Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT KEITH LAVELLE HICKS, ) ) Appellant, ) ) v. ) Case No. 2D18-4520 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed February 28, 2020. Appeal from the Circuit Court for Highlands County; Peter F. Estrada, Judge. Howard L. Dimmig, II, Public Defender, and Rocco J. Carbone, III, Special Assistant Public Defender, Bartow; and Karen Kinney, Assistant Public Defender, Bartow (substituted as counsel of record), for Appellant. Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee. ROTHSTEIN-YOUAKIM, Judge. After the trial court denied Keith Lavelle Hicks's motion to suppress evidence seized pursuant to a search warrant, a jury found him guilty of firearm and drug-related offenses. On this direct appeal of the judgment, Hicks argues, among other things, that the court erred in denying his suppression motion because the warrant affidavit failed to establish probable cause for issuance of the warrant. We agree with Hicks that the affidavit was woefully inadequate to establish probable cause but remand for an evidentiary hearing to determine whether suppression was nonetheless unwarranted pursuant to United States v. Leon, 468 U.S. 897, 919-21 (1984) (holding that the Fourth Amendment should not be applied to bar the prosecution from using in its case-in-chief evidence obtained by officers acting in reasonable reliance on a search warrant that was issued by a neutral and detached magistrate but ultimately determined to be invalid). We reject on the merits Hicks's claim of ineffective assistance of counsel. The affidavit in this case recounts a single controlled purchase of methamphetamine that occurred at a particular address on Fifth Street in Sebring "[w]ithin the last 30 days." It indicates that the confidential informant (C.I.) was searched before the transaction and was provided with purchase money. Although the C.I. was outfitted with an "electronic transmitting device" and "[v]isual surveillance was also maintained on the C.I. during the entire operation," this is the sum total of the information included in the affidavit concerning the actual transaction: The C.I. traveled to [the address on] Fifth Street, Sebring, Highlands County, Florida where the C.I. met with Keith Lavelle Hicks. The C.I. completed the purchase of the illegal drugs with Keith Lavelle Hicks and departed the residence. The affidavit further indicates that after the transaction, deputies recovered approximately 1.4 grams of methamphetamine from the C.I. Based on this information, some general information concerning the background of the affiant, and some boilerplate language concerning drug dealers' use of cellphones and other electronic devices, the affiant attested to a belief that "additional -2- drugs and evidence relating to the use, sale[,] and distribution of illegal drugs may be present and/or located at" the address on Fifth Street. Thereafter, a circuit court judge determined that the affidavit established probable cause for issuance of a search warrant for the residence, yard, and curtilage at that address and "any persons on said premises reasonably believed to be connected with the said illegal activity." Before trial, Hicks moved to suppress the evidence seized pursuant to the warrant, arguing that the information included in the affidavit was inadequate to establish a nexus between the illegal activity and the location to be searched. See Burnett v. State, 848 So. 2d 1170, 1173 (Fla. 2d DCA 2003) ("[T]he affidavit in the warrant application must satisfy two elements: first, that a particular person has committed a crime—the commission element, and, second, that evidence relevant to the probable criminality is likely located at the place to be searched—the nexus element." (citing United States v. Vigeant, 176 F.3d 565, 569 (1st Cir. 1999))). After hearing argument but apparently considering no evidence outside of the four corners of the affidavit, the trial court denied Hicks's motion. The court concluded, "based upon the totality of the circumstances, . . . that there were sufficient facts to establish probable cause that the Defendant was engaging in the sale of methamphetamine, evidence of this offense would be found in his residence, and that the informant was 'sufficiently' supervised." In reviewing the trial court's denial of a motion to suppress evidence seized pursuant to a search warrant, we presume the ruling is correct, and we interpret all facts and reasonable inferences in the light most favorable to the ruling. See Barrentine v. State, 107 So. 3d 483, 484 (Fla. 2d DCA 2013). "[O]ur 'review [of such a -3- ruling] consists of "a legal examination of the evidence in the affidavit to determine whether it establishes probable cause—with a presumption of correctness given to the trial court, which in turn gave great deference to the magistrate." ' " Sanchez v. State, 141 So. 3d 1281, 1284 (Fla. 2d DCA 2014) (quoting Barrentine, 107 So. 3d at 484).1 Notwithstanding this deference, we readily conclude that the affidavit failed to establish probable cause to believe that evidence relevant to the probable criminality was likely located at the place to be searched. See Burnett, 848 So. 2d at 1173. As is plain from the language quoted above, the affidavit provides almost no information concerning the transaction itself despite that deputies assertedly maintained both visual and electronic surveillance the entire time. Although the affidavit asserts that the C.I. "departed the residence" after the transaction, the C.I. obviously did not go into the residence at any point because deputies would have been unable to maintain visual surveillance, begging the question of where the transaction did take place. Moreover, the affidavit is utterly devoid of any explanation of what led deputies to that location in the first place, e.g., whether it was based on information from the C.I. or on an ongoing investigation. Finally, although the trial court's order includes a finding that the location was Hicks's home address, such a finding was not supported by anything in the affidavit, which asserted no connection whatsoever between Hicks and that location. The State argues that even if we conclude that the affidavit was inadequate to support the search warrant, we should nonetheless affirm based on the good faith exception in Leon. We recognize that we must affirm for any reason that the 1We note that in this case, the trial court and the magistrate are one and the same. -4- record supports, even if that reason, like this one, was not urged in the trial court. See State v. Hankerson, 65 So. 3d 502, 505 (Fla. 2011). In this case, however, there is no record evidence to support affirmance pursuant to Leon because the trial court did not hold an evidentiary hearing on Hicks's suppression motion; it decided the motion based on the contents of the affidavit and the parties' arguments, obviating the need for further inquiry. Under these circumstances, we reverse and remand for an evidentiary hearing consistent with our decision in Pilieci v. State, 991 So. 2d 883, 899 (Fla. 2d DCA 2008) (holding that remand for an evidentiary hearing was necessary because "the circuit court's findings that the affidavit facially supported a finding of probable cause and that there were no material omissions . . . prevented the parties or the court from addressing whether any material omissions were knowingly or recklessly made, or whether the officer's actions were made in good faith in light of all the circumstances leading up to the submission of the affidavit to the magistrate"). If, after the hearing, the court determines that Leon applies and again denies the motion, the court shall reinstate the judgment, and Hicks may appeal from the judgment to challenge that denial. If the court determines that Leon does not apply and grants the motion, the State may appeal as provided in Florida Rule of Appellate Procedure 9.140(c)(1)(B). Reversed; remanded for further proceedings consistent with this opinion. SLEET and BADALAMENTI, JJ., Concur. -5-