State v. Ellis, 19873

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: MOSS
• Citation: 263 S.C. 12,207 S.E.2d 408
• Parties: The STATE, Respondent, v. Viola ELLIS and Ethel Thelma Scott, Appellants.
• Docket Number: No. 19873,19873
• Decision Date: 07 August 1974

Page 408

207 S.E.2d 408 263 S.C. 12 The STATE, Respondent,
v.
Viola ELLIS and Ethel Thelma Scott, Appellants. No. 19873. Supreme Court of South Carolina. Aug. 7, 1974.

[263 S.C. 14]

Page 409

Richard E. Fields, Gedney M. Howe, III, and Burnet R. Maybank, Charleston, for appellants.

Sol. Robert B. Wallace and Asst. Sol. A. A. Rosenblum, Charleston, for respondent.

[263 S.C. 15] MOSS, Chief Justice:

Ronald Bryan, Ethel Thelma Scott, Solomon Gregory, and Viola Ellis were tried upon an indictment containing two counts, to wit: (1) the possession of heroin for sale and distribution, in violation of Section 32--

Page 410

1510.49 of the Code, and (2) the possession of dangerous drugs, without having obtained such upon a prescription of a duly licensed physician, in violation of Section 56--1313(4) of the Code.

Wheh the case was called for trial a motion to suppress the evidence was made on the grounds that (1) the affidavit for the search warrant was devoid of any showing of probable cause and that (2) the search warrant issued, based on the affidavit, failed to satisfy constitutional and statutory requirements, because it was vague and not sufficiently particular. This motion was heard by the presiding judge, in the absence of the jury, and denied.

Thereafter, the case proceeded to trial, and at the close of the State's testimony, a motion was made for a directed verdict on the ground that there was not sufficient evidence upon which a jury could reasonably find that Viola Ellis and Ethel Thelma Scott, the appellants herein, were guilty on count one of the indictment. This motion was denied. Following the presentation of evidence by the defense, the appellants again moved for a directed verdict as to both counts of the indictment. The motion as to the second count as it applied to Viola Ellis and Solomon Gregory was granted, but the motion was denied as to count one, and denied as to both counts as applied to Ethel Thelma Scott and Ronald Bryan. The jury returned a verdict of guilty as to Ronald Bryan and Ethel Thelma Scott on both counts and Viola [263 S.C. 16] Ellis on count one of the indictment. Motions were made on behalf of both appellants for judgment of acquittal notwithstanding the verdict of the jury, and in the alternative for a new trial on the grounds previously stated. These motions were refused and the appellants duly sentenced. This appeal followed.

It is the contention of the appellants that the only evidence against them, sufficient to support a conviction, was obtained by virtue of a search warrant issued in violation of Article I, Section 10 of the 1895 Constitution of South Carolina, as amended, and the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. The appellants challenge the sufficiency of the affidavit for the search warrant on the grounds that it was devoid of probable cause and did not support the issuance of a legal search warrant. The appellants further contend that the warrant under which the search was made of their premises should have been quashed and the evidence obtained as a result thereof suppressed.

Article I, Section 10 (formerly Article I, Section 16) of the Constitution of South Carolina, as amended, and the Fourth Amendment to the United States Constitution, are practically identical and as to searches and seizures provides that: '* * * no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, * * *'.

Section 17--271 of the 1962 Code of Laws, as amended, provides that a search warrant for unlawful drugs shall be issued upon affidavit establishing the grounds for the warrant and sufficient facts must be stated in the affidavit to form the basis of a judgment by the issuing officer that probable cause exists. State v. York, 250 S.C. 30, 156 S.E.2d 326.

In order to justify the issuance of a search warrant, probable cause must be shown, but the term 'probable cause' [263 S.C. 17] does not import absolute certainty. In determining whether there is sufficient evidence to sustain a finding of probable cause, each case stands on its own facts. The evidence need not be sufficient to support a conviction, or a verdict of guilty, or to establish guilt beyond a reasonable doubt; nor need the proof be positive, it being enough if it is such as to induce in the mind of the issuing officer an honest belief that the facts set forth exist, or as would lead a man of prudence to believe that the offense has been committed. State v. Bennett, 256 S.C. 234, 182 S.E.2d 291.

Page 411

The affidavit for a search warrant was made by Detective Sergeant Dean Powell, on 3--23--73, before Magistrate Donald Barkowitz, in which he averred that he had 'good reason to believe that Ronald Bryan, and other persons and occupants, has stored or concealed on their persons, on their premises and/or appurtenances, * * * at or near 88 Columbus St., Chas., S.C., being a 2 story yellow frame house located on north side of Columbus St., with wrought-iron fence in front, entrance at the front of house, but common entrance for downstairs and upstairs on the west side of dwelling, a quantity of Narcotic, Stimulant, Depressant, Hallucingenic; and/or Legend Drugs, namely Heroin.' The affiant further avers that the facts tending to establish the foregoing were that 'This officer has directed an investigation with regards to 88 Columbus St. since Jan. 23, 1973; during this time undercover informant has made 9 separate buys of a substance which was tested and proved to be Heroin from Ronald Bryan in all parts of the dwelling both up and down stairs; all total 19 bags of...