Rehearing Denied Feb. 1, 2012.
Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
EHRLICH, MERRILEE, Associate Judge.
Defendant was charged by information with manufacture of marijuana, conspiracy to traffic in marijuana and possession of cocaine, alprazolam, amphetamine, hydrocodone, and oxycodone. Subsequently, defendant filed a motion to suppress challenging the legality of the search warrant for lack of probable cause. The trial court denied the motion. As a result, defendant entered into a plea agreement with the State where defendant entered a plea of nolo contendere to Counts 1, 3, 4, 7, and 8 of the information, while reserving his right to appeal the denial of his dispositive motion to suppress. The State nolle prossed counts 2, 5, and 6. This appeal followed. We agree with the defendant that the trial court erred in denying the motion to suppress and reverse.
At the hearing on the motion to suppress, the defendant agreed that there was no bad faith on the part of the officers in submitting the search warrant application and affidavit. Defendant also did not argue that the affiant omitted any material facts or made any material misrepresentations. Rather, defense counsel argued that the alleged facts therein were insufficient to support a finding of probable cause.
The entire affidavit in support of the application for the search warrant states as follows:
(a) Affiant was a police officer for two (2) years. He completed over 600 hours' training beyond the basic police academy. He was also a Uniformed Crime Scene Investigator and had participated in multiple serious narcotics investigations and arrests.
(b) Within the past 30 days, a past proven and reliable confidential informant informed affiant that David Devroomen was operating a marijuana grow house from his residence, located at 525 N.W. Biscayne Dr. within the city limits of Port St. Lucie. Such was corroborated through affiant's investigation. Devroomen was utilizing a black 1994 Chevrolet pick-up truck (tag # R135K). A record check showed that the truck was registered to defendant.
(c) Defendant resided at 380 N.W. Dearmen St., which is in close proximity to Devroomen's residence. Devroomen made numerous stops at defendant's house.
(d) During the course of the investigation it was learned that Devroomen used defendant's vehicle to further his criminal enterprise in the cultivation of marijuana.
(e) A check of FPL records for defendant's residence displayed " erratic/abnormal patterns of electrical usage for the neighborhood. Note: The usage was compared to the other homes ...