Opinion
CASE NO. 8:08-CV-2165-T-17AEP.
March 9, 2010
ORDER
This cause is before the Court on:
Dkt. 32 Motion to Dismiss Dkt. 35 Response The First Amended Complaint includes a federal claim and state claims arising from the arrest Plaintiff Jonathan Manley on January 6, 2004. Plaintiff Manley was prosecuted by the State of Florida for sexual battery. In the course of his investigation, Defendant Waldron obtained a search warrant to search Plaintiff Manley's home. The state court judge granted Plaintiff's Manley Motion to Suppress on December 30, 2004, finding that Defendant Waldron omitted significant and material facts from the affidavit Defendant Waldron executed to obtain the search warrant. This ruling invalidated the search warrant. After the Motion to `Suppress was granted, a "Nolle Prosequi" was entered in the Case No. 2004 CF 000034, Manatee County Circuit Court, on January 5, 2005. Plaintiff Manley commenced this case on October 29, 2008.The First Amended Complaint includes the following claims:
Count I Claim of Violation of Civil Rights Pursuant to 42 U.S.C. Sec. 1983 against Defendants Sheriff and Waldron Count II Claim of Malicious Prosecution Against Sheriff and Waldron Count III Negligent Hiring and Retention Of Defendant Sheriff Count IV Claim of Failure to Supervise against Defendant Sheriff and Waldron Count V Claim of Negligence of Defendant Sheriff and WaldronI. Standard of Review
As the Supreme Court held in Bell Atlantic v. Twombly, 127 S.Ct. 1955 (2007), a complaint must be dismissed pursuant to rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim for relief that is plausible on its face." Id. at 1974 (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The allegations in plaintiff's complaint are presumed true at this stage and all reasonable factual inferences must be construed in plaintiff's favor. However, the Court need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint. Nor must the Court accept legal conclusions cast in the form of factual allegations. To survive a motion to dismiss, the factual allegations in the complaint "must be enough to raise a right to relief above the speculative level." Bell Atlantic, 127 S.Ct. at 1965.In ruling on a motion to dismiss, the Court considers only the well-pleaded factual allegations of the complaint, documents central to or referenced in the complaint and matters judicially noticed. See LaGrasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). A document outside the four corners of the complaint may be considered if it is central to the plaintiff's claim and its contents are undisputed. Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337 (11th Cir. 2005). In Horsley v. Feldt, the Eleventh Circuit Court of Appeals said:
"Our Rule 12(b)(6) decisions have adopted the `incorporation by reference' doctrine, see In Re Silicon Graphics, Inc. Securities Litigation, 183 F.3d 970 (9th Cir. 1999), under which a document attached to a motion to dismiss may be considered by the court without converting the motion into one for summary judgment only if the attached document is: (1) central to the plaintiff's claim; and (2) undisputed. See Harris v. Ivax Corp., 182 F.3d 799, 802 n. 2 (11th Cir. 1999). "Undisputed" in this context means that the authenticity of the document is not challenged. See e.g. Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 16-17 (1st Cir. 1998) . . ."
II. Count I — Section 1983 Claim
The title of Count I indicates that Count I is asserted against Defendant Waldron and Defendant Stube. In the final paragraph, Plaintiff Manley requests entry of judgment against Defendant Stube only, as Sheriff of Manatee County.
In the General Allegations, Plaintiff Manley alleges that Defendant Stube and Defendant Waldron at all times acted within the scope of his employment. Plaintiff Manley further alleges that on or about January 6, 2004, Defendant Stube and Defendant Waldron violated Plaintiff's civil rights guaranteed by the U.S. Constitution and the Florida Constitution.
Based on the allegations of the alleged customs and policies of Defendant Stube, as Sheriff of Manatee County, and the request for entry of judgment only against Defendant Stube, as Sheriff of Manatee County, the Court concludes that Count I is intended to be a claim for supervisory liability only.
Supervisory officials are not liable under Sec. 1983 for the unconstitutional acts of their subordinates on the basis ofrespondeat superior or vicarious liability. Under Sec. 1983, supervisory liability occurs either when the supervisor personally participates in the alleged unconstitutional conduct, or when there is a causal connection between the actions of a supervising official and the alleged constitutional deprivation. The necessary causal connection is established "when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so."See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003). Alternatively, the causal connection may be established when a supervisor's `custom or policy . . . results in deliberate indifference to constitutional rights' or when facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully but failed to stop them from doing so." Id. at 1360.
