State v. Bowie

• Decision Date: 28 June 2004
• Docket Number: No. 3835.,3835.
• Citation: 360 S.C. 210,600 S.E.2d 112
• Parties: The STATE, Respondent, v. Gilbert BOWIE, Appellant.
• Court: South Carolina Court of Appeals

360 S.C. 210

600 S.E.2d 112

The STATE, Respondent, v. Gilbert BOWIE, Appellant.

No. 3835.

Court of Appeals of South Carolina.

Submitted June 10, 2004.

Decided June 28, 2004.

Rehearing Denied August 18, 2004.

Assistant Appellate Defender Robert M. Pachak, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh and Assistant Deputy Attorney General Charles H. Richardson, all of Columbia; and Solicitor Warren B. Giese, of Columbia, for Respondent.

ANDERSON, J.:

Gilbert Bowie appeals his conviction and sentence for trafficking in cocaine, 400 grams or more. He argues the trial court erred in refusing to suppress cocaine seized from a hotel room because the affidavit to the search warrant lacked probable cause. We affirm.¹

FACTUAL/PROCEDURAL BACKGROUND

On April 27, 2001, at approximately 7:00 p.m., deputies with the Richland County Sheriff's Department drove to the Days Inn on Garner's Ferry Road looking for a motel room reserved by Donald Williams, a known local drug dealer, and held for "Mr. Gill." The officers set up surveillance of the motel and observed Gilbert Bowie arrive around 9:00 p.m. in a Toyota Tercel with Florida tags. Bowie entered the lobby and informed the desk clerk: "`I'm Mr. Gill, and you have a key for me.'" The clerk gave Bowie a key to Room 215 and Bowie walked upstairs.

At about 9:10 p.m., two men in a Dodge truck with Florida tags arrived at the motel. The men were later identified as Juan Poviones and Jose Barrocas. Poviones and Barrocas checked into Room 309. Around 9:30 p.m., Bowie left in the Toyota and Poviones and Barrocas left in the Dodge truck. The three men traveled to Cedar Terrace Shopping Center. They stopped at Eckerd drugstore and a Substation II restaurant, located just down the road from the motel. Poviones and Barrocas talked briefly to Bowie in the parking lot of the Substation, but then split up and appeared to not know each other. All three men returned to the motel at the same time. Poviones and Barrocas walked to Room 309 and Bowie entered Room 215. The officers attempted surveillance of both rooms. Although the door to Room 215 could not be seen, the officers noticed Bowie going to and from the elevator toward Room 215.

The officers obtained search warrants for both rooms after midnight. Upon entering Room 309, the officers encountered Poviones and Barrocas. Further, in the search of Room 309, the officers found a black duffel bag containing four yellow "brick-like" packages of cocaine, totaling 3,978 grams. The duffel bag looked exactly like a bag the officers had observed Bowie carrying into the motel earlier that night. The fingerprints on the packages of cocaine matched Bowie's fingerprints.

The Richland County Grand Jury indicted Bowie for trafficking in cocaine, 400 grams or more. At trial, defense counsel moved to suppress the cocaine seized from Room 309 because the affidavit to the search warrant lacked probable cause. The Circuit judge ruled: "[A]fter considering the two search warrants and their affidavits, ... they are not on their face insufficient." The judge concluded: "Since based on the finding that the affidavits and the warrants are not insufficient, then I would find that testimony could be offered to supplement the affidavit." The court further found "there was a good faith effort by the officer in communicating with his lieutenant to give all the facts, and that the fact that the magistrate did not include all of those in there, I don't think the warrant should be suppressed."

The jury found Bowie guilty of trafficking in cocaine, 400 grams or more. He was sentenced to thirty years imprisonment and a $200,000 fine.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001); State v. Abdullah, 357 S.C. 344, 592 S.E.2d 344 (Ct.App.2004). We are bound by the trial court's factual findings unless they are clearly erroneous. Wilson, 345 S.C. at 5, 545 S.E.2d at 829; see also Abdullah, 357 S.C. at 349,

592 S.E.2d at 347 ("On appeal from a suppression hearing, this court is bound by the circuit court's factual findings if any evidence supports the findings."). This same standard of review applies to preliminary factual findings in determining the admissibility of certain evidence in criminal cases. Wilson, 345 S.C. at 6,

545 S.E.2d at 829. On review, we are limited to determining whether the trial judge abused his discretion. State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998); State v. Rochester, 301 S.C. 196, 391 S.E.2d 244 (1990); see also State v. Corey D., 339 S.C. 107, 529 S.E.2d 20 (2000) (an abuse of discretion is a conclusion with no reasonable factual support). This Court does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial judge's ruling is supported by any evidence. Wilson, 345 S.C. at 6,

545 S.E.2d at 829; State v. Mattison, 352 S.C. 577, 575 S.E.2d 852 (Ct.App.2003).

An appellate court reviewing the decision to issue a search warrant should decide whether the magistrate had a substantial basis for concluding probable cause existed. State v. Dupree, 354 S.C. 676, 583 S.E.2d 437 (Ct.App.2003); State v. King, 349 S.C. 142, 561 S.E.2d 640 (Ct.App.2002); see also State v. Keith, 356 S.C. 219, 588 S.E.2d 145 (Ct.App.2003)

(noting that duty of reviewing court is to ensure that magistrate had substantial basis for concluding that probable cause existed). This review, like the determination by the magistrate, is governed by the "totality of the circumstances" test.

