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Probable Cause for issuance of Search Warrant in Florida
Where the issuance of a search warrant based upon a probable cause affidavit is at issue, the reviewing court is required to give “great deference” to the magistrate’s probable cause determination. State v. Abbey, 28 So. 3d 208, 210 (Fla. 4th DCA 2010) (quoting State v. Rabb, 920 So. 2d 1175, 1180 (Fla. 4th DCA 2006) (other internal quotation
marks omitted)). The “duty of reviewing courts is simply to ensure that the magistrate had a substantial basis for . . . concluding that probable cause existed.” Rabb, 920 So. 2d at 1180 (internal quotation marks and alterations omitted).
The magistrate’s duty “is simply to make a practical, common-sense decision, whether, given all the circumstances set forth [within the four corners of] the affidavit before him . . . there is a fair probability that . . . evidence of a crime will be found in a particular place.” Id. at 1180 (quoting DeLaPaz v. State, 453 So. 2d 445, 446 (Fla. 4th DCA 1984)); see also Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002) (to determine whether probable cause exists, the court must make a judgment based on the totality of the circumstances).
Good Faith Exception. Garcia v. State, 872 So. 2d 326, 330 (Fla. 2d DCA 2004), held that, where there is a lack of facts, a real paucity of facts, a very weak
case, the law is well established that where “the supporting affidavit fails to establish probable cause to justify a search, Florida courts refuse to apply the good faith exception.” When an affidavit for a search warrant is so lacking in indicia of probable cause “as to render an official’s belief in its existence entirely unreasonable,” the good faith exception is not
applicable. Dyess v. State, 988 So. 2d 146, 149 (Fla. 1st DCA 2008) (quoting Montgomery v. State, 584 So. 2d 65, 68 (Fla. 1st DCA 1991)). The good faith exception does not apply where the affidavit is so lacking in probable cause and fails to establish a nexus between the objects of the search and the residence to be searched. Gonzalez v. State, 38 So. 3d 226, 230 (Fla. 2d DCA 2010); Garcia, 872 So. 2d at 330. Although a magistrate’s probable cause determination is entitled to “great deference” when based upon a probable cause affidavit, the court
should not defer if there is no substantial basis for concluding that probable cause existed. Rabb, 920 So. 2d at 1180-81. As stated in Polk v. Williams, 565 So. 2d 1387 (Fla. 5th DCA 1990): Probable cause is a practical common-sense question. Illinois v. Gates, 462 U.S. 213, 230, 103 S. Ct. 2317, 2328, 76 L. Ed. 2d 527, 543 (1983). It is the probability of criminal
activity, and not a prima facie showing of such activity which is the standard of probable cause. Spinelli v. U.S., 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). The
determination of probable cause involves factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar v.
U.S., 338 U.S. 160, 176, 69 S. Ct. 1302, 1311, 93 L. Ed. 1879, 1891 (1949).
“As long as the magistrate had a substantial basis for concluding that search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Illinois v. Gates, 462 U.S. at 236, 193 S. Ct. at 2331, 76 L. Ed. 2d at 547. Polk, 565 So. 2d at 1391. See also Pagan, 830 So. 2d at 806.