S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Petitioner,
v.
Lorenzo Labelle Jones and Melvin Patrick Riles,
Respondents.
ON WRIT OF CERTIORARI TO THE COURT OF
APPEALS
Appeal From Florence County
Marc H. Westbrook, Circuit Court Judge
Opinion No. 25188
Heard June 6, 2000 - Filed August 21, 2000
AFFIRMED
Attorney General Charles M. Condon, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy
Attorney General Salley W. Elliott, Senior Assistant
Attorney General Harold M. Coombs, Jr., of Columbia,
and Solicitor E. L. Clements, III, of Florence, for
petitioner.
Frederick A. Hoefer, II, and Kevin M. Barth of
Harwell, Ballenger, Barth & Hoefer, L.L.P., for
respondents.
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State v. Jones et al.,
JUSTICE PLEICONES: We granted certiorari to review
the Court of Appeals' holding in State v. Jones, 331 S.C. 228, 500 S.E.2d 499
(Ct. App. 1998) that probable cause did not exist to issue a search warrant
when the affidavit contained a false statement. We affirm.
ISSUE
Did the Court of Appeals err in holding that a magistrate did not have a
substantial basis for finding probable cause to issue a search warrant even
when an affiant substituted truthful oral information for false information he
had intentionally included in the affidavit?
FACTS
The Drug Unit of the Florence Police Department received a tip from a
confidential informant that cocaine had been stored at a particular home in
Florence and that a shipment would be arriving that weekend. The
informant described the van that would be used to transport the drugs, and
told the officers that the van would pull behind the house, to prevent it from
being seen from the road.
The Drug Unit set up surveillance of the house. After the arrival of the
van, an officer took an affidavit for a search warrant to a magistrate. The
affidavit stated:
Over the past three weeks an agent of the Florence Combined Drug Unit has
observed a quantity of cocaine being stored on the premises. That agent has
been responsible for the seizure of illicit drugs and the arrest of illicit drug
violators in the past. Information given by this agent has been corroborated
by surveillance agents pertaining to this case. (emphasis added).
The affiant, a police officer, verbally advised the magistrate that he had
intentionally used the term "agent" instead of "informant" in the affidavit in
order to protect the identity of his informant. The affiant truthfully repeated
the information his informant had given him and also told the magistrate
about the surveillance by police agents.
The magistrate found that probable cause existed to search the house
and signed the warrant. Cocaine and other incriminating evidence were
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found in the house, and Lorenzo Labelle Jones and Melvin Patrick Riles
(Defendants) were arrested.
Defendants moved during the trial to suppress the evidence obtained as
a result of the search warrant, arguing that the informant was falsely
identified as an "agent" in the affidavit. In an evidentiary hearing, the
magistrate testified that even after the verbal information provided by the
affiant, he was under the impression that the "agent/informant" was a police
officer. And he would possibly have asked more questions had he known that
such was not the case. The trial court denied Defendants' motion, holding
that the magistrate had a substantial basis to find probable cause.
Defendants were convicted of trafficking cocaine, and sentenced to
imprisonment of thirty years.
In State v. Jones, 331 S.C. 228, 500 S.E.2d 499 (Ct. App. 1998), the
Court of Appeals reversed the trial court and remanded for a new trial. The
Court of Appeals held that the evidence should be suppressed because the
false affidavit circumvented the affidavit requirement of S.C. Code Ann. 17-
13-140 (1985) and State v. McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987).
The Court of Appeals then denied the State's petition for rehearing.
We granted certiorari, and now affirm.
DISCUSSION
When reviewing a magistrate's decision to issue a search warrant, we
must consider the totality of the circumstances. See State v. Missouri, 337
S.C. 548, 524 S.E.2d 394 (1999)(citing Illinois v. Gates, 462 U.S. 213, 103
S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Although great deference must be given
to a magistrate's conclusions,1 a magistrate may only issue a search warrant
upon a finding of probable cause. See State v. Bellamy, 336 S.C. 140, 519
S.E.2d 347 (1999).
A defendant has the right to challenge misstatements in a search
1 See State v. Weston, 329 S.C. 287, 494 S.E.2d 801(1997).
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State v. Jones et al.,
warrant affidavit. See Franks v. Delaware, 2 438 U.S. 154, 98 S.Ct. 2674, 57
L.Ed.2d 667 (1978); State v. Sachs, 264 S.C. 541, 216 S.E.2d 501(1975). A
defendant is entitled to an evidentiary hearing if the following criteria are
met: (1) the defendant's attack is more than conclusory and is supported by
more than a mere desire to cross-examine; (2) the defendant makes
allegations of deliberate falsehood or of reckless disregard for the truth which
are accompanied by an offer of proof; and, (3) the affiant has made the
allegedly false or reckless statement. Further, if the foregoing criteria have
been met, and the remaining content is insufficient to find probable cause
after the allegedly false or reckless material has been set aside, the defendant
is entitled to his hearing, under the Fourth and Fourteenth Amendments.
