IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

STATE OF FLORIDA : Case No. CRC16-13655CFANO-C

: UCN 522016CF013655000APC
Vs. : Case No. CRC16-13720CFANO-C
: UCN 522016CF013720000APC
JAMES E. RYBICKI :
Person ID: 2187418, : Division C
Defendant :
_________________________/ :

ORDER ON DEFENDANT’S MOTION TO SUPPRESS

This matter having come before the Court on the Defendant’s self-styled “Motion to
Suppress Search Warrant,” and the Court having reviewed the submissions of the parties,
reviewed the depositions taken in the case, heard the testimony of witnesses and the
arguments of counsel, examined the entire record, reviewed legal precedent, and otherwise
being advised in the premises, finds as follows:

FACTS.

On December 13, 2016, officers of the Pinellas County Sheriff’s Office (PCSO) executed a
search warrant at the residence of James E. Rybicki (Rybicki). The search warrant and
supporting affidavit stated that there was probable cause to believe that Rybicki’s residence
was being used for the purpose of storing images and/or visual descriptions of a child victim
relevant to proving commission of False Imprisonment by Rybicki, in violation of section 787.02,
Fla. Stat. The alleged violation of section 787.02 was the only offense mentioned in the warrant
and supporting affidavit. The basis asserted for probable cause was a heretofore unreported
but recently discovered incident occurring “approximately 2 years” prior, when Rybicki
allegedly invited a 10-year-old female neighbor, T.K., into his home, asked her to try on bikini-
type bathing suits, and used a digital camera to photograph her wearing the suits.
 The affidavit in support of the search warrant was signed under oath by co-affiants
Detective Michael Alvarez and Detective Michael Baute1 on December 8, 2016. The Summary
of Investigation contained in the affidavit contained the following information:2

On August 2, 2016, Deputy Wayne Zelinsky and Deputy Matthew Schultheis responded to a call
at . . . and spoke with Walter Bonser. Your Affiants learned from Deputy Matthew Schultheiss
that Walter Bonser contacted the Sheriff’s Office after learning James Rybicki had confronted his
daughter, B.B., about trying on a bathing suit for him. B.B. is 10 years old and her date of birth is
07/02/2006. Deputy Matthew Schultheiss interviewed B.B. on August 2, 2016, where she stated
that she had been visiting with her friends at . . . on July 28, 2016, when James Rybicki had called
her over to his residence as she was riding her bicycle. B.B. told Deputy Matthew Schultheiss
that James Rybicki asked her to try on a bathing suit as he was planning to purchase a bathing
suit for his niece in Panama. James Rybicki told B.B. to keep the conversation a secret. B.B. told
her father the following day.

Your Affiants learned that while investigating, Deputy Matthew Schultheiss spoke with another
child, T.K., that had a similar interaction with James Rybicki. Your Affiants learned that T.K.
stated that approximately 2 years ago James Rybicki had approached her in regards to trying on
2-3 bathing suits as he wished to purchase one for her birthday. T.K. disclosed she agreed to do
this and entered James Rybicki’s residence, located at . . . T.K. indicated to Deputy Matthew
Schultheiss she changed in a bathroom in James Rybicki’s residence. James Rybicki then took
multiple pictures of T.K. with a digital camera, while she was wearing the bathing suits. T.K. is
currently 13, but would have been 10 years old at the time. T.K.’s date of birth is 08/13/2003.
James Rybicki did not have permission to bring T.K., a minor, inside of his residence. Your Co-
Affiant confirmed this, by speaking with T.K.’s grandmother, Linda Kramer.

Your Co-Affiant, Detective Michael Alvarez, also identified a female named Carlie Thomas as
another juvenile James Rybicki had approached about taking pictures. Carlie Thomas is now an
adult and is 26 years old. Your Co-Affiant interviewed Carlie Thomas at her home address on
August 4, 2016. During this time, Carlie Thomas disclosed that she had been neighbors with
James Rybicki from the time she was in the 8th grade to the 11th grade. Carlie Thomas recalled an
incident when she was 16 years old [when] James Rybicki approached her about wanting to
photograph her in dresses and bikini style bathing suits. Carlie Thomas informed your Co-Affiant
that James Rybicki offered to pay her to do this and she recalled James Rybicki wanting her to
keep his request a secret. Carlie Thomas also disclosed to your Co-Affiant she had caught James
Rybicki watching her through her bedroom windows while she was James Rybicki’s neighbor on

1
Det. Baute did not conduct the investigation of this case. He entered the case in late November or early
December 2016 for the purpose of assisting in the preparation of the search warrant, and his only involvement in
drafting the affidavit was to add language about the collection habits of “preferential child molesters.” Transcript,
Deposition of Michael Baute, August 25, 2017, pp. 19-20; Transcript, Testimony of Michael Baute, November 30,
2018, pp. 159, 160, 176-77, 182, 199.
2
Residential addresses have been omitted where indicated.

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2 Order on Defense Motion to Suppress
one occasion. Furthermore, your Co-Affiant learned Carlie Thomas never reported these
incidents to her parents or law enforcement.

During this investigation your Affiants learned Detective Stacey Barrentine with the Pinellas
County Sheriff’s Office investigated James Rybicki for a similar incident on October 13, 2000.
Your Affiants learned this investigation was documented under police report number 00-214128.
Detective Stacey Barrentine interviewed a juvenile female, K.M., who disclosed that her
neighbor, James Rybicki, had showed [sic] her photos of a naked 7 year old girl. The victim was
re-interviewed on August 3, 2016, approximately 16 years after this incident and does not
remember him showing her nude pictures. However, your Affiants are aware that when K.M.
was interviewed, immediately after the offense occurred she stated that James Rybicki showed
K.M. multiple other pictures of girls on his computer and some of the girls were naked. K.M.
stated that one of the other girls was 9 years old. James Rybicki asked K.M. if he could take
photos of her and said it was to raise money for kids with cancer. K.M. was alone with James
Rybicki in his residence at . . . when he took multiple pictures of her. James Rybicki told K.M. that
he would put the pictures on a website, with pictures he had of other children. James Rybicki
undressed K.M. and took pictures of her wearing her underwear. Detective Stacey Barrentine
documented K.M. disclosed to him he had taken pictures of her doing a split with a skirt on.
Furthermore, K.M. disclosed James Rybicki had her pull her underwear down to her ankles during
this time. Detective Stacey Barrentine documented K.M. was unsure if James Rybicki had
photographed her genitals. K.M. informed Detective Barrentine to keep this incident a secret.
Your Affiants learned that James Rybicki showed Detective Barrentine a video he took of K.M.
playing outside several days before the above photographs were taken, but did not turn over any
other images. Detective Stacey Barrentine documented in this report several images depicting
child pornography were located on a computer James Rybicki used as a result of this
investigation. The images were located by a data recovery service called E-Hounds Data
Recovery. Ultimately, James Rybicki was arrested and charged with 1 count of Lewd and
Lascivious Conduct and 2 counts of Possession of Child Pornography. James Rybicki was
sentenced , after an amendment of the three felony counts to 3 consecutive misdemeanor
counts of Contributing to the Delinquency of a Minor, to 364 days in [the] Pinellas County Jail,
followed by 2 years of probation. K.M. was 7 years old during Detective Stacey Barrentine’s
investigation. K.M.’s date of birth is 09/24/1993.

