Supreme Court Seal
Supreme Court Seal
South Carolina
Judicial Department
24724 - State v. Kelvin Weston

Davis Adv. Sh. No. 35
S.E. 2d


In The Supreme Court

The State, Respondent,


Kelvin Weston, Appellant.

Appeal From Richland County

Joseph A. Wilson, II, Judge

Opinion No. 24724

Heard October 9, 1997 - Filed December 15, 1997


Assistant Appellate Defender Robert M. Pachak, of

South Carolina Office of Appellate Defense, of

Columbia, for appellant.

Attorney General Charles Molony Condon,

Assistant Deputy Attorney General Donald J.

Zelenka, Assistant Attorney General John P.

Riordan, all of Columbia, for respondent.

TOAL, A.J.: Appellant Kelvin Weston was convicted of murder

and armed robbery. On appeal, Weston challenges the validity of a search

warrant and argues that the evidence seized pursuant to such search warrant

should have been suppressed at trial. We reverse and remand for a new


p. 10


Factual/Procedural Background

On August 31, 1994, Addie Lee Scott Argoe left her residence at 2224

Manse Street at around 7:00 p.m., locking both locks of her front door.

James G. Alford lived with Argoe and remained in the house after Argoe left.

When Argoe returned at 8:45 p.m., she found the front door ajar and Alford

lying face down on the floor. Alford's pants' pockets were pulled out and

money was missing from his wallet. The police later concluded that Alford

had been shot and killed with a .25 caliber bullet.

On September 16, 1994, Claude Crumlin provided police with a written

statement concerning an incident which occurred on March 18, 1994.

Crumlin claimed that Kelvin Weston had attempted to rob him at gun point.

Based on Crumlin's statement, warrants were issued on September 16, 1994,

for Weston's arrest.

In the early afternoon of September 19, 1994, police went to a Chevron

Station on Main Street to seize Weston's 1978 Datsun. After towing the

Datsun to the City Police Department, police obtained a search warrant from

a ministerial recorder to search its contents. Police stated in the search

warrant that they were searching for property related to the Crumlin crime.

The affidavit supporting the search warrant provided:

On March 18, 1994 at approx 2245 hours the victim (Claude
Crumlin) was the victim of an armed robbery and assault with
intent to kill at 5126 Farrow Rd. The defendant in this incident
is a Kelvin Weston. Kelvin Weston, by S.C. highway depts., is
the registered owner of the above listed vehicle. Also
investigation revealed through witness in this matter that
defendant was driving above vehicle at the time of the incident.
The search for the above items are needed to fully complete this

The search was conducted on September 19, at 2:59 p.m. During the search,

police discovered a box of .25 caliber bullets. Police forwarded the bullets to

the FBI for elemental composition analysis. An FBI agent would later testify

at trial that the elemental composition of the .25 caliber bullets found in

Weston's Datsun matched the elemental composition of the .25 caliber bullet

which killed Alford.

On November 13-16, 1995, Weston was tried for the murder and armed

robbery of Alford. He was found guilty on both charges and sentenced to life

p. 11


imprisonment for murder and thirty years for armed robbery.

Weston appeals, raising, inter alia, the following issue:

Did the trial court err in refusing to suppress ammunition seized from

Weston's car because the affidavit underlying the search warrant was

insufficient to support a finding of probable cause?


A search warrant may issue only upon a finding of probable cause.

State v. Owen, 275 S.C. 586, 274 S.E.2d 510 (1981). Under S.C. Code Ann.

ยง 17-13-140 (1985), a search warrant may be issued "only upon affidavit

sworn to before the magistrate ... establishing the grounds for the warrant."

A search warrant that is insufficient in itself to establish probable cause may

be supplemented by sworn oral testimony. State v. Johnson, 302 S.C. 243,

395 S.E.2d 167 (1990). A reviewing court should give great deference to a

magistrate's determination of probable cause. State v. Crane, 296 S.C. 336,

372 S.E.2d 587 (1988).

Weston argues that the affidavit underlying the search warrant in this

case was insufficient to support a finding of probable cause. We agree.

In Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527

(1983), the United States Supreme Court rejected the application of a rigid

two-pronged test in which an informant's veracity and basis of knowledge

were considered as separate and independent requirements to finding

probable cause. Instead, the Court adopted a totality of the circumstances

test where veracity and basis of knowledge were relevant to, but not

inflexible requirements of, a determination of probable cause:

The task of the issuing magistrate is simply to make a practical,
common sense decision whether, the circumstances set forth in
the affidavit before him, 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.

Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L. Ed. 2d at 548; accord State

v. Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990); State v. Williams, 297 S.C.

404, 377 S.E.2d 308 (1989). Under this formula, veracity and basis of

knowledge are treated "as closely intertwined issues that may usefully

p. 12


illuminate the commonsense, practical question whether there is 'probable

cause' to believe that contraband or evidence is located in a particular place."

Gates, 462 U.S. at 230, 103 S. Ct. at 2328, 76 L. Ed. 2d at 543. "[T]he duty

of a reviewing court is simply to ensure that "the magistrate had a

'substantial basis' for ... conclud[ing] that probable cause existed." Id. at

238-39, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548.

