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Warrant Issued Without Probable Cause

COMES NOW the Defendant, by and through his undersigned counsel, and hereby files this Motion to Suppress, and respectfully moves the Court to suppress any and all evidence seized and/or obtained from the residence the Client shares with his wife as a result of the search of the residence conducted on February 1, pursuant to a search warrant issued January 29, and in support thereof, states as follows:

A. Introduction

1. This motion is filed pursuant to the provisions of Rule 3.190(g)(1)(A), Florida Rules of Criminal Procedure.
2. The Client is aggrieved by an unlawful search and seizure, as the property at issue was illegally seized pursuant to a search warrant issued without probable cause.
3. Commencing on or about January 13, and continuing through approximately January 27, Officer R. C. S., and Officer J. A. B. of the Jacksonville Sheriff’s Office were investigating Organized Fraud, specifically credit card fraud, and identity theft, occurring in Jacksonville, Duval County, Florida.
4. The primary suspect in their investigation was an individual named S. E., AKA M. W. Ms. E. was associated in the fraud with L. T. (her daughter), early in the investigation.
5. During the course of the investigation, D. H. (who is currently on felony probation out of Orlando, for cocaine trafficking), the wife of the Defendant, was also involved in the S. E. investigation.
6. As a result of the joint investigation by Officers S. and B., they believed probable cause was developed for the issuance of search warrants, seeking evidence of the fraud perpetrated by S. E.
7. During the course of their investigation, as outlined and discussed more fully below, a search warrant was sought and obtained for Ms. E.’s residence, as well as eventually, the residence D. H. shared with the Client.
8. Once obtained, the search warrants were jointly executed by Officers S. and B., at the residences of S. E. (Officer S.) and D. H. (Officer B.).
9. The scope of the search warrant for the D. H. residence was solely for items belonging to Ms. H., which were used in, or were evidence of, the fraud allegedly perpetrated by S. E.
10. During the search of Ms. H.’s residence, the property subject to this motion (powder cocaine), was located, in the pockets of men’s clothing, hanging in a shared closet, in the Client’s and Ms. H.’s shared master bedroom.

B. Warrant History

11. On January 27, JSO detectives S. and B., having prepared multiple search warrants for dwellings in Duval County, Florida, forwarded same to Assistant State Attorney E. B.
12. The first email, attached as Composite Exhibit A, was sent at 7:38 a.m., on Wednesday, January 27. It contained three identical search warrant affidavits, all with the same facts, the same names, and each with a different premises. The affidavits consisted of seven pages, and 32 paragraphs of factual allegations. As discussed more fully below, D. H., (who was not a listed suspect, or target, in these original search warrants) was mentioned in just three paragraphs.
13. One of the search warrants listed the townhouse located at the address, as the target premises. This is the premises where D. H. resided, along with the Defendant.
14. Some 17 minutes later, at 7:55 a.m., on Wednesday, January 27, the email, attached as Composite Exhibit B, containing two slightly edited search warrant affidavits and applications, was emailed to the State Attorney’s Office, by JSO Officer R. S. That email contained two search warrants, the first of which was identical to the previous three (Composite Exhibit A) in every way. The second was also identical both to the first three, and to the second affidavit for S. E., except that the name on the first page of the affidavit was changed from “S. E., L. T., R. T. and others,” to D. H. Otherwise, this affidavit was identical in every way to its predecessor, including naming Ms. H. in only three paragraphs, as discussed further below. Clearly, all of the allegations in this affidavit related to the investigation of S. E.
15. Two days later, the affidavits were returned to Officer S., for issuance. The affidavit for the location (D. H. and the Client’s shared residence) is referred to herein as the “final affidavit,” and attached as Exhibit C. The final affidavit is identical in every single way to the affidavit in Exhibit B, except that instead of using the name “Ms. E.,” for S. E., it names S. E. specifically, as “S. E.” Otherwise, it is absolutely identical to the search warrant affidavit as submitted in Exhibit A, for Ms. E., and resubmitted in Exhibit B, with the name changed to D. H. All of these refer to Ms. E., alone, as the “suspect.”

