Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ Nos. 1D19-2263 1D19-2264 _____________________________ STATE OF FLORIDA, Appellant, v. RAYMOND TERRY SMITH, Appellee. _____________________________ On appeal from the Circuit Court for Jefferson County. Dawn Caloca-Johnson, Judge. February 11, 2021 RAY, C.J. The State of Florida challenges an order suppressing evidence seized pursuant to a search warrant. Because we hold that the good-faith exception to the exclusionary rule applies, we reverse. I. On June 1, 2018, the circuit court issued a search warrant for law enforcement officers to search the residence of Raymond Terry Smith for drugs and firearms. The information in the probable cause affidavit to support obtaining the warrant was provided by Smith’s ex-girlfriend who asked to speak to the police about a child custody issue and a domestic battery charge that had been filed against her by Smith. During the ensuing interview, she explained that Smith had custody of their infant daughter. She had recently lived at Smith’s residence and expressed concern for their child’s well-being because Smith kept firearms and drugs there and conducted drug sales on the premises. She described the specific drugs and firearms in his possession and where they were in the house. She advised that Smith could not own firearms because of his criminal history. She expressed willingness to cooperate further if necessary. During the interview, the police asked the ex- girlfriend about a report from another source that she was a victim of a crime committed by Smith. She denied the allegations and, in doing so, made a statement against her penal interests. Her sworn statements were video- and audio-recorded. The interviewing officer independently confirmed the information she provided about Smith’s criminal history. The execution of the search warrant led to the seizure of illegal drugs and firearms consistent with the ex-girlfriend’s description. Based on that evidence, Smith was charged with multiple drug offenses and the possession of a firearm by a convicted felon. About a year after issuing the warrant, the same judge heard Smith’s motion to suppress challenging the sufficiency of the search warrant affidavit. After hearing legal argument and reconsidering the facts presented in the affidavit, the judge concluded that she should not have signed the warrant in the first place. She reasoned that because the source of the information was a scorned ex-girlfriend charged with battering Smith, independent corroborating evidence was needed to establish probable cause. The judge also rejected the State’s alternative argument that the good-faith exception to the exclusionary rule rendered the evidence admissible even if the search warrant lacked probable cause. II. The Fourth Amendment to the United States Constitution and its Florida counterpart provide that a search warrant must be based on probable cause. U.S. Const. amend. IV; art. I, § 12, Fla. Const. Yet “the governments’ use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution.” Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 362 (1998). Instead, the exclusionary rule is “a judicially created remedy 2 designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U.S. 338, 348 (1974). For that reason, when police act under the authority of a warrant later invalidated for lack of probable cause, the good-faith exception to the exclusionary rule bars suppression of the evidence unless “a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” United States v. Leon, 468 U.S. 897, 922 n.23 (1984). “[S]uppressing evidence when a law enforcement officer presents information to a neutral magistrate and then acts in objectively reasonable reliance on the magistrate’s decision, benefits neither the officer who acts on the warrant or the public in general.” State v. Sabourin, 39 So. 3d 376, 384 (Fla. 1st DCA 2010). Generally, the good-faith exception to the exclusionary rule applies unless (1) the issuing judge “was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth”; (2) the issuing judge “wholly abandoned” her neutral role as a gatekeeper; (3) the warrant rested on an affidavit “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; or (4) the warrant was so facially deficient that the executing officers could not reasonably presume it to be valid. Leon, 468 U.S. at 923 (citations omitted). When the third circumstance is at issue, as in this case, a showing of a lack of probable cause is not enough. Wingate v. State, 289 So. 3d 566, 569 (Fla. 1st DCA 2020). Rather, the search warrant affidavit must be so deficient that it does not support even a “colorable argument” that probable cause exists. Id. (quoting United States v. Jobe, 933 F.3d 1074, 1077 (9th Cir. 2019)). Here, even if the original probable cause determination were incorrect, the search warrant affidavit created at least a “colorable argument” that probable cause existed. In fact, the same conscientious judge who granted the motion to suppress originally signed the warrant based on the same facts. It was only upon reconsidering those facts given additional legal argument that the 3 judge changed her mind. No significant new information or omissions were brought to light during the suppression hearing. Nor was the affidavit bare bones or so obviously deficient that the officers’ reliance on it was objectively unreasonable. The affidavit described the basis of the ex-girlfriend’s knowledge of the criminal activity—she was a former resident of Smith’s home who witnessed drug transactions firsthand—and included her detailed description of where and how the contraband was kept. The affidavit also included facts supporting her veracity, alleging that she made a sworn, recorded statement during a face-to-face interview, allowing the police to observe her demeanor and subjecting her to penalties for making a false statement. She denied unrelated allegations against Smith when she believed them to be false and implicated herself in a crime in doing so. Notably, the affidavit did not focus solely on what made her credible. It was also forthcoming about the facts supporting her potential bias, such as her relationship with Smith, their child custody issues, and her pending criminal charge. Having submitted all of the pertinent information to a neutral magistrate, the officers reasonably relied on the resulting search warrant in good faith. The trial court thus erred in granting Smith’s motion to suppress. REVERSED and REMANDED for further proceedings. MAKAR and NORDBY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Ashley Moody, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellant. Jessica J. Yeary, Public Defender, and Tyler Payne, Assistant Public Defender, Tallahassee, for Appellee. 4