In Count I of the First Amended Complaint (Dkt. 30), Plaintiff Manley alleges:
12. The SHERIFF'S custom and de facto policy of not supervising or regulating their officers' in situations of investigations was deliberately indifferent to MANLEY's constitutional rights. Specifically, in light of the nationally recognized danger of wrongful incarcerations, the SHERIFF knew or should have known that its custom and de facto policy would eventually cause the constitutional rights of a citizen within its jurisdiction, such as MANLEY, to be violated by one of its detectives.
13. The SHERIFF'S custom and de facto policy of ignoring and tolerating the safety of its citizens during wrongful arrests was deliberately indifferent to MANLEY's constitutional rights. The SHERIFF knew or should have known that this custom or de facto policy would eventually cause the constitutional rights of a citizen with (sic) its jurisdiction, such as MANLEY, to be violated by one of its Detectives.
14. Furthermore, The SHERIFF'S custom and de facto policy of not providing adequate training to its detectives involving investigations, when the SHERIFF knew that these offices would be acting with inadequate or insufficient training, was deliberately indifferent to MANLEY's constitutional rights. Specifically, the SHERIFF knew or should have known that its failure to insure that detectives were properly trained in investigation, crime scene protection and the preservation of evidence within its jurisdiction, citizens such as MANLEY, would have his constitutional rights violated by one of the SHERIFF'S detectives.
In Count I, Plaintiff alleges that as a proximate result of the material omissions of pertinent facts from the search warrant affidavit, Plaintiff Manley was wrongfully deprived of his right to protect his liberty interest in his bodily integrity, a protected right under the Florida and Federal Constitutions. Plaintiff Manley further alleges that the arrest was made under color of law, and at the time the Plaintiff recognized that authority and color of law, as the Defendant, SHERIFF'S detectives were on duty and acting under what he perceived to be the authority of SHERIFF.
Plaintiff Manley alleges that Plaintiff suffered damages including "shame, embarrassment, mortification and disgrace, great mental anguish, including depression, anxiety, fear and loss of capacity for the enjoyment of life, medical expenses, past and future wages and the violation of his due process rights, civil rights, privacy right, and other physical and mental injuries suffered, all due to the terror inflicted on him by the deputies, employed by the SHERIFF, and he will continue to suffer losses into the future. These losses are either permanent or continuing in nature and the Plaintiff will suffer these losses and impairments in the future." (Dkt. 30, p. 5).
III. Count II — Malicious Prosecution
Defendant Stube considers Count II to be a state claim for malicious prosecution.
It is not clear whether Plaintiff Manley intends Count II to include a federal malicious prosecution claim or only a state malicious prosecution claim. There is no reference to Section 1983 in Count II, but Plaintiff Manley alleges constitutional violations. The Court will assume Count II is intended to include a federal malicious prosecution claim.
A. Applicable Limitations Period
The statute of limitations for claims brought under 42 U.S.C. Sec. 1983 is measured by the personal injury limitations period of the state. Wilson v. Garcia, 471 U.S. 261 (1985); Mullinax v. McElhenney, 817 F.2d 711, 716 n. 2 (11th Cir. 1987).
B. Ch. 95.11 — Statute of Limitations
The statute of limitations for a claim of malicious prosecution and of false arrest is four years. See Ch. 95.11(3)(o), Fla.Stat. The statute of limitations for a violation of constitutional rights is four years. See Ch. 95.11(3)(p) (residual).
C. Accrual of the Action
This case was filed on October 29, 2008. Federal law determines when a federal civil rights claim accrues. Mullinax, 817 F.2d at 716. The general federal rule is that "`the statute [of limitations] does not begin to run until the facts which would support a cause of action are apparent or should be apparent to a person with a reasonably prudent regard for his rights.'" Id. A plaintiff must know or have reason to know they were injured, and must be aware or should be aware of who inflicted the injury. Id. The Court must first identify the alleged injuries, and then determine when the plaintiff could have sued for them. Rozar v. Mullis, 85 F.3d 556 (11th Cir. 1996)
An exception to the general rule is the "continuing violation doctrine." See Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir. 2003). "The continuing violation doctrine is premised on the equitable notion that the statute of limitations ought not to begin to run until facts supportive of the cause of action are or should be apparent to a reasonably prudent person similarly "situated." Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1222 (11th Cir. 2001). "If any event or series of events should have alerted a reasonable person to act to assert his or her rights at the time of the violation, the victim cannot later rely on the continuing violation doctrine to overcome the statutory requirement of filing [suit] with respect to that event or series of events." Id.