Your Affiants believe it is necessary to locate any images taken by James Rybicki of T.K. in bikini
bathing suits as this will further prove there was a violation of F.S.S. 787.02, False Imprisonment.
Your Affiants know from training and experience with internet child exploitation cases, images
depicting T.K. in bikini style bathing suits alone do not constitute child pornography or a violation
of state law. . . .

* * * * *

When viewing James Rybicki’s conduct with all of the above children, over a period of
approximately 16 years, your Affiants believe his conduct shows a clear pattern and motivation
of a preferential child molester. Preferential child molesters are persons whose sexual objects
are children. They receive sexual gratification and satisfaction from actual, physical contact with

State v. Rybicki, UCN 522016CF013655000APC,

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3 Order on Defense Motion to Suppress
 children and from fantasy involving the use of pictures and other photographic or art mediums
[sic].

* * * * *

The remainder of the affidavit went on to explain that the affiants knew that the class of
“preferential child molesters” often make videos or take photographs to memorialize sexual
acts with their child victims by expressly containing sexual acts, nudity, or just a photograph of
the victim, that they maintain such materials in a collection which they use for their own sexual
gratification, that such material is often kept in digital form, and that such materials could
probably be found in James Rybicki’s residence. As acknowledged by the State during
argument, the information in the supporting affidavit regarding T.K. was intended to show
probable cause for the search, while the information regarding B.B., Carlie Thomas, and K.M.
was added solely to show that the probable cause regarding T.K. was not stale.

The search warrant stated in relevant part:

The Court having read an affidavit for Search Warrant and examined under oath duly sworn law
enforcement officers of the Pinellas County Sheriff’s Office, is satisfied that the facts alleged do
exist and from the facts as alleged finds that probable does exist to believe the laws of Florida
relating to F.S.S. 787.02, False Imprisonment, are being violated and that certain evidence
relevant to proving the offense(s) is located herein premises, to wit . . .

WHEREAS, said facts made known to me and considered by me, have caused me to certify and
find that there is reasonable probable cause to believe that certain laws have been violated in or
about or by means of a digital camera or similar digital device capable of storing digital media
proving a violation of certain laws is contained within, and together with said digital camera or
and any relevant images pertaining to this investigation digital or printed described hereinafter,
is located in or about certain premises and the curtilage thereof and/or vehicles upon the
curtilage belonging to or used by the residents of said premises, a described above.

WHEREAS, the Court having found probable cause that a digital camera or similar digital device
capable of storing digital media provided at or through the above described residence was
knowingly used as an instrumentality of a crime and contains evidence relevant to proving a
violation of the following Felony law, to wit: F.S.S. 787.02, False Imprisonment and the creation,
possession, or promotion of an image depicting the child victim identified in ACISS report SO16-
309379 in a bikini, and where the Premises is being occupied by James Rybicki and others
unknown.

As a result of the search of Rybicki’s residence and accompanying seizure of certain

items, Rybicki was arrested and charged with Possession of Child Pornography in violation of
section 827.071(5), Fla. Stat., Promoting a Sexual Performance by a Child in violation of section

State v. Rybicki, UCN 522016CF013655000APC,

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4 Order on Defense Motion to Suppress
827.071(3), Fla. Stat., Lewd and Lascivious Molestation in violation of section 800.04(5)(b), and
Video Voyeurism in violation of section 810.145(8)(a), Fla. Stat. On December 22, 2016 the
State Attorney charged Rybicki by Information in case number 16-13655-CF with third degree
felony Possession, Control, or Intentional Viewing of Child Pornography occurring on December
13, 2016 in violation of section 827.071(5), Florida Statutes, and second degree felony
Promoting Sexual Performance by a Child occurring on or between May 1, 2014 and August 13,
2016 in violation of section 827.071(3), Florida Statutes. On December 22, 2016, the State
Attorney charged Rybicki by Information in case number 16-13720-CF with two counts of the
life felony of Lewd or Lascivious Molestation occurring on or between May 1, 2014 and August
13, 2016 in violation of section 800.04(5)(b), Florida Statutes, and one count of second degree
felony video voyeurism occurring in the same time period in violation of section 810.145(8)(a),
Florida Statutes.

Rybicki was never arrested for False Imprisonment, notwithstanding the language of the
affidavit and warrant and the results of the search, and the State Attorney filed a “No
Information”3 for the False Imprisonment charge on January 12, 2017.

ASSERTIONS OF THE DEFENDANT.

Reduced to its lowest common denominator, Rybicki asserts that the search in this case
was conducted in violation of the Fourth Amendment and seeks suppression of all evidence
seized in the execution of the search warrant on the bases that:

1. The supporting affidavit omitted certain material information in an attempt to

influence the actions of the judge to whom the search warrant application was made, and this
information, if added, would have eviscerated probable cause.

2. The supporting affidavit contained false statements that were necessary for the
finding of probable cause and without which probable cause could not be found.

3. These omissions and false statements were done knowingly and intentionally, or
with reckless disregard for the truth.

4. The allegation of probable cause was too stale to support probable cause for a
search.

3
A “no information” indicates the prosecutor is formally ending the criminal investigation of a case with no
intention of filing a charging document later.

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5 Order on Defense Motion to Suppress
 5. The statute of limitations for False Imprisonment had expired at the time the search
warrant was executed.

6. The allegation of false imprisonment was made in bad faith as a pretext for getting a
warrant to search for other crimes for which there was no probable cause to search.

APPLICABLE LAW.

