STATE of Florida, Petitioner/Cross-Respondent, v. Miguel Angel VARGAS, Respondent/Cross-Petitioner, 667 So. 2d 175

PER CURIAM. We have for review Vargas v. State, 640 So.2d 1139 (Fla. 1st DCA 1994), in which the district court addressed four pretrial motions and certified the following as questions of great public importance: WHETHER A SEARCH WARRANT FOR A BLOOD SAMPLE IS PROPERLY SERVED AND EXECUTED IN THE PRESENCE OP AN OFFICER WHO IS WITHIN THE TERRITORY NAMED IN THE SEARCH WARRANT, WHEN THE OFFICER WHO READS THE WARRANT TO THE ACCUSED, TRANSPORTS THE ACCUSED TO THE HOSPITAL FOR THE BLOOD TEST, AND TAKES CUSTODY OF THE BLOOD SAMPLE, IS NOT WITHIN THE SCOPE OF THE WARRANT. Id. at 1142.

IS THE FDLE (FBI) METHOD OF CALCULATING POPULATION FREQUENCIES FOR PURPOSES OF DETERMINING THE POSSIBILITY THAT SOMEONE OTHER THAN DEPEN-DANT MATCHES THE DNA TAKEN FROM THE CRIME SCENE IN DNA PROFILING GENERALLY ACCEPTED IN THE RELEVANT SCIENTIFIC COMMUNITY FOR USE IN CRIMINAL TRIALS IN FLORIDA; IF NOT, IS A MORE CONSERVATIVE METHOD OF ESTIMATING POPULATION FREQUENCIES GENERALLY ACCEPTED IN THE RELEVANT SCIENTIFIC COMMUNITY FOR USE IN CRIMINAL TRIALS? Id. at 1152. We have jurisdiction pursuant to

article V,

section 3(b)(4), of the Florida Constitution. We specifically address the certified question regarding the unauthorized execution of a search warrant. The claimed impropriety stems from the manner in which the warrant was executed. Because we find that the warrant was, indeed, improperly executed, we answer the first certified question in the negative. By resolving the first question in this manner, we need not address the second certified question. The record reflects the following facts. Miguel Vargas was arrested on January 15, 1990, for attempting to burglarize an apartment.

Noting substantial similarities between this attempt and previous unresolved burglaries and sexual batteries in which DNA evidence was retrieved from the crime scenes, the police obtained a warrant for the collection of a sample of blood from Vargas for a DNA comparison. The search warrant for the blood sample was directed to the sheriff and deputy sheriffs of Duval County. Officer Harris, a Clay County officer, found Vargas at Cecil Field in Duval County. At this point in time Officer Harris was unaccompanied by any Duval County officers. He executed the warrant by taking Vargas into his custody.

Officer Harris, the Clay County deputy, then transported Vargas to meet Officer Baer, a Duval County sheriffs deputy. When the two officers met at Vargas’ home in Duval County, Harris, the Clay County deputy, read the warrant to Vargas. Thereafter, Harris alone transported Vargas to the Duval County medical facility where the blood sample was taken. Baer, the Du-val County deputy, drove separately and met them there. Baer remained outside the actual room in which the blood extraction was performed; Harris was inside the room.

Harris, the Clay County deputy, instructed the medical technician to perform the blood extraction. Harris himself extracted hair samples from Vargas. Harris additionally took immediate and exclusive possession of the blood sample and signed the warrant inventory and receipt. Furthermore, Harris signed the search warrant return form testifying to the fact that he was the officer who executed the warrant. Vargas filed a motion to suppress the blood evidence alleging that the warrant was improperly executed by Harris, an officer not named in the warrant. The trial court denied the motion to suppress.

Vargas pleaded nolo contendere to a total of six counts of burglary and sexual battery. He retained, however, the right to appeal the motion to suppress. The State stipulated that the motion to suppress was dispositive of the entire ease. The district court affirmed the trial court and certified the aforementioned question on the validity of the execution of this search warrant. The execution of warrants in Florida is governed in relevant part by

section 933.08 of the Florida Statutes, which reads: The search warrant shall in all eases be served by any of the officers mentioned in its direction, but by no other person except in aid of the officer requiring it, said officer being present and acting in its execution. § 933.08, Fla.Stat. (1993). It is clear that Harris, the Clay County deputy, was the primary actor in the execution of the search warrant at issue. It is equally clear that Baer was involved for the purpose of validating the execution.

We must confront the question of whether Baer’s involvement was of a magnitude sufficient to satisfy the statute. We find Justice Anstead’s well-reasoned opinion in Morris v. State, 622 So.2d 67 (Fla. 4th DCA), review denied, 630 So.2d 1101 (Fla.1993), to be dis-positive. In Morris, the district court disallowed a search of a physician’s office by the Auditor General’s staff. The staff was accompanied by an officer named in the warrant, but that officer waited in another room while the search took place. The lack of authorized supervision invalidated the search.

Justice Anstead wrote: Under the statute, the officer authorized by the warrant to conduct the search and seize the evidence designated must participate in or supervise the search even where he requires the assistance of others to do so. While the level of supervision and participation may vary depending on the circumstances, it is absolutely essential that the officer authorized be present when and where the search is conducted and carry out his responsibility to see that the warrant is properly executed and that its authorization is not exceeded.

It is not enough that the authorized officer wait in another room while the search is conducted by others. Id. at 69. We read the statute to allow the recruitment, by an authorized officer, of assistance in performing search-related tasks that are numerous, repetitive, or burdensome. The statute surely does not endorse the vacation of basic duties by the authorized officer. In this ease, as in Morris, the authorized officer remained idle while others executed the search. Mere physical proximity is not sufficient to satisfy the presence and activity requirements of the statute.

When a warrant is properly executed, an objective observer should be able to distinguish between an authorized supervisor and that person’s aide. The assignment, in this case, of the reading, recording, and custodial duties certainly makes the execution suspect, if not outright invalid. The compounding, and ultimately fatal, factor here is Baer’s absence from the room where the blood sample was extracted. In this ruling, we do not allow form to triumph over substance. Any one of the mistakes made by Baer and Harris in this case would not necessarily invalidate the warrant.

When the circumstances are viewed as a whole, however, the natural conclusion is that Baer was not present and active in the sense required by the statute. In sum, we refuse to allow an authorized officer to assign every basic duty involved in the execution of a warrant. To do so would render the relevant statute meaningless. Accordingly, we find that this motion to suppress should have been granted. We again note that the State has stipulated that such a ruling is dispositive.

We therefore answer the first certified question in the negative, quash the district court’s order, and vacate the convictions in this case. Our ruling on the first certified question makes it unnecessary for us to address the second certified question. It is so ordered. SHAW, KOGAN, HARDING and ANSTEAD, JJ., concur. GRIMES, C.J., concurs with an opinion. OVERTON, J., dissents with an opinion, in which WELLS, J., concurs in part. WELLS, J., dissents with an opinion. . The trial court denied Miguel Vargas' three motions to suppress and one motion in limine.

The district court affirmed the three suppression rulings, certifying the third as a question of great public importance. The district court vacated the order on the motion in limine and remanded. The matter addressed by the motion in limine was also certified as a question of great public importance. The State noticed the certified question regarding the motion in limine. Vargas cross-noticed the first certified question.