State v. Martin

• Decision Date: 13 November 2001
• Docket Number: No. 3405.,3405.
• Citation: 556 S.E.2d 706,347 S.C. 522
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Jerry MARTIN, Appellant.

347 S.C. 522

556 S.E.2d 706

The STATE, Respondent, v. Jerry MARTIN, Appellant.

No. 3405.

Court of Appeals of South Carolina.

Submitted October 1, 2001.

Decided November 13, 2001.

Rehearing Denied December 20, 2001.

Trent N. Pruett, of Pruett Law Firm, of Gaffney, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan, Assistant Attorney General Toyya Brawley Gray, all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for respondent.

HUFF, J.

Jerry Martin appeals his conviction for possession of marijuana. Martin claims the trial court erred in admitting evidence seized in the execution of a search warrant that he contends lacked sufficient probable cause to support issuance. He further contends the trial court erred in allowing the admission of his prior drug offenses and in allowing the solicitor to cross-examine him as to his marijuana use. We affirm in part, reverse in part, and remand.

FACTUAL/PROCEDURAL BACKGROUND

Based on information from a confidential informant, the Gaffney City Police Department executed a search warrant on Martin's home on February 4, 1999. One of the police officers found marijuana in Martin's pants pocket. Martin went to trial on January 18, 2000. At trial, he sought to suppress the marijuana seized, asserting a deficiency in the search warrant affidavit as to the informant's credibility and reliability. He further sought to exclude evidence of his prior convictions pursuant to Rule 609, SCRE, as well as evidence of his prior drug use. The trial judge ruled against Martin on all three issues, and Martin was convicted of possession of marijuana and sentenced to one year imprisonment.

LAW/ANALYSIS

I. Validity of Search Warrant

Martin argues the trial judge erred in denying his motion to suppress evidence obtained as a result of the February 4, 1999 search. Specifically, Martin asserts the search warrant affidavit was insufficient on its face to establish probable cause inasmuch as it failed to establish the credibility or reliability of the confidential informant. He further contends the affidavit was not properly supplemented by sworn oral testimony. We disagree.

At the hearing on the motion to suppress, Detective Sergeant Billy Gene Odom of the Gaffney City Police Department testified he appeared before Magistrate Robert B. Howell on February 1, 1999, and presented an affidavit to obtain a search warrant for Martin's residence. The affidavit provided, in pertinent part, as follows:

REASON FOR AFFIANT'S BELIEF THAT THE PROPERTY SOUGHT IS ON THE SUBJECT PREMISES

Affiant's belief is based upon information received from a Confidential Reliable Informant who has provided information in the past that has proven true and correct. This C.R.I. states that he/she has seen a quantity of marijuana at the above described location within the past 72 hours.

Affiant knows this C.R.I. to know marijuana when seen by past information received from this C.R.I.

A search warrant may be issued only upon a finding of probable cause. State v. Bellamy, 336 S.C. 140, 143, 519 S.E.2d 347, 348 (1999). Great deference must be given to a magistrate's conclusions as to whether probable cause exists to issue a search warrant. State v. Weston, 329 S.C. 287, 290, 494 S.E.2d 801, 802 (1997). Nonetheless, the magistrate may issue the warrant "only upon affidavit sworn to before the magistrate ... establishing the grounds for the warrant." S.C.Code Ann. § 17-13-140 (1985).

"[A] warrant based solely on information provided by a confidential informant must contain information supporting the credibility of the informant and the basis of his knowledge." State v. 192 Coin-Operated Video Game Machines, 338 S.C. 176, 192, 525 S.E.2d 872, 881 (2000). In determining the validity of the warrant, a reviewing court may consider only information brought to the magistrate's attention. State v. Owen, 275 S.C. 586, 588, 274 S.E.2d 510, 511 (1981).

