State v. Missouri

• Decision Date: 06 December 1999
• Docket Number: No. 25031.,25031.
• Parties: The STATE, Petitioner, v. Victor Wyatt MISSOURI, Respondent.
• Court: South Carolina Supreme Court

337 S.C. 548

524 S.E.2d 394

The STATE, Petitioner, v. Victor Wyatt MISSOURI, Respondent.

No. 25031.

Supreme Court of South Carolina.

Heard June 9, 1999.

Decided December 6, 1999.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Robert M. Ariail of Greenville, for petitioner.

Chief Attorney Daniel T. Stacey, of South Carolina Office of Appellate Defense, of Columbia, for respondent.

TOAL, Justice:

In this criminal case, this Court granted certiorari to review the Court of Appeals' unpublished opinion in State v. Missouri, 97-UP-448 (Ct.App.1997). We affirm.

FACTUAL/PROCEDURAL BACKGROUND

During January and February 1995, Greenville detectives were investigating a crack cocaine ring with the help of a confidential informant. On February 3, 1995, the police obtained a search warrant to search the home of Laura and Curtis Sibert a/k/a "Hot Sauce" for cocaine. The lead detective, Eric Cureton, submitted an affidavit in support of the search warrant. The affidavit states, in part:

Your affiant [Eric Cureton] states that on January 25, 1995 he received information from investigator Sam C. Cureton of the Greenville County Sheriffs Office pertaining to Victor Wyatt Missouri. The information that was relayed to your affiant that Missouri was involved in the manufacture and distribution of crack cocaine. The following is a chronological chain of events leading to your affiants [sic] belief that Victor Wyatt Missouri, and others not yet identified, are manufacturing and distributing crack cocaine....

The confidential source of information, who from here forward will be referred to as CSI, stated that for the past two months he has purchased a total of two kilograms of cocaine from Victor Missouri. He would receive this in half kilo quantities every two weeks.

On January 31, 1995 CSI stated that he had talked with Missouri and another subject who is only known as "Hot Sauce." During this conversation Missouri and "Hot Sauce" stated that they were going to Atlanta, Georgia on February 1, 1995 and obtain four kilos of powder cocaine. This cocaine would then be delivered to Greenville, South Carolina and cooked into crack cocaine. On February 1, 1995 this same CSI went by "Hot Sauce's" apartment at 400 Summit Drive apartment 5-D, Summit Place Apartments. During a conversation with "Hot Sauce" CSI was told that he had not been able to leave for the trip to Atlanta, that they had some things to get together beforehand. During this same conversation CSI told "Hot Sauce" the he wanted to purchase from him a half of a kilo. "Hot Sauce" told CSI that it would cost him around $13,000.00 for the half kilo. CSI told "Hot Sauce" to call him when he left for Atlanta. On February 2, 1995 at 4:00 in the afternoon, CSI went to Missouri's residence at 126 Sycamore Drive in the City of Greenville, South Carolina. At the residence was Missouri and "Hot Sauce." "Hot Sauce" told CSI that he was leaving for Atlanta around 4:30 and would return around midnight that same night. "Hot Sauce" told CSI that he would page him as soon as he got back in town.

On February 3, 1995, at 4:00 in the morning, Missouri called CSI and told him that "Hot Sauce" was back and they needed somewhere to cook the crack. He said he couldn't cook it at his (Missouri) house because he had relatives there. CSI told him he would give him an answer later and he ultimately told him no. Around 9:00 this same morning CSI paged "Hot Sauce" via his digital pager. "Hot Sauce" returned the call and told CSI they were still trying to get it together. At 10:15 another page was made to "Hot Sauce" with the same results. At 2:00 in the afternoon the CSI drove to "Hot Sauce's" apartment at 400 Summit Drive and went in to inquire about his portion of the cocaine. Your affiant wired the CSI with a body transmitter that would enable your affiant to monitor the conversations he had while inside this apartment. Your affiant, while monitoring the audio transmitter, heard a male voice, whom CSI later stated was "Hot Sauce", question CSI about the phone that had been used earlier trying to set the transaction up. This male appeared to be somewhat reserved about talking with CSI about the cocaine. CSI told your affiant that "Hot Sauce" did appear to be nervous about the deal they were trying to make. "Hot Sauce" told CSI that he had the crack but he would call him when it was right.

