FL2: SW affidavit didn’t support nexus to home; GFE not applicable

The affidavit for search warrant here didn’t show nexus to defendant’s home, and the good faith exception doesn’t carry it. Smitherman v. State, 2022 Fla. App. LEXIS 1715 (Fla. 2d DCA Mar. 11, 2022):

According to the affidavit, the investigation solely concerned the contents of the package, and the Cal Cove home’s only connection to any illegal activity was that Smitherman brought the package there. Once law enforcement detained Smitherman in the garage while he was holding the contents of the package, they had obtained all the evidence of the only crime they were investigating. Based on the allegations in the affidavit, law enforcement could only speculate that additional evidence would be present in the house, and speculation alone cannot support probable cause. See Garcia v. State, 872 So. 2d 326, 330 (Fla. 2d DCA 2004) (holding that a warrant application failed to establish probable cause when it relied on speculation rather than evidence establishing a fair probability that drugs would be present).

While Smitherman’s opening of the package at the Cal Cove home may have suggested some link between the home and Smitherman’s alleged trafficking, that event, standing alone, did not create a probability that further narcotics or similar evidence of trafficking would be present at that location. See Dyess v. State, 988 So. 2d 146, 149 (Fla. 1st DCA 2008) (holding that the defendant’s involvement in a controlled drug sale in a grocery store parking lot did not create probable cause for a search of the defendant’s home, even when the defendant went straight home after the sale because “[w]hile it could certainly be inferred that Appellant might have other drugs and paraphernalia in the residence, this inference is nothing more than speculation”).

The State contends that the good-faith exception to the exclusionary rule should apply to the fruits of the warrant for the Cal Cove home, asserting that “there can be no way that the detailed and accurate affidavit and warrant presented to and approved by a Circuit Judge in the case at bar can be seen as so deficient as to not meet the good faith exception.” See generally United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (holding that the exclusionary rule does not apply when an officer acts in “objectively reasonable reliance on a subsequently invalidated search warrant”). But our precedent is to the contrary. “Where, as here, the supporting affidavit fails to establish probable cause to justify a search, Florida courts refuse to apply the good faith exception.” Garcia, 872 So. 2d at 330 (first citing Getreu v. State, 578 So. 2d 412 (Fla. 2d DCA 1991); and then citing Bonilla v. State, 579 So. 2d 802 (Fla. 5th DCA 1991)). A reasonably trained law enforcement officer would have known that the affidavit in this case failed to establish probable cause for the search, so the good-faith exception does not apply.

Accordingly, because the sworn application for the warrant to search the Cal Cove home failed to demonstrate probable cause therefor, we reverse Smitherman’s convictions related to the fruits of that search (counts two, three, and four).

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