The critical distinction in continuing violation analysis is whether the plaintiff complains of the present consequence of a one time violation, which does not extend the limitations period, or the continuation of a violation into the present, which does.See Eaton v. Keith, 154 Fed. Appx. 844 (11th Cir. 2005).
1. Plaintiff's Injuries — Count I
In Count I, the federal constitutional violation that Plaintiff Manley alleges is Defendant Stube's custom and policy of: 1) inadequate supervision of Defendant's employees during investigations; 2) ignoring the safety of citizens during wrongful arrests, and 3) inadequate training of Defendant's employees in investigation, crime scene protection and preservation of evidence. Plaintiff Manley further alleges that Defendant Waldron and Defendant Stube violated Plaintiff's constitutional rights on January 6, 2004. Plaintiff Manley does not allege that Plaintiff Manley was arrested without probable cause on that date, but does refer the Defendant Stube's alleged policy of disregarding the safety of citizens during wrongful arrests.
In the Amended Complaint, Plaintiff alleges that a constitutional violation occurred in the investigation of the charge lodged against Plaintiff Manley, and Plaintiff was wrongfully arrested. Plaintiff Manley alleges that Defendant Waldron obtained a search warrant based on an affidavit which omitted material facts. (Dkt. 1-1). On December 30, 2004, the state court judge granted Plaintiff's motion to suppress. In granting the motion to suppress, the state court judge relied onState v. Van Pieterson, 550 So.2d 1162 (Fla. App. 1st Dist. 1989). In Van Pieterson, the First District Court of Appeal states:
The trial court's duty upon reviewing the magistrate's decision to issue the search warrant was not to conduct a de novo determination of probable cause but to determine whether substantial evidence supported the magistrate's finding that, based on the totality of the circumstances, probable cause existed to issue the warrant. (Citation omitted). When a material fact is omitted from the affidavit filed in support of the probable cause determination, such fact constitutes a material omission if a substantial possibility exists that the omission would have altered a reasonable magistrate's probable cause determination. (Citation omitted). In determining whether a material omitted fact should invalidate the search warrant, the reviewing court should view the affidavit as if it included the omitted fact and then determine whether the affidavit provides sufficient probable cause. (Citation omitted).State v. Van Pieterson at 1164. The First District Court of Appeal found:
Viewing the evidence in the light most favorable to sustaining the trial court's ruling, we find that the trial court did not abuse his discretion in finding the good faith exception inapplicable because the affidavit on which the search warrant was based was so lacking in indicia of probable cause as to render official belief in its validity unreasonable, and the magistrate had before him insufficient facts upon which to exercise his neutral and detached function of determining the existence of probable cause. Vasquez v. State, 491 So.2d 297 (Fla. 3d DCA 1986).Van Pieterson at 1165.
A search warrant which is issued without probable cause is not valid. In the absence of justification for a warrantless search, the search of Plaintiff Manley's home based on an invalid warrant is a violation of Plaintiff Manley's Fourth Amendment right to be free from unreasonable searches. However, the ruling of the state court granting Plaintiff Manley's Motion to Suppress does not necessarily mean that Plaintiff Manley was arrested without probable cause.
In the Amended Complaint, there are no factual allegations which explain the basis for the state court's initial probable cause determination. In Count I, Plaintiff Manley alleges only that the arrest was wrongful, and caused by Defendant Sheriff's policies. The Court takes judicial notice of the docket in Plaintiff's state court criminal case, which is attached to Plaintiff's Complaint (Dkt. 1). The docket of that case shows that Plaintiff's counsel filed a motion to dismiss the case, or in the alternative to exclude the testimony of Detective Waldron on 3/18/2004. The docket further shows that Plaintiff's counsel filed a Motion to Suppress (Invalid Search Warrant) on April 20, 2004.
