Florida Supreme Court Allows Search Evidence Despite Error on Warrant – Moreno-Gonzalez v. State

August 3, 2011 by David S. Seltzer

As a Miami-Dade drug crimes criminal defense attorney, I often look for problems with a search when I’m representing drug defendants. With drug crimes, searches are very important because even non-possession crimes are difficult to prove without evidence that the defendant possessed the prohibited narcotics. That’s why I was interested to see a recent Florida Supreme Court decision in Moreno-Gonzalez v. State of Florida, a case involving possession of relatively large quantities of marijuana. Alfredo Moreno-Gonzalez of Dade County wanted to suppress evidence from a police search that found the drugs on his property, because a police detective failed to sign the affidavit for the warrant. The trial court agreed that the evidence should be thrown out, but the Third District Court of Appeal reversed that and the Florida Supreme Court upheld it.

Miami-Dade detectives believed there was a marijuana growing operation at property owned by Moreno-Gonzalez. Detective Lourdes Hernandez submitted an affidavit and got a search warrant for the property, but despite initialing every page and swearing to the affidavit’s truth, and despite the judge’s approval, she forgot to sign it as state law requires. A later search turned up 47.5 pounds of marijuana on the property, and Moreno-Gonzalez was arrested. Before his trial, he moved to suppress the evidence because of the forgotten signature, plus substantial discrepancies between the accounts of the officers involved in the search. The trial court granted this under state law only, explicitly saying that no constitutional arguments would be addressed. The state appealed, however, and the Third District overturned that decision, citing U.S. Supreme Court caselaw saying that technical requirements of elaborate specificity are not proper for warrant affidavits. Thus, because Fourth Amendment caselaw is incorporated into the Florida Constitution by reference, the Third District ruled the lack of a signature was but a “technical” flaw.

On appeal, the state high court upheld the result, but not the appeals court’s reasoning. It started by ruling that this was not a state or federal constitutional issue, but one of statutory compliance. It then went on to note that it’s undisputed that Hernandez did not sign the warrant. Nonetheless, the Supreme Court did not find this fatal to the state’s case. The purpose of signing a search warrant is to prevent perjury, the court said. In this case, however, there was an added level of protection because Hernandez swore to the truth of the affidavit in front of the judge who signed the warrant, and initialed each page. Nothing in the record shows that the failure to sign was anything but a mistake, the court noted. It noted that it does not generally approve of carelessness with warrants, but said this was a technical error that should not stymie justice. Furthermore, it noted that Florida law allows authorization by oath as well as by signature. Thus, it upheld the Third District with different reasoning. It remanded the case with express instructions for the trial court to consider the credibility of the law enforcement witnesses, which may form another basis for suppressing the evidence.

There is a lot in this decision to interest a Fort Lauderdale narcotics criminal defense lawyer like me. I certainly agree with the high court that law enforcement officers should be held responsible for mistakes with search warrants. It’s disappointing that this failure to sign the affidavit was dismissed as a minor technical flaw, but as the court noted, this is not the only basis for questioning the warrant’s validity. I also appreciate, as a south Florida drug crimes defense attorney, that the high court thought the differing stories provided by various law enforcement officers was a cause for concern. If one of the officers is not telling the truth, he or she must be identified and removed before he or she can convict someone with a lie.

Based in downtown Miami, Seltzer Law, P.A. represents clients across Florida who are facing serious criminal charges. If you or someone you love is charged with a crime and you’d like to learn more, send us an email or call 1-888-THE-DEFENSE (1-888-843-3333), 24 hours a day and seven days a week.

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