State v. Dunbar

• Decision Date: 27 September 2004
• Docket Number: No. 3866.,3866.
• Citation: 361 S.C. 240,603 S.E.2d 615
• Parties: The STATE, Respondent, v. Michael DUNBAR, Appellant.
• Court: South Carolina Court of Appeals

361 S.C. 240

603 S.E.2d 615

The STATE, Respondent, v. Michael DUNBAR, Appellant.

No. 3866.

Court of Appeals of South Carolina.

Submitted February 9, 2004.

Decided September 27, 2004.

Rehearing Denied October 21, 2004.

Assistant Appellate Defender Tara Taggart, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General N. Mark Rapoport, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for Respondent.

CURETON, A.J.

Michael Dunbar was convicted of one count each of: trafficking in cocaine (100-200 grams), trafficking in cocaine (200-400 grams), and trafficking in crack cocaine (200-400 grams). He received an aggregate sentence of forty years imprisonment. Dunbar appealed, arguing the trial judge erred in refusing to suppress cocaine evidence found as a result of a warrantless search of a vehicle. He also argued the trial judge erred in failing to suppress evidence found as a result of the search warrant because it violated both federal and state constitutions in that: (1) the affiant was not the person who provided the information; (2) the magistrate was not detached and neutral; and (3) there was no information in the affidavit that attested to the informant's reliability.

This court affirmed the trial judge's refusal to suppress the evidence obtained in the warrantless search of the vehicle. We reversed the trial judge's refusal to suppress the evidence obtained from the motel room as a result of a search warrant supported by a faulty affidavit. State v. Dunbar, 354 S.C. 479, 581 S.E.2d 840 (Ct.App.2003). Our supreme court vacated that portion of our opinion dealing with the search warrant and remanded for a determination of the issue based solely upon Dunbar's constitutional issues on appeal. State v. Dunbar, 356 S.C. 138, 587 S.E.2d 691 (2003). Upon remand, we reverse¹ the trial judge's refusal to suppress the evidence found in the motel pursuant to the search warrant and remand for a new trial.²

FACTS

The Lexington County Sheriff's Department worked with a confidential informant to set up an undercover drug transaction.³ The targets of the operation were Dunbar and his associate, Jonathan Small.⁴ The informant arranged to purchase five ounces of cocaine from Dunbar and Small at a pre-arranged location. Deputies approached the car after the informant signaled that drugs were in the car. Small fled on foot and Dunbar remained in the passenger seat. Officers found a paper bag containing five ounces of cocaine on the floorboard of Small's car. After officers also found a motel key in the car, Dunbar told Officer Jerry Rainwater that he and Small were staying at the motel.

Officer Rainwater decided to obtain a search warrant for the motel room. Rainwater called the magistrate and discussed "the warrant and the probable cause over the telephone." However, Rainwater did not draft the search warrant nor go to the magistrate's office to sign the affidavit in support of the search warrant. Instead, Rainwater sent Officer Keith O'Quinn to obtain the search warrant. O'Quinn was part of Rainwater's investigative team but knew only that a drug deal had occurred and five ounces of cocaine had been found. He did not witness the search of Small's car, speak to Dunbar, or speak with the informant.

When O'Quinn arrived, the magistrate was talking on the telephone with Rainwater. O'Quinn did not relay any information in support of the search warrant to the magistrate. Instead, the magistrate drafted the search warrant based on information Rainwater relayed over the telephone. The search warrant contained the following language under the section entitled "Reason for Affiant's Belief that the Property Sought is on the Subject Premises:"

That a confidential informant stated that the subject stays at motel while in the area, that Co Def stated that the subject left Ramada Inn at I-26 @ 378 after Co-Def called subject in that room, that Co Def saw subject leave location to pick him up at location across from Ramada, that subject had on [sic] his possession a key to said room, that subject delivered approx 5 oz. of cocaine to undercover agents.

O'Quinn was sworn and signed as the affiant on the search warrant, even though he later testified that the only information he had was that five ounces of cocaine was discovered at the drug bust. He had no personal knowledge of the other facts in the affidavit. The magistrate issued the search warrant after O'Quinn signed as the affiant. Deputies discovered a bag of cocaine, a bag of crack cocaine, $3,795 in cash, two digital scales, and a handgun in the motel room.