A false arrest claim arises from an arrest without legal process. A false arrest claim accrues immediately after the unlawful arrest or seizure, and such wrongful detention or seizure is actionable under the Fourth Amendment regardless of the outcome of any subsequent criminal prosecution. Mackey v. Dickson, 47 F.3d 744, 746 (5th Cir. 1995); Parrish v. City of Opp., 898 F.Supp. 839, 843 (M.D. Ala. 1995). A malicious prosecution claim arises from an arrest accompanied by wrongful institution of legal process. While a malicious prosecution claim does not accrue until criminal proceedings have terminated in the plaintiff's favor, a false arrest claim accrues before the termination of the proceedings and is aimed at providing redress for injuries sustained between the time of the arrest and the issuance of legal process. Kelly v. Serna, 87 F.3d 1235, 1239 (11th Cir. 1996).
Knowingly making false statements to obtain an arrest warrant can lead to a Fourth Amendment violation when it results in an unreasonable seizure; under these circumstances, the seizure is analogous to a claim of malicious prosecution. Whiting v. Traylor, 85 F.3d 581, 585 (11th Cir. 1996). Because Plaintiff's arrest was pursuant to legal process, Plaintiff Manley is asserting a claim for malicious prosecution rather than a false arrest claim.
"To establish a federal malicious prosecution claim under Sec. 1983, the plaintiff must prove a violation of his Fourth Amendment right to be free from unreasonable seizures [and] the elements of the common law tort of malicious prosecution." Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). Under Florida law, a plaintiff must establish each of six elements to support a claim of malicious prosecution: 1) an original judicial proceeding against the present plaintiff was commenced or continued; 2) the present defendant was the legal cause of the original proceeding; 3) the termination of the original proceeding constituted a bona fide termination of the proceeding in favor of the present plaintiff; 4) there was an absence of probable cause for the original proceeding; 5) there was malice on the part of the present defendant; and 6) the plaintiff suffered damages as a result of the original proceeding.Kingsland v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004). After consideration, the Court concludes that Plaintiff Manley is attempting to pursue a supervisory liability claim for a Section 1983 malicious prosecution claim in Count I.
In the Amended Complaint, Plaintiff Manley does not allege that false statements were made to obtain an arrest warrant. The Court takes judicial notice of Plaintiff's Motion to Suppress, Dkt. 54 in Case No. 2004 CF 34 in Manatee County Circuit Court (copy attached). In the Motion to Suppress, Plaintiff states that there was probable cause for issuance of the arrest warrant: "On its face, the affidavit of Det. Waldron unquestionably established probable cause to justify this Court's issuance of an arrest warrant for sexual battery." In the Motion to Suppress, Plaintiff Manley argued only that the search warrant was void.
The presence of probable cause is an absolute bar to a Section 1983 claim for false arrest or malicious prosecution. Ordinarily, the Court would dismiss Count I and Count II without prejudice for failure to state a claim, because Plaintiff Manley does not allege the absence of probable cause for the institution of the state court case. Plaintiff Manley had the opportunity to raise the issue of absence of probable cause before the state court, and request a dismissal. The Court notes that Plaintiff Manley did request dismissal, but not because of the absence of probable cause. Plaintiff's Motion to Suppress clarifies that Plaintiff Manley recognized that the arrest warrant was valid, and only requested that the state court suppress the items seized pursuant to the invalid search warrant.
Because it is undisputed that there was probable cause for the arrest warrant, the Court dismisses Count I and Count II, considered as a federal malicious prosecution claim, with prejudice. Accordingly it is
ORDERED that the Motion to Dismiss as to Count I based on the statute of limitations is denied. The Court dismisses Count I for supervisory liability, and Count II for federal malicious prosecution, with prejudice, as both claims are barred by the presence of probable cause for the arrest warrant. The Court declines to exercise jurisdiction over the remaining state law claims. The Clerk of Court shall close this case.
DONE and ORDERED in Chambers, in Tampa, Florida.
