State v. Gore
| Decision Date | 19 June 2014 |
| Docket Number | No. 5214.,5214. |
| Citation | 408 S.C. 237,758 S.E.2d 717 |
| Court | South Carolina Court of Appeals |
| Parties | The STATE, Respondent, v. Alton Wesley GORE, Jr., Appellant. Appellate Case No. 2012–206368. |
OPINION TEXT STARTS HERE
Nicole Nicolette Mace, of the Mace Law Firm, and Amy Kristan Raffaldt, both of Myrtle Beach, for Appellant.
Attorney General Alan McCrory Wilson and Assistant Attorney General Christina J. Catoe, of Columbia, for Respondent.
In this criminal appeal, Alton Gore appeals his conviction for trafficking cocaine, arguing the circuit court erred when it (1) denied Gore's motion to challenge the veracity of the search warrant affidavit pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); (2) improperly admitted certain photographs into evidence; and (3) failed to charge the jury on the lesser-included offense of simple possession. We affirm.
On February 28, 2010, Detective Jesse Ard of the Horry County Police Department drafted a search warrant affidavit based on suspected criminal activity at 309 Junco Circle in Longs, South Carolina. Detective Ard supported the affidavit with the following probable cause allegations:
A confidential and reliable informant made a buy for cocaine out of the residence while being recorded and monitored by agents in the area. Also within the last seventy-two hours agents followed [Gore] from the residence to another location and were able to monitor and record another buy for a quantity of cocaine.
The magistrate issued a search warrant, and evidence suggesting drug activity was retrieved from the residence at Junco Circle. Gore was subsequently indicted for trafficking cocaine in an amount between two hundred and four hundred grams.1
Prior to trial, Gore moved for an evidentiary hearing pursuant to Franks v. Delaware,2 arguing the probable cause allegations used to support the search warrant were deliberately false or misleading. As a result, Gore contended the search warrant affidavit was insufficient to support probable cause. Gore claimed law enforcement improperly drafted the affidavit. He argued the affidavit suggested a controlled drug purchase had been executed at Gore's residence within seventy-two hours of seeking a search warrant when the purchase occurred seven months prior to the execution of the search warrant. He also contended the omission of the date and time of the alleged criminal activity was in violation of State v. Winborne.3
In response, the State claimed the officers told the magistrate the dates and times of the alleged drug transactions. The State also argued because it was a lengthy investigation, the second drug transaction was a “refresher buy” that would allow the officers to meet the close time and proximity requirementsfor the search warrant. Detective Ard testified at the hearing and corroborated the State's argument. In response to being asked about the omission of the date and time, Detective Ard stated it was common to omit this information to protect informants' identities and testified repeatedly that the magistrate was informed of all the facts, circumstances, and dates surrounding the procurement of the search warrant.
The circuit court denied Gore's motion for an evidentiary hearing pursuant to Franks, finding the affidavit was not false or misleading and was supported by probable cause. Based on the information in the affidavit and the officer's testimony, the circuit court held there was “a fair probability that evidence of a crime would be found on the particular place to be searched.” Because Gore failed to make the requisite preliminary showing, the court determined the first prong of the Franks test was not met and there was no need to evaluate the sufficiency of the remaining portions of the affidavit.
A jury trial was held on January 5, 2012. At trial, the State sought to introduce two photographs of Gore found in the master bedroom. One of the investigating officers, Detective Mark Cooper, identified the photos and stated, “There was [sic] two photos of the defendant, I believe he had some money in his hand or something like that, he squatted down or something.” Defense counsel immediately objected.
Outside the jury's presence, Gore argued the photos were irrelevant and highly prejudicial. In response, the State contended the photographs were relevant to prove Gore was a resident of the house. The circuit court agreed with the State and instructed the jury that the pictures were introduced “only for the purposes of the testimony alleging that they were found on the premises and for no other purposes.” The pictures were introduced into evidence. Detective Cooper testified the pictures were found on the dresser in the master bedroom and the male in the photographs was Gore.
