State v. Dunbar, 3631.

• Citation: 354 S.C. 479,581 S.E.2d 840
• Decision Date: 21 April 2003
• Docket Number: No. 3631.,3631.
• Parties: The STATE, Respondent, v. Michael DUNBAR, Appellant.
• Court: Court of Appeals of South Carolina

354 S.C. 479

581 S.E.2d 840

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

No. 3631.

Court of Appeals of South Carolina.

Heard September 11, 2002.

Decided April 21, 2003.

Rehearing Denied June 26, 2003.

Assistant Appellate Defender Tara S. Taggart, of SC Office of Appellate Defense, of Columbia, for appellant.

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

CONNOR, J.

Michael Dunbar was indicted for trafficking in cocaine 100 to 200 grams, trafficking in cocaine 200 to 400 grams, and trafficking in crack cocaine 200 to 400 grams. A jury convicted Dunbar of all three charges. The trial court sentenced him to concurrent twenty-five-year sentences for the trafficking in cocaine offenses, and a consecutive fifteen-year sentence for trafficking in crack cocaine. Dunbar appeals, arguing the trial court erred in failing to suppress evidence obtained as a result of two allegedly impermissible searches. We affirm in part and reverse in part.

FACTS

Acting on information from a confidential informant, investigators from the Lexington County Sheriff's Department initiated an undercover drug bust. In Officer Rainwater's presence, the informant contacted Dunbar and another individual to set up a drug transaction. The informant arranged to purchase five ounces of cocaine. The two men arrived in their car to meet the informant and deliver the drugs at the predesignated time and place.

Police officers approached the car upon receiving the informant's signal that drugs were present in the vehicle. The driver of the vehicle, Jonathan Small, fled on foot. The defendant, Dunbar, remained seated in the vehicle until the officers asked him to step out. The officers searched the car and found a paper bag containing approximately five ounces of cocaine. The officers also noticed a hotel room key on the key chain left in the car's ignition. Dunbar informed Rainwater that he and Small were staying at the Ramada Inn in West Columbia.

Rainwater sought a warrant to search the hotel room. The search of the room turned up $3,795.00 in cash, digital scales, a 9-millimeter pistol, powder cocaine, and crack cocaine.

Prior to trial, Dunbar moved to suppress the evidence obtained as a result of the warrantless search of the car and the search of the hotel room pursuant to the execution of the search warrant. The trial court denied Dunbar's motion to suppress the evidence. This appeal follows.

LAW/ANALYSIS

I. Warrantless Search of Vehicle

Dunbar argues the trial court erred in failing to suppress the cocaine found in the vehicle because it was obtained as a result of an unreasonable warrantless search.

Generally, warrantless searches are per se unreasonable unless an exception to the warrant requirement is present. State v. Peters, 271 S.C. 498, 248 S.E.2d 475 (1978). Recognized exceptions to the warrant requirement include: (1) a search incident to a lawful arrest; (2) "hot pursuit"; (3) stop and frisk; (4) automobile exceptions; (5) the "plain view" doctrine; and (6) consent. State v. Bailey, 276 S.C. 32, 274 S.E.2d 913 (1981). Dunbar argues the warrantless search of the vehicle was not pursuant to any of the possible exceptions.

As noted, one possible exception to the warrant requirement is a search incident to a lawful arrest. Once probable cause exists for an arrest, "[p]olice officers may make a search of an arrestee's person and the area within his immediate control for weapons and destructible evidence." State v. Ferrell, 274 S.C. 401, 405, 266 S.E.2d 869, 871 (1980). Dunbar's motion to suppress the evidence stated his "arrest was made absent probable cause." Thus, we focus on whether probable cause existed to arrest Dunbar.

"The fundamental question in determining whether an arrest is lawful is whether there was `probable cause' to make the arrest." Wortman v. City of Spartanburg, 310 S.C. 1, 4, 425 S.E.2d 18, 20 (1992). Probable cause for an arrest "generally exists 'where the facts and circumstances within the arresting officer's knowledge are sufficient for a reasonable person to believe that a crime has been or is being committed by the person to be arrested.'" State v. Moultrie, 316 S.C. 547, 552, 451 S.E.2d 34, 37 (Ct.App.1994) (quoting United States v. Miller, 925 F.2d 695, 698 (4th Cir.1991)). Stated otherwise, "[a] police officer has probable cause to arrest without a warrant where he, `in good faith, believes that a person is guilty of a felony, and his belief rests on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise....'" State v. Roper, 274 S.C. 14, 17, 260 S.E.2d 705, 706 (1979) (quoting State v. Swilling, 249 S.C. 541, 558, 155 S.E.2d 607, 617 (1967)).