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR MANATEE COUNTY, FLORIDA STATE OF FLORIDA, Plaintiff, vs. Case No. 2004 CF 34 2004 CF 234 JONATHAN MANLEY, Defendant.MOTION TO SUPPRESS (INVALID SEARCH WARRANT)
COMES NOW, the defendant, JONATHAN MANLEY, by and through undersigned counsel, and pursuant to Fla. R. Crim Pro. 3.190(h) and Thorp v. State, 777 So.2d 385 (Fla. 2000), respectfully asks this Honorable Court to enter an order suppressing all evidence listed on the search warrant inventory dated Januray 6, 2004, obtained pursuant to a search warrant issued on that day, and more particularily describes as follows:
Cardboard box addressed to Manley from chemical mail order company
Mail from A.P. Sams addressed to Manley
Compaq hard drive 2H173LSTY213
1 set handcuffs
1 set shackles
1 glass jar w/alcohol written on it containing green substance
1 Kodak easy share digital camera w/diskette (HKJCAV21901653
1 card board box mailed from Dow chemical to Manley containing CD's Compaq hard drive MXM3440CDH black in color
10 assorted home made video tapes
blue plastic tote containing assorted diskettes and CD-R's
Sony digital camera 1011633 with carrying case, batteries and cable
Cannon 8 mm camcorder ser 2310261322 w/bag of accessories
Defendant specifically does NOT seek to suppress the following items which were voluntarily offered to law enforcement:
Photos taken of _____ on December 29, 2003
Video taken of _____ on December 29, 2003
chloroform bottle
As grounds for this Motion, Defendant, would show that:
THE FACTS
1. On December 29, 2003, a call was made to 911 indicating a possible suicide. (Refer. Dep.; Schroeder Depo Pg 5)
2. Deputy Schroeder arrived at the scene and entered the ambulance, with the intent to proceed with a Baker Act commitment of _____ (Dep. Schroeder Depo, Pg. 7)
4. _____ then related the allegation that Mr. Manley had administered chloroform against her will and raped her. (Dep. Schroeder Depo, Pg. 6-7)
5. As a result of the allegations, Dep. Schroeder abandoned the Baker Act investigation and stayed at the scene to investigate the allegation of sexual assault. (Dep. Schroeder Depo, Pg. 7)
6. During this investigation, Jonathan Manley was cooperative and voluntarily offered a CD of photos he had taken of _____ lying unconscious on the floor (which reflect that she was fully dressed, and wearing tight jeans). (Dep. Schroeder report Pg. 8 of 8, Depo Pg. 7-8, Pg. 9)
7. During this investigation, Brenda Philhower promptly and voluntarily told Dep. Schroeder that she had disposed of the chloroform bottle in the trash (Dep Schroeder Depo, Pg.8-9)
8. Upon arriving at the hospital, Dep Schroeder was advised that there were no abnormal findings in the sexual assault examination (Dep. Schroeder report Pg. 1 of 2, Depo Pg. 9-10);
9. During an interview with _____ ___ admitted to Dep. Schroeder that she may have in fact administered the chloroform upon herself (dep. Schroeder report Pg. 3 of 8, Depo Pg. 10, 14);
10. _____ indicated that she wanted to return to Mr. Manley's residence and asked that he be contacted. Dep. Schroeder was present during this request and the ensuing call to Jon Manley. (See, Dep. Schroeder, Depo Pg. 11)
11. Defendant Manley refused to allow _____ to return to his residence in light of the allegations she had made. (Dep. Schroeder depo, Pg. 11-12)
12. The investigation of _____ allegations were assigned to Det. William Waldron, who commenced investigation on January 2, 2004. (Wldron report, Pg. 1 of 31)
13. On January 6, 2004, Det. Waldron submitted an affidavit for arrest and search warrants to this Honorable Court, which were approved and such warrants were issued. (Waldron report Pg. 6 of 31)
14. The state has indicated that they intend to use photographs and other items obtained as the result of the search warrant as evidence against Mr. Manley in the above-entitled cases.
15. As set forth below, the warrant was invalid as the affidavit contained material omissions and were otherwise deficient as a matter of law.
ARGUMENT 1: THE WARRANT WAS INVALID DUE TO MATERIAL OMISSIONS IN AFFIDAVIT
On its face, the affidavit submitted by Det Waldron unquestionably established probable cause to justify this Court's issuance of an arrest warrant for sexual battery. However, the search warrant as to the contents of Jon Manley's residence, and more specifically the contents of his home computer equipment, is void because there was material omissions of fact which were known to law enforcement and which, if disclosed to this Court, would have defeated a finding of probable cause. See, Thorp v. State, 777 So.2d 385 at 392 (Fla. 2000) A fair reading of the affidavit for search warrant submitted to and approved by this Honorable Court can be summarized as follows:1) _____ was involuntarily chloroformed by Jonathan Manley;
2) _____ was being forced to have oral sex with Jon Manley in exchange for drug treatment at a future date;
3) The scope of any "consensual" sex _____ was limited to oral sex;
4) A rape exam kit performed at the hospital had been submitted into evidence, thereby suggesting that there would be evidence of non-oral sex
5) When questioned Manley admitted to having (consensual) vaginal sex, offering only a defense that it was consensual, thereby "confirming" that there would be evidence of non-oral sex;
6) In addition to the allegations of rape, _____ claimed Manley had showed her photographs on his computer of herself, and other women, naked.