The purpose of a warrant is to allow a neutral judicial officer to assess whether the
police have probable cause to make an arrest or conduct a search. The placement of this
checkpoint between the government and the citizen implicitly acknowledges that an officer
engaged in the often competitive enterprise of ferreting out crime may lack sufficient
objectivity to weigh correctly the strength of the evidence supporting the contemplated action
against the individual’s interests in protecting his or her own liberty and the privacy of his or
her home. However, while an arrest warrant and a search warrant both serve to subject the
probable cause determination of the police to judicial review, the interests protected by the
two warrants differ. An arrest warrant is issued by a magistrate upon a showing that probable
cause exists to believe that the subject of the warrant has committed an offense and thus the
warrant serves to protect an individual from unreasonable seizure. A search warrant, in
contrast, is issued upon a showing of probable cause to believe that the legitimate object of a
search is located in a particular place, and therefore safeguards an individual’s interest in the
privacy of his or her home and possessions against the unjustified intrusion of the police.4

The task of a judge or magistrate when reviewing an application for a search warrant is
to apply the totality of circumstances test and make a practical, common sense decision
whether, given all the circumstances set forth in the affidavit before him or her, including the
veracity and basis of knowledge of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular place.5 The
essential building blocks of probable cause are definite, specific facts. Rumors, hunches, and
unsupported conclusions will not suffice to establish probable cause.6 An affidavit must provide

4
See Steagald v. U.S., 451 U.S. 204, 212-213, 101 S. Ct. 1642, 1648, 68 L. Ed. 2d 38 (1981).
5
Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
6
Illinois v. Gates, 462 U.S. 213, 239, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983) (“A sworn statement of an
affiant that ‘he has cause to suspect and does believe that’ liquor illegally brought into the United States is located
on certain premises will not do.”).

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6 Order on Defense Motion to Suppress
the magistrate or judge with a substantial basis for determining the existence of probable
cause; his or her action cannot be a mere ratification of the bare conclusions of others.7

While the initial finding of probable cause by a judicial officer is given “great deference”
in order to encourage the use of warrants, the ultimate question of whether the factual claims
in an affidavit are sufficient to amount to probable cause is still a matter of law appropriate for
fresh review by a trial court in considering a motion to suppress evidence gathered in the
execution of a given search warrant. An initial point in considering the sufficiency of an
affidavit is that the burden rests on the movant to persuade the Court that evidence obtained
pursuant to a search warrant should be suppressed. This burden is not easily met. A judicial
preference is accorded searches under a warrant. The supporting affidavit must be read in a
common sense manner, and is not subject to hypertechnical scrutiny. Within this analytical
framework, an affidavit, to support a finding of probable cause, need only show facts and
circumstances which would warrant a person of reasonable caution to believe that the articles
sought were located at the place it was proposed to search. Such a probability exists when
sufficient nexus is shown between the items to be seized and the residence to be searched.
The affidavit need not state with certainty that that the proposed search will yield the objects
sought. The inquiry instead reduces to a standard of probabilities, that is, whether the
magistrate could reasonably conclude that the items sought were probably at the residence.
The probability is not negated by the possibility that the items might be elsewhere.8

The purpose of the exclusionary rule is to act as a deterrent for violations of the Fourth
Amendment, not to serve as a technical device for the benefit of defendants.9 The Fourth
Amendment exclusionary rule should not be applied so as to bar the use in the prosecutor’s
case in chief of evidence obtained by officers acting in reasonable reliance on a search warrant
issued by a detached and neutral magistrate but ultimately found to be invalid.10 Suppression
remains an appropriate remedy, however, if the magistrate or judge issuing a warrant was

7
Illinois v. Gates, 462 U.S. 213, 239, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
8
See U.S. v. Morris, 491 F. Supp. 222, 224 (D. Ga. 1980).
9
Johnson v. State, 660 So. 2d 648, 658 (Fla. (1995).

10
U.S. v. Leon, 468 U.S. 897, 920-21, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).

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7 Order on Defense Motion to Suppress
misled by information in an affidavit that the affiant knew was false or would have known was
false except for his or her reckless disregard of the truth.11

Mere neglect or statements made by innocent mistake are insufficient.12 Omissions, by

themselves, may be wholly reasonable in the sense that they exclude material that the police in
good faith believed to be marginal, extraneous, or cumulative. Such an exclusion is a valid and
necessary part of the warrant process. As to omissions made to the judge in an attempt to
influence the judge’s action, the defendant must show (1) the omitted material, if added, would
have eviscerated probable cause, and (2) intentional or reckless police conduct that amounts to
deception.13 Stated otherwise, when a fact is omitted from an affidavit filed in support of an
application for a search warrant, a reviewing court must determine whether the omission
constitutes a material omission. A fact constitutes a material omission if a substantial
possibility exists that knowledge of the omission would have altered a reasonable judge’s or
magistrate’s probable cause determination. In determining whether a material omitted fact
should invalidate the search warrant the reviewing court must view the affidavit as if it had
included the omitted fact and then determine whether the affidavit provides sufficient
probable cause.14

Under the Franks15 test, an evidentiary hearing is warranted where the defendant
makes a substantial preliminary showing that (1) the affiant knowingly or intentionally, or with
reckless disregard for the truth, made untruthful statements or omitted important facts and (2)
the untrue facts were necessary for the finding of probable cause or the omitted facts, if added
to the affidavit, would have defeated probable cause. If the defendant establishes these
allegations by a preponderance of the evidence, the court must suppress the fruits of the
search.16 To meet the Franks test, police conduct must rise to the level of hoodwinking or
bilking, duping the issuing judge or magistrate into signing the warrant; that is, an allegation

11
U.S. v. Leon, 468 U.S. 897, 923, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984); Franks v. Delaware, 438 U.S. 154,
155, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
12
Thorpe v. State, 777So. 2d 385, 391 (Fla. 2001).
13
State v. Petroni, 123 So. 3d 62, 64 (Fla. 1st DCA 2013).
14
State v. Panzino, 583 So. 2d 1059, 1062 (Fla. 5th DCA 1991).

15
Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).
16
Murray v. State, 155 So. 3d 1210, 1217 (Fla. 4th DCA 2015); Franks v. Delaware, 438 U.S. 154, 155-56, 98
S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

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8 Order on Defense Motion to Suppress
that the affiant had information he or she knew should be included in the affidavit and failed to
include it either intentionally or recklessly with the idea the omission would then sway the
issuing judge or magistrate in his or her favor.17

A reviewing court’s finding that the police acted in a deceptive manner will not, by itself,
result in automatic suppression. Under such circumstances, the reviewing court must excise
the erroneous material and determine whether the remaining allegations in the affidavit
support probable cause. If the remaining statements are sufficient to establish probable cause,
the false statements will not invalidate the resulting search warrant. If, however, the false
statement is necessary to establish probable cause, the search warrant must be voided, and the
evidence seized as a result of the search must be excluded.18

Severability.

