State v. Driggers

• Decision Date: 05 June 1996
• Docket Number: No. 2527,2527
• Citation: 473 S.E.2d 57,322 S.C. 506
• Parties: The STATE, Respondent, v. Robert Lee DRIGGERS, Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 57

473 S.E.2d 57

322 S.C. 506

The STATE, Respondent, v. Robert Lee DRIGGERS, Appellant.

No. 2527.

Court of Appeals of South Carolina.

Heard June 5, 1996.

Decided July 1, 1996.

Assistant Appellate Defender Lesley M. Coggiola, of SC Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, Columbia; and Solicitor David Price Schwacke, North Charleston, for respondent.

GOOLSBY, Judge:

Robert Lee Driggers appeals his conviction for armed robbery, claiming the trial court erred in admitting evidence seized in the execution of a search warrant issued without probable cause. We affirm.

Facts

On July 1, 1994, two men dressed in camouflage and wearing black cloth masks robbed Pappy's Restaurant near Goose Creek, South Carolina. One of the men had a handgun. The other man demanded the cashier place into a Food Lion grocery bag all the money in the drawer under the cash register. The men escaped with approximately $2500 in cash.

Ten days after the robbery, Detective Chester Howell of the Berkeley County Sheriff's office received information from an informant that caused him to contact Andreas Klepp-Egge. Detective Howell had neither met Klepp-Egge nor obtained information from him before this interview.

On the evening of July 11, 1994, Klepp-Egge gave Detective Howell a detailed written statement in which he set forth the following information:

1) On June 29, 1994, Klepp-Egge moved into apartment F-1 of the Summer Creek Apartments with Ricky Meadows, Danny Halverson and his girlfriend, and Driggers and his family.

2) On the night of the robbery, July 1, 1994, Klepp-Egge saw Driggers and his wife in the apartment repairing a gun and cutting out eye holes in black material. While trying to go to sleep on the living room floor, he saw Driggers and Meadows leave the apartment around midnight.

3) Early the next morning, Meadows and Driggers returned wearing wet clothes and carrying a large amount of money. Meadows and Driggers counted the money, a total of $2400, and talked about having robbed Pappy's Restaurant in Goose Creek and getting the money from a box under the cash register. They said they "ditched the gun and [their] outer clothes in the woods behind Pappy's."

4) Later that morning, Meadows gave Klepp-Egge $100 and told him to get a room at the Terrace Inn for three days for all of them. Klepp-Egge stayed in Room 307 for one night with Meadows while Driggers stayed in Room 303.

5) Klepp-Egge believed Driggers still to be living out of Room 303 at the time of the statement.

Detective Howell submitted Klepp-Egge's original statement and his own affidavit to a magistrate that same day. The affidavit stated in part:

That on 7-11-94 the affiant received a written statement from A. Klepp-Egge who stated he saw the weapon in the possession of Robert Driggers prior to the robbery and witnessed the defendant Driggers and a co-defendant count the money from the robbery which they stated was from Pappy's Restaurant and the sum was $2400.

(Emphasis added). The magistrate then issued a search warrant for Room 303 of the Terrace Inn, the premises described elsewhere in the affidavit.

Law enforcement officers immediately went to execute the search warrant. They arrested Driggers outside Room 303 and then executed the search warrant. The officers recovered two black shirts, a pair of camouflage pants, a black jacket with a hood, two plastic Food Lion bags, and a black-handled knife.

At his trial, Driggers moved to suppress the evidence obtained as a result of the search warrant. He argued the warrant was not supported by probable cause because the magistrate was not presented with sufficient evidence of the informant's reliability. We disagree.

Discussion

Since the United States Supreme Court adopted a "totality of the circumstances" test in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the task of a magistrate when determining whether to issue a warrant is simply to make a practical, common sense decision as to whether, under the totality of the circumstances set forth in the affidavit, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that evidence of a crime will be found in a particular place. State v. Johnson, 302 S.C. 243, 247, 395 S.E.2d 167, 169 (1990). The magistrate should determine probable cause based on all of the information available to the magistrate at the time the warrant was issued. State v. Bultron, 318 S.C. 323, 457 S.E.2d 616 (Ct.App.1995). Upon review, an appellate court's task is to decide whether the magistrate had substantial basis for concluding probable cause existed. State v. Arnold, 319 S.C. 256, 460 S.E.2d 403 (Ct.App.1995). A reviewing court should give great deference to a magistrate's determination of probable cause. State v. Sullivan, 267 S.C. 610, 230 S.E.2d 621 (1976).

Driggers argues that the search warrant was defective because Officer Howell's affidavit neither mentions the police had any previous contacts with Klepp-Egge nor otherwise comments on Klepp-Egge's reliability. Although Howell's affidavit does not contain any references to prior experiences with Klepp-Egge, there are, nonetheless, sufficient other indicators of the reliability of his statements. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (a deficiency in veracity may be compensated for by a strong showing of basis of knowledge or by some other indicia of reliability).

First, evidence of past reliability is not usually required when information is provided by an eyewitness because, unlike the paid informer, the eyewitness does not ordinarily have the opportunity to establish a record of previous reliability. State v. Northness, 20 Wash.App. 551, 582 [322 S.C. 511] P.2d 546 (1978); see also Saunders v. Commonwealth, 218 Va. 294, 237 S.E.2d 150 (1977) (a magistrate may infer the reliability of a search warrant affidavit, which discloses information from an eyewitness to the fact related, because the affidavit is based on first-hand knowledge); Sullivan, 267 S.C. 610, 230 S.E.2d 621 (acknowledging courts have distinguished between affidavits relying on eyewitness or victim informers and those relying on paid informers in that the former may be sufficient to establish probable cause even if the affidavits do not independently establish the credibility of the informant when other circumstances show the information is likely to be reliable).

Klepp-Egge's written statement clearly indicates that he directly observed some of the preparation for the robbery. ¹ He was also an eyewitness to the events following the robbery, including seeing Driggers count the money and then go to the Terrace Inn later that morning. Klepp-Egge's detailed statement regarding his first-hand observations provides him with "built in credibility." See Northness, 582 P.2d at 549.

Second, a non-confidential informant should be given a higher level of credibility because he exposes himself to public view and to possible criminal and civil liability should the information he supplied prove to be false. State v. Daley, 189 Conn. 717, 458 A.2d 1147 (1983). In Daley, the informant was the roommate of one of the men involved in the robbery. The police obtained a search warrant based on his statement that he saw the men put cash, handbags, and jewelry on the kitchen table in his apartment. The men did not tell the roommate where they obtained the items. The Supreme Court of Connecticut found the trial court had incorrectly suppressed the evidence obtained through the search warrant. The court found two reasonable inferences to support the informant's reliability: 1) the roommate was an eyewitness who wanted to inform the police of the evidence he saw in order to avoid being associated with the crime; or 2) the roommate was a participant who was seeking to avoid suspicion by coming forward with the information before the police discovered his involvement. Either way, it was reasonable to infer that...