When Det. Waldron drafted the affidavit in support of the search warrant for Jonathon Manley's residence and computer, he knew but failed to disclose the following material facts:
1. That _____ told Dep. Schroeder that she had been administering chloroform to herself to help her sleep, and, on the date in question, " either she was huffing Chloroform or Manley put her to sleep with it." (Refer Waldron report, Pg. 1 of 31 and Dep Schroeder report Pg 3 of 8);
2. That _____ has several criminal convictions, including prostitution and drug charges (Refer, Waldron report Pg. 1 of 31);
3. That _____ made numerous contradictory statements to and in the presence of law enforcement with regard to these allegations (Refer, Waldron report Pg. 1 of 31, Dep. Schroeder report, Pg. 3-4 of 8)
3. That _____ admitted to having consensual vaginal sex, not just oral sex, with Manley in the past (Refer, Waldron report pg. 1 of 31, page 2 of 31);
4. That Manley's condition for allowing _____ presence in his home was that she stay off drugs and he had already taken _____ Manatee Glenns in an attempt to get her to stop consuming drugs (Refer, Waldron report Pg. 3 of 31);
5. That Brenda Philhower, and the police, became aware of _____ unconscious drug-induced state at Jonathan Manley's request. (Refer, Waldron's report, Pg. 2 of 31);
6. That _____ had lost custody her daughter in dependency court due to drug use and knew she could not regain custody of her daughter if she was voluntarily using drugs (Refer, Waldron report Pg. 4 of 31 and Pg. 5 of 31);
7. That the doctor performing the rape examination at the hospital stated that "nothing abnormal was seen". (Dep. Schroeder report, Pg. 1 of 2)
The only difference between omitted facts and misstated facts is that in the case of omitted facts, the reviewing court must first determine whether the omitted facts, if added to the affidavit, would have defeated the probable cause. See, Thorp, Id.
"When a material fact is omitted from the affidavit filed in support of the probable cause determination, such fact constitutes a material omission if a substantial possibility exists that the omission would have altered a reasonable magistrate's probable cause determination." Thorp at 392, quoting, State v. Van Pieterson, 550 So.2d 1162 (Fla. 1st DCA 1989).
Even if this Court would have been inclined to issue an arrest warrant based on an allegation involuntary drugging and rape by a prostitute with numerous criminal convictions, who had subsequently admitted that she may have administered the drugs herself, who was under investigation by police, the police that had been summoned by a neighbor at the direction of the defendant, who had been found unconscious but fully clothed, who had admitted to engaging in consensual sex in the past with the defendant, whose rape examination rendered no abnormal findings, and who, having diverted police investigation from herself, asked to return to the defendant's home, the standard for an arrest warrant is entirely different from authorization to enter a person's home and seize their personal belongings. Such standard is addressed in argument II, below.
ARGUMENT II: THE AFFIDAVIT FAILED TO ESTABLISH PROBABLE CAUSE FOR SEARCH AND SEIZURE OF MANLEY'S PERSONAL COMPUTER, COMPUTER DISKS AND PHOTOGRAPHIC EQUIPMENTA home has an elevated level of privacy and protection. Fla. Stat. 933.18 states no warrant for a private dwelling shall be issued unless:
(1) It is being used for the unlawful sale. Possession, or manufacture of intoxicating liquor;
(2) Stolen or embezzled property is contained therein;
(3) It is being used to carry on gambling;
(4) It is being used to perpetrate frauds and swindles;
(5) The law relating to narcotics or drug abuse is being violated therein;
(6) A weapon, instrumentality, or means by which a felony has been committed, or evidence relevant to proving said felony has been committed, is contained therein;
(7) One or more of the following misdemeanors child abuse offenses is being committed there:
(A) Interference with custody;
(B) Commission of an unnatural and lascivious act with a child;
(C) Exposure of sexual organs to a child;
(8) It is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boarding house or lodging house;
(9) It is being used for the unlawful sale, possession, or purchase of wildlife, saltwater products, or freshwater fish being unlawfully kept therein;
(10) The laws relating to the cruelty of animals.