It is possible, in some circumstances, to sever the invalid part of a warrant while

preserving the vitality of the remaining valid part. Under the severability doctrine, the infirmity
of part of a warrant requires the suppression of evidence seized pursuant to that part of the
warrant, but does not require the suppression of anything described in the valid portions of the
warrant, or lawfully seized on plain view grounds. This doctrine applies only if the valid
portions of the warrant are sufficiently particularized, distinguishable from the invalid portions,
and make up the greater part of the warrant. The multi-step severability analysis is as follows:
First, the warrant is divided in a common sense, practical manner into individual clauses,
portions, paragraphs, and categories. Next, there is an evaluation of the constitutionality of
each individual part to determine whether some portion of the warrant satisfies the probable
cause and particularity requirements of the Fourth Amendment. If no part of the warrant
particularly describes items to be seized for which there is probable cause, then severance does
not apply and all items seized by such a warrant should be suppressed. If, however, at least a
part of the warrant is sufficiently particularized and supported by probable cause, a
determination must then be made whether the valid portions are distinguishable from the
invalid portions. If the valid portions may be meaningfully severed, the next step is to look to
the warrant on its face to determine whether the valid portions make up the greater part of the
warrant, by examining both the quantitative and qualitative aspects of the valid portions
relative to the invalid portions. If the valid portions make up the greater part of the warrant,
then those portions are severed, the evidence seized pursuant to the portions of the warrant

17
State v. Petroni, 123 So. 3d 62, 65 (Fla. 1st DCA 2013).

18
Murray v. State, 155 So. 3d 1210, 1217 (Fla. 4th DCA 2015).

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that fail to meet the requirements of the Fourth Amendment is suppressed, and the evidence
seized pursuant to the valid portions, or lawfully seized during the execution of the valid
portions, is admitted.19

Staleness.

The issue of staleness arises when the passage of time between the act or acts
underlying the basis for probable cause and the search warrant application suggest that the
sought-after evidence will no longer be located at the area to be searched. When determining
whether information is stale or not, the judicial officer must consider not only the age of the
information, but the nature of the evidence sought. Some kinds of evidence are more
evanescent than others. Some contraband, like narcotic drugs, are consumable. Other
evidence, like an illegal firearm, is more apt to remain in one place for extended periods. The
observation that images of child pornography are likely to be hoarded by persons interested in
those materials in the privacy of their homes is supported by common sense and caselaw.
Since the materials are illegal to distribute and possess, initial collection is difficult. Having
succeeded in obtaining images, collectors are unlikely to quickly destroy them. Because of their
illegality and the imprimatur of severe social stigma such images carry, collectors will want to
secret them in secure places, like a private residence. This proposition is not novel in either
state or federal court: pedophiles, preferential child molesters, and child pornography
collectors maintain their materials for significant periods of time. Of course, before the
presumption that pedophiles, preferential child molesters, or child pornography collectors
hoard their materials for extended periods can be applied, the judicial officer scrutinizing the
warrant application must have sufficient information from which it can be concluded that the
target falls within these categories.20

For probable cause information to support the issuance of a search warrant, the proof
must be of facts so closely related to the time of the issue of the warrant as to justify a finding
of probable cause at that time.21 Generally, as the time period increases there is less likelihood
that the items sought to be seized will be found on the premises described in the warrant. The
rule of thumb is thirty days, but each case must be decided upon its own particular

19
See U.S. v. Sells, 463 F. 3d 1148, 1150-51 (10th Cir. 2006); State v. Douglass, 544 S.W. 3d 182 (Mo. 2018).
20
See U.S. v. Lamb, 945 F. Supp. 441, 460-61 (N.D.N.Y. 1996).

21
Sgro v. U.S., 287 U.S. 206, 210, 53 S. Ct. 138, 77 L. Ed. 260, 85 A.L.R. 108 (1932).

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circumstances. Evidence of an ongoing pattern of criminal activity may justify an extended time
lapse.22

There is no per se rule fixing a specified period as a mandatory maximum time within
which, to be valid, a search warrant must be sought after the events relied upon show probable
cause; the approach is ad hoc in terms of the circumstances of each case. Whether past
circumstances disclose a probable cause that is still continuing at the time of the request for a
search warrant is not determined merely by the passage of time, but may also depend upon the
circumstances of each case. “Stale” information may be considered in conjunction with the
affidavit as a whole and may be freshened by the other corroborating statements in the
affidavit.23

The mere lapse of substantial amounts of time is not controlling of a question of

staleness. Staleness is to be evaluated in light of the particular facts of the case and the nature
of the criminal activity and property sought. The information offered in support of the
application for a search warrant is not stale if there is a sufficient basis to believe, based on a
continuing pattern or other good reasons, that the items to be seized are still on the premises.24
Similarly, items that are consumable, such as prescribed drugs, may become stale sooner than
non-consumable items such as video recordings or photographs.25

False Imprisonment.

Under Florida law, “false imprisonment” means forcibly, by threat, or secretly confining,
abducting, imprisoning, or restraining another person without lawful authority and against his
or her will.26 Confinement of a child under the age of 13 is against his or her will within the
meaning of section 787.02 if such confinement is without the consent of his or her parent or

22
Smith v. State, 438 So. 2d 896 (Fla. 2d DCA 1983).
23
See State v. Wright, 890 A. 2d 703, 705-06 (Me. 2006).
24
Brachlow v. State, 907 So. 2d 626, 629 (Fla. 4th DCA 2005).
25
State v. Felix, 942 So. 2d 5, 9-10 (Fla. 5th DCA 2006).

26
§ 787.02(1)(a), Fla. Stat.

