FL5: SW in burglary had no nexus, was fatally overbroad, and no GFE

The affidavit for the search warrant in this case completely lacked probable cause by showing a nexus to defendant, 12 other burglaries, and the place to be searched. Moreover, the list of things to be seized was completely without particularity for “any and all burglary tools, stolen items, or any similar items pertaining to this or any other recent burglary.” Finally, it was so facially deficient that the good faith exception cannot apply. Russ v. State, 2016 Fla. App. LEXIS 1528 (Fla. 5th DCA Feb. 5, 2016):

Here, we conclude that the affidavit is deficient because the connection between Russ, his mother’s residence, and the twelve other burglaries is attenuated at best. Given the lack of a reference date for the other twelve burglaries, the magistrate was unable to properly evaluate the likelihood that evidence of those burglaries would be found in Russ’s mother’s residence. McGill, 125 So. 3d at 349 (“In the instant case, the trial court correctly noted that the affidavit did not provide the date on which the CI allegedly observed the cannabis and cash inside McGill’s house; therefore, the CI’s observation alone would have been insufficient to satisfy the nexus requirement.”). Additionally, without any description of the other burglaries, the magistrate was precluded from comparing the modus operandi of those burglaries to the burglary committed by Russ.

The search warrant issued by the magistrate in the present case authorized the law enforcement officers to seize “any and all burglary tools, stolen items, or any similar items pertaining to this or any other recent burglary” found on the premises. Where a search warrant fails to adequately specify material to be seized, and leaves the scope of the seizure to the discretion of the executing officer, it is constitutionally overbroad. State v. Nelson, 542 So. 2d 1043, 1045 (Fla. 5th DCA 1989); see also § 933.05, Fla. Stat. (2013). The use of broad categories and generalities can render a search warrant overly broad. See Polakoff v. State, 586 So. 2d 385, 387, 392 (Fla. 5th DCA 1991) (holding that search warrant authorizing search for “documents recording the extension of credit to Haya Bigloo” was constitutionally overbroad). In Ingraham v. State, 811 So. 2d 770 (Fla. 2d DCA 2002), a search warrant authorizing police to search for “certain evidence relating to Arson and Burglary to wit: Clothing, shoes, and other physical evidence relating to the Crime [sic] of Arson and Burglary” was found to be constitutionally overbroad.

We agree … that the trial court erred in denying the motion to suppress because the search warrant failed to describe the items to be seized with particularity. In fact, the warrant very nearly authorized a general search of [appellant's] apartment.

Id. at 772-73. Similar to Ingraham, the search warrant here did not contain the requisite level of particularity and was constitutionally overbroad.

We also reject the State’s good faith exception argument. In general, the good faith exception precludes the suppression of evidence secured pursuant to an invalid warrant when the officer who conducts the search does so in objectively reasonable reliance upon the validity of the warrant. McGill, 125 So. 3d at 351 (citing to United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)). The exception does not apply where an affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923. Here, the failure to set forth a date for the other burglaries, combined with the lack of specific information regarding those burglaries resulted in the affidavit lacking the requisite indicia of probable cause to support the State’s good faith exception argument.

Furthermore, the good faith exception does not apply where the search warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized, that the executing officers cannot reasonably presume it to be valid. Id. Here, the warrant was clearly facially deficient as the result of the failure to particularize the items to be seized in Russ’s mother’s residence.

Note: I’ve seen plenty of affidavits like that, and police education has improved, so the quality of search warrant affidavits has generally improved, but not always in state courts. But, one can’t help but think that the overly forgiving nature of the good faith exception doesn’t but help promote such lackadaisical approaches to a showing of probable cause. Read a few thousand good faith exception cases, and you’ll understand.

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