State v. Sachs

Decision Date27 May 1975
Docket NumberNo. 20019,20019
Citation264 S.C. 541,216 S.E.2d 501
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. John Ian SACHS, Appellant.

Belser, Belser, Baker, Barwick & Toal, Columbia, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Robert M. Ariail, Staff Atty. Richard P. Wilson, and Sol. John W. Foard, Columbia, for respondent.

NESS, Acting Associate Justice:

This is an appeal from convictions of possession with intent to distribute a quantity of hashish, possession of a quantity of amphetamines, and possession of a barbiturate. The salient facts involving this case of international drug trafficking follow.

A package mailed from a location in West Germany addressed to Susan Sachs, sister of appellant, Percival Road, Columbia, containing approximately one kilogram of hashish was intercepted and examined by United States Customs agents at the Port of New York. Thereafter, on September 7 1972, the package was forwarded to the Post Office in Columbia. Claude McDonald, a special agent for the U.S. Customs, Treasury Department, met with Columbia Postal officials and local law enforcement authorities at the Columbia Post Office. The box was again opened and a chemical analysis revealed the contents to be hashish. The package was delivered to Miss Sachs' apartment later that day in the ordinary course of mail service. When Miss Sachs arrived home, she carried the package inside. Approximately one hour later, agent McDonald, accompanied by local authorities, entered Miss Sachs' apartment pursuant to a federal search warrant. The package was discovered but it remained unopened. Miss Sachs protested her innocence of any involvement with the package, remonstrating that her brother, the appellant, had told he was expecting a package from Germany. Based on the fact that the package was unopened and the conversation, she was not placed under arrest, but was requested to assist by delivering the package to appellant. She consented.

The appellant, Sachs was residing at the residence of Mr. and Mrs. William Chandler, 1932 Pendleton Street, Columbia. Miss Sachs with agent McDonald and local officers drove by the Pendleton Street address so that they would be able to adequately describe the residence for a search warrant. They proceeded to the federal courthouse where a warrant was issued by the United States Magistrate. A state warrant was also obtained by state authorities from a ministerial recorder. Miss Sachs made an abortive attempt to deliver the package at about nine that night, but no one was home. Approximately two hours later she delivered the package and fifteen minutes thereafter, a search by federal, state and local officials ensued. Evidence essential to the convictions was uncovered during the search.

Appellant has challenged the sufficiency of the state search warrant on numerous grounds, any of which, if sustained, would invalidate the search under such authority. We consider these objections seriatim.

The state warrant was issued by a ministerial recorder of the City of Columbia. Appellant advances the argument that, although the city was authorized to appoint only one ministerial recorder, numerous ones were appointed. Since the person in controversy was neither the first nor the last, his appointment is a nullity. Act Number 161, Acts and Joint Resolutions (1965) provides for ministerial recorders. It speaks of 'a ministerial recorder' and 'the person' elected.

Does this restrict the appointment to a single ministerial recorder? The question of the proper construction of this language has been resolved by § 30--203 of the South Carolina Code (1962). It states inter alia 'The words 'person' and 'party' and any other word importing the singular number used in any act or joint resolution shall be held to include the plural . . .' As a matter of convenience the General Assembly, when enacting legislation dealing with appointments, does not encumber the Code with 'person or persons' or 'recorder or recorders'. Furthermore, the obvious intent was to make available recorders to issue warrants when appropriate. It is inconceivable that one person for each city would fulfill this objective. 1

Another attack upon the statutory authority of the ministerial recorder is directed to § 15--922 which grants the ministerial recorder the following power; 'to issue summonses, subpoenas, arrest warrants and search warrants in all cases arising under the ordinances of the municipality in which the office is created and in criminal cases as are now conferred by law upon magistrates . . .' Appellant argues that the reference to magistrates deals with the authority of magistrates to try cases. The entire provision is concerned with the issuance of summons and warrants. We should not assume that the reference to magistrates was cryptically dealing with their trial jurisdiction. Offenses within the limited trial jurisdiction of magistrates seldom require search warrants. It would require a strained interpretation of the statute to find that the legislature was restricting the ministerial recorders' authority to the cases a magistrate might try. The obvious intent, to provide for proper persons to pass upon warrant requests for general criminal offenses, would be thwarted by such a narrow construction.