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legal guardian.27 A person who commits the offense of false imprisonment in violation of
section 787.02 is guilty of a felony of the third degree.28

The statute does not define “confinement,” but the word is defined in Black’s Law
Dictionary as

The state of being confined; shut in; imprisoned... Confinement may be by

either a moral or physical restraint, by threats of violence with a present force,
or by physical restraint of the person.29

Consistent with this definition, false imprisonment under Florida law requires: (1) the
defendant confined, abducted, imprisoned, or restrained the victim by an intentional act; (2)
the victim was conscious of the confinement, abduction, imprisonment, or restraint; (3) the
victim (or the victim’s parent or guardian if the victim is under the age of 13) did not consent to
the confinement, abduction, imprisonment, or restraint; and (4) the confinement, abduction,
imprisonment, or restraint was not otherwise privileged. Further, “confinement,” “abduction,”
“imprisonment,” and “restraint,” connote a significant interference with a person’s freedom of
movement that requires some degree of deliberate physical or psychological restraint on the
victim, or other action, preventing the victim from leaving the place of confinement, abduction,
imprisonment, or restraint.30

The essence of false imprisonment is the act of depriving the victim of personal liberty
or freedom of movement for any length of time.31 False imprisonment does not require specific
intent.32 False imprisonment does not have to be prolonged, but may be completed by the
simple momentary grasp of another person.33 The statutory elements of the offense of false

27
§ 787.02(1)(b), Fla. Stat.
28
§ 787.02(2), Fla. Stat.
29
Black’s L. Dict. 298 (6th ed. 1990).
30
See, e.g., School Bd. Of Miami-Dade County, Florida v. Trujillo, 906 So. 2d 1109 (Fla. 3d DCA 2005).
31
Proko v. State, 566 So. 2d 918, 920 (Fla. 5th DCA 1990).

32
Crain v. State, 894 So. 2d 59 (2004), rehearing denied, certiorari denied 546 U.S. 829, 126 S. Ct. 47, 163 L.
Ed. 2d 79, denial of post-conviction relief affirmed 78 So. 3d 1025.
33
See Oakes v. State, 85 So. 3d 526, 527 (Fla. 1st DCA 2012).

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12 Order on Defense Motion to Suppress
imprisonment do not necessarily involve the use or threat of physical force or violence against
an individual.34 Duress can substitute for force, and the force or duress used to retrain the
victim need not be substantial; it must simply be sufficient to restrict the victim’s movement.35
A prosecution for false imprisonment must be commenced within three years after it has been
committed.36

Duty of Candor.

A warrant application hearing is not an ad hoc, informal meeting with a judge, nor is it
meant to be some sort of “game” such as is often depicted on television and in the movies. It
is, rather, an ex parte court proceeding conducted in earnest and subject to the same laws and
rules as other court proceedings, including some very specific requirements as to truthfulness
and candor toward the tribunal.

Under Florida Law, a search warrant authorized by law may be issued by any judge,
including the committing judge of the trial court having jurisdiction where the place, vehicle, or
thing to be searched may be.37 Upon proper affidavit being made, a search warrant may be
issued under Chapter 933 upon any of several enumerated grounds, including when any
property shall have been used as a means to commit a crime, or when any property constitutes
evidence relevant to proving that a felony has been committed.38 The law mimics the Warrants
Clause of the Fourth Amendment39 in providing that “no search warrant shall be issued except
upon probable cause, supported by oath or affirmation particularly describing the place to be
searched and the person and thing to be seized.”40 Under Florida law, a search warrant cannot
be issued except upon probable cause supported by affidavit or affidavits, naming or describing
the person, place, or thing to be searched and particularly describing the property or thing to

34
Lamb v. State, 32 So. 3d 117 (Fla. 2d DCA 2009).
35
See Connor v. State, 19 So. 3d 1117, 1124 (Fla. 2d DCA 2009).
36
§ 775,15(2)(b), Fla. Stat. This period can be extended by up to three years under conditions not present
in this case. See § 775,15(5), Fla. Stat.
37
§ 933.01, Fla. Stat.
38
§ 933.02(2)(a) and (3), Fla. Stat.

39
“[N]o Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the places to be searched, and the persons or things to be seized.” U.S. Const. Amend IV.
40
§ 933.04, Fla. Stat.

State v. Rybicki, UCN 522016CF013655000APC,

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13 Order on Defense Motion to Suppress
be seized; no search warrant can be issued in blank, and any such warrant must be returned
within 10 days after issuance thereof.41 The judge must, before issuing the warrant, have the
application of some person for said warrant duly sworn to and subscribed, and may receive
further testimony from witnesses or supporting affidavits, or depositions in writing, to support
the application. The affidavit and further proof, if same be had or required, must set forth the
facts tending to establish the grounds of the application or probable cause for believing that
they exist.42

A “duly sworn” application for warrant does not require the affiant to swear to facts of
which he is personally aware. It will often be sufficient for the affiant to simply recount what
the affiant has been told by someone else, and to additionally explain his or her reasons for
believing that what he or she has been told is reliable.43 It does, however, require the affiant to
be truthful with the court. As explained by one jurist:

[W]hen the Fourth Amendment demands a factual showing sufficient to comprise ‘probable
cause,’ the obvious assumption is that there will be a truthful showing. This does not mean
“truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for
probable cause may be founded upon hearsay and upon information received from informants,
as well as upon information within the affiant’s own knowledge that sometimes must be
garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is
44
believed or appropriately accepted by the affiant as true.

The judge, upon examination of the application and proofs submitted, if satisfied that
probable cause exists for the issuing of the search warrant, must thereupon issue a search
warrant signed by him or her with his or her name of office, to any sheriff and the sheriff's
deputies or any police officer or other person authorized by law to execute process,
commanding the officer or person forthwith to search the property described in the warrant or
the person named, for the property specified, and to bring the property and any person

41
§ 933.05, Fla. Stat.

42
§ 933.06, Fla. Stat.
43
22 Fla. Prac., Criminal Practice and Procedure § 3:19 (2019 ed.); see also Johnson v. State, 660 So. 2d
648, 654 (Fla. 1995) (affidavit supporting an arrest warrant not rendered defective by officer’s oath that
information provided is truthful to the best of officer’s knowledge or to officer’s best knowledge and belief).
44
Judge Frankel, in United States v. Halsey, 257 F. Supp. 1002, 1005 (S.D.N.Y.1966), aff'd, Docket No. 31369
(CA2, June 12, 1967) (unreported), cited with approval in Franks v. Delaware, 438 U.S. 154, 164-65, 98 S. Ct. 2674,
57 L. Ed. 2d 667 (1978).