State v. Jones, 342 S.C. 121, 536 S.E.2d 675 (2000); King, 349 S.C. at 148,

561 S.E.2d at 643. The appellate court should give great deference to a magistrate's determination of probable cause. State v. Weston, 329 S.C. 287, 494 S.E.2d 801 (1997); State v. Driggers, 322 S.C. 506, 473 S.E.2d 57 (Ct.App.1996); see also State v. Sullivan, 267 S.C. 610, 230 S.E.2d 621 (1976) (magistrate's determination of probable cause should be paid great deference by reviewing court).

LAW/ANALYSIS

I. SEARCH WARRANT AFFIDAVIT

Bowie argues the affidavit to the search warrant for Room 309 lacked probable cause. He contends the trial judge erred in refusing to suppress cocaine seized from that room. We disagree.

The affidavit to the search warrant for Room 309 provided:

DESCRIPTION OF PROPERTY SOUGHT

Cocaine, paraphernalia and paperwork associated with the sale, storage and use of cocaine.

DESCRIPTION OF PREMISES (PERSON, PLACE OR THING) TO BE SEARCHED

7300 SUMTER HWY, DAYS INN MOTEL ROOM 309. THE LOCATION IS A THREE STORY MOTEL LOCATED ACROSS THE STREET FROM SHONEYS ON SUMTER HWY. THE ROOM TO BE SEARCHED IS NUMBER 309 ON THE THIRD FLOOR ON THE FRONT SIDE. SEARCH TO INCLUDE ALL PERSONS IN OR ASSOCIATED WITH ROOM 309 AND A SILVER DODGE TRUCK WITH FLORIDA REGISTRATION, T79XPH.

REASON FOR AFFIANT'S BELIEF THAT THE PROPERTY SOUGHT IS ON THE SUBJECT PREMISES

The Richland County Sheriff's Department received information on this date from a confidential and reliable informant that a subject named "Gill" would arrive from Florida with a quantity of cocaine. The information was specific that the subject would arrive around 9 pm and would ask for a key to room 215, the location to be searched. Surveillance was established at the motel. A subject driving a green Toyota with Florida registration, UO4BBE, arrived at approximately 9 pm, and identified himself and received the room key to room 215. The Toyota is registered to a Jesus Rodriguez who had a prior arrest for narcotics. The subject was followed from the location to several businesses including a Eckerds and a sandwich shop on Garners Ferry Road. Two other subjects in a Dodge truck with Florida registration, T79XPH, were observed meeting this first subject. These subjects returned to the motel, parked in the rear parking lot and entered through a rear door. The motel confirmed that these two subjects are in room 309, the location to be searched. Based on the observations of the agents these subjects were together and believed to be involved in the trafficking of illegal narcotics. The informant is reliable in that it has provided information on at least one occasion that led to at least one arrest and the seizure of a quantity of cocaine. Based on the totality of the information including the corroborating surveillance agents believe that the subjects have a quantity of cocaine in their possession. Through the affiant's and other Richland County Sheriff's Department Narcotic officers experience in drug enforcement, it is known that subjects present at the scene of illegal drug distribution and/or possession commonly have drugs in their possession and/or stored and/or transported in their vehicles.

A magistrate may issue a search warrant only upon a finding of probable cause. State v. Tench, 353 S.C. 531, 579 S.E.2d 314 (2003); State v. Weston, 329 S.C. 287, 494 S.E.2d 801 (1997); State v. King, 349 S.C. 142, 561 S.E.2d 640 (Ct.App.2002). "The South Carolina General Assembly has enacted a requirement that search warrants may be issued `only upon affidavit sworn to before the magistrate... establishing the grounds for the warrant.'" State v. Bellamy, 336 S.C. 140, 143, 519 S.E.2d 347, 348 (1999) (quoting S.C.Code Ann. § 17-13-140 (1985)). The affidavit must contain sufficient underlying facts and information upon which the magistrate may make a determination of probable cause. State v. Dupree, 354 S.C. 676, 583 S.E.2d 437 (Ct.App.2003); State v. Philpot, 317 S.C. 458, 454 S.E.2d 905 (Ct.App.1995). For an affidavit in support of a search warrant to show probable cause, it must state facts so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at that time. State v. Winborne, 273 S.C. 62, 254 S.E.2d 297 (1979). The magistrate should determine probable cause based on all of...