Opinion
No. 1D21-1406.
04-19-2023
Maurice Marcello MALDEN, Appellant, v. STATE of Florida, Appellee.
Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant. Ashley Moody , Attorney General, and Michael L. Schaub , Assistant Attorney General, Tallahassee, for Appellee.
Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.
Ashley Moody , Attorney General, and Michael L. Schaub , Assistant Attorney General, Tallahassee, for Appellee.
Long, J.
Maurice Malden appeals his judgments and sentences for several drug-related offenses. He pleaded no contest to the charges after the trial court denied his dispositive motion to suppress evidence obtained during a search of his home. He argues that the trial court erred in denying his motion because the warrant failed to establish probable cause. Specifically, Malden argues that because one of the two criminal events in the probable cause affidavit occurred up to 90 days before the warrant was issued, the information was stale. Malden's argument finds some support in prior Florida court decisions. We think this number-based inquiry is untethered to the original meaning of the term "probable cause" as it is used in the Fourth Amendment.
We affirm the other issues raised on appeal. We do not discuss them further, except to note that Malden argues the court imposed a $2 fine pursuant to 938.15, Florida Statutes, without also listing the enacting local ordinance in the judgement. He does not argue that the ordinance and its $2 fine did not apply to his case, only that the court failed to write the ordinance number in the judgment. Because there can be no prejudice where the ordinance exists, applies to the defendant, and lawfully imposes the fine, we affirm.
See Pilieci v. State, 991 So.2d 883, 891 (Fla. 2d DCA 2008) (explaining that thirty days is a "rule of thumb" to determine staleness); see also Zaner v. State, 444 So.2d 508 (Fla. 1st DCA 1984) (holding that search warrant issued fourteen days after controlled buy and executed within thirty days of such buy was not stale notwithstanding there was a nine-day delay in execution of the warrant); Hamelmann v. State, 113 So.2d 394, 396 (Fla. 1st DCA 1959) ("Barring extraordinary circumstances which may be shown to exist in any given case, the pattern has been rather clearly established in courts of this country that if the observation of the alleged offense is not farther remote than 30 days from the making of the affidavit and issuance of the warrant, a finding that there exists probable cause will not be disturbed.").
I
By the eighteenth century, a right against warrantless searches began to take shape under English law. Entick v. Carrington and Wilkes v. Wood were part of a series of civil actions against state officers who, under general warrants, raided homes and other places in search of materials connected with John Wilkes' pamphlets attacking the King and various government policies. Wilkes, 98 Eng. 489 (C.P. 1763). Entick, an associate of Wilkes, sued when agents broke into his home to search his locked desk and boxes, seizing pamphlets and charts. Entick v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765). The court found the warrant was perverse to the "comforts of society" and determined that a warrant for the seizure of all a person's papers (rather than only those connected with the alleged criminal activity) was contrary to "the law of England." Id. It was in this historical moment that general warrants were formally condemned in England. The Supreme Court of the United States would later hail the decision as "one of the landmarks of English liberty." Boyd v. United States, 116 U.S. 616, 626, 6 S.Ct. 524, 29 L.Ed. 746 (1886).
English law has long recognized special legal protections for homes. While warrant requirements designed to protect those rights developed later, the conception of a "man's home [as] his castle" is much older. As early as 1604, English law discussed a homeowner's rights against abusive searches by the King's agents. Semayne's Case (1604) 77 Eng. Rep. 194 (K.B.) (Sir Edward Coke writing "[f]or a man's home is his castle, et domus cuique tutissimum refugium.").
These notions also took hold in the colonies during the same period with the adoption of protections against unreasonable searches and seizures. The colonial Province of Massachusetts Bay, in 1756, enacted legislation that set out a standard of proof for certain search warrants, requiring an affiant to have "just cause" of criminal activity. Mass. Acts. 909-10 (1756) (an affiant "may apply to any justice of the peace within the county, for a warrant to search such place, and said justice shall grant such warrant ... upon [the affiant's] oath that he hath had information as aforesaid, and that he hath just cause to suspect" the unlawful activity) (emphasis supplied). Massachusetts would later adopt sweeping protections in its constitution against warrantless searches. It would prohibit searches not supported by oath or affirmation or warrants that were not accompanied by a "special designation" of the property or person to be searched. Mass. Declaration of Rights, art. XIV (1780). The Virginia Declaration of Rights, written by George Mason, also prohibited general warrants issued without evidence:
That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not be granted.
Va. Declaration of Rights, § 10 (1776).
