State v. Lane, 20632
| Decision Date | 08 March 1978 |
| Docket Number | No. 20632,20632 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Dennis M. LANE, Appellant. |
Gary D. Brown, Ridgeland and James B. Richardson, Jr., Columbia, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Brian P. Gibbes and Sally G. Young, Columbia, and Sol. Randolph Murdaugh, II, and Asst. Sol. Randolph Murdaugh, III, Hampton, for respondent.
This is an appeal from convictions on two counts of possession of marijuana. The appellant asserts that a package of marijuana was improperly allowed into evidence contending that it was the product of an illegal search. In addition, he claims the evidence does not show such possession as is necessary for conviction of possession of marijuana. We affirm.
On the morning of June 9, 1976, the Beaufort area deliveryman for United Parcel Service (UPS) noticed an odor coming from two packages aboard his delivery van. The packages were addressed to the Shop of Paraphernalia, a retail business in the City of Beaufort.
The Beaufort County Sheriff's Department was contacted and Deputy R. L. Houston, along with two other officers, met the UPS deliveryman at approximately 11:30 that morning. Believing the odor coming from the two packages to be that of marijuana, Deputy Houston directed one of his fellow officers to open the smaller of the two packages. Houston's suspicions were confirmed; the package contained marijuana. The opened package was resealed and, along with the larger package, was left on the van for delivery scheduled that afternoon.
After leaving the UPS deliveryman, Deputy Houston obtained a warrant to search the Shop of Paraphernalia for marijuana.
In accord with previous arrangements, officers, at approximately 4:00 that afternoon, met and followed the UPS deliveryman to the Shop of Paraphernalia. After the deliveryman had delivered the two packages and driven away, officers entered the shop and executed the warrant. The only employee present was directed to open the two packages that had been delivered and it was discovered that the large package (package number two), like the smaller one inspected earlier (package number one), contained marijuana. Both packages were seized.
The owner of the shop, who is the appellant herein, was notified of the seizure and voluntarily submitted himself to arrest. He was subsequently brought to trial on charges of simple possession of marijuana and possession with intent to distribute.
At trial, the judge ruled the package opened on the van inadmissible in evidence as the product of a warrantless search executed in the absence of exigent circumstances. The other package was admitted over objection. The State presented evidence that the appellant had made statements to police to the effect that he could get more marijuana where the seized marijuana came from and that he could set up a "buy" for the police from this same source.
The appellant's first exception relates to the admissibility of package number two into evidence. The trial judge held this package was admissible since it was seized pursuant to warrant. 1 The appellant contends, however, that this second package was a fruit of the warrantless and illegal search of the first package on the delivery van and is, thus, inadmissible under the exclusionary rule, e. g. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920) and its progeny.
For the search and seizure of package number two to be a fruit of the illegal search of package number one, the search warrant, upon which the search and seizure of package number two was predicated, would have had to have been a product of the prior illegal search of package number one. We find that it was not. In making this determination we must ask whether "the warrant is independently supported by probable cause" without relying on the knowledge obtained from the search of package number one. State v. Sachs, 264 S.C. 541, 557, 216 S.E.2d 501, 509 (1975). From the record it is evident that the odor emanating from the packages alone was a sufficient basis to establish probable cause as to their contents when it is considered that an officer of the law, familiar with the odor of marijuana, believed the odor being emitted was that of marijuana. While the knowledge of the contents of the first package increased the probability that marijuana was in the second package, the fact remains that prior probable cause existed independently of the knowledge subsequently gained from an opening of the first package. Probable cause having existed prior to the opening of the first package, the warrant cannot be deemed a product of the illegal...
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