State v. Arnold, 2350

• Decision Date: 07 March 1995
• Docket Number: No. 2350,2350
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Allen C. ARNOLD, Appellant. . Heard

Page 403

460 S.E.2d 403

319 S.C. 256

The STATE, Respondent, v. Allen C. ARNOLD, Appellant.

No. 2350.

Court of Appeals of South Carolina.

Heard March 7, 1995.

Decided May 30, 1995.

Rehearing Denied Aug. 22, 1995.

Certiorari Denied Feb. 8, 1996.

Kathryne Ann Shelton, Columbia, for appellant.

Attorney Gen. T. Travis Medlock, Chief Deputy Atty. Gen. Donald J. Zelenka, Senior Asst. Atty. Gen. Harold M. Coombs, Jr., and Asst. Atty. Gen. Miller W. Shealy, Jr.; and Sol. Richard A. Harpootlian, Columbia, for respondent.

PER CURIAM:

Allen C. Arnold was convicted of second degree burglary, grand larceny and attempted safecracking. On appeal, he challenges the validity of two search warrants, and the trial court's failure to suppress all evidence deriving from the warrants. We affirm.

On May 1, 1992, Officer Rocky Senn submitted the following affidavit to the magistrate in support of the first search warrant issued in this case:

That on 4-17-92, during the early morning hours Kinko's Copies located at 7359 Two Notch was burglarized and the items sought were stolen. On 4-8-92, an employee of Kinko's was held responsible for a shortage of $200 in the business' cash register. This ex-employee is John G. Harris. On 4-15-92 during business hours around closing four subjects came into the business and caused damage to the ceiling and toilet in the public restroom. This damage was made in an attempt to gain entry to the adjacent office where a safe is kept and possibly to plan the subsequent burglary. An employee identified one of these subjects as "Mike" Arnold, a friend of John Harris. The employee also told investigators that these subjects were operating a white Pontiac Trans Am. On 4-17-92, at 2:07 A.M., Shoney's Manager at 7371 Two Notch reported a suspicious car and white male park in his lot and run through a wooded area. Deputies responded and identified the vehicle as a 1988 Pontiac Trans Am, white in color, S.C. Tag-YFS 120. The male subject was not located. The vehicle is registered to Lisa Baker of 1704 Morninglo. This address is the residence of Allen Arnold's parents. During the investigation the affiant learned that Lisa Baker and Allen C. Arnold share the apartment to be search[ed]. Additionally, the white Trans Am has been observed parked at the location to be searched. Due to the totality of the circumstances investigators believe the property is at the location to be searched.

Based on the above affidavit, the magistrate issued a search warrant for Apt. 715 Winsor Plantation Apartments. The warrant was executed the same day. The police officers found property owned by Kinko's in the apartment occupied by appellant.

As a direct result of the first search, other co-defendants of Appellant were identified and questioned. This led to the issuance of a second search warrant for appellant's apartment. Specifically, law enforcement officials were searching for two walkie-talkies and a torch allegedly used in the commission of the burglary at Kinko's. ¹ The second warrant was issued on May 6, 1992, and the walkie-talkies and torch were found in appellant's apartment.

On appeal, appellant contends the evidence obtained from both search warrants should have been suppressed. He asserts (1) the trial judge erred in considering facts which were not present in the affidavit, (2) the trial judge erred in failing to suppress the evidence as to the first search warrant, as it was not supported by probable cause, and (3) the trial judge erred in failing to suppress evidence seized pursuant to the second search warrant, as the second search warrant was based on the information obtained as a result of the improperly issued warrant of May 1, 1992 and, thus, was the fruit of an illegal search.

We agree with appellant the trial judge erred in considering information which was not set forth in the affidavit and for which there is no indication it was presented to the magistrate in any other form. ² A search warrant may issue only upon a finding of probable cause, and in passing on the validity of the warrant, a reviewing court may consider only information brought to the magistrate's attention. State v. Owen, 275 S.C. 586, 274 S.E.2d 510 (1981). Although the trial judge considered very little additional information in making his determination, it was error to consider any supplemental information not presented before the magistrate.

However, we find the affidavit standing alone set forth sufficient information to support a finding of probable cause. ³ The task of a magistrate when determining whether to issue a warrant is to make a practical, common sense decision as to whether, under the totality of the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place. State v. Williams, 297 S.C. 404, 377 S.E.2d 308 (1989). Affidavits are not meticulously drawn by lawyers, but are normally drafted by non-lawyers in the haste of a criminal investigation, and should therefore be viewed in a common sense and realistic fashion. State v. Sullivan, 267 S.C. 610, 230 S.E.2d 621 (1976). As a reviewing court, our task is to decide whether the magistrate had a substantial basis for concluding probable cause existed. State v. Adolphe, 314 S.C. 89, 441 S.E.2d 832 (Ct.App.1994). The term "probable cause" does not import absolute certainty. State v. Bennett, 256 S.C. 234, 182 S.E.2d 291 (1971), cert. denied, 405 U.S. 924, 92 S.Ct. 965, 30 L.Ed.2d 795 (1972). Rather, in determining whether a search warrant should be issued, magistrates are concerned with probabilities and not certainties. State v. Sullivan, 267 S.C. 610, 230 S.E.2d 621 (1976). Searches...