C. Analysis of Warrant Affidavits

16. The search of D. H.’s residence, leading to the discovery of the subject evidence in this case, was conducted by Officer B., based on the search warrant issued by Judge M., pursuant to the final affidavit, attached as Exhibit C.
17. As discussed above, there are 32 paragraphs containing factual allegations in this search warrant affidavit. While the search warrant affidavit states that the premises “are being used by: D. H. and others,” for the illegal acts relating to organized fraud, the affidavit is otherwise identical to that submitted for S. E. In the final affidavit, as in all the others, only S. E. is named as the “suspect.” Affidavit p. 1, ¶ 8. Every substantive factual paragraph in the final affidavit (like all the others) contains allegations about illegal acts committed by S. E.
18. Ms. H. is only named in three paragraphs in the final affidavit (Exhibit 3), too. None of these paragraphs, as admitted by Officer B., states probable cause – that it is more likely than not – to believe D. H. is involved in the organized fraud committed by S. E. Additionally, there is not a single factual allegation anywhere in the affidavit that any evidence relating to the S. E.’s organized fraud could ever be located at D. H.’s residence.
19. The first paragraph mentioning D. H. is found on page 3 of the search warrant final affidavit, at paragraph 1. It describes D. H., on November 13, taking her personal vehicle to a repair shop for “warranty and repair work.” The final affidavit goes on to state, in relevant part, that “[a]fter the repairs were made, S. E. picked up the vehicle and presented a company card and defrauded the company out of $990.23. A photo spread was presented to the clerk who handled the transaction at the repair shop. S. E. was identified in the photo spread by the clerk.” Id. (emphasis added).
20. On June 22, Officer J. R. B. was deposed in this case. Attached as Exhibit D is a transcript of the deposition of Officer B. Officer B. testified that she was the one who performed the repair shop investigation. Tr. p. 10, 14-25. She provided the information to Officer S. to use in the search warrant final affidavit, worked on it with him, and reviewed it. Id., Tr. p. 15, 17-25.
21. Additionally, Officer B. saw the search warrant when it was submitted, went over it with Officer S., and it was based, in part, on the information she provided. Tr. 13, 19-25, 14, 1-6.
22. Officer B. was deposed in detail about every single paragraph of the final affidavit. She testified that nowhere, in any paragraph, did the final affidavit state that evidence relating to the crime under investigation could be found at the residence of D. H. See, e.g., Tr. 22 at 10-15.
23. As to the repair shop transaction, Officer B. admitted that nothing in the repair shop paragraph of the final affidavit says D. H. knew anything about the fraudulent company card used by S. E. to pay for the repairs. Tr. 26 at 7-11.
24. As to the relation to D. H., and the fraud perpetrated on the repair shop by S. E., Officer B. testified that D. H. “possibly” knew about the fraud, and “could have” gotten the receipt from S. E. for the repair shop payment.
25. As the Court is aware, probable cause means it is more likely than not that D. H. had knowledge of the fraud. Respectfully, “possibly,” and “could have,” do not amount to probable cause. Additionally, even if S. E. had given the credit card receipt to D. H., there is no factual allegation anywhere that D. H. knew S. E. paid for the car repairs with a fraudulent credit card. Thus, this paragraph does not state probable cause to believe D. H. was involved in the organized fraud perpetrated by S. E., nor does it state probable cause to believe that evidence of the organized fraud would be found at the residence where D. H. lived with the Client.
26. The second paragraph in the final affidavit which even mentions D. H. at all is found on page 4, at paragraph 4. It discusses two trips to a business by S. E., her daughter, and D. H., who picked out items to purchase on one day (January 4). The items were actually purchased two days later by S. E., using a fraudulent credit card. Officer B. testified there is not a single fact in this paragraph that states D. H. knew the transaction was paid for with a fraudulent credit card. Thus, this paragraph is absolutely bare of any assertion giving rise to probable cause that D. H. participated in any organized fraud by S. E., or had any guilty knowledge thereof. Additionally, comparing this paragraph, to the corresponding paragraph in the draft affidavit (Exhibit B), the paragraphs are identical, except there is no identification of any individual as a suspect, in this paragraph in the final affidavit. All such references were deleted.
27. The last of the three paragraphs which mentions D. H. in the search warrant final affidavit is found immediately after the previous paragraph, also on page 4, at paragraph 5. It describes S. E., and two other females, one of whom was “possibly” D. H., going to a jewelry store. Id. In fact, a photospread was shown to the clerk at the jewelry store, and he was unable to identify D. H. in the photospread as being one of the individuals accompanying Ms. E. that day. The search warrant final affidavit failed to inform the issuing judge of this fact. Tr. p. 14, lines 7-20, p. 15, lines 1-6.
28. Officer B. testified that this paragraph, like all of the others, does not say D. H. knew a fraudulent credit card was used, and there was no information in that paragraph tying anything about this transaction to the address.
MEMORANDUM OF LAW

