       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                              July Term 2014

                      RAY TREMAINE BENNETT,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-3148

                           [October 29, 2014]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562011CF003643A.

  Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla,
Assistant Attorney General, West Palm Beach, for appellee.

                        ON MOTION FOR REHEARING

PER CURIAM.

  We grant the motion for rehearing, withdraw our prior opinion, and
substitute the following opinion in its place.

   Ray Tremaine Bennett appeals an order denying his motion to suppress
evidence seized pursuant to a search warrant. He argues the warrant was
invalid because the description of the place to be searched contained an
incorrect address. Finding the warrant description was sufficient to allow
the officers executing it to find the correct premises, when properly aided
by an officer who had previously surveilled the premises, we affirm.

   Appellant was charged with possession of a firearm or ammunition by
a convicted felon and possession of cannabis. These items were seized in
a search of his home, conducted pursuant to a search warrant. The
warrant described the premises to be searched as follows:
    100 Brooks Street, building Q, apartment 302, Ft. Pierce,
    Florida, in Saint Lucie County, known and described as follows,

       To-wit: from the intersection of Okeechobee Road and
       McNeil Road, proceed north on McNeil Road to Brooks
       Street. Travel east on Brooks Street to Petals Road. Travel
       east on Petals Road to building Q. The building is located
       on the north side of the road. The building is a three-story
       CBS multifami1y structure. The structure/building is
       beige/tan in co1or. The roof of the structure/building is
       pitched and red in co1or. Posted on the southwest side of
       the structure/building is the letter “Q” and below the
       numbers “100-314”. Posted on the front door of the
       residence are the numbers “302”; . . . .

   At the evidentiary hearing on appellant’s motion to suppress, it was
established that the warrant’s description of the premises to be searched
was inaccurate in several ways. Appellant’s apartment was numbered 302
and was located in Building Q of the apartment complex, but the building’s
address was 302 Petals Road, not 100 Brooks Street. The directions in
the warrant, from the intersection of Okeechobee Road and McNeil Road,
are also impossible to literally follow.

   There was only one Building Q in the apartment complex and only one
Apartment 302 in that building. There was an apartment building in the
same complex on Brooks Street, but it was labeled Building F. Both
Building F and Q, like all the buildings in the complex, were three-story,
beige buildings with pitched red roofs.

    Nevertheless, officers executing the search warrant searched the
correct apartment in Building Q at 302 Petals Road. The officer who
applied for the warrant, and who had surveilled the premises during a
controlled drug buy, accompanied them and directed them to the correct
apartment. One of the executing officers admitted that he never actually
tried to follow the directions in the warrant.

    Appellant argued the warrant’s description of the premises to be
searched was insufficient because an officer without independent
knowledge would not have been able to find the correct apartment. The
state responded that the description was sufficient, because it allowed the
officer who had previously surveilled the apartment to lead the officers
executing the warrant to the correct premises. The state also argued that,
because there was only one Building Q in the apartment complex, the
directions would have allowed an executing officer to find the correct

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premises.

    The trial court denied the motion to suppress. Although the court
agreed that the directions were “nonsensical,” it found the executing
officers had properly relied on the knowledge of the officer who had
previously surveilled the premises. The court also found that an officer
attempting to follow the erroneous directions could have asked a local
resident for the location of Building Q and, since there was only one in the
complex, could have found the correct premises.

   Following this denial, appellant pled guilty to the charges but reserved
his right to appeal this dispositive issue.          See Fla. R. App. P.
9.140(b)(2)(A)(i). “The standard of review for motions to suppress is that
the appellate court affords a presumption of correctness to the trial
court[’]s findings of fact but reviews de novo the mixed questions of law
and fact that arise in the application of the historical facts to the
protections of the Fourth Amendment.” Wyche v. State, 987 So. 2d 23, 25
(Fla. 2008) (footnote omitted).

   Under the Fourth Amendment of the United States Constitution and
Article I, Section 12 of the Florida Constitution, a warrant must
particularly describe the place or places to be searched. Historically, the
purpose of this requirement was to prevent the use of general warrants
and wide-ranging exploratory searches. See State v. Leveque, 530 So. 2d
512, 513 (Fla. 4th DCA 1988); Maryland v. Garrison, 480 U.S. 79, 84
(1987).

     [I]t is a sufficient designation of the place to be searched if the
     officer to whom the warrant is directed is enabled to locate the
     same definitely and with certainty. This does not necessarily
     require the true legal description to be given in the form it
     appears on the records of the deed register. Any designation or
     description known to the locality that points out the place to the
     exclusion of all others, and on inquiry leads the officer unerringly
     to it, satisfies the constitutional requirement.

Jackson v. State, 87 Fla. 262, 267 (1924). In other words, “[a] warrant is
sufficient if the description is such that the officer can, with a reasonable
effort, ascertain and identify the intended location for the search.”
Leveque, 530 So. 2d at 513. “The test is one of practical accuracy, not
technical nicety.” Clapsaddle v. State, 545 So. 2d 946, 947 (Fla. 2d DCA
1989).



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   Appellant and the state disagree as to whether officers executing a
search warrant can rely on another officer’s independent knowledge of the
premises to cure defects in an ambiguous search warrant. The trial court
determined such assistance was appropriate, based on Smith v. State, 182
So. 2d 461 (Fla. 2d DCA 1966). In Smith, “[t]he warrant gave authority to
search a dwelling located at 306 Water, Plant City, Hillsborough County,
Florida,” and Smith “lived at 306 South Water Street, Plant City.” Id. at
463 (emphasis added). The Second District held the description was
“sufficient where the searching officer had kept the house under
surveillance the previous evening and could locate it as described with
certainty.” Id. at 463.

