State v. Cheeks

• Decision Date: 24 October 2012
• Docket Number: No. 5042.,5042.
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Ricky CHEEKS, Appellant. Appellate Case No. 2010–174907.

400 S.C. 329

733 S.E.2d 611

The STATE, Respondent,

v.Ricky CHEEKS, Appellant.

Appellate Case No. 2010–174907.

No. 5042.

Court of Appeals of South Carolina.

Heard Sept. 11, 2012.

Decided Oct. 24, 2012.

Wanda H. Carter, Deputy Chief Appellate Defender, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Harold M. Coombs, all of Columbia, and Solicitor Barry Barnette, of Spartanburg, for Respondent.

HUFF, J.

Appellant, Ricky Cheeks, was tried for and convicted of possession with intent to distribute crack cocaine within one-half mile of a school, trafficking in crack cocaine of more than 400 grams, and trafficking in crack cocaine of more than 100 grams. The trial court sentenced Cheeks to concurrent terms of twenty-five years each on the two trafficking charges and ten years on the possession with intent to distribute charge. Cheeks appeals, asserting the trial court erred in (1) failing to suppress the drugs seized in a residence because the search warrant was facially invalid inasmuch as it did not include a description of the place to be searched and (2) instructing the jury that “actual knowledge of the presence of crack cocaine is strong evidence of a defendant's intent to control its disposition or use.” We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On June 4, 2009, SLED agent Hanning was conducting surveillance on individuals Ricky Cheeks (Ricky), Eric Elder (Elder), and Derrick Cheeks (Derrick) at a Super 8 Motel. He observed a black, Ford Crown Victoria automobile with Elder and Ricky at the vehicle. Derrick came from the hotel to meet Ricky and Elder, at which time all three of the men left in the vehicle and drove to the home of Tracy Markley (Markley). Elder had gone to the motel in Derrick's automobile to pick up Derrick, because Derrick did not have a driver's license. Once the men arrived at Markley's, Derrick began cooking cocaine that he had brought with him to the home. Derrick instructed Ricky to go purchase a box of baking soda from Wal–Mart, and Elder drove Ricky because Ricky was unable to drive. Officers conducting surveillance on the vehicle observed Elder drive to Wal–Mart, with Ricky riding as a passenger. At Wal–Mart, Elder went inside to purchase the baking soda. The two men then returned to Markley's house, which had been kept under surveillance. When Elder and Ricky arrived back at the house, Derrick was in the process of cooking crack.

Elder and Ricky subsequently left Markley's residence again, after Derrick told Ricky that somebody was calling and “he needed to get rid of something.” Officers observed Ricky and Elder get back in the Crown Victoria and leave the residence again, and the officers then followed the vehicle, driven by Elder with Ricky riding in the front passenger seat. When the vehicle failed to come to a complete stop at a stop sign, the officers initiated a traffic stop. According to Elder, Ricky had crack cocaine in his possession when they left Markley's residence. After Elder stepped away from the driver's side of the car, and Ricky stepped away from the passenger side, a drug detection K–9 conducted a free air sniff of the vehicle and alerted at the passenger side. As Ricky was escorted to the rear of the car, in between the passenger door and the trunk area, he kept reaching for the right side of his cargo-pocket shorts. After the K–9 alerted and a search of the vehicle began, one of the officers located a bag of off-white, rock-like substance on the ground in the “exact area” between the trunk and passenger door of the car where Ricky had been previously escorted. At no point was Elder on the passenger side of the car, and other than the officers, no one besides Ricky was in the area where the substance was found on the ground. Subsequent analysis of the substance revealed it to be 111.31 grams of crack cocaine.

Officers then executed a search of Markley's residence after obtaining a search warrant. Upon entering Markley's home they encountered Derrick, who ran from the kitchen area into a bedroom, and Markley, who was sitting in a chair in the family room. They found a large amount of what appeared to be crack cocaine on the counter in the kitchen. They also found boiling water on the stove, indicating crack was possibly being cooked at that time, as well as scales, razor blades and plates used in the process of cooking crack cocaine. Officers additionally discovered in the kitchen a bottle of Inositol, commonly used as a cutting agent in powder cocaine. Analysisof the substances recovered from Markley's home revealed crack cocaine with a total weight of 662.42 grams.