The initial draft of the Fourth Amendment was prepared by James Madison. Thomas K. Clancy, The Framers' Intent: John Adams, His Era, and the Fourth Amendment, 86 Ind. L.J. 979, 1044 (2011). Though familiar with the Virginia Declaration of Rights, Madison adopted the structure of the Massachusetts Declaration of Rights, copying the first clause almost verbatim. Id. at 1046. As to the second clause, Madison included the requirement of an oath or affirmation and a particular description. And Madison included a new term to describe the suspicion required— "probable cause." Id. at 1047. The proposed language ultimately adopted in the Constitution was that "no Warrants shall issue, but upon probable cause." Amend. IV U.S. Const. (emphasis added).
This historical context helps us understand how to think of the protections in the Fourth Amendment. The founders were concerned with general warrants, issued without an independent check and sufficient criminal suspicion. The Fourth Amendment requires a showing that particular evidence of a particular crime will probably be found in a particular place. The probable cause determination is entrusted to the judgment of a neutral magistrate. And that determination simply asks whether a reasonably prudent person would think the allegation probable. Dunnavant v. State, 46 So.2d 871, 874-75 (Fla. 1950).
That the inquiry lacks specificity is by design. Probable cause is "incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances." Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). Probable cause is not rigid nor is it a standard that is particularly difficult to meet—probable cause is a relatively low legal burden, "more than a bare suspicion but less than evidence that would justify a conviction." Probable Cause, BLACK'S LAW DICTIONARY (11th ed. 2019); see also Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035 (1878) (describing probable cause as "[a] reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in" believing the allegation). Law enforcement must convince a neutral arbiter that the evidence it has obtained is sufficient to conclude a person probably committed a crime and that evidence of a crime is probably in a particular place. This reasonably-prudent-person analysis is contextual and, by its nature, does not include exacting time limits. It is no math equation; it is an exercise of judgment. In this light, the appellate court's role, broadly considered, is to ensure a neutral magistrate gave meaningful review to test the basis of the oath and to ensure the warrant's limited scope.
II
On June 5, 2019, Deputy Coy McKenna of the Escambia County Sheriff's Office sought to search Malden's home. Deputy McKenna initiated the investigation into Malden's criminal activity using a confidential informant. The informant performed two controlled buys from Malden. The affidavit details the process used for the buys. The first buy occurred within 90 days of the warrant's issuance. It was recorded with a concealed electronic device and took place at Malden's home. The informant purchased both methamphetamine and marijuana from Malden. Malden was then surveilled until another controlled buy was conducted. The second buy occurred within 10 days of the warrant's issuance. This time, rather than at his home, Malden set the deal location at a nearby parking lot. The surveillance team watched Malden before the second buy. They watched him leave his home and drive alone directly to the parking lot where the deal was completed. Malden then sold a trafficking quantity of methamphetamine to the informant. The affidavit then outlines, in detail, Deputy McKenna's extensive training and experience in law enforcement and narcotics investigations. He explains why, based on the facts he knows, he believes methamphetamine, marijuana, and drug paraphernalia will be found in Malden's home.
After reviewing this multi-page affidavit, the circuit judge issued a search warrant authorizing law enforcement to enter and search Malden's home for methamphetamine, marijuana, and drug paraphernalia. During the search, deputies found methamphetamine, powder cocaine, crack cocaine, marijuana, multiple digital scales, storage baggies, a box of U.S. currency on the kitchen table, multiple firearms, ammunition, and hydrocodone pills. The State charged Malden with trafficking in methamphetamine, trafficking in cocaine, possession with intent to sell or deliver a controlled substance within 1000 feet of a place of worship, possession of paraphernalia, and two counts of possession of a firearm or ammunition by a felon.
Malden moved to suppress the evidence seized during the search. He argued that the evidence of the controlled buy at his residence was stale and that the second controlled buy only gave the State a reason to search his car, not his residence. He therefore argued that there was no probable cause to search his residence. The trial court denied the motion. He now appeals.
III
Malden claims the first controlled buy was stale, and that the second controlled buy, when viewed alone, could not establish probable cause to search his home. He relies on the notion that a ninety-day delay precludes the use of the earlier controlled buy. But, of course, there is a distinction between the sufficiency of a fact when taken alone and the exclusion of the fact from consideration altogether. The court is required to view all the presented information together and reach a reasoned conclusion. We agree with Malden that the passage of time is an important consideration in the probable cause analysis. But we caution against an analysis dependent exclusively on timeliness. No arbitrary timeline (i.e., thirty, sixty, or ninety days) can replace a thorough, case specific probable cause inquiry.
So, here, we know that, within the preceding 90 days, Malden sold illegal drugs out of his residence during a controlled buy. We also know that he sold illegal drugs out of his car, within the preceding 10 days, near his residence during a second controlled buy. And we know that he went directly from his residence to the site of the second buy without making any stops. These facts, considered together, reasonably establish that there would probably be illegal drugs in Malden's residence. We therefore affirm the trial court's denial of the motion to suppress.
AFFIRM.
B.L. Thomas, J., concurs; Kelsey, J., concurs in result.