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14 Order on Defense Motion to Suppress
arrested in connection therewith before the judge or some other court having jurisdiction of
the offense.45

At the warrant application hearing, the court must have all the pertinent facts before it
in order to determine whether there is sufficient, properly obtained evidence providing
probable cause for a search warrant to issue. The omission of relevant facts affects the
probable cause to search. Police and prosecutors therefore have an implied duty of candor to
the court in the presentation of an application for a search warrant.46

Above and beyond this, prosecutors participating in warrant application hearings are
required under the rules of the Florida Bar to inform the tribunal of all material facts known to
the prosecutor that will enable the tribunal to make an informed decision, whether or not the
facts favor the prosecutor’s position.47 The rationale for this rule is explained in a comment to
the American Bar Association’s analogous Rule 3.3 pertaining to candor toward the tribunal:

Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a
tribunal should consider in reaching a decision; the conflicting position is expected to be
presented by the opposing party. However, in any ex parte proceeding, such as an application for
a temporary restraining order, there is no balance of presentation by opposing advocates. The
object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has
an affirmative responsibility to accord the absent party just consideration. The lawyer for the
represented party has the correlative duty to make disclosures of material facts known to the
48
lawyer and that the lawyer reasonably believes are necessary to an informed decision.

45
§ 933.07, Fla. Stat.
46
See State v. Johnson, 509 N.W. 2d 681, 690 (S.D. 1994); Cruse v. State, 584 P. 2d 1141, 1146 (Alaska
1978); see also Christensen v. Quinn, 2013 WL 1702040 (D.S.D. 2013); U.S. v. McKerlie, 2011 WL 4345884 (D. Ariz.
2011).
47
“In an ex parte proceeding a lawyer shall inform the tribunal of all material facts known to the lawyer
that will enable the tribunal to make an informed decision, whether or not the facts are adverse.” Rule 4-3.3(c),
Rules Governing the Florida Bar. The Court also notes parenthetically that Rule 4-3.8(a), pertaining to the special
duties of a prosecutor, provides that the prosecutor in a criminal case “shall refrain from prosecuting a charge that
the prosecutor knows is not supported by probable cause.” Rule 4-3.8(a), Rules Governing the Florida Bar.
48
American Bar Association Rule 3.3, Candor Toward The Tribunal - Comment.

State v. Rybicki, UCN 522016CF013655000APC,

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15 Order on Defense Motion to Suppress
DISCUSSION.

The affidavit and search warrant in this case were a recycling of previous affidavits and
warrants used in cases involving searches for child pornography, with the distinction that the
stated purpose of the warrant in this case was the collection of evidence of “false
imprisonment.”49 Taken at face value, the affidavit could convince a reasonably prudent judge
or magistrate that there was probable cause to search Rybicki’s home. Had it not contained
false statements and not omitted certain material facts, no reasonably prudent judge or
magistrate would have signed the warrant.

On August 3, 2016 Detective Michael Alvarez, PCSO, conducted unrecorded interviews

of T.K., age 13, and her grandmother about the incident that was alleged to have occurred
when T.K. was roughly 10 years of age. T.K. did not provide a specific date and told Det. Alvarez
that it occurred in the summer of 5th grade going into 6th grade. T.K. told Det. Alvarez that
Rybicki took roughly four photographs with a digital camera in his master bedroom of her
wearing three bikini-style bathing suits, that he left the camera on the dresser when he stepped
out of the room, that after he left the room she attempted to delete all of the photographs,
and that she was unsure whether she did in fact delete all of them. T.K. also told Det. Alvarez
that she did not tell anyone about the incident until she spoke with the deputies during the
initial investigation of the July 28, 2016 incident involving B.B.50 At the time, Det. Alvarez had
no disclosures for any type of sexual contact between Rybicki and T.K., did not think that a
crime involving T.K. had been committed, and “knew” there was an issue of staleness regarding
T.K.’s allegations.51 Det. Alvarez continued his investigation without success and set the case
for a live investigation with the prosecutors assigned to the case on or about October 10, 2016.
At the live investigation, Det. Alvarez reiterated to the prosecutors that he did not feel he had
probable cause to charge Rybicki with false imprisonment.52

After the invest, and a few days before getting the search warrant signed by the judge
on December 8, 2016, Det. Alvarez was informed by the prosecutors that the State Attorney

49
See Transcript, Deposition of Michael Alvarez, November 17, 2017, pp. 88-90; Transcript, Testimony of
Michael Baute, November 30, 2018, p. 182.
50
Transcript, Deposition of Michael Alvarez, November 17, 2017, pp. 25-27, 30-31.

51
Transcript, Deposition of Michael Alvarez, November 17, 2017, pp. 28-29, 30, 32, 58; Transcript,
Testimony of Michael Alvarez, November 30, 2018, p. 14.
52
Transcript, Deposition of Michael Alvarez, November 17, 2017, pp. 66-68.

State v. Rybicki, UCN 522016CF013655000APC,

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16 Order on Defense Motion to Suppress
was not going to file charges against Rybicki for false imprisonment.53 Sometime around the
last week of November 2016, while conferring with the State Attorney’s Office about the case,
a prosecutor54 came up with the idea of getting a search warrant for “false imprisonment” and
encouraged Det. Alvarez to apply for one.55

In the clearest terms, after Det. Alvarez was unable to develop probable cause to arrest
Rybicki for a crime, the police and the prosecutors came up with what Det. Alvarez termed a
“game plan” to use an allegation of false imprisonment as a basis to get a search warrant to
search Rybicki’s residence for child pornography, without the intent of actually charging Rybicki
with false imprisonment.56 Det. Alvarez followed up on the suggestion of the prosecutor, with
the clear understanding that the purpose of seeking the warrant was not to gather evidence in
support of a charge of false imprisonment, but to explore the possibility, based on a hunch, that
the police might find some child pornography in Rybicki’s home.57

Det. Alvarez went along with the plan because, although he thought that the
photographs Rybicki took of T.K. qualified as legal “child erotica” and not illegal child
pornography, he thought that “there could potentially be some child pornography mixed in that
child erotica” in Rybicki’s house58 because of his beliefs that “child erotica and child porn go
hand in hand” and “they’re typically always together.”59 As Det. Alvarez stated in his deposition
on November 17, 2017, the purpose of the warrant was:

Not essentially to charge him with [false imprisonment] at the time because the disclosure was
you’re talking almost three years at that point, you know what I’m saying? It was more so — and
basically the game plan that I come up with with the State Attorney’s Office and my chain of

53
Transcript, Deposition of Michael Alvarez, November 17, 2017, p. 68-70, 72; Transcript, Testimony of
Michael Alvarez, November 30, 2018, p. 75.
54
The prosecutor who made this suggestion was not the prosecutor who appeared for the State in these
proceedings.
55
Transcript, Deposition of Michael Alvarez, November 17, 2017, pp. 29, 57, 58, 80-81.
56
Transcript, Deposition of Michael Alvarez, November 17, 2017, pp. 57-61, 97, 99-100, 140-44.
57
Transcript, Deposition of Michael Alvarez, November 17, 2017, pp. 60, 61, 63-64; Transcript, Testimony
of Michael Alvarez, November 30, 2018, p. 80.
58
Transcript, Deposition of Michael Alvarez, November 17, 2017, pp. 63-64.