A "totality of the circumstances" test is applicable in determining whether sufficient probable cause exists to issue a search warrant:

The task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Bellamy, 336 S.C. at 143,519 S.E.2d at 348 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). "Under the `totality of the circumstances' test, a reviewing court considers all circumstances, including the status, the basis of knowledge, and the veracity of the informant, when determining whether or not probable cause existed to issue a search warrant." State v. Jones, 342 S.C. 121, 128, 536 S.E.2d 675, 679 (2000). "[A] deficiency in one of the elements [of veracity and reliability] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Bellamy, 336 S.C. at 144,519 S.E.2d at 349.

Here, the magistrate had a substantial basis for concluding marijuana would be discovered in a search of appellant's home. The affidavit advised the magistrate that the confidential informant previously provided Odom with true and correct information, thus establishing the informant's veracity and reliability. The affidavit also specifically set forth the informant's firsthand knowledge of the marijuana in Martin's home, as well as indicated the affiant knew the informant to know marijuana, based on information previously received from the informant. Although Martin correctly notes the affidavit does not specify what reliable information the informant had provided in the past, and the affidavit does not indicate the informant's prior information had led to arrests or convictions, the affidavit does specifically indicate the informant's past information proved to be true.¹ We therefore conclude, under the totality of the circumstances test, the affidavit provided the magistrate with information sufficient to make a probable cause determination.

Assuming, however, the search warrant affidavit was insufficient on its face to establish probable cause, we nonetheless find the affidavit was properly supplemented by sworn oral testimony. See State v. Jones, 342 S.C. 121, 128, 536 S.E.2d 675, 678-679 (2000)

("Oral testimony may also be used in this state to supplement search warrant affidavits which are facially insufficient to establish probable cause."). The record indicates Detective Odom provided the magistrate with oral testimony as to the reliability and veracity of the confidential informant. Detective Odom testified that whenever he appears before Magistrate Howell to obtain a search warrant based on information from an informant, the magistrate has the practice of asking a certain group of questions, including whether the police have used the informant before and, if so, whether use of the informant was successful. He also asks when drugs were last seen in, or purchased from, the particular residence. He further testified this informant had gone to the residence on two occasions to make a controlled buy while wearing a wire, the first time being a week prior to issuance of the search warrant and the second time within seventy-two hours before signing of the search warrant. Detective Odom knew the informant was able to identify marijuana, in part, because when he sent the informant in on a controlled buy, the informant brought back marijuana. His response to Magistrate Howell's questions would have been to state that, within the past seventy-two hours, marijuana had been seen and purchased from the residence.

Magistrate Howell confirmed he asks four standard questions whenever a police officer presents a search warrant for his signature: (1) whether the police have used the informant before; (2) whether use of the informant has been productive in the past; (3) when narcotics were last seen in the residence; and (4) when a purchase of narcotics was last made at the residence. Although neither Detective Odom nor Magistrate Howell was able to recall the specifics of Odom's appearance before the magistrate in this specific case, Magistrate Howell stated he would not have signed the search warrant had he not been satisfied with Detective Odom's answers to his four standard questions. He further stated he asks those "same four questions on every search warrant" he executes, and he could state with "absolute certainty" that he did so on this particular occasion.

Based on our review of the record, we are convinced the sworn oral testimony before the magistrate sufficiently supplemented the search warrant affidavit to establish any deficiency that might exist in the affidavit as to the veracity and reliability of the informant. Accordingly, we find no error in the admission of the evidence seized pursuant to the search warrant.

II. Evidence of Prior Convictions

Martin next asserts the trial court erred in ruling evidence of his prior convictions could be used to impeach his testimony because the court failed to properly weigh the probative value of his prior convictions against the prejudicial effect of the evidence. We agree.

Under Rule 609(a)(1), SCRE, evidence that an accused has been convicted of a crime, which was punishable by death or imprisonment in excess of one year, is admissible for impeachment if the court determines the probative value of admitting this evidence outweighs its prejudicial effect to the accused. The party attempting to introduce the prior conviction for impeachment purposes has the initial burden of establishing the basis for its admission. State v. Scriven, 339 S.C. 333, 340, 529 S.E.2d 71, 74 (Ct.App.2000). Rule 609(a)(1) requires the trial...