State v. McRae, 19146

• Decision Date: 11 January 1971
• Docket Number: No. 19146,19146
• Citation: 178 S.E.2d 666,255 S.C. 287
• Parties: The STATE, Respondent, v. Gene McRAE, Appellant.
• Court: South Carolina Supreme Court

Page 666

178 S.E.2d 666

255 S.C. 287

The STATE, Respondent, v. Gene McRAE, Appellant.

No. 19146.

Supreme Court of South Carolina.

Jan. 11, 1971.

Samuel J. Abrams, Stanley W. Applebaum, Sumter, for appellant.

Atty. Gen., Daniel R. McLeod, Asst. Attys. Gen., Emmet H. Clair, John P. Wilson, Columbia, Sol., R. Kirk McLeod, Sumter, for respondent.

LITTLEJOHN, Justice:

The defendant, Gene McRae, appeals from his conviction of housebreaking, safecracking, and larceny. We affirm that conviction.

The questions raised on this appeal concern the search of a red Pontiac automobile and the seizure by police officers of recently stolen goods from the car; it is the contention of appellant that the goods were wrongfully seized and should not have been admitted in evidence.

The facts leading to appellant's conviction may be summarized as follows:

Around three o'clock A.M., February 7, 1968, James Nettles' food store was broken into. The store's safe was cracked and about $5000 in money was stolen along with a shotgun and a pistol.

Shortly before that, a woman driving a red Pontiac had lured the store's night watchman away from his post under the pretense of getting some coffee with her. After she brought him back to the store he discovered that the store had been entered, the safe opened, and property taken.

At about the same time as the watchman's discovery, a red Pontiac with Florida license plate was spotted near Nettles' store by Sheriff's Deputy Player. The car had run into a ditch and Deputy Player called a wrecker to pull it out. After the wrecker had pulled the car out of the ditch, and as the deputy was passing back by Nettles' store the night watchman stopped him and reported the breaking, entering and theft. Player called in the Florida license tag number of the red Pontiac to a dispatcher, along with a description of the woman.

The sheriff of Sumter County was called by the dispatcher and left his home to investigate. While proceeding to Sumter the sheriff met a red Pontiac leaving town. He turned around, and followed the car to verify the license number received, and then stopped it.

The appellant McRae and another man were in the car with the woman when it was stopped. The woman was arrested on the scene and all three were searched and taken to the sheriff's office along with the Pontiac. A pistol was found in the woman's handbag.

Mr. Nettles was called. He identified the pistol taken from the woman's handbag as the pistol stolen from his store. Thereafter a search warrant for the automobile was obtained from the local magistrate. Officers searched the car and found two pasteboard boxes containing a total of $4,976.00 in currency and change stolen from the Nettles store. Thereupon appellant was arrested and charged with housebraking, safecracking, and larceny.

At trial appellant's counsel objected to the introduction of the seized money into evidence on the ground that it was the fruit of an illegal search and seizure. He contended that the affidavit upon which the warrant was issued was insufficient and that probable cause was not shown the magistrate to justify his action. The judge allowed the evidence. Appellant offered no evidence and was convicted.

We must first determine whether the affidavit upon which the search warrant was based established probable cause.

In this issue appellant relies on our cases of State v. York, 250 S.C. 30, 156 S.E.2d 326 (1967), and State v. Hill, 245 S.C. 76, 138 S.E.2d 829 (1964). In Hill we said:

'We think it elementary that the determination of whether or not there is probable cause must be made by the officer empowered to issue the search warrant, and not by a police officer or other individual who seeks the warrant.'

In York, our court held that:

'The judicial officer was not enlightened as to the facts and circumstances which engendered the sheriff's belief that illegal drugs would be found on Hattie York's premises. Without such facts, he could not form a responsible judgment as to the existence of probable cause. Since the affidavit was thus deficient, the search warrant lacked the support required by the relevant constitutional and statutory provisions and was a nullity.'

Appellant urges that the following statement from the United States States Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) is dispositive:

'* * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were * * *.'

Appellant is correct in concluding that these quotations fairly set out the minimum legal requirements for the issuance of a search warrant based on an affidavit. This analysis, however, does not dictate the result sought by appellant because the facts in the case at bar are inapposite to those in Hill, York, and Aguilar.

The affidavit upon which the warrant was issued met the constitutional requirements of Aguilar; it reads:

'PERSONALLY appeared before me C. M. Brown, who, being duly sworn, deposes and says that: He has been informed and does believe that there is concealed and stored in a red 2-door Pontiac Lemans, Florida 1968 License No. 2E4352 in the County of Sumter, State of South Carolina, money in currency and coins in excess of $5,000.00, a Foy double barrell shot gun and burglary tools.

'That such information was given to the affiant by T. L. McJunkin who has been known to the affiant for a period...