State v. Hill

• Decision Date: 10 November 1964
• Docket Number: No. 18274,18274
• Citation: 245 S.C. 76,138 S.E.2d 829
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Henrietta HILL, Appellant.

Page 829

138 S.E.2d 829

245 S.C. 76

The STATE, Respondent, v. Henrietta HILL, Appellant.

No. 18274.

Supreme Court of South Carolina.

Nov. 10, 1964.

Bolt & Bowen, Greenville, for appellant.

Solicitor C. Victor Pyle, H. F. Partee, Greenville, for respondent.

BUSSEY, Justice.

The appellant was indicted, convicted and sentenced on a count charging her with possession of unlawful alcoholic liquor, from which conviction and sentence she appeals. The only evidence against the defendant, sufficient to support a conviction, was obtained by virtue of a search warrant, issued solely on the basis of the following affidavit:

'PERSONALLY comes J. L. Tabor who being sworn, says that he is informed by Informer and has good reasons to believe The occupants of 303 Haynie Street has concealed on his or her premises, or in his, her dwelling or in a motor vehicle used by him or her at Has a quantity of illegal whiskey.

'Sworn to and subscribed before me this day of March 27, 1962

J. L. Tabor (L.S.)

John O. Jester

Judge Municipal Court-Recorder'

(The italicized portions of the above instrument were handwritten and the remainder thereof was a printed form.)

The principal issue involved on appeal is the contention of the appellant that the search warrant was issued in violation of Article I, Section 16 of the Constitution of South Carolina, as well as the Fourth Amendment to the Constitution of the United States, and not issued in conformity with Sections 4-414 and 4-415 of the 1962 Code of Laws of South Carolina with the result that the search warrant was a nullity, and therefore the conviction should be reversed on authority of the decision of the United States Supreme Court in the case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, 84 A.L.R.2d 933.

The Fourth Amendment to the United States Constitution is identical with Article I, Section 16 of the Constitution of South Carolina, which reads as follows:

'Searches and seizures.--The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.'

Section 4-414 of the 1962 Code provides how search warrants may be issued and executed to search premises for contraband liquor, and Section 4-415 of the Code is as follows:

'Affidavits for search warrants to set forth sources of information.--Whenever in this Title it is provided that a search warrant shall issue upon an affidavit based on information and belief the affidavit shall contain a statement setting forth the sources of information and the facts and grounds of belief upon which the affiant bases his belief.'

By timely motions in the course of the trial, appellant challenged the validity of the search warrant on several grounds. The only ground which we think it here necessary to discuss is the contention that the affidavit did not comply with Code Section 4-415 in that the affiant did not disclose his 'source of information.' To quote from argument of appellant's counsel in the course of the trial, 'to say 'an informer' is giving no information at all' as to the source of information.

The trial judge ruled against the appellant on this point on the narrow ground that the court would take judicial notice that a substantial part of police effort in criminal detection is generated by information afforded by informers, and to require that the names of such informers appear on all search and arrest warrants would have a decidedly adverse and uncontemplated effect on law enforcement. In this ruling we think his honor was in error. We agree with him that to require the names of such informers to appear on all search warrants would have a decidedly adverse effect on law enforcement. We, moreover do not mean to hold that the mere failure to identify or name an informant in an affidavit, made in whole or in part on information and belief, to procure a search warrant, necessarily vitiates the search warrant.

To the contrary, we are of the opinion that an affidavit can very well sufficiently comply with the statutory provision as to affiant's source of information without identifying an informer or informers.

In this connection we call attention to the decision of the United States Supreme Court in the case of Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, which deals at some length with the rule which accords to informers the 'privilege' to remain anonymous the reasons for the rule, and the limitations thereupon.

The question here is simply whether the particular affidavit under consideration sufficiently complied with the statute as to the affiant's source of information, the affidavit being made strictly on information and belief. Since the affidavit disclosed no source of information other than an unidentified informer, it follows that it contained no fact or facts as to the source of affiant's information and belief, for the judicious consideration of the...