59
Transcript, Deposition of Michael Alvarez, November 17, 2017, p. 97.

State v. Rybicki, UCN 522016CF013655000APC,

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17 Order on Defense Motion to Suppress
 command saying look, based on the prior experience I had doing [internet crimes against
children] cases, she’s saying there’s possibly some photos still in there; that she’s not making any
disclosures about child porn. Let’s see if we can get a search warrant for the house and
corroborate what she’s saying if there’s any photos still on there, and that point, if there’s
anything, we’ll go from there. But that was essentially why we went the false imprisonment
60
route.

Det. Alvarez went on in his deposition to confirm that the intent was not to charge
Rybicki with false imprisonment, but just to use that charge as a basis to get a search warrant.61
He also acknowledged that, had the judge who signed the warrant asked him if they were really
going for false imprisonment or really going for something bigger, he would have told the judge
that they were not going for false imprisonment, but were going after “bigger fish,” and that
they were actually trying to use this to get into Rybicki’s house.62

Det. Alvarez knew at the time that proceeding in this manner was extremely unusual.63
As he stated in his deposition:

[T]he disclosures from this, they were a little old. They were three years old. It’s not typically
something — I mean I’ve never — I don’t think — this would have been the first time I’ve ever
written a warrant specifically for like false imprisonment for the purpose of other evidence in
64
there, digital evidence for erotica or child porn.

Det. Alvarez also characterized his seeking of a search warrant for evidence of false
imprisonment (premised not on forceful confinement but on on T.K. being in Rybicki’s house
without the permission of her parent or guardian65) as “creative” and “thinking outside the

60
Transcript, Deposition of Michael Alvarez, November 17, 2017, p. 59.

61
Transcript, Deposition of Michael Alvarez, November 17, 2017, p. 60.
62
Transcript, Deposition of Michael Alvarez, November 17, 2017, p. 99; Transcript, Testimony of Michael
Alvarez, November 30, 2018, pp. 57, 91-92.
63
During the litigation of this issue, the State was unable to cite a single case, other than this one, in which
they sought a search warrant for a false imprisonment charge. In addition, Det. Alvarez testified that this was his
first search warrant for a false imprisonment charge. Transcript, Testimony of Michael Alvarez, November 30,
2018, p. 77.
64
Transcript, Deposition of Michael Alvarez, November 17, 2017, pp. 140-141.

65
Transcript, Testimony of Michael Alvarez, November 30, 2018, p. 44.

State v. Rybicki, UCN 522016CF013655000APC,

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18 Order on Defense Motion to Suppress
box,” as opposed to a “fishing expedition,”66 and justified because he felt “there could be a
possibility of child pornography in that house.”67

It also was developed during the hearing of this matter that, in addition to the issue of
staleness of the allegations, Det. Alvarez also had a concern at the time he sought the warrant
that the three-year statute of limitations had run on the false imprisonment charge, precluding
a finding of probable cause to search.68 While under examination, Det. Alvarez also testified
that the episode involving T.K. occurred “three or more years ago,” that a magistrate being
made aware of that fact may have thought the matter to be outside the statute of limitations,
and that the statement he provided for the supporting affidavit that the event occurred
approximately 2 years ago “could have been a typo.”69 On cross-examination by the State, and
after reviewing his police report, Det. Alvarez testified that T.K. was twelve years old on in
August 2016 when he interviewed her, that her birth date was August 13, 2003, that the
incident with Rybicki “was right around her fifth grade,” and that she believed Rybicki took
photographs of her two years prior.70 Det. Alvarez also testified on cross-examination that he
believed that there was probable cause for the search warrant and to arrest and charge Rybicki
with false imprisonment.71 On redirect examination by defense counsel, Det. Alvarez testified
that as regards his statement in the supporting affidavit that “T.K. is currently 13, but would
have been 10 years old at the time,”

[I]t’s give or take. I mean, when I’m dealing with a child, there wasn’t any definitive dates. It was
72
more of an approximation and an assumption.

The date of the alleged offense was critical information, and the significance of not
providing a more exact date for the alleged offense is twofold: First, if the incident actually
occurred three years prior to being reported to the police, which the evidence at hearing

66
Transcript, Deposition of Michael Alvarez, November 17, 2017, p. 142.
67
Transcript, Deposition of Michael Alvarez, November 17, 2017, p. 144; Transcript, Testimony of Michael
Alvarez, November 30, 2018, p. 83.
68
Transcript, Testimony of Michael Alvarez, November 30, 2018, pp. 18-19, 45-48, 104.
69
Transcript, Testimony of Michael Alvarez, November 30, 2018, pp. 96-97.
70
Transcript, Testimony of Michael Alvarez, November 30, 2018, pp. 115-116.
71
Transcript, Testimony of Michael Alvarez, November 30, 2018, p. 131-132.

72
Transcript, Testimony of Michael Alvarez, November 30, 2018, p. 138.

State v. Rybicki, UCN 522016CF013655000APC,

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19 Order on Defense Motion to Suppress
indicated was a distinct possibility, it would have been beyond the statute of limitations.
Second, it is common practice in investigations involving child witnesses interviewed long after
a critical event to meet with the child and patiently attempt to narrow down the date or dates
concerned and corroborate events with as much accuracy as possible. This is done to test the
veracity and accuracy of the witness and determine where the case is in relation to the
applicable statute of limitations. The investigator normally does this by asking the child open-
ended questions about events occurring on, before, and after the witnessed event, with the
investigator often using a calendar in recording what the child says. An investigator would, for
example, ask the child about his or her memory of school events, vacations, birthdays, parties,
trips, events occurring to other people they know, and so on. There was no evidence presented
that any of this was ever done, notwithstanding the investigating officer’s purported concern
with the statute of limitations. This is, however, a bit of a red herring: In combination with
other revealed facts that showed that Det. Alvarez knew or should have known that there was
no evidence of force or duress being used on T.K., that T.K. was not deprived of her liberty or
freedom of movement in any way, and that T.K. was a frequent visitor to the Rybicki home,
there is a strong inference that the investigator knew that the false imprisonment charge had
no merit and that it would be a waste of time to continue the investigation under any
circumstances.

