Hicks v. State

292 So.3d 486

Keith Lavelle HICKS, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D18-4520

District Court of Appeal of Florida, Second District.

Opinion filed February 28, 2020.

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, Clearwater, 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, 104 S.Ct. 3405, 82 L.Ed.2d 677 (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 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 ruling] consists of "a legal examination of the...