   Appellant relies on Shedd v. State, 358 So. 2d 1117 (Fla. 1st DCA 1978),
where the search warrant contained an incorrect street address and an
inaccurate physical description of the house to be searched. Id. at 1118.
The house, however, was under surveillance. Id. After obtaining the
warrant, the officers “went directly to Shedd’s home . . . and paid no
attention to the address given in the warrant . . . . They relied on their
independent knowledge of Shedd’s home.” Id. The First District reversed
the denial of Shedd’s motion to suppress, reasoning:

     Search warrants are to be strictly construed. The authority to
     search is limited to the place described in the warrant. This does
     not include additional or different places. . . . A search of a
     citizen’s residence must be based on the description set forth in
     the warrant and not left to the discretion of an officer. In the
     case before us, an officer without independent knowledge would
     have searched an incorrect residence. This can and must be
     avoided.

Id. (emphasis added). Shedd distinguished Smith as involving a minor
defect in the warrant’s description that did not affect the officers’ ability to
locate the house. Shedd, 358 So. 2d at 1119.

   In a subsequent case, Carr v. State, 529 So. 2d 805 (Fla. 1st DCA 1988),
the First District appeared to recede from Shedd, concluding that “a prior
or continuing surveillance of the premises may be considered in
connection with the warrant description of the place to be searched.” Id.
at 806. Carr upheld a warrant listing the wrong apartment number where

     the warrant contained detailed directions to the small apartment
     building in which appellant resided and described the apartment
     to be searched as the one occupied by appellant and another
     named individual.     The officers were aware of appellant’s

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     residence through their surveillance of the premises, and were
     able with reasonable effort to identify the place to be searched in
     accordance with the warrant description. In the circumstances
     presented the inaccuracy in the warrant with regard to the
     apartment number did not place the officers in doubt as to the
     premises to be searched and does not invalidate the warrant.

Id. at 807 (emphasis added).

    Carr is in line with federal case law on this issue. See, e.g., United
States v. Harbison, 523 Fed. Appx. 569, 573-74 (11th Cir. 2013) (despite
incorrect address, “the physical description of the target residence, as well
as law enforcement’s familiarity with the property based on surveillance,
puts to rest [appellant’s] contention that the officers did not have
sufficiently particular information”); United States v. Burke, 784 F.2d
1090, 1092-93 (11th Cir. 1986) (“In evaluating the effect of a wrong
address on the sufficiency of a warrant, this Court has also taken into
account the knowledge of the officer executing the warrant, even where
such knowledge was not reflected in the warrant or in the affidavit
supporting the warrant . . . .”). But see United States v. Williamson, 1 F.3d
1134, 1136 (10th Cir. 1993) (noting that, “[a]lthough an executing officer’s
knowledge may be a curing factor” it cannot be “the sole source of
information identifying the physical location of the” premises to be
searched). As there does not appear to be any United States Supreme
Court precedent directly on point, this federal case law is not binding on
this court. See Art. I, § 12, Fla. Const. (“This right shall be construed in
conformity with the 4th Amendment to the United States Constitution, as
interpreted by the United States Supreme Court.”) (emphasis added); State
v. Rabb, 920 So. 2d 1175, 1182 (Fla. 4th DCA 2006) (“Article I, Section 12
of the Florida Constitution does not prevent this Court from granting
heightened protection in the absence of United States Supreme Court
precedent directly on point to the contrary.”). Nevertheless, these cases
are persuasive.

   We hold that independent knowledge of the premises by an officer
executing a search warrant, where that knowledge was obtained from prior
surveillance of the premises, may be considered in assessing whether the
warrant’s description of the premises is sufficiently particular. See Carr,
529 So. 2d at 806-07; Burke, 784 F.2d at 1092-93. This principle has
limits, grounded in the need to protect the public from general searches or
seizures by officers with unfettered discretion. See Leveque, 530 So. 2d at
513; Garrison, 480 U.S. at 84. If the warrant’s description is so manifestly
defective that the executing officer’s independent knowledge is essentially
the only way the executing officers could have found the property, the

                                     5
warrant description is not sufficiently particular. See Williamson, 1 F.3d
at 1136.
   Here, the warrant’s description is not so manifestly deficient. The
description was correct as to the letter of the building and the apartment
number. Moreover, there was only one Building Q in the apartment
complex.

   The description at issue in Shedd was far more inaccurate than the
description in this case. There, the warrant description read:

          A house located at 5738 Blanding Boulevard, Jacksonville,
      Duval County, Florida, more particularly described as follows.
      The location to be searched is a wood frame house, green in
      color with white trim. The house has a front porch facing
      Blanding Blvd. Directly in front of the location to be searched
      is a mailbox with the numbers 5738 painted on the mailbox.

Shedd, 358 So. 2d at 1118. The house searched was located at 6573
Blanding Boulevard, was a concrete block house rather than a wood frame,
and had a front porch facing a different direction. Id. Furthermore, there
was actually a house with the address 5738 Blanding Boulevard, located
about 1.1 miles away from the correct premises, which was green with
white trim and faced Blanding Boulevard. Id. Under these circumstances,
it was very likely that, without the help of the officer who had previously
conducted surveillance, the executing officers “would have searched an
incorrect residence.” Id.

   In contrast, the errors in the warrant description in this case are more
akin to the minor discrepancies in Smith and Carr. We hold that, where a
warrant contains these types of inaccuracies, the independent knowledge
of an officer who previously surveilled the premises can be considered in
determining whether the warrant description was sufficiently particular.

   For the foregoing reasons, we affirm the conviction and sentence.

WARNER, STEVENSON and GERBER, JJ., concur.

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