State v. Gentile

• Decision Date: 08 May 2007
• Docket Number: No. 4244.,4244.
• Citation: 646 S.E.2d 171
• Parties: The STATE, Respondent, v. Omar Sharitt GENTILE, Appellant.
• Court: South Carolina Court of Appeals

646 S.E.2d 171

The STATE, Respondent, v. Omar Sharitt GENTILE, Appellant.

No. 4244.

Court of Appeals of South Carolina.

Submitted April 2, 2007.

Decided May 8, 2007.

Rehearing Denied June 28, 2007.

Chief Attorney Joseph L. Savitz, III, Commission of Indigent Defense, of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Shawn L. Reeves, all of Columbia; and Solicitor Ralph E. Hoisington, of Charleston, for Respondent.

BEATTY, J.

A circuit court judge, during a bench trial, convicted Omar Gentile of trafficking in cocaine and possession with intent to distribute cocaine within proximity of a school. Gentile asserts the judge erred in denying his motion to suppress the drug evidence on the ground the search warrant was not supported by probable cause. We reverse.¹

FACTS

At approximately 9:45 p.m. on July 10, 2004, officers with the narcotics division of the Charleston Police Department forcibly executed a search warrant for Gentile's residence in Charleston. Pursuant to the search, the officers seized one plastic bag containing 24.34 grams of cocaine and $988 in cash from Gentile's person. The officers also discovered six plastic bags containing 2.14 grams of cocaine. Gentile ultimately admitted that the drugs belonged to him. As a result, a Charleston County grand jury indicted Gentile for trafficking in cocaine and possession with intent to distribute cocaine within proximity of a school.

Prior to his bench trial, Gentile filed a written motion to suppress all evidence seized from his residence. In his motion, Gentile argued there was no probable cause to support the issuance of the search warrant. During the trial, the court reviewed the search warrant and accompanying affidavit and heard testimony from the officers involved in the search.

The affidavit in support of the search warrant provided in pertinent part:

Investigators recieved [sic] information of narcotic activity at 23 Cleveland ST Apartment A. Investigators conducted periodic surveillance on 23 Cleveland ST and observed a black male enter the residence. Black male subject was observed leaving the residence. Subject was stopped by narcotic investigators and recovered approximately 4.0 grams of marijuana. Subject made no stops from time of leaving residence until stopped by investigators. Based on above information, there is probable cause to believe narcotics (marijuana) and proceeds from narcotic sales to be stored inside 23 Cleveland ST Apartment A., Charleston, South Carolina.

Officer George Bradley, the officer who procured the warrant from the magistrate, testified regarding his affidavit as well as the oral testimony he gave to the magistrate. According to Bradley, the Charleston Police Department received citizen complaints regarding suspected narcotics traffic at Gentile's residence. Bradley testified the citizens claimed to have witnessed heavy foot traffic "in and out of the residence, later in the afternoon up until the wee morning hours." As a result of these tips, Bradley and Officer Steven Sierko conducted surveillance of the residence. Bradley testified they observed "several black males entering and leaving the residence, walking in, being in there less than five minutes." Bradley alerted officers in a nearby unmarked patrol car regarding one particular visitor. Corporal Andre Jenkins followed the visitor's vehicle as it left the residence and then conducted a traffic stop for an obstructed license plate. Jenkins arrested the driver of the vehicle after he refused to produce his driver's license and then engaged in a physical altercation. A search of the driver's person revealed two bags of marijuana.

After this arrest, Corporal Jenkins contacted Bradley to inform him that he believed there was probable cause for a search warrant based on the officers' observations regarding the traffic at the residence and the subsequent arrest of one of the visitors. Jenkins also testified that he established his belief on the citizen tips regarding the traffic at the residence as well as the complaint of one citizen who claimed she smelled marijuana in the vicinity of the residence.

Based on the citizen tips, his observations during the surveillance, the arrest of one of the visitors, as well as his experience, Bradley believed narcotics transactions were being conducted at Gentile's residence. Bradley testified he presented this information to the magistrate who ultimately signed the warrant for the search of Gentile's residence.