Ricky, who was tried along with Derrick, was convicted of trafficking in crack cocaine of more than 100 grams based on the crack found during the traffic stop, and trafficking in crack cocaine of more than 400 grams for the crack cocaine found in Markley's home. He was also convicted of possession with intent to distribute crack cocaine within one-half mile of a school, based on the location of an elementary school less than one-half mile from Markley's residence.

ISSUES

1. Whether the drugs seized in the home should be suppressed because the search warrant, which did not give any description of the place to be searched, was facially invalid.

2. Whether it was error for the trial court to instruct the jury that actual knowledge of the presence of crack cocaine is strong evidence of a defendant's intent to control its disposition or use.

STANDARD OF REVIEW

“In criminal cases, the appellate court sits to review errors of law only.” State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). When reviewing the circuit court's ruling on a motion to suppress based on the Fourth Amendment, “an appellate court must affirm if there is any evidence to support the ruling,” and will reverse only when there is clear error. State v. Wright, 391 S.C. 436, 442, 706 S.E.2d 324, 326 (2011). The appellate court is not barred, however, from conducting its own review of the record to determine whether the trial judge's decision is supported by the evidence. Narciso v. State, 397 S.C. 24, 28, 723 S.E.2d 369, 371 (2012).

LAW/ANALYSISI. Search Warrant ¹

The record shows trial counsel ² made a pretrial motion to suppress, attacking the sufficiency of the search warrant on the basis that it was deficient under state and federal law because it completely omitted a description of the place to be searched. The solicitor countered that the affidavit included a description of the premises, and the warrant and affidavit should be read together.³ Trial counsel argued the warrant in this case was deficient pursuant to Groh v. Ramirez, 540 U.S. 551, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004), and the affidavit could not be used to replace the complete omission because in order to do so, the affidavit would have to be clearly referenced and incorporated into the search warrant with words of incorporation. The trial court noted, while the warrant itself did not include a description of the place or property to be searched in the blank that was provided for that purpose, the warrant did, in the first paragraph, “refer [ ] back to the attached affidavit and state[d] that there's reasonable grounds to believe that certain property, subject to seizure [was] located on the following premises.” The trial court noted the South Carolina Supreme Court case of State v. Williams, 297 S.C. 404, 377 S.E.2d 308 (1989) allows the warrant and affidavit to be read together to supply information upon which to base the warrant. The court further reviewed Groh and concluded there was no indication in the Groh case that the warrant referred back to the affidavit, while the warrant did refer back to the affidavit in this case. The court additionally observed, “it goes on to say now, therefore, you are hereby authorized to search the premises for the property described below and to seize the property if found,” such that it again, “referr[ed] to the entire document.” Finally, the court stated, “according to this, the affidavit was attached to the search warrant when it was served.” The solicitor then confirmed it was, in fact, attached. The court therefore denied the motion to suppress.

On appeal, Ricky cites Groh for the proposition that the Fourth Amendment requires particularity in a warrant, not a supporting document to the warrant, such that an adequate description in the supporting document will not save a warrant that is facially invalid. He also cites United States v. Hurwitz, 459 F.3d 463, 470–71 (4th Cir.2006) for the proposition that, even though a supporting affidavit or document may be read with the document, the warrant itself must use “appropriate words of incorporation.” He contends the search warrant here is devoid of any specific description of the place to be searched, and though the trial court noted the warrant referred back to the affidavit, the description of the property on the warrant did not “specifically refer back to the description on the affidavit.” He therefore contends, pursuant to Groh, the search warrant in this matter is facially invalid, and he should be granted a new trial for the trafficking in excess of 400 grams of crack cocaine charge and the possession with intent to distribute crack cocaine within one-half mile of a school charge, related to the search of Markley's home.

Both the United States Constitution and the South Carolina Constitution provide a safeguard against unlawful searches and seizures, guaranteeing “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures,” and avowing no warrants shall issue except upon probable cause, supported by oath or affirmation, “and particularly describing the place to be searched,” as well as the persons or things to be seized. U.S....