Another problem with the recitations in the supporting affidavit revealed in the hearing
of the motion to suppress concerns the following two sentences:

James Rybicki did not have permission to bring T.K., a minor, inside of his residence. Your Co-
Affiant confirmed this, by speaking with T.K.’s grandmother, Linda Kramer.

As to the first sentence, it emerged during the testimony of T.K., T.K.’s brother,
neighbors of Rybicki, and T.K.’s grandmother Linda Kramer that T.K. and her brother were
frequent visitors to Rybicki’s house, which was just across the street, that they often went
inside the house, and that they did so with the permission of their great-grandmother, Linda
Kramer, with whom they lived.73 Linda Kramer did, however, add the qualification that she did
not specifically give T.K. permission to go into Rybicki’s house and try on bikini bathing suits on
the particular day at issue.74

73
Deposition of Tristan Lee Kramer, May 15, 2019, pp. 13-16, 20-22, 24-25, 32-33; Deposition of Taylor
Kramer, May 15, 2019, pp. 10, 16-17, 21-23, 25, 26, 27, 29, 33; Testimony of Susan Peck, May 24, 2019, pp. 12-13,
15, 17, 19, 20; Testimony of Fred Myers, May 24, 2019, pp. 23-24; Testimony of Linda Kramer, May 24, 2019, pp.
29, 32, 33, 37.
74
Testimony of Linda Kramer, May 24, 2019, pp. 36-37.

State v. Rybicki, UCN 522016CF013655000APC,

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20 Order on Defense Motion to Suppress
 As to the second sentence, Linda Kramer testified at the hearing of this matter in May
2019 that she had no recollection of ever having a conversation with Det. Alvarez about
whether T.K. had her permission to go to Rybicki’s home.75 Det. Alvarez, for his part, admitted
that when he interviewed Linda Kramer and T.K. in August 2016 he did not ask specific
questions related to consent under the False Imprisonment statute.76 When asked how he
determined that T.K. did not have permission to be inside Rybicki’s home, Det. Alvarez replied:

There was no specific conversations with consent. I tried to use a little bit of common sense on
this one. Um, as far as a child being over at a grown adult’s house. Um, there was no disclosures
from any of the parents as far as Mr. Rybicki confronting them about kids being over there. Um,
77
that is pretty much what I did.

When asked in follow-up if he used his own “parental intuition,” Det. Alvarez replied, “I’d say
that’s fair. Yes, sir.”78 Det. Alvarez also testified that his conversations with Linda Kramer were
“off the record,” not memorialized in a police report, and that he could not remember the
specifics of what was said.79

CONCLUSIONS.

The Court specifically finds that:

1. The evidence has established by more than a preponderance that at the time of
making the application for a search warrant, the police and prosecution knowingly and
intentionally, or with recklessly disregard for the truth, made false statements and omitted
material facts in the application.

2. The material information omitted from the supporting affidavit includes the
following facts: (1) The chief police investigator had concluded on the basis of the available
evidence that no crime had been committed by the Defendant and that there was no lawful
basis to charge the Defendant with False Imprisonment; (2) The police did not have probable

75
Testimony of Linda Kramer, May 24, 2019, p. 33.
76
Testimony of Michael Alvarez, May 24, 2019, p. 43.
77
Testimony of Michael Alvarez, May 24, 2019, p. 45.
78
Testimony of Michael Alvarez, May 24, 2019, p. 45.

79
Testimony of Michael Alvarez, May 24, 2019, pp. 47-48.

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21 Order on Defense Motion to Suppress
cause to arrest the Defendant or search his home on the basis of any other offense; (3) The
request for a search warrant to look for evidence of false imprisonment was simply a ruse to
allow the police to enter Rybicki’s residence to look for evidence of other crimes for which
there was no probable cause to search.80

3. The following statement in the affidavit was false: “James Rybicki did not have
permission to bring T.K., a minor, inside of his residence. Your Co-Affiant confirmed this, by
speaking with T.K.’s grandmother, Linda Kramer.”

4. The omitted information and false statement were material and necessary for a
finding of probable cause and the inclusion of the omitted information and the removal of the
false statement would have eviscerated probable cause.

5. These actions were undertaken in an effort to sway the judge into signing the
warrant, and had this deception not been undertaken and had these matters been revealed to
any significant degree, no reasonable judge or magistrate would have found probable cause
and signed the warrant.

6. The failure to candidly advise the judge of all the material facts deprived the judge of
the opportunity to exercise meaningful supervision over the conduct of the police and to
determine whether or not probable cause to search actually existed. This failure permeated
and tainted the entire warrant application process and requires that all of the evidence
collected in the search of the Defendant’s home be suppressed.

7. The search of the Defendant’s home was done in violation of the Fourth Amendment
to the United States Constitution.

8. The Court’s findings render moot the issues concerning staleness and expiration of
the statute of limitations raised by the Defendant.

The likely effect of this order is that all charges against the Defendant will have to be
dismissed. Viewed in the light of the facts revealed to the Court, the Defendant is morally
unworthy of this windfall exoneration. But, as a great constitutional scholar observed, “It is
easy to make light of insistence on scrupulous regard for the safeguards of civil liberties when

80
Although it is normally irrelevant to the decision whether or not to suppress the evidence collected that
the police had an ulterior motive for the search, it is relevant to a finding of bad faith or reckless disregard for the
truth.

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22 Order on Defense Motion to Suppress
invoked on behalf of the unworthy. It is too easy. History bears testimony that by such
disregard are the rights of liberty extinguished, heedlessly at first, then stealthily, and brazenly
in the end.”81

The Defendant’s Motion to Suppress is GRANTED.

DONE AND ORDERED in chambers, Clearwater, Pinellas County, Florida on this 1st day
of November, 2019.

________________________________
WILLIAM H. BURGESS, III
CIRCUIT COURT JUDGE

COPIES TO:
Atty. J.S. Lucas Fleming, Counsel for the Defendant
Atty. Alexandra Fugate, Counsel for the State of Florida

81
Davis v. U.S., 328 U.S. 582, 597, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946) (Frankfurter, J., disssenting).

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