State v. Owen, 21370
| Decision Date | 13 January 1981 |
| Docket Number | No. 21370,21370 |
| Citation | 275 S.C. 586,274 S.E.2d 510 |
| Court | South Carolina Supreme Court |
| Parties | The STATE, Respondent, v. Edgar Allen OWEN and Charles Edmund Owen, Appellants. |
William B. Long, Jr. of Long, Black & Gaston, Greenville, Bruce E. Pashley, Atlanta, Ga. and James A. Nolan of Madison, Ga., for appellants.
Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Kay G. Crowe, Columbia and Sol. William W. Wilkins, Jr., Greenville, for respondent.
Appellants Edgar Allen Owen and Charles Edmund Owen appeal from their conviction and sentence for possession of marijuana with intent to distribute. Edgar was thereafter sentenced to five (5) years, and Charles received a sentence of twenty (20) years as a third offender. They assign error under eleven (11) exceptions which, it is argued in appellants' brief, pose as many questions for decision. However, we find that the questions which warrant discussion are much less in number.
The basic issue involves the sufficiency of the affidavit to show probable cause for the issuance of the search warrant under which the officers searched the premises of appellant Edgar Owen and seized over one thousand (1000) pounds of marijuana. Appellants contend that the trial judge erroneously denied their pretrial motion to suppress the evidence obtained under the search warrant in question.
The challenged search warrant was issued on the affidavit of a deputy sheriff of Pickens County, South Carolina, and was based partly on information obtained from his investigation and partly on information received by phone from the Sheriff of Oglethorpe County, Georgia, who was investigating the illegal activities of appellants and others. The information given by the Sheriff was based partly upon his investigation and partly from that given to him by a named informant.
Appellants argue that the affidavit upon which the search warrant was issued was insufficient to show that the affiant's informant was reliable and failed to state whether the information was based on personal knowledge, hearsay or supposition.
The principles are well settled that a search warrant may issue only upon a finding of probable cause; and that, in passing upon the validity of the warrant, a reviewing court may consider only information brought to the magistrate's attention, which, in this case, was set forth in the supporting affidavit.
In order to comply with constitutional standards, the affidavit must state sufficient facts to form the basis of a judgment by the issuing officer that probable cause exists. Where the affidavit is based upon an informant's statement, it must set forth facts which show that the informant is reliable and the underlying factual circumstances which support the accuracy of the informant's information. State v. York, 250 S.C. 30, 156 S.E.2d 326; State v. Williams, 262 S.C. 186, 203 S.E.2d 436; State v. Sullivan, 267 S.C. 610, 230 S.E.2d 621; State v. Hammond, 270 S.C. 347, 242 S.E.2d 411. As stated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (as quoted in State v. Williams, supra): "... 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, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed ..., was 'credible' or his information 'reliable'."
The search warrant was issued for the search of property belonging to appellant Edgar Owen, located near Pickens, South Carolina; and the property sought was "marijuana and other related drugs." The reasons set forth in the affidavit for affiants belief that the property sought was on the premises of appellant Edgar Owen, were as follows:
The affiant talked with Sheriff Gene Smith, of Oglethorpe County Ga., on 10-12-79 at 11:30 p. m. Sheriff Smith said he had under arrest one Gerald Owen, brother of Howard Owen, for violation of Ga. Controlled Substance. He stated that he had also talked with Sherman Scott Owen, son of Howard Owen. Sherman Scott Owen stated that his father Howard Owen was driving a U-Haul truck that had a front like a pickup truck, and a big square box shape back, with Florida License AB8 511, and that the truck was loaded with marijuana. Sheriff Smith said that Gerald Owen, Howard Owen, and Charles Berry had loaded the truck with black trash bags, filled with marijuana into the truck. The marijuana, had been packed into the bags with a trash compacter. Sheriff Smith stated that he had confiscated the trash compacter, which had marijuana residue in it. Sheriff Smith stated that Howard Owen was going to Six Mile, S. C. to the residence of Edgar Owen, telephone # 803-868-2902. Further investigation of telephone number shows that it is listed to that residence of Edgar Owen, highway 183 W. of Pickens. Sheriff Smith stated that Howard Owen left Ga. at app. 9:00 PM 10-12-79, and that his office had subjects under surveillance since 10-10-79 app. 5:30 p.m. Further investigation by the affiant shows the said truck to be in the yard of Edgar Owen.
The affidavit shows that affiant's information came partly from the Georgia Sheriff who was conducting an investigation into illegal drug activities in which appellant Edgar Owen was apparently involved. The information given by the Sheriff was sufficient to sustain a reasonable belief that there was marijuana on the premises of appellant Edgar Owen in South Carolina. The Sheriff and his officers had the alleged driver of the truck under surveillance for two days. As a result, he had arrested Gerald Owen, the brother of the alleged truck driver, for violation of Georgia drug laws. The named informer was the son of the alleged driver of the marijuana loaded truck. The loading of the truck and a description of the truck, with license number, was given. The trash compactor, used in packing the marijuana, had been confiscated by the Sheriff and found to contain marijuana residue.
The status of the Sheriff's informer (son of the alleged driver of the marijuana laden truck) showed a capacity and relationship which would prompt belief in his opportunity to know the facts and in the reliability of his...
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