In determining whether probable cause exists, "all the evidence within the arresting officer's knowledge may be considered, including the details observed while responding to information received." Roper, 274 S.C. at 17, 260 S.E.2d at 706; see Moultrie, 316 S.C. at 552,

451 S.E.2d at 37 ("In assessing whether an officer has probable cause, the totality of the circumstances surrounding the information at the officer's disposal must be considered.").

Here, the confidential informant told Officer Rainwater he had previously purchased cocaine from two men who traveled to Columbia from Florida. The informant told Rainwater that he had dealt with the two men on several occasions when they had been in the Columbia area. The informant agreed to set up a "sting" operation in which these persons would deliver cocaine to him at a gas station. Rainwater met with the informant and listened as the informant telephoned his drug sources¹ and requested that they deliver the drugs to him. The informant told Rainwater the men would be driving a blue Cadillac with wire rims. Acting on this information, the police set up surveillance and waited for the men to arrive at the gas station. The officers observed a blue Cadillac with wire rims drive into the gas station. They watched as the informant approached the car and sat down in the back seat. The informant then immediately exited the vehicle. The informant's act of getting out of the car was the cue for the officers to move in based on the presence of drugs in the car. Based on these facts and observations, Rainwater and the other surveilling officers then moved in to arrest the car's occupants. After removing Dunbar from the passenger seat, Rainwater retrieved a bag of cocaine from the passenger-side floorboard.

The informant's description of the vehicle was corroborated when the informant approached the car immediately upon its arrival at the gas station. Moreover, Rainwater listened while the informant called to arrange the drug transaction. When viewed under the totality of the circumstances, the information provided by the informant, together with Rainwater's observations and verification of the information, was sufficient to give rise to probable cause that the occupants of the car were conducting a drug transaction, and that drugs could be found in the car. See Moultrie, 316 S.C. at 552,

451 S.E.2d at 37-38 (recognizing the validity of warrantless arrests based on an informant's tip where arresting officers conduct no independent investigation and corroboration consists of nothing more than observing predictions supplied by the tip); cf. Roper, 274 S.C. at 16-19,

260 S.E.2d at 706-707 (finding probable cause existed to stop an automobile matching a witness's description of two black males driving a late model, green Thunderbird with a red and white license tag bearing the letters "MVB" or "MVF"); Peters, 271 S.C. at 504,

248 S.E.2d at 478 (finding an informant's tip that a yellow Grand Prix with a white top and South Carolina tags bearing the digits "308" would be leaving Folly Beach shortly and transporting marijuana was sufficient to constitute probable cause to stop the vehicle).

Therefore, the warrantless arrest of Dunbar, as well as the search incident to Dunbar's arrest, was proper. The trial court did not err in refusing to suppress the cocaine found inside the car.

II. Validity of Search Warrant

Dunbar argues the trial court erred in failing to suppress the evidence obtained as a result of the search of the hotel room. Dunbar contends the affidavit is deficient and cannot form the basis for a search warrant because the affiant admittedly had no direct knowledge of numerous facts recited in the affidavit.

After retrieving the cocaine from the vehicle, Officer Rainwater noticed a hotel room key on the key chain left in the car's ignition. The key was inscribed with a room number. Based on the confidential informant's previous dealings with Dunbar, he knew Dunbar stayed at a hotel while in Columbia. The informant had alerted Rainwater to this fact and told Rainwater to look for a hotel key. Upon being asked, Dunbar informed Rainwater that he and Small were staying at the Ramada Inn in West Columbia. Based on the seizure of the cocaine and the information concerning the hotel room, Rainwater sought a warrant to search the room. Rainwater telephoned the magistrate and discussed the probable cause to issue the search warrant. Rainwater did not, however, proceed to the magistrate's office to obtain the warrant, but instead sent Officer O'Quinn.

When O'Quinn arrived at the magistrate's office the magistrate was on the telephone with Rainwater. O'Quinn testified the magistrate drafted the affidavit based on information received over the telephone from Rainwater.² O'Quinn stated he "merely signed" the affidavit after reviewing it and did not offer any information to the magistrate involving the probable cause for the search. O'Quinn admitted he had no "personal knowledge" of the facts contained in the affidavit...