The same statute also specifies, "Property relating to the violation of such laws may be taken on a warrant" and that "no warrant shall be issued for the search of any private dwelling under any of the conditions herein above mentioned except on sworn proof by affidavit of some credible witness that he or she has reason to believe that one of said conditions exists . . ." (Fla. Stat. 933.18) (Emphasis added)
In the present cause, the only arguable basis for the warrant would have been subsection (6) a weapon, instrumentality, or means by which a felony has been committed, or evidence relevant to proving said felony has been committed, is contained therein. However, the information provided in the affidavit fails to establish probable cause even under this argument.
The warrant submitted by Det. Waldron authorized the search and seizure of Manley's "digital camera equipment, digital photographic disks, and diskettes, video camera equipment, photographs of the victim, video tapes which may contain footage of the victim, any and all computer equipment to include the computer monitor, computer hard drive, all disk drives, CD computer disk, computer printer, scanner, and photographic printers and equipment, and any other photographs which may be deemed to be of pornographic nature related to these offenses under investigation." However, there no probable cause to believe that the computer and specified photograph equipment would show evidence of the sexual battery under investigation.
Waldron's affidavit states only that:
_____ said on a previous occasion Manley showed her nude photographs he had taken of her, while she was sleeping. She said she got upset with him about this and he told her he only took them because he views them as art. _____ told your Affiant that Manley showed her nude photographs of herself on his computer, which he downloaded from a photographic disk. _____ said Manley showed her other nude photographs he has taken of other women, and stated that he does view them as pornography but as art."
It is first noted that such statements fail to support probable cause that the computer would contain evidence of the alleged sexual battery _____ Even if there were naked photos _____ there is nothing to indicate that they suggested evidence of union or penetration of sexual organs. Refer, Fletcher v. State, 787 So.2d 232 (Fla. 2nd DCA 2001) (videotaping 16 year old daughter in shower, performing normal hygiene does not provide probable cause for child pornography or any other crime and can not validate a search warrant) Second, and more important, there is no indication of time ___ as to when these photos were observed by _____, or when they were allegedly taken. Indeed, _____ own statement to Det. Waldron was that she had been engaged in a sexual relationship with Jon Manley since 1998. (Det. Waldron report Pg 3 of 31)
The task of the issuing magistrate is to make a practical, common sense decision whether, given all the circumstances, there is a fair probability that contraband will still be found within the home. As a general rule, a warrant is stale if the observations of the contraband was more than 30 days prior.Haworth v. State, 637 So.2d 267 (Fla. 2nd DCA 1994) (video tape of child pornography bearing a label dated May 6, 1991 did not justify the issuance of a search warrant 16 months later)
The face of the affidavit submitted by Det. Waldron fails to meet this criteria, and any testimony now submitted after the fact can not be considered. " Testimony at the suppression hearing can not be used to bolster the affidavit that was before the magistrate who issued the warrant" Delacruz, v. State, 603 So.2d 707 (Fla. 2nd DCA 1992)
Of course, this argument regarding staleness affords the State the assumption that the photographic material described in the affidavit could in fact be considered contraband. Again, there are no allegations that the photographs observed by _____ violated any of the laws of Florida. There was no indication that the photographs of the other women allegedly observed _____ were of underage children, or that the photographs contained evidence of sexual assault. See, Burnett v. State, 848 So.2d 1170 (Fla. 2nd DCA 2003) Even if there had been justification to seize photographs of _____ there was absolutely no basis to allow the seizure of photographs of other women.
As to photographs of _____ there was no reason to associate them with the sexual battery alleged. It was Manley who informed law enforcement that he had photographed and video taped _____ while she was unconscious on December 29, 2004. Those photographs were offered and accepted into evidence by Deputy Schroeder on that same day. (Dep. Schroeder report Pg. 8 of 8) Those photographs, as well as the video viewed by Schroeder depict_____ unconscious but fully dressed, wearing tight fitting jeans. They in no way offered corroborating evidence that Manley's computer would contain evidence of a sexual assault.
