State v. Dupree, No. 3657.

• Court: Court of Appeals of South Carolina
• Writing for the Court: ANDERSON, J.
• Citation: 354 S.C. 676,583 S.E.2d 437
• Docket Number: No. 3657.
• Decision Date: 30 June 2003
• Parties: The STATE, Respondent, v. Leroy DUPREE, Appellant.

354 S.C. 676
583 S.E.2d 437

The STATE, Respondent,
v.
Leroy DUPREE, Appellant

No. 3657.

Court of Appeals of South Carolina.

Submitted March 26, 2003.

Decided June 30, 2003.

354 S.C. 680

Katherine Carruth Link, of the South Carolina Office of Appellate Defense and of Columbia, for Appellant

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

ANDERSON, J.:

Leroy Dupree was charged with trafficking in crack cocaine in an amount of ten grams or more, but less than twenty-eight grams. He waived his right to trial by jury. The circuit court judge found Dupree guilty of trafficking in crack cocaine; concluded the conviction was a second offense for enhancement purposes; and sentenced Dupree to fifteen years, plus a fine of $25,000. On appeal, Dupree asserts the judge erred in (1) failing to suppress evidence seized in a search and (2) sentencing him for a second offense of trafficking, where the enhancement was based on a prior conviction of possession with intent to distribute rather than a prior conviction of trafficking. We affirm.¹

FACTS/PROCEDURAL BACKGROUND

On January 19, 2001, Deputy Trinette Mullineaux, with the Richland County Sheriff's Department, appeared before the magistrate and signed an affidavit to obtain a search warrant for "crack cocaine, paraphernalia, paperwork, and other items associated with the use, storage, and distribution of crack cocaine." In the affidavit, Deputy Mullineaux revealed the "location to be searched is Bobby Dove's Trailer Park off 1711

354 S.C. 681

Percival, Lot # 10." The affidavit supporting the search warrant provided

Within the past (72) hours, a confidential and first time informant of the Richland County Sheriff's Department has purchased crack cocaine from the described location. The informant was searched before and after the purchase and was observed by narcotics agents while making the purchase entering and exiting the location. Based on the affiant's and other Richland County Sheriff's Departments [sic] narcotic agents 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 also store and or transport in vehicles in their possession.

The magistrate issued the search warrant. Officers with the Sheriff's Department executed the search warrant on January 25, 2001. Sergeant Jerry Maldonado kicked the door down because it was locked. He entered the mobile home before any other officer. Immediately, Sergeant Maldonado noticed Dupree in the living room "by the couch on the left-hand side." The police discovered "some crack cocaine that was on [Dupree's] person." In addition to the crack cocaine, the officers seized over $800 in cash, a gun, and some marijuana.

Prior to trial, defense counsel moved to suppress the crack cocaine seized pursuant to the search warrant arguing that the warrant was not supported by probable cause. Counsel claimed there was "no indicia of reliability alleged in the search warrant as to [the first-time] informant's veracity or reliability" and "no corroborative investigation alleged on the face of the warrant."

At the hearing on the motion to suppress, Deputy Mullineaux testified regarding the information she presented to the magistrate on January 19, 2001. Deputy Mullineaux stated that she advised the magistrate she "had received several ... different information sources that this particular residence was dealing narcotics." Deputy Mullineaux declared:

What I also presented to [the magistrate] was after I'd received this information, I went with a confidential informant to this residence. Drove—had another agent stand by and I went with the confidential informant to the vehicle—to

354 S.C. 682

the residence, observed the confidential informant get out of the vehicle and go to the back of his door, which he had purchased crack and turned that crack back over to me once he came back to the vehicle; that was the controlled buy that we had made to obtain this search warrant.

Deputy Mullineaux chose the particular confidential informant because he was well known to Dupree and "was able to purchase crack at this particular residence." The confidential informant accompanied Deputy Mullineaux to the location where the controlled buy occurred. The confidential informant was searched before he purchased the crack cocaine. At this time, the confidential informant had no drugs on his person. The officer watched the confidential informant get out of the vehicle and walk to the back door of the mobile home. When the confidential informant returned from the residence, he had crack cocaine in his possession and turned it over to Deputy Mullineaux.