At trial, Dunbar moved to suppress the evidence obtained as a result of the search warrant because it was issued in violation of the Fourth Amendment and the South Carolina Constitution. Dunbar argued the evidence seized in the motel room should be suppressed because: (1) the search warrant was not issued by a neutral and detached magistrate; (2) the warrant lacked probable cause because it was signed by an affiant without personal knowledge and there was no indication the information was given under oath or affirmation; and (3) the credibility of the confidential informant was not established. The trial judge denied the motions, and Dunbar was convicted. Dunbar appealed.

LAW/ANALYSIS

A.

Dunbar argues the trial judge erred in denying his motion to suppress the search warrant because it was not based upon probable cause where the affiant had no personal knowledge of the case. We agree.

The Fourth Amendment to the United States Constitution and Article I, § 10 of the South Carolina Constitution protect citizens from unreasonable searches and seizures. Both state and federal constitutions provide that search warrants may not be issued except upon "probable cause, supported by oath or affirmation," and particularly describing the place to be searched and the persons or things to be seized. U.S. Const. amend. IV; S.C. Const. art. I, § 10; see also State v. Weston, 329 S.C. 287, 290, 494 S.E.2d 801, 802 (1997)

("A search warrant may issue only upon a finding of probable cause.").

"The magistrate's task in determining whether to issue a search warrant is to make a practical, common sense decision concerning 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 the particular place to be searched." State v. Tench, 353 S.C. 531, 534, 579 S.E.2d 314, 316 (2003) (citations omitted). A reviewing court should give substantial deference to a magistrate's determination of probable cause. State v. Crane, 296 S.C. 336, 339, 372 S.E.2d 587, 588 (1988) (citation omitted); see State v. Pressley, 288 S.C. 128, 131, 341 S.E.2d 626, 628 (1986)

("Determination of probable cause to search made by a neutral and detached magistrate is entitled to substantial deference.") (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

Both federal and state constitutions require that the search warrant be issued upon probable cause supported by "oath or affirmation." An "oath" is a solemn pledge, swearing to a higher power, that one's statement is true and subjects one to penalties for perjury if the statement is false. See Black's Law Dictionary 1099 (7th ed.1999). An "affirmation" is a pledge that one's statement is true and subjects the person to the penalties of perjury, but does not require the swearing to a higher power. Black's Law Dictionary 59. Neither federal nor state constitutions proscribe a particular method to be used in obtaining an "oath or affirmation."

A sworn oral statement may be sufficient to satisfy the "oath or affirmation" requirement of both federal and state constitutions. See State v. McKnight, 291 S.C. 110, 113, 352 S.E.2d 471, 472 (1987)

(noting that a "sworn, oral statement may be sufficient to satisfy the requirement for oath or affirmation"); see also U.S. v. Clyburn, 806 F.Supp. 1247, 1249-50 (D.S.C.1992),

aff'd by 24 F.3d 613 (4th Cir.1994) (noting that it is constitutionally permissible for a magistrate to consider unrecorded sworn oral testimony in determining whether probable cause exists to issue a search warrant). An affidavit, which would satisfy the stricter requirements for a finding of probable cause found in our state statute⁵, also satisfies the minimal constitutional requirements that probable cause be supported by an "oath or affirmation." See McKnight, 291 S.C. at 113,

352 S.E.2d at 472 ("An affidavit is a voluntary ex parte statement reduced to writing and sworn to or affirmed before some person legally authorized to administer an oath or affirmation ... It differs from an oath in that an affidavit consists of statements of fact which is sworn to as the truth, while an oath is a pledge...."); State v. White, 275 S.C. 500, 502, 272 S.E.2d 800, 801 (1980) (holding that a search warrant issued upon affidavit or affirmation does not offend the Constitution); State v. York, 250 S.C. 30, 36-37, 156 S.E.2d 326, 329 (1967) (noting that an affidavit complies with the minimum constitutional standards for the issuance of a warrant upon probable cause supported by oath or affirmation). "Generally, affidavits must be made on the affiant's personal knowledge of the facts alleged in the petition. The affidavit must in some way show that the affiant is personally familiar with the facts so that he could personally testify as a witness." 3 Am.Jur.2d Affidavits § 14 (2002).

It is not disputed by the State that the affiant in this case, Officer O'Quinn, did not have any firsthand knowledge of the events leading to Dunbar's arrest. O'Quinn characterized his involvement as "merely" signing for the warrant, without speaking to either Dunbar or the confidential informant and without relaying any information to the magistrate himself. An...