State v. Marleny Fernandez-Arias

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant,
v. Case No. 5D15-2384
5D15-2385
MARLENY FERNANDEZ-ARIAS AND
ENEDIO ALEJO-ESPINOSA,
Appellees.
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Opinion filed May 13, 2016
Appeal from the Circuit Court
for Hernando County,
Stephen E. Toner, Jr., Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Andrea K. Totten,
Assistant Attorney General, Daytona
Beach, for Appellant.
Frank De La Grana, of Frank De La Grana,
P.A., Tampa, for Appellees.
PER CURIAM.
The State appeals the trial court’s order granting a motion to suppress filed by
codefendants Marleny Fernandez-Arias (“Arias”) and Enedio Alejo-Espinosa
(“Espinosa”). In its order, the trial court found that probable cause did not exist to
support the issuance of a search warrant.
While investigating a suspected marijuana grow operation, police compiled an
affidavit outlining the grounds for probable cause to issue a search warrant. The circuit
court magistrate found that the affidavit established probable cause and issued a search
warrant. The resulting search of the property revealed thirty-two marijuana plants,
along with grow lights, ballasts, pots, fans, and air conditioning units. As a result, Arias
was charged with trafficking in cannabis; possession of a place for trafficking, sale, or
manufacture of a controlled substance; cultivating cannabis; and possession of
paraphernalia. Espinosa was charged with trafficking in cannabis; possession of a
place for trafficking, sale, or manufacture of a controlled substance; cultivating
cannabis; grand theft; tampering with utility fixtures; and possession of paraphernalia.
The State argues that the trial court failed to give proper deference to the findings
of the magistrate who issued the search warrant. In State v. Price, this court
determined that the warrant under review in that case was supported by sufficient
probable cause and explained:
A magistrate’s determination should be accorded a
presumption of correctness and not disturbed absent a clear
demonstration that the issuing magistrate abused his
discretion. State v. Jacobs, 437 So. 2d 166 (Fla. 5th DCA
1983). The task of the issuing magistrate is simply to make
a practical, common sense decision whether, given all the
circumstances before him, there is a fair probability that
contraband or evidence of a crime will be found in a
particular place. Illinois v. Gates, 462 U.S. 213, 103 S. Ct.
2317, 76 L. Ed. 2d 527 (1983); Jacobs.
564 So. 2d 1239, 1241 (Fla. 5th DCA 1990). Based on the record before us and our
review of the warrant and supporting affidavit in the instant case, we agree with the
State. We note, parenthetically, that Florida appellate courts have previously found
probable cause existed on facts similar to those in the instant case. See, e.g., State v.
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Delrio, 56 So. 3d 848, 850-51 (Fla. 2d DCA 2011). The magistrate properly issued the
search warrant; thus, we reverse the trial court’s order granting the motion to suppress
and remand the case for further proceedings.
REVERSED and REMANDED.
LAWSON, C.J., SAWAYA and BERGER, JJ., concur.
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