State v. Thompson

Citation609 S.E.2d 556,363 S.C. 192
Decision Date31 January 2005
Docket NumberNo. 3937.,3937.
CourtCourt of Appeals of South Carolina
PartiesThe STATE, Respondent, v. Nepolean THOMPSON, III, Appellant.

Trent Neuell Pruett, of Gaffney, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor Harold W. Gowdy, III, of Spartanburg, for Respondent.

KITTREDGE, J.

Nepolean Thompson appeals his convictions for drug related offenses, arguing evidence was seized under an invalid search warrant. The questions presented are (1) whether the warrant sufficiently described the person or things to be seized; (2) whether the warrant was issued based on stale information; and (3) whether the warrant authorized an unreasonable bodily intrusion. We affirm.

FACTS

Officer A.B. Phillips of the Blacksburg Police Department was assigned to the Cherokee County Metro Narcotics Task Force. In 2002, Phillips was investigating possible illegal drug activities involving Thompson. After the investigation had been ongoing for several months, Phillips received a tip from a confidential informant that the informant had seen illegal narcotics in Thompson's possession. Based on this information, Phillips prepared an affidavit and obtained a search warrant from a magistrate. The affidavit read:

Affiant's belief is based upon information received from a confidential reliable informent [sic], who has provided information in the past that has proven true and correct and led to the arrest and conviction of those involved in illegal drug trade. This C.R.I. states that he or she has seen a quantity of crack cocaine on the above described person within the past 72 hours. Affiant's [sic] knows this C.R.I. to know crack cocaine when seen by past information received from C.R.I.

The warrant issued described the permitted search as follows:

Description of Premises (Person, Place or Thing) To Be Searched

One, Napoleon [sic] Thompson III, aka Buster, is to be searched. A black male, DOB 5-29-79, DL number XXXXXXXXXX, HGT 5-10, WGT 145lbs, address 207 E. Seven Springs St., Blacksburg SC. The search will include all clothing, shoes, hats, socks, under garments, jackets, scarfs [sic], bandannas, any vehicle and or any means of transportation that Mr. Napoleon [sic] Thompson III may be traveling in or on, and Mr. Napoleon [sic] Thompsons mouