State v. Henderson

Decision Date18 January 2006
Docket Number2006-UP-037
PartiesThe State, Respondent, v. Charles Allen Henderson, Appellant.
CourtSouth Carolina Court of Appeals

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

Submitted December 1, 2005

Appeal From Greenville County James C. Williams, Jr., Circuit Court Judge

Assistant Appellate Defender Aileen P. Clare, 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 David A. Spencer, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM

Charles Henderson appeals his convictions for possession with intent to distribute cocaine in proximity of a school and trafficking in cocaine. Henderson argues the trial court erred by denying his motion to suppress evidence due to a defective search warrant and by using four separate verdict forms. We reverse and remand. [1]

FACTS

Charles Henderson, Kevin Covert, and others were present in Covert's house in Greenville County when police searched it on September 26, 2002. When the officers entered the house they found Henderson in the living room with a coffee grinder containing a white powder substance, small plastic bags of white powered substance, a cutting agent, sifting instruments, and an electronic scale, all in front of him on a coffee table. A cell phone box on the couch next to him contained a large plastic bag of cocaine, weighing 441.50 grams. Cocaine, weighing 22.89 grams, was found on the coffee table. Two smaller quantities of cocaine, weighing 6.47 grams and 1.62 grams, were also recovered. Police also found $1 950 on the floor in front of the couch. Additionally, police found a pistol on a bookshelf. Henderson was the only person in the living room. Covert was found in a bedroom on the other side of the house. A holster for a gun, a 9-mm. magazine, and several dozen rounds of ammunition were found in an adjacent bedroom that belonged to Henderson.

All the individuals in the house were arrested and charged with trafficking in cocaine. However, Henderson and Covert were also charged with possession of a weapon during the commission of a violent crime. Donald Myers and Roger Harris, both charged with trafficking, pled guilty to simple possession and were to receive suspended sentences in exchange for testifying for the State.

At trial, Myers testified he purchased cocaine from Henderson and Covert at the house numerous times. Myers stated his purchases usually amounted to between one hundred and two hundred dollars each for between one and three-quarters grams and three and one-half grams of cocaine. Myers also testified he had seen both Henderson and Covert bagging cocaine. On September 26, Myers was at the house to purchase cocaine from Covert. Harris also testified he had purchased cocaine from Henderson and Covert at their house at least twice a week for the previous two years. Harris stated Henderson sometimes delivered cocaine to his house. Henderson testified that he never sold drugs to Myers or Harris.

Henderson was tried together with his co-defendant, Covert, and convicted of both charges. Henderson was sentenced to concurrent sentences of 25 years for the trafficking charge and 10 years for the distribution charge. Henderson now appeals.

LAW/ANALYSIS
I. Suppression of Evidence

Henderson contends the trial judge erred by denying his motion to suppress evidence and by applying a good faith exception to the statutory warrant requirement because the warrant was defective. We agree.

In criminal cases, an appellate court reviews errors of law only and is bound by factual findings of the trial court unless clearly erroneous. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001). A court's ruling on the admissibility of evidence will not be reversed on appeal absent an abuse of discretion or the commission of legal error that results in prejudice to the defendant.” State v. Adams, 354 S.C. 361, 377, 580 S.E.2d 785, 793 (Ct. App. 2003).

During the trial, Henderson and Covert moved to suppress evidence seized during the search on the basis that although the search was conducted on September 26, 2002, the magistrate's signature is dated September 28, 2002 on the warrant itself. The magistrate's signature and the date of September 26, 2002 only appear on two separate pages of the affidavit. During the trial, Detective Timothy Conroy testified that he did not see the magistrate sign the search warrant on the 26th and that most probably she didn't sign that night and that was brought back to her on some other occasion to sign.” Upon finding the warrant was defective under section 17-13-140 of the South Carolina Code (2003), the trial judge ruled a good faith exception to the Fourth Amendment's exclusionary rule should apply to South Carolina's statutory warrant requirement and denied the motion to suppress all evidence obtained during the September 26 search.

First, we must determine whether the warrant was defective because the signature was dated two days after the search was conducted. Section 17-13-140 of the South Carolina Code (2003) states that a warrant shall be issued only upon affidavit sworn to before the magistrate, municipal judicial officer, or judge of a court of record establishing the grounds for the warrant.” Though the statute does not specifically require that the warrant be signed, it requires that it be issued.” In Davis v. Sanders, 40 S.C. 507, 19 S.E. 138 (1894), [our supreme] court held that the warrant was not ‘issued' as required by law, and conferred no authority on the sheriff to make the arrest, because the magistrate did not sign at the foot as he intended to do, and because he did not intend the indorsement on the back as his signature of the warrant.” Du Bose v. Du Bose, 90 S.C. 87, 90, 72 S.E. 645, 646 (1911). Therefore, a warrant is not issued until signed by an appropriate magistrate, municipal judicial officer, or judge of a court of record. See 77-370 S.C. Op. Att'y Gen. 295 (1977) (stating a warrant is properly issued only when signed by the magistrate and only upon a sworn affidavit). Thus, the warrant in this case was defective because there was no evidence that the magistrate signed the warrant before the search was conducted and the signature on the warrant is dated two days after the search was conducted.

Courts of other states have also held a search warrant must be signed because it is the confirmation that the magistrate determined the facts asserted in the affidavit support a finding of probable cause. [2] In State v. Surowiecki, 440 A.2d 798, 799 (Conn. 1981), the Connecticut Supreme Court held that a warrant is not issued” without a lawful signature on the search warrant by the person authorized to issue it. The court reached this conclusion even though there was no doubt the judge intended to sign the search warrant and failed to do so because of a mere oversight.” Id. at 798. There are also several public policy considerations to support a requirement that the warrant be signed prior to a search: it impresses upon the magistrate the importance of his action in issuing a warrant; it discourages police misconduct by dictating that officers can not reasonably rely on an unsigned document as an authorization for conducting a search and by requiring officers to take corrective measures before they conduct a search; and it provides needed protections and assurances to persons in control of the property to be searched that the search has been authorized. State v. Hentkowski, 397 N.W.2d 255, 258 (Mich. Ct. App. 1986).

Having found the warrant was defective because the signature was dated two days after the search was conducted; we must next determine whether the good faith exception to the Fourth Amendment's exclusionary rule should apply to South Carolina's statutory warrant requirement. The trial judge allowed the introduction of the evidence seized pursuant to a good faith exception as adopted by the United States Supreme Court in United States v. Leon, 468 U.S. 897 (1984). The Leon rule applies when a search warrant is defective on Fourth Amendment grounds. Id. However, in this case, the evidence Henderson sought to have excluded was obtained because of a defective search warrant based on a state statutory violation, not a constitutional violation.

In South Carolina, the statutory warrant requirement is separate and distinct from the prohibition in the federal and state constitutions against unreasonable searches and seizures. S.C. Code Ann. § 17-13-140 (2003); see U.S. Const. amend. IV; S.C. Const. art. I, § 10. In fact, as the South Carolina Supreme Court has recognized, section 17-13-140 of the South Carolina Code actually imposes stricter warrant requirements than the constitutional provisions. See State v. Jones, 342 S.C. 121, 128, 536 S.E.2d 675, 678 (2000). Therefore, the Leon good faith exception is not applicable to this case and we must determine whether there is a good faith exception to the statutory warrant requirement in South Carolina.

In State v. Sachs, 264 S.C. 541, 559, 216 S.E.2d 501 510 (1975), the Supreme Court of South Carolina found a good faith exception permits the introduction of evidence seized pursuant to a warrant that is defective under section 17-13-140 of the South Carolina Code if the officers have made a good faith attempt to comply with the affidavit requirement. In Sachs, the affidavit the officers relied on contained misstated facts; however, the court determined that such misstatements in an affidavit were necessary hazards” encountered when federal and state authorities...

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