Applicable Law – In General

29. Both the Fourth Amendment to the United States Constitution, and Article I, Section 12, of the Florida Constitution guarantee a citizen’s right to be secure in their dwellings from unreasonable searches, enforcing and ensuring this guarantee by the requirement that no search warrant shall be issued, except on probable cause stated in an affidavit. This requirement is codified in Florida at §932.04, Fla. Stat.
30. While §932.18 (6) Fla. Stat. permits issuance of a search warrant for a dwelling seeking evidence of a felony, that grant of authority is subject to the constitutional and statutory requirement of probable cause. A “[j]udge must, before issuing the warrant, have the application of some person for said warrant duly sworn to [which] must set forth the facts tending to establish … probable cause.”) §932.06 Fla. Stat.
31. The law is crystal clear, and long settled, that
[t]he standards for affidavits in support of search warrants are set forth in Aguilar v. Texas, 378 U.S. 108 (1964) and Spinelli v. United States, 393 U.S. 410 (1969). The requirements of Aguilar, supra, and Spinelli, supra, were recognized as controlling in Florida in State v. Smith, 233 So. 2d 396 (Fla.1970). There can be no question but that probable cause is a mandatory prerequisite to the issuance of any warrant.
State v. Compton, 301 So. 2d 810, 811 (Fla. 2d DCA 1974). Accord Montgomery v. State, 584 So. 2d 65 (Fla. 1st DCA 1991).
32. In the instant case, it is both obvious and admitted by Officer B. that the subject final affidavit entirely lacked probable cause to believe D. H. had committed any felony, or that any evidence of S. E.’s criminal activity would be found at the residence shared by D. H. and the Client. This was known by Officer B. at the time the affidavit was drafted in combination with Officer S., when submitted, when amended, and after the minimal editing done by the State, which Officers B. and S. reviewed, prior to submission.
Good Faith Exception Inapplicable
33. The good faith exception enunciated in United States v. Leon, 468 U.S. 897 (1984) is unavailable here. Leon reasoned that the exclusionary rule was intended to deter police misconduct, not to rectify an individual right. Id at 906, 104 S. Ct. at 3411-12. Therefore, where the police act in good faith on a warrant they have no reason to believe is invalid, the deterrent effect of suppressing illegally seized evidence is minimal. 468 U.S. at 919-20, 104 S. Ct. at 3418-19. The test for good faith is “whether a reasonably trained officer would have known that the search was illegal despite the magistrate’s authorization.” 468 U.S. at 922 n. 23, 104 S. Ct. at 3420 n. 23. “Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause so as to render official belief in its existence entirely unreasonable.’” 468 U.S. at 923, 104 S. Ct. at 3421. The objective good faith standard requires officers to have a reasonable knowledge of what the law prohibits. Id at 919 n. 20, 204 S. Ct. at 3419 n. 20. Here, Officer B. testified that she had that knowledge.
34. The conclusion that the affidavit is so lacking in indicia of probable cause as to render official belief in its validity is amply demonstrated by the fact that of the 32 paragraphs alleging the factual basis for the search, 29 of them did not even mention D. H., and of the 3 that did, the best that could be said of them by Officer B. is that 1 of them said D. H. “possibly” “could have known” that fraud was committed by S. E., and the rest were both admittedly silent on that issue, and all were acknowledged not to state probable cause.
35. Here, the affidavits and the search warrant were drafted and approved by a trained law enforcement officers, and a trained Assistant State Attorney. All of them are presumed to know the law applicable to searches and arrests. State of Florida v. Eric Young, 974 So.2d. 601, 610 (Fla. 1st DCA 2008)(“courts presume that the officer was familiar with the applicable law”).
36. The affidavit in this case precludes good faith reliance on the warrant because it omits requirements specifically prescribed by law. §933.18(6), Fla. Stat. prohibits the issuance of a warrant to search a private dwelling unless there is probable cause to believe evidence of the commission of a felony is located therein. Subsection 933.18(10) prohibits the issuance of a warrant for a dwelling unless the affidavit contains a factual basis. A reasonably trained officer is expected to know these requirements. Getreu v. State, 578 So. 2d 412, 414 (Fla. 2d DCA 1991). Therefore, the good faith exception in Leon is inapplicable here. See id. (“We find that the affidavit is facially deficient in failing to provide a factual basis to show where or when the contraband was observed. We also find that neither other circumstances nor the good faith exception of Leon overcome these deficiencies.”)
37. This conclusion that the good-faith exception is inapplicable is further supported by Dyess v. State, 988 So. 2d 146 (Fla. 1st DCA 2008), because the supporting affidavit clearly and admittedly fails to establish a nexus between the items sought, and the premises to be searched. “When a supporting affidavit fails to establish probable cause to justify a search, however, the good faith exception does not apply.” Id. at 149, citing Renckley v. State, 538 So. 2d 1340, 1343 (Fla. 1st DCA 1989) and Garcia v. State, 872 So. 2d 326, 329–30 (Fla. 2d DCA 2004). As in Garcia and Renckley, because the supporting affidavit here fails to establish a nexus between the objects of the search and the residence to be searched, the good faith exception does not apply. Dyess, supra, at 150.

C. Conclusion

38. In the instant case, as admitted by Officer B., the final affidavit supporting the subject search warrant was entirely devoid of probable cause. This was palpably obvious, and utterly undisputed by Officer B. The warrant should not have been issued, and, as the warrant was so lacking in probable cause that no reasonable officer would have relied on it, the good-faith exception to the exclusionary rule does not salvage the instant unlawful search. Suppression is the appropriate remedy.
WHEREFORE, Defendant respectfully prays this Honorable Court enter an Order of Suppression, excluding the use of the above described evidence at trial in this cause.