Franks, 438 U.S. at 171, 98 S.Ct. at 2684, 57 L.Ed.2d at 677.
In this case, the affidavit contained false information, i.e., the
identification of the informant as an "agent,." The affiant admitted to the
magistrate that he had intentionally used the term "agent" to mislead
Defendants. While the officer attempted to correct this false statement with
truthful oral information, the testimony of the magistrate indicates that the
officer did not, in fact, correct the magistrate's misunderstanding. The
magistrate's assumption that the informant was an undercover police officer
was not altered, and the magistrate relied upon the false statement when
making his probable cause determination. This is made clear from the
magistrate's testimony that he "possibility" [sic] would have questioned the
affiant more extensively had he known the informant was not a police officer.
Setting aside the first three mentions of "agent" in the affidavit means that
only the corroborating evidence of the police "agents"' surveillance of the
residence would remain. This evidence alone is insufficient to establish
probable cause. Under a Franks analysis, probable cause did not exist under
the Fourth Amendment of the United States Constitution.
The General Assembly has imposed stricter requirements than federal
law for issuing a search warrant. Both the Fourth Amendment of the United
States Constitution and Article I, 10 of the South Carolina Constitution
2 The State claims that the issue of whether or not the term "agent" in
the search warrant affidavit is a false statement under a Franks analysis has
not been preserved for review. However, the solicitor told the trial judge that
the "controlling authority" in Defendants' pre-trial motion for suppression
was Franks. The Defendants' attorney agreed, and the evidentiary hearing
proceeded on that premise.
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State v. Jones et al.,
require an oath or affirmation. before probable cause can be found by an
officer of the court, and a search warrant issued. U.S. Const. amend. IV; S.C.
Const. art. I, 10. Additionally, the South Carolina Code mandates that a
search warrant "shall be issued only upon affidavit sworn to before the
magistrate, municipal judicial officer, or judge of a court of record. . ." S.C.
Code Ann. 17-13-140 (1985). Oral testimony may also be used in this state
to supplement search warrant affidavits which are facially insufficient to
establish probable cause. See State v. Weston, 329 S.C. 287, 494 S.E.2d 801
(1997). However, "sworn oral testimony, standing alone, does not satisfy the
statute." State v. McKnight, 291 S.C. 110, 352 S.E.2d 471(1987).
The Court of Appeals characterized the false affidavit as the equivalent
of not having an affidavit at all, and held that 17-13-140 had been violated
since McKnight requires a written affidavit. This conclusion is logical,
because if an affidavit is not truthful, then the magistrate must depend
totally on information provided orally by the affiant in order to determine if
probable cause exists.
The Court of Appeals also correctly concluded, that because of
utilization of the false term in the affidavit, the veracity of the informant was
not established under the "totality of the circumstances" test. Under the
"totality of the circumstances" test, a reviewing court considers all
circumstances, including the status, the basis of knowledge, and the veracity
of the informant, when determining whether or not probable cause existed to
issue a search warrant. See State v. Bellamy, 336 S.C. 140, 519 S.E.2d 347
(1999) and State v. Driggers, 322 S.C. 506, 473 S.E.2d 57 (1996) (non
confidential informants and eyewitnesses have more credibility than
confidential informants).
In this instance, the magistrate erroneously believed the confidential
informant to have been a police officer, and indicated his view that in these
circumstances, a police officer would be more credible than a confidential
informant. Therefore, we agree with the Court of Appeals that the
magistrate did not have sufficient information about the informant's veracity
to determine whether or not there was probable cause.
We agree with the Court of Appeals' holding that oral information may
only be used by an affiant to supplement or to amend incorrect information in
an affidavit which was not knowingly, intentionally, or recklessly supplied by
the affiant. See State v. Sachs, 264 S.C. 541, 216 S.E.2d 501(1975) and State
v. Workman, 272 S.C. 146, 249 S.E.2d 779 (1978) (search warrant can be
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State v. Jones et al.,
validly amended prior to execution by sworn oral communication to the
issuing magistrate).
CONCLUSION
Based on the foregoing discussion, the opinion of the Court of Appeals is
AFFIRMED.
TOAL, C.J., MOORE, WALLER and BURNETT, JJ., concur.
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