Detective Ard also testified at trial. On the day of Gore's arrest, Detective Ard observed Gore and his girlfriend leave in two separate vehicles from 309 Junco Circle. Detective Ard stated Gore and his girlfriend were unaccompanied when they left the residence and Gore was alone when he was subsequently arrested for an unrelated traffic incident. He stated they maintained visual contact with Gore from the time he departed the residence until he was stopped by police. Detective Ard confirmed that two handguns and a large quantity of cocaine were seized from the residence later that day.
After hearing from other witnesses for the State and Gore, the circuit court charged the jury on trafficking in cocaine in the amount of two hundred to four hundred grams. The jury found Gore guilty as charged. The circuit court sentenced Gore to twenty-five years imprisonment and fined him $100,000. This appeal followed.
1. Did the circuit court err in denying Gore's motion to challenge the veracity of the search warrant affidavit pursuant to Franks v. Delaware ?
2. Did the circuit court err in admitting two photographs of Gore holding large sums of United States currency?
3. Did the circuit court err in failing to charge the jury on the lesser-included offense of simple possession?
Gore first contends the circuit court erred in denying his motion to challenge the veracity of the search warrant pursuant to Franks v. Delaware. Alternatively, even if the circuit court properly denied his motion, Gore contends the search warrant was insufficient to establish probable cause. We disagree.
In Franks v. Delaware, the United States Supreme Court held that the Fourth and Fourteenth Amendments give an accused the right in certain circumstances to challenge the veracity of a search warrant affidavit after the warrant has been issued and executed. State v. Missouri, 337 S.C. 548, 553, 524 S.E.2d 394, 396 (1999). This challenge may be based on false information being included in the search warrant affidavit or exculpatory material being omitted from the affidavit. Id. at 554, 524 S.E.2d at 397.
Franks outlined a two-prong test for challenging the veracity of a search warrant affidavit. Franks, 438 U.S. at 155–56, 98 S.Ct. 2674. First, to mandate an evidentiary hearing, there must be “allegations of deliberate falsehood or of reckless disregard for the truth [as to statements included in the warrant affidavit], and those allegations must be accompanied by an offer of proof.” Id. at 171, 98 S.Ct. 2674. At the hearing, the accused has the burden of proving the allegations of perjury or reckless disregard for the truth by a preponderance of the evidence. Id. at 156, 98 S.Ct. 2674;see State v. Jones, 342 S.C. 121, 127, 536 S.E.2d 675, 678 (2000) ().
Second, if a deliberate falsehood or a reckless disregard for the truth has been established, the court must exclude the false material and consider the remainder of the affidavit to determine if it is sufficient to establish probable cause. State v. Davis, 354 S.C. 348, 360, 580 S.E.2d 778, 784 (Ct.App.2003). If the court determines no probable cause exists after the false material is omitted from the analysis, “the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Id. (citing Franks, 438 U.S. at 155–56, 98 S.Ct. 2674);see Missouri, 337 S.C. at 553–54, 524 S.E.2d at 396–97 ().
In the instant case, Gore challenges the sufficiency of the search warrant affidavit based on: (1) Detective Ard's failure to include a date and time for the first purchase of cocaine at the residence; and (2) Detective Ard's misrepresentation that the first purchase of cocaine occurred within seventy-two hours of the date of the search warrant affidavit.
We agree with Gore's argument that the first allegation in the affidavit improperly omitted the date and time of the drug transaction. The statement reads: “A confidential and reliable informant made a buy for cocaine out of the residence while being recorded and monitored by agents in the area.” This phrase indicates only that a controlled buy was made at the residence on at least one occasion in the past. It gives no indication of how long ago the transaction occurred, which the supreme court in Winborne held is necessary to establish probable cause for a search warrant. See Winborne, 273 S.C. at 64, 254 S.E.2d at 298 ().
This omission, however, does not per se invalidate the...
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