On cross-examination of Deputy Mullineaux, the following exchange occurred:

Q: When you had prepared [the search warrant], did the magistrate ask you for sworn oral testimony or did you elicit that on your own?

A: Yes, sir, he asked me to stipulate how the buy had occurred and what information I had on this particular case.... I informed him about the control[led] buy that we made there and about the information that I had received, which is why I even attempted a controlled buy at this particular location.

Deputy Mullineaux said that she gave the same information to the magistrate that she testified to at the hearing. The judge denied Dupree's motion to suppress the crack cocaine, finding there was probable cause for the magistrate to issue the warrant.

During the trial, when the Solicitor moved to admit the crack cocaine into evidence, defense counsel made a timely objection based on the same grounds asserted at the prior hearing on the motion to suppress. The objection was overruled.

The judge found Dupree guilty as charged. Dupree was sentenced to fifteen years, plus a fine of $25,000.

354 S.C. 683

ISSUES

I. Did the trial court err in denying Dupree's motion to suppress the crack cocaine seized in the search of the mobile home?

II. Did the trial court err in sentencing Dupree for a second offense of trafficking where the enhancement was based on a prior conviction of possession with intent to distribute rather than a prior conviction of trafficking?

STANDARD OF REVIEW

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. King, 349 S.C. 142, 561 S.E.2d 640 (Ct.App.2002); State v. Arnold, 319 S.C. 256, 460 S.E.2d 403 (Ct.App.1995). 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. Jones, 342 S.C. at 126, 536 S.E.2d at 678; State v. Dunbar, 354 S.C. 479, 581 S.E.2d 840 (2003) (Anderson, J., dissenting); King, 349 S.C. at 148, 561 S.E.2d at 643.

Affidavits are not meticulously drawn by lawyers, but are normally drafted by non-lawyers in the haste of a criminal investigation, and should therefore be viewed in a common sense and realistic fashion. State v. Sullivan, 267 S.C. 610, 230 S.E.2d 621 (1976); Arnold, 319 S.C. at 260, 460 S.E.2d at 405. Our task is to decide whether the magistrate had a substantial basis for concluding probable cause existed. State v. Adolphe, 314 S.C. 89, 441 S.E.2d 832 (Ct.App.1994). The term "probable cause" does not import absolute certainty. State v. Bennett, 256 S.C. 234, 182 S.E.2d 291 (1971); Arnold, 319 S.C. at 260, 460 S.E.2d at 405. Rather, in determining whether a search warrant should be issued, magistrates are concerned with probabilities and not certainties. Sullivan, 267 S.C. at 617, 230 S.E.2d at 624. Searches based on warrants will be given judicial deference to the extent that an otherwise marginal search may be justified if it meets a

354 S.C. 684

realistic standard of probable cause. Bennett, 256 S.C. at 241, 182 S.E.2d at 294; Arnold, 319 S.C. at 260, 460 S.E.2d at 405

LAW/ANALYSIS

I. VALIDITY OF SEARCH WARRANT

Dupree contends the trial judge erred in denying his motion to suppress evidence obtained as a result of the search of the mobile home. Specifically, Dupree maintains the search warrant affidavit and additional information provided to the magistrate did not support a finding of probable cause because the State failed to (1) demonstrate the reliability of the confidential informant and (2) provide any specific factual detail concerning what had transpired or been observed when the informant was in the residence. We disagree.

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. Philpot, 317 S.C. 458, 454 S.E.2d 905 (Ct.App.1995). 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. Driggers, 322 S.C. 506, 473 S.E.2d 57 (Ct.App.1996); State v. Bultron, 318 S.C. 323, 457 S.E.2d 616 (Ct.App.1995). In determining the validity of the warrant, a reviewing court may consider only information brought to...