
    CITY OF MIAMI, Petitioner, v. Clifford JONES, Respondent.
    No. 64-66.
    District Court of Appeal of Florida. Third District.
    May 5, 1964.
    On Rehearing July 7, 1964.
    
      John R. Barrett, City Attorney, and S. R. Sterbenz, Asst. City Atty., for petitioner.
    William A. Ingraham, Jr., Miami, for respondent.
    Before CARROLL, HORTON and HENDRY, JJ.
   PIENDRY, Judge.

The city petitions this court for a writ of certiorari directed to the circuit court to quash that court’s ruling which reversed the municipal court conviction of respondent for violation of the gambling laws and ordered a new trial.

Petitioner alleges error on the part of the circuit court in making the following ruling:

“THIS CAUSE having come on before the Court upon Appeal by Appellant, Clifford Jones, from a judgment of conviction in the Municipal Court of the City of Miami, Florida, and the Court having heard argument of counsel and having examined the record on appeal and memoranda submitted, and, it appearing to the Court that Appellant’s Point III on appeal is well taken, and that the Court below erred in denying Defendant’s motion to produce the name of the alleged informer, alleged lottery ticket itself, and date of alleged purchase; see Baker v. State, 150 So.2d 729, (1963) Section 909.15, Florida Statute (1961), and the

Court being fully advised, it is

“CONSIDERED, ORDERED AND ADJUDGED that the judgment of conviction of the Municipal Court of the City of Miami, Florida against the said Appellant-Defendant, CLIFFORD JONES, be and it is hereby reversed and set aside for a new trial herein, with instructions to the Court below to grant defendant’s motions herein above cited.”

Petitioner claims that the trial court correctly denied respondent’s motion to produce the name of the informant. We agree. The circuit court has not proceeded in accordance with an essential requirement of law in requiring the city to produce the name of its informant. Petitioner further claims that the trial court correctly denied respondent’s motion for the production of the alleged lottery ticket and the date of alleged purchase. We do not agree.

The circuit court in making its ruling, relied upon this court’s opinion in Baker v. State, Fla.App.1963, 150 So.2d 729, for the proposition that the prosecution could be required to reveal the name of its informant. In the Baker case, supra, the state was required to identify its informant who had made the affidavit upon which the search warrant was granted, it being charged that a fictitious name had been signed to the affidavit and that there was no one who could be held for perjury in the event it was established that the affidavit was fabricated. This is the distinguishing feature of the Baker case which makes it inapplicable here. The affidavit upon which the search warrant was granted in this case was sworn to by an identified police officer based upon the information of an informer.

The crux of the Baker case was that there was no one exposed to punishment for perjury, whereas here there is such a person. The basic criteria prior to the issuance of a search warrant is “probable cause” to believe that a crime is being or has been committed on the premises to be searched. There must be someone who exposes himself to punishment if he swears to the existence of probable cause. In our situation, there was such a person. Further, so long as there is someone for the court to rely on in granting a search warrant, and the defendant will not suffer as a result, the state is entitled to protect the identity of its informants. There has been no adequate showing on the part of the defendant that he will suffer harm by failure to identify the informant. Evidently, the informant is not even required as a witness.

The circuit court correctly held, however, that the defendant was entitled to examine the lottery ticket purchased by the informant pursuant to § 925.04, Fla.Stat., F.S.A. The lottery ticket purchased by the informant, is clearly a physical thing capable of examination within the meaning of the statute.

The circuit court, therefore, correctly ordered a new trial with instructions to grant defendant’s motion for production of the lottery ticket. Accordingly, the petition for certiorari is granted, and the order of the circuit court instructing the municipal court to grant defendant’s motion for the production by the city of the informant’s name, is quashed.

ON REHEARING

PER CURIAM.

The petition for rehearing filed on behalf of the appellant City of Miami is directed to the portion of our opinion filed May 5, 1964, which approved the holding of the circuit court “that the defendant was entitled to examine the lottery ticket purchased by the informant.” Pointing out we ruled that in the circumstances presented the identity of the informant need not be disclosed, the appellant argues that to require production of the lottery ticket purchased by the confidential informant would operate to reveal his or her identity. In this connection the petition stated as follows:

“Without any knowledge of the lottery situation in existence in this area, and undersigned counsel will be the first to admit that he has very little knowledge of this activity, it can readily be seen that if a seller of lottery tickets customarily sells to what might he considered ‘regular customers’ for the most part and such customers make bets such as 6-16-60 or similar personally peculiar ‘hunch’ bets, it would not be difficult at all for an operator to determine by a process of elimination after the search warrant lottery ticket has been revealed precisely who it was making the questioned purchase.
“In other words, by compelling the production of the ticket, the Court is allowing by indirection what it has ruled need not be revealed directly. To produce the questioned ticket would be to indirectly provide the defendant with the name of the confidential informant — something the Court has ruled the City need not do when asked to do so directly.
“In the interest of police control over a situation that is increasing in scope due to the presence of many Cuban refugees who have gambled in such a manner in open fashion in their home country, the petitioner very respectfully, and in the most sincere manner undersigned counsel knows how, requests the Court to so modify or clarify its opinion in this case so as not to require the City to produce the lottery ticket purchased by a confidential informant.”

We find logic and merit in the city’s petition for rehearing. The purchase of a lottery ticket by the informant was incidental. Neither the fact of its purchase nor the ticket were evidence having any materiality or bearing on the merits of the issues tried. Citing as authority cases listed in footnote No. 5, we stated in the main opinion that “so long as there is someone for the court to rely on in granting a search warrant, and the defendant will not suffer as a result, the state is entitled to protect the identity of its informants.” Therefore, in this case in which it is proper to refuse to reveal the identity of such an informant, it would seem equally appropriate to reject the request for production of a lottery ticket purchased by the informant, if production of the ticket could reasonably be expected to lead to disclosure of his identity.

Accordingly our opinion of May 5, 1964, is hereby modified and amended by withdrawing therefrom our holding that the trial court was correct in ruling that the defendant was entitled to examine the lottery ticket purchased by the informant; and a majority of the panel of the court which heard and decided this case (Honorable Norman Hendry, Judge, dissenting) holds, as we did with reference to the identity of the informant, that in the circumstances presented the production of the lottery ticket purchased by the informant was not essential under the law and should not have been required.

Accordingly the petition for certiorari is granted and the order of the circuit court to which it is directed is quashed.

It is so ordered.

HENDRY, Judge, dissents. 
      
      . Hauser v. Hauser, Fla.1957, 93 So.2d 865.
     
      
      . Note 5, infra.
     
      
      . Chapter 933, Fla.Stat., F.S.A.
     
      
      . “It is well settled that an officer may rely upon information as adequate to support an affidavit for a search warrant, although such information might not be considered admissible at the trial under applicable rules of evidence.” Harrington v. State, Fla.App.1959, 110 So.2d 495, 497.
     
      
      . Chacon v. State, Fla.1958, 102 So.2d 578; State v. Hardy, Fla.App.1959, 114 So.2d 344; Garda v. State, Fla.App. 1959, 110 So.2d 709.
     
      
      . The lower court referred to § 909.15 Fla.Stat., F.S.A., but this was evidently a typographical error really referring to § 909.18 which has subsequently been changed by the Legislature to § 925.04.
     
      
      . Raulerson v. State, Fla.1958, 102 So.2d 281.
     