As in Burnett, there were "no details in the affidavit to supported a conclusion that defendant possessed unlawful pornographic videotapes, photographs, or computer images other than the single tape that authorities already possessed Any conclusion that defendant's room contained other evidence of his possession of pornographic materials was based on mere suspicion. The affidavit and search warrant did not withstand scutoiny under the btest of case law, Fla. Stat. 933.18(10), or the Florida or Federal Constitutions." Compare, Burnett, supra.
Any one of the above arguments render warrant invalid, but are secondary to the dispositive issue of _____ credibility, addressed in Argument III, below
ARGUMENT III: THE WARRANT IS INVALID AS THERE WAS NO AFFIDAVIT BY A CREDIBLE WITNESS WHICH WOULD SUPPORT PROBABLE CAUSE TO BELIEVE THAT MANLEY'S COMPUTER CONTAINED EVIDENCE OF A FELONY OFFENSEIn determining whether probable cause exists to justify a search, the trial court must make a judgment, based on the "totality of the circumstances" as to whether the information given indicates a fair probability that the contraband will be found at a particular place and time. Dial v. State, 798 So.2d 880 (Fla. 4th DCA 2001), citing Illinois v. Gates, 462 U.S. 213 (1983). Under Gates, an informant's "veracity" and "basis for knowledge are among the factors to be considered in assessing the reliability of an informant's information. See, Vasquez v. State, 491 So.2d 297 (Fla. 3rd DCA 1986).
The warrant request with regard to Mr. Manley's computer and computers disks was based solely on the statement by _____ that Manley had, on a prior occasion of an undisclosed date, shown her pictures on his computer of herself and other girls naked. _____ denied consenting to such photos. (Refer, Waldron report Pg. 5 of 31)
As noted in Argument I, above, there were material omissions, known to the Affiant at the time, that would have defeated the presumption of _____ veracity. See, Garcia v. State, 2004 Fla. App. LEXIS 5050 (Fla. 2nd DCA 4/14/04) (material omissions regarding an informant's credibility renders the warrant invalid). Aside from _____ extensive criminal history, it was also known (but not disclosed) that _____ had made factual contradictions in the presence of Dep. Schroeder, such as whether it was the defendant or _____ herself who had administered the chloroform which rendered _____ unconscious. (Refer, Dep. Schroeder's report, Pgs. 3-4 of 8) (noting also an inconsistent statement by _____ regarding her last menstrual period — to the nurse "about two months ago", then minutes later, to Dep. Schroeder, "today")
Contrary to what was suggested to the Court in the affidavit for search warrant, _____ was simply not an "honest, disinterested citizen" reporting a crime and lacking any motive to make false allegations against the suspect. She was the defendant's live in lover, a drug addict who was brought to police attention from a drug overdose and attempted suicide, who was facing both loss of custody by the court and eviction by the defendant if she admitted she had voluntarily used the drugs that rendered her unconscious. As such, _____ veracity as an "informant" with regard to the contents of Manley's computer is at least as suspect as the "informant" in Dial, who was the defendant's daughter and who initially appeared at the police station to make a report of child abuse.
The affidavit in the present cause states the basis of _____ knowledge of alleged contraband contained on Jon Manley's computer, but contains no facts or circumstances regarding the veracity of _____ The affidavit submitted by Det. Waldron failed to set forth any corroborating facts to support _____ allegations with regard to the contraband on Mr. Manley's computer. While silence on this issue would alone be enough to render the warrant invalid, the Court must now consider the material omissions as well. See, Garcia v. State, 2004 Fla. App. LEXIS 5050 (Fla. 2nd DCA 4/14/04) For reasons set forth above, _____ was not entitled to a presumption of credibility.
As such, the affidavit was deficient under both the State and Federal Constitutions in providing probable cause for a search warrant of Manley's home and personal belongings. Illinois v. Gates, 462 U.S. 213 (1983); Dial v. State, 798 So.2d 880 (Fla. 4th DCA 2001); Vasquez v. State, 491 So.2d 297 (Fla. 3rd DCA 1986). It is well established that there is no "good faith" exception. See, Thorp v. State, 777 So.2d 385 (Fla. 2000); Burnett v. State, 848 So.2d 1170 (Fla. 2nd DCA 2nd 2003); Garcia v. State, 2004 Fla. App. LEXIS 5050 (Fla. 2nd DCA 4/14/04). The contents of Jonathan Manley's computer equipment and disks must be suppressed.
WHEREFORE, the Defendant requests that this Court grant this Motion to Suppress.