Since Gates, we have found in only two cases that an affidavit was

insufficient to establish probable cause. In State v. Smith, 301 S.C. 371, 392

S.E.2d 182 (1990), this Court considered an affidavit which read:

That on May 12th at approximately 11:45 p.m. Reginald Jerome
Smith went into the Master Inn located at 1468 Savannah Hwy.,
Charleston, S.C. and he then robbed the manager at knife point.
Smith has been staying at the Host of America Room 216 since
Jan. 1, 1988 and there is every reason to believe the weapon and
clothes used in the robbery will be located in the room. This
information was confirmed in person by Sgt. Sherman on

We held that the affidavit was defective because it "set forth no facts as to

why police believed Smith robbed the Master Host Inn." Smith, 301 S.C. at

373, 392 S.E.2d at 183. We stated, "Mere conclusory statements which give

the magistrate no basis to make a judgment regarding probable cause are

insufficient." Id. In State v. Johnson, we found that an affidavit was

defective because "it [did] not set forth any information as to the reliability

of the informant nor was the information corroborated." Johnson, 302 S.C.

at 247, 395 S.E.2d at 169.

In this case, the affidavit failed to set forth any facts as to why police

believed Weston committed the Crumlin crime. The first three sentences of

the affidavit were mere conclusory statements. While the fourth sentence

provided information linking Weston to his car at the time of the incident,

it offered nothing to link Weston or the Datsun to the Crumlin crime itself.

Additionally, there was absolutely nothing on the face of the affidavit from

which the ministerial recorder could have assessed the veracity and basis of

knowledge of the informant. Therefore, based on the totality of the

circumstances, we find the affidavit could not have provided the ministerial

recorder with a substantial basis for finding probable cause to search

Weston's car.

A search warrant that is insufficient in itself to establish probable

p. 13


cause may be supplemented by sworn oral testimony. See Johnson, 302 S.C.

243, 395 S.E.2d 167. In this case, during the hearing on pretrial motions,

the trial judge asked the prosecutor if the affiant had supplemented the

warrant with any oral testimony before the ministerial recorder. The

prosecutor stated that neither the affiant nor the ministerial recorder could

remember, and it was not the practice of the ministerial recorder to ask


The State argues that probable cause had already been established by

another magistrate who issued arrest warrants for Weston on September 16,

1994. The finding of probable cause for these arrest warrants was based on

a detailed statement provided by Crumlin identifying Weston as the

perpetrator. However, the arrest warrants and Crumlin's statement were not

included in the affidavit or search warrant. Consequently, they could not

have been part of the basis for finding probable cause to search Weston's car.

The State argues that the search warrant should be upheld under

United States v. Leon, 468 U.S. 897, 920, 104 S. Ct. 3405, 3419, 82 L. Ed.

2d 677 (1984). We disagree. In Leon, the Supreme Court carved out a good

faith exception to the exclusionary rule. The Court held that when an officer

acting in objective good faith has obtained a search warrant from a judge or

magistrate and acted within its scope, a reviewing court should not order a

suppression of the evidence based on a lack of probable cause. The Court

went on to list three situations in which it had, in the past, held that

deference to a magistrate's finding of probable cause was not warranted:

First, the deference accorded to a magistrate's finding of probable
cause does not preclude inquiry into the knowing or reckless
falsity of the affidavit on which that determination was based .
. . Second, the courts must also insist that the magistrate purport
to "perform his 'neutral and detached' function and not serve as
a rubber stamp for the police." . . . Third, reviewing courts will
not defer to a warrant based on an affidavit that does not
"provide the magistrate with a substantial basis for determining
the existence of probable cause."

Leon, 468 U.S. 914-15, 104 S. Ct. at 3416, 82 L. Ed. 2d at 693 (emphasis

added). However, the Supreme Court observed that "[o]nly in the first of

these situations . . .has the Court set forth a rationale for suppressing

evidence obtained pursuant to a search warrant; in the other areas, it has

simply excluded such evidence without considering whether the Fourth

Amendment interests will be advanced." Id. at 915-16, 104 S. Ct. at 3417,

p. 14


82 L. Ed. 2d at 694.

ln State v. Johnson, we interpreted Leon as precluding application of

the good-faith exception when an affidavit fails to provide a magistrate with

a substantial basis for finding probable cause.1 However, Johnson should not

be read as prohibiting application of the good-faith exception everytime an

affidavit fails to satisfy the technical requirements of Gates. Suppression is

appropriate in only a few situations, including when an affidavit is "so

lacking in indicia of probable cause as to render official belief in its existence

entirely unreasonable." Leon, 468 U.S. at 923, 104 S.Ct. at 3421, 82 L. Ed.

2d at 699. We find the affidavit in this case lacked any indicia of probable

cause. Therefore, the good-faith exception would not apply.

We hold that the ministerial recorder lacked any basis for finding

probable cause. We therefore find the trial court erred in refusing to

suppress the ammunition.


For the foregoing reasons, this matter is REVERSED and REMANDED

for a new trial.


1 The Fourth Circuit reached the same conclusion in United States v.

Wilhelm, 80 F.3d 116 (4th Cir. 1996).

p. 15