State v. Hammond, No. 20635

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtLITTLEJOHN; LEWIS
Citation270 S.C. 347,242 S.E.2d 411
PartiesThe STATE, Respondent, v. Joe Austin HAMMOND, Jr., Appellant.
Docket NumberNo. 20635
Decision Date13 March 1978

Page 411

242 S.E.2d 411
270 S.C. 347
The STATE, Respondent,
v.
Joe Austin HAMMOND, Jr., Appellant.
No. 20635.
Supreme Court of South Carolina.
March 13, 1978.

Page 413

[270 S.C. 349] Eddie R. Harbin, Greenville, for appellant.

[270 S.C. 350] Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Brian P. Gibbes, Columbia, and Sol. William W. Wilkins, Jr., Greenville, for respondent.

LITTLEJOHN, Justice:

The appellant, Joe Austin Hammond, Jr. (Hammond), was tried and convicted of possession of cocaine with intent to distribute and possession of gambling paraphernalia, in violation of § 32-1510.21, et seq., Code of Laws of South Carolina (1962), as amended, (Supp.1975), and in violation of § 16-515 of the 1962 Code. He appeals.

Hammond charges error on the part of the judge (1) in refusing to suppress evidence seized pursuant to a search warrant on the grounds that it was issued without probable cause; (2) in refusing to find that the arrest and search warrant were executed by officers without proper authority; (3) in permitting evidence of marijuana found on the premises[270 S.C. 351] to be introduced into evidence; (4) in permitting the State to reopen its case and introduce additional evidence after both sides had rested; and (5) in refusing to grant his motion for a directed verdict of acquittal.

On October 11, 1976, Officers Parsons and Chappelle, of the City of Greenville Police Department, appeared before Greenville County Magistrate Max Foster for the purpose of obtaining a search warrant. Based on information contained in Officer Parsons' affidavit relating a tip he had received from a confidential informant, a search warrant was issued for Hammond's residence and vehicles. Hammond's house was located in Greenville County, outside the Greenville city limits. Hammond was arrested that afternoon and a search of his house produced 305.5 grains of cocaine, and gambling paraphernalia.

Prior to trial, Hammond moved to vacate the search warrant, to suppress the use in evidence of all property seized, to hold the arrest illegal, and to produce the informant. The motions were denied and the case proceeded to trial.

Hammond advances two grounds in support of his contention that the issuance of the search warrant was invalid. He maintains, first, that since the place sought to be searched was outside of the city police officer's territorial jurisdiction, Officer Parsons was acting as a private citizen in applying for the search warrant. Since Officer Parsons was acting as a private citizen, rather than a police officer, Hammond argues that he should not have been issued a search warrant based on hearsay information from a confidential informant. He further argues that to uphold such a search warrant would encourage any law enforcement officer to obtain a search warrant outside of his territorial jurisdiction.

No cases are cited, nor have we discovered any, which support Hammond's contention that the search warrant was improvidently granted because the area [270 S.C. 352] to be searched was outside of the applicant's jurisdiction. At the time Officer Parsons applied for the search warrant, he was acting in his official capacity as a peace officer having jurisdiction in the city, which is a portion of Greenville County. The issuing magistrate was empowered by statute to issue search warrants for searches to be conducted in Greenville County. We conclude that the fact that the place to be searched was outside of Officer Parsons' jurisdiction did not, in and of itself, render the search warrant invalid.

Secondly, Hammond argues that the search warrant was invalid because the affidavit upon which it was based failed to contain underlying circumstances necessary to enable the magistrate to judge the validity of the informant's tip. In State v. Williams, 262 S.C. 186, 203 S.E.2d 436 (1974),

Page 414

cert. den., 419 U.S. 835, 95 S.Ct. 61, 42 L.Ed.2d 61 we recognized the test enunciated by the United States Supreme Court for determining probable cause in cases where the affidavit is based solely or substantially upon an informant's tip. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). An affidavit in support of a search warrant, when based entirely on the hearsay information of a confidential informant, must set forth facts which show that the informant is reliable, and the underlying factual circumstances which support the substance of the informant's tip.

The affidavit in the case at bar stated that the affiant "had been approached by a confidential informer who has stated to him that he has seen the use and sale of drugs at the above named location within the last 48 hours." The affidavit further recited that the affiant "has known this informer for a period of three years and this informer has furnished information in the past regarding known drug dealers, which has led to the arrest and conviction of these dealers in a court of law." We are of the opinion that the affidavit satisfied the minimum requirements of Aguilar and [270 S.C. 353] Spinelli, and furnished facts sufficient to establish probable cause. Search warrants based on affidavits substantially identical to the one here have been upheld in the following cases: State v. Singleton, 33 N.C.App. 390, 235 S.E.2d 77 (1977); Torres v. State, 552 S.W.2d 821 (Tex.Cr.App.1977); State v. Albert, 115 Ariz. 354, 565 P.2d 534 (App.1977); State v. Elzie, 343 So.2d 712 (La.1977); People v. Mesa, 14 Cal.3d 466, 121 Cal.Rptr. 473, 535 P.2d 337 (1975).

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35 cases
  • State v. Cosgrove
    • United States
    • Supreme Court of Connecticut
    • 29 July 1980
    ...to execute the warrants were present and assisted." Id., 260. See also State v. Wise, 90 N.M. 659, 661, 567 P.2d 970; State v. Hammond, 270 S.C. 347, 353, 242 S.E.2d 411; Commonwealth v. Kunkel, 408 A.2d 475, 476-77 (Pa.Super.); 68 Am.Jur.2d, Search and Seizure § 108, p. The defendants furt......
  • State v. Humphries, 3380.
    • United States
    • Court of Appeals of South Carolina
    • 6 August 2001
    ...Raffaldt and Burchett, which gave rise to the cocaine transactions, was admissible as a common scheme or plan. See State v. Hammond, 270 S.C. 347, 242 S.E.2d 411 (1978) (possession of marijuana is relevant to 346 S.C. 457 possession with intent to distribute cocaine); State v. Moultrie, 316......
  • Bereano v. State Ethics, 32, September Term, 2007.
    • United States
    • Court of Special Appeals of Maryland
    • 19 March 2008
    ...420 (8th Cir.1962) ("Any rule creating a presumption from failure to produce a witness must be applied with caution."); State v. Hammond, 270 S.C. 347, 242 S.E.2d 411, 416 (1978) ("We therefore hold, notwithstanding the previous rulings of this Court and the substantial authority to the con......
  • Harris v. State, 9, Sept. Term, 2017
    • United States
    • Court of Special Appeals of Maryland
    • 12 April 2018
    ...a missing witness instruction "even in its limited and restricted uses, brings about more problems than solutions." State v. Hammond , 270 S.C. 347, 242 S.E.2d 411, 416 (1978) ; see also Henderson v. State , 367 So.2d 1366, 1368 (Miss. 1979) (adopting rationale of Hammond ).Finally, some st......
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