1995. Opinion filed March 3, 1995.
Appeal from the Circuit Court, Seminole County, Alan A. Dickey, J.
James B. Gibson, Public Defender, and S.C. Van Voorhees, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Kellie A. Nielan, Asst. Atty. Gen., Daytona Beach, for appellee.
Angela Malone has appealed an order of the trial court which denied her motion to suppress and her motion for rehearing. Malone entered a plea of nolo contendere to trafficking in cocaine, possession of paraphernalia, and two counts of sale of cocaine. She was adjudicated guilty and sentenced to three years probation on the trafficking charge and time served on the remaining charges. She was also ordered to pay a fine of $50,000.00. We affirm.
§ 893.135(1), Fla. Stat. (1991).
§ 893.147(1)(a), Fla. Stat. (1991).
§ 893.13(1)(a)1, Fla. Stat. (1991).
The police seized evidence from the apartment of Malone after a search warrant had been issued for her residence. The basis of the warrant was two controlled buys by a confidential informant. On both occasions, the informant was first searched for drugs and money, was then given serialized currency to purchase the controlled substance, and was taken to Malone's residence. The police affiant stated that the same procedure was followed for each buy:
The confidential informant exited the vehicle and walked directly to the carport door of the residence. The confidential informant knocked and a black female opened the door and allowed the confidential informant to enter the residence. After approximately three (3) minutes, the confidential informant came out of the carport door and walked directly back to the vehicle. The confidential informant entered the vehicle and gave your affiant two
(2) pieces of purported crack cocaine, which the confidential informant said was purchased from Angela (Angela Denese Malone).
After the confidential informant returned to the affiant with purported cocaine, the informant was searched again, no additional controlled substances or currency was found, and the purported crack cocaine was tested and proved to be cocaine. The affidavit stated that "[b]ased on the confidential informant's actions and information during this investigation, your affiant considers this confidential informant to be truthful and reliable."
Malone filed a motion to suppress the evidence and a hearing was scheduled. She argued that the CI was not shown to be reliable because the CI had not been used by the police before and was not personally observed by the affiant the whole time as sworn to in the affidavit. During the hearing, Malone proved that the affiant did not have the confidential informant in sight the entire length of time from when the CI left the affiant's car to when the CI entered Malone's apartment. Nor did the affiant have the CI in view the entire time when the CI exited Malone's apartment and returned to the affiant's car. The testimony was that another officer had the CI in sight during part of the time when the affiant did not have the CI in sight. Between the two officers, the CI was in sight the complete time, except for the time he was actually in the residence. The trial judge denied the motion to suppress.
Shortly after the hearing, the assistant state attorney notified Malone's attorney that the CI had lived next door to Malone. Although the CI's landlord was in the process of evicting the CI, the CI still had a key to the premises. Malone's attorney moved for a rehearing based upon this new information. Malone's attorney argued that the CI could have gone into the apartment to which he had a key, left the money, and gotten drugs to set-up Malone. The motion was denied by the trial judge. On appeal, Malone argues that the affidavit which was the basis for the warrant was insufficient to establish probable cause because the CI was not reliable and the affiant did not personally see the things he swore he observed.
First, the CI's reliability was established when the CI made the two controlled buys. The affiant searched the CI before the controlled buy to make sure the CI had no drugs. The CI was searched after the controlled buy to make sure the money provided by the police was not on the CI's person. As we held in Polk v. Williams, 565 So.2d 1387 (Fla. 5th DCA 1990), a CI's reliability can be established by a controlled buy. See also State v. Georgoudiou, 560 So.2d 1241, 1243 (Fla. 5th DCA), review denied, 574 So.2d 141 (Fla. 1990). Here, the CI was personally supervised and constantly monitored by the affiant. Polk, 565 So.2d at 1389. The CI's reliability had been established.
Second, although the affiant did not have the CI in sight the whole time, it is not disputed that he was under the almost constant supervision of two officers. What one did not see the other did see. Although, the better practice would have been for the affiant to state under oath the information that he received from his partner, it is not fatal to the state's case. Here, the affiant's affidavit was not false or recklessly made in regard to a substantive matter. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); State v. Marrow, 459 So.2d 321 (Fla. 3d DCA), review denied, 458 So.2d 274 (Fla. 1984). Based upon the totality of the circumstances, the affidavit established probable cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The issuing magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Polk, 565 So.2d at 1390; Delgado v. State, 556 So.2d 514, 516 (Fla. 2d DCA 1990); Reyes v. State, 541 So.2d 772, 773 (Fla. 3d DCA 1989).
HARRIS, C.J., and COBB, J., concur.