At the conclusion of the suppression hearing testimony, Gentile's counsel reiterated his motion to suppress. He asserted the search warrant was invalid because there was no probable cause. Specifically, he claimed there was no independent verification of what transpired within Gentile's residence. Instead, counsel averred the citizen complaints, the officers' observations, and the arrest were a series of unrelated events that did not support a finding of probable cause. The judge denied the motion, finding the search warrant was properly issued based on the totality of the circumstances. Although the judge recognized that there was no "indication with regards to the reliability of the informant information," he found the officers did not seek a warrant solely on this information. Instead, the judge found significant that the warrant was procured based on the officers' "own investigation, through their own observations ... which through their experience as narcotics officers for several years have proven to indicate the presence of drug activity."

The judge convicted Gentile of trafficking in cocaine and possession with intent to distribute cocaine within proximity of a school. He sentenced Gentile to twenty-five years imprisonment for the trafficking offense and a concurrent, ten-year sentence for the other offense. Gentile appeals his convictions and sentences.

STANDARD OF REVIEW

"In criminal cases, the appellate court sits to review errors of law only." State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001). We are bound by the trial court's factual findings unless they are clearly erroneous. State v. Quattlebaum, 338 S.C. 441, 452, 527 S.E.2d 105, 111 (2000). "A deferential standard of review likewise applies in the context of a Fourth Amendment challenge to a trial court's fact-driven affirmation of probable cause." State v. Thompson, 363 S.C. 192, 199, 609 S.E.2d 556, 560 (Ct.App.2005).

DISCUSSION

Gentile argues the judge erred in denying his motion to suppress because the search warrant was not supported by probable cause. We agree.

The Fourth Amendment guarantees "[t]he right of the people to be secure ... [from] unreasonable searches and seizures." U.S. Const. amend. IV. "In parallel with the protection of the Fourth Amendment, the South Carolina Constitution also provides a safeguard against unlawful searches and seizures." State v. Forrester, 343 S.C. 637, 643, 541 S.E.2d 837, 840 (2001); S.C. Const. art. I, § 10. Evidence obtained in violation of the Fourth Amendment is inadmissible in both state and federal court. Forrester, 343 S.C. at 643, 541 S.E.2d at 840.

A magistrate may issue a search warrant only upon a finding of probable cause. State v. Bellamy, 336 S.C. 140, 143, 519 S.E.2d 347, 348 (1999). "This determination requires the magistrate to make a practical, common-sense decision of whether, given the totality of the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying the information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. King, 349 S.C. 142, 150, 561 S.E.2d 640, 644 (Ct. App.2002). "The affidavit must contain sufficient underlying facts and information upon which the magistrate may make a determination of probable cause. 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. Dupree, 354 S.C. 676, 684, 583 S.E.2d 437, 441 (Ct.App.2003) (citations omitted).

In discussing the specific requirements for issuing a search warrant, our supreme court has explained:

The General Assembly has imposed stricter requirements than federal law for issuing a search warrant. Both the Fourth Amendment of the United States Constitution and Article I, § 10 of the South Carolina Constitution require an oath or affirmation before probable cause can be found by an officer of the court, and a search warrant issued. U.S. Const. amend. IV; S.C. Const. art. I, § 10. Additionally, the South Carolina Code mandates that a search warrant "shall be issued only upon affidavit sworn to before the magistrate, municipal judicial officer, or judge of a court of record...." S.C.Code Ann. § 17-13-140 (1985). Oral testimony may also be used in this state to supplement search warrant affidavits which are facially insufficient to establish probable cause. See State v. Weston, 329 S.C. 287, 494 S.E.2d 801 (1997). However, "sworn oral testimony, standing alone, does not satisfy the statute." State v. McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987).

State v. Jones, 342 S.C. 121, 128, 536 S.E.2d 675, 678-79 (2000).

In terms of a court's review of the magistrate's decision, "[t]he duty of the reviewing court is to ensure the issuing magistrate had a substantial basis upon which to conclude that probable cause existed." State v. Baccus, 367 S.C. 41, 50, 625 S.E.2d 216, 221 (2006). "In reviewing the validity of a warrant, an appellate court may consider only information brought to the magistrate's attention." State v. Thompson, 363 S.C. 192, 200, 609 S.E.2d 556, 560 (Ct.App.2005).

Reviewing this case within the above-outlined parameters, we find the affidavit and the supplemental oral testimony were insufficient to provide the...