While officers of the Vice and Narcotics Bureau were surveilling 400 Summit Drive, Apartment 5-D on February 3, 1995, it was determined that Missouri, "Hot Sauce" and others who have not been identified, were in the apartment. Around 5:00 a black male and black female left the apartment in a white dodge van.... The van then traveled to Parkersway Foods at Worley Road and Rutherford Road. The female again went inside. After the female left Detective Sergeant T.D. Christy interviewed the clerk and he stated that the black female had purchased 5 boxes of Arm & Hammer baking soda. The van then traveled back to apartment 5-D and the female took a grocery bag into the apartment. She returned to the van and they left again. The surveillance on the van was terminated at this time. Your affiant, through training, experience and working with other experienced investigators, believes that Victor Wyatt Missouri, "Hot Sauce" and others yet unknown are manufacturing crack cocaine inside of apartment 5-D Summit Place Apartments, 400 Summit Drive in the City of Greenville, South Carolina.

When the police executed the search warrant, officers found Missouri in the kitchen standing over a sink, facing a set of triple beam scales. Inside the sink was a quantity of cooked, crack cocaine. Missouri was arrested for trafficking in crack cocaine. At his trial, Missouri moved to suppress the evidence obtained in the search. Missouri argued the affidavit supporting the search warrant contained false information and further omitted critical, exculpatory information. The trial court denied the motion to suppress. In an unpublished opinion, the Court of Appeals reversed the trial court, holding that the omitted information was necessary for the magistrate's finding of probable cause. See State v. Missouri, 97-UP-448 (Ct.App. 1997). Judge Hearn dissented in a separate opinion. This Court granted certiorari to address the following issue: Did the Court of Appeals err in applying the test articulated by Franks v. Delaware¹ for considering a challenge to the veracity of a search warrant affidavit?

LAW/ANALYSIS

The State argues that the Court of Appeals improperly applied the Franks test in deciding whether the magistrate had probable cause to issue the search warrant. We disagree.

At the suppression hearing, Officer Cureton testified that the following sentence in the warrant affidavit was in fact a false statement: "`Hot Sauce' told CSI that he had the crack but he would call him when it was right." Officer Cureton stated that Curtis Sibert a/k/a "Hot Sauce" never told his informant there was crack in Hot Sauce's apartment. Further on cross-examination, Officer Cureton testified that his informant had gone into Hot Sauce's house at about 3:00 p.m. on February 3, and the informant was told that Missouri had the "stuff," but it was not there. The informant then left the residence and returned at about 4:00 p.m. after Missouri had returned to the house. A "wire" had been placed on the informant's body to enable the police to listen to the conversations. After the informant left Hot Sauce's house, he approached Officer Cureton and told him, "It's not there. It's not there." In addition, Hot Sauce had earlier told the informant that he did not want to cook the cocaine at his house because his wife was trying to go straight. This information was not provided to the magistrate in the supporting affidavit. The trial judge concluded that even with this information, the magistrate would have had a substantial basis upon which to find probable cause for issuing the warrant.

In Franks v. Delaware, the United States Supreme Court held that the Fourth and Fourteenth Amendments gave a defendant the right in certain circumstances to challenge the veracity of a warrant affidavit after the warrant had been issued and executed.² To summarize, the Court provided the following two-part test:

(1) To mandate an evidentiary hearing, the challengers' attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof; and

(2) If these requirements are met, and if, when material that is subject of the alleged falsity or recklessness disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required.

Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684, 57 L.Ed.2d at 682.

Franks addressed an act of commission in which false information had been included in the warrant affidavit. However, the Franks test also applies to acts of omission in which exculpatory material is left out of the affidavit. See, e.g., United States v. Colkley, 899 F.2d 297 (4th Cir.1990)

; United States v. Vazquez, 605 F.2d 1269 (2d Cir.1979). To be entitled to a Franks hearing for an alleged omission, the challenger must make a preliminary showing that the information in question was omitted with the intent to make, or in reckless disregard of whether it made, the affidavit misleading to the issuing judge.³ There will be no Franks violation if the affidavit, including the omitted data, still contains sufficient information to establish probable cause. See Colkley, supra.

The instant case involves both an act of commission and an act of omission by Officer...