Appellant further argues that § 17--271, the general statute authorizing warrants, does not specifically include a ministerial recorder as an issuing authority. Nevertheless, the concluding sentence of that Section states: 'This section is not intended to and does not either modify or limit any statute or other law regulating search, seizure, and the issuance and execution of search warrants in circumstances for which special provision is made.' Additionally, the Section merely confers authority; it does not prohibit other authorization. Hence, appellant's position is unavailing.

Did the issuance of the warrant contravene the state and federal constitutional requirement that the warrant be issued by a neutral and detached magistrate? The most well known recent case discussing this requirement is Coolidge v. New Hampshire, 403 U.S. 443, 91A S.Ct. 2022, 29 L.Ed.2d 564 (1971). In Coolidge, the attorney general, the chief prosecutorial officer of the state, issued a search warrant. This was held invalid because 'prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations--the 'competitive enterprise' that must rightly engage their single-minded attention.' Id. p. 2029--30. Further, the fact that a neutral magistrate would have found probable cause on the same set of circumstances would not cure an otherwise defective warrant. The security of one's privacy--the core of the warrant requirement--is protected against arbitrary decisions by the police by interposing a neutral magistrate between the request for a warrant and execution.

Recently the Supreme Court has applied this rationale to a factual setting similar to the instant case. In Shadwick v. City of Tampa, 407 U.S. 345, 92A S.Ct. 2119, 32 L.Ed.2d 783 (1972) the court considered whether a municipal court clerk, appointed by the city clerk, an official of the executive arm of government, could issue warrants. In upholding the warrant, the court indicated the neutrality requirement was satisfied so long as there was 'no connection with any law enforcement activity or authority which would distort the independent judgment the Fourth Amendment requires.' Id. p. 2123.

In the only reported federal case interpreting this pronouncement, the question was whether a commanding officer, an executive as opposed to a judicial official, could issue warrants. In holding that he could, the court observed: 'To be sure, he is responsible for the maintenance of order and discipline within his command. This does not mean that he is partial, prejudiced and biased. There is no reason to suppose that he would be less willing than a magistrate that there be a fair and just administration of the law.' Wallis v. O'Kier, 491 F.2d 1323 (10th Cir. 1974). See also United States ex rel. Gaugler v. Brierley, 477 F.2d 516 (3rd Cir. 1973); United States v. Steed, 465 F.2d 1310 (9th Cir. 1972); Albitez v. Beto, 465 F.2d 954 (5th Cir. 1972).

The nucleus of the neutrality requirement is that the issuing officer not be functioning in a capacity charged with the duty of investigating or prosecuting crimes. Appellant contends that this ministerial recorder fails to pass the neutrality test for two reasons. First, his office, due to inadequate space, was co-located with the violations bureau of the police department where fines were collected. That this did not influence the ministerial recorder is illustrated by the facts surrounding the issuance. He questioned the affiant, a police detective, for ten to fifteen minutes. This took place in the seclusion of the Clerk of Court's office. 2 The ministerial recorder conscientiously adhered to his judicial duties.

Secondly, appellant insists that the ministerial recorder's duties as a probation officer conflict with the neutrality requirement. The testimony revealed that as a probation officer he was directly responsible to the municipal court judge. 3 As such, he was a quasi-judicial official. His duties were exclusively post conviction, the thrust of being rehabilitative. In no way was he entangled with the 'competitive enterprise of ferreting out crime.' 4 Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

Appellant has attempted to distinguish Shadwick in that the authority of the clerk in that case was for narrowly defined offenses. Nevertheless, that factor would not diminish the neutrality requirement. Whether a search is for a felony or misdemeanor, the intrusion of privacy is potentially the same. Coolidge, supra, identified this as the core of the warrant requirement. 5

Accordingly, the ministerial recorder fully qualified...

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