d 326, 330 (Fla. 2d DCA 2004), held that, where there is a lack of facts, a real paucity of facts, a very weak case, the law is well established that where “the supporting affidavit fails to establish probable cause to justify a search, Florida courts refuse to apply the good faith exception.” When an affidavit for a search warrant is so lacking in indicia of probable cause “as to render an official's belief in its existence entirely unreasonable,” the good faith exception is not applicable. Dyess v. State, 988 So.2d 146, 149 (Fla. 1st DCA 2008) (quoting Montgomery v. State, 584 So.2d 65, 68 (Fla. 1st DCA 1991)). The good faith exception does not apply where the affidavit is so lacking in probable cause and fails to establish a nexus between the objects of the search and the residence to be searched. Gonzalez v. State, 38 So.3d 226, 230 (Fla. 2d DCA 2010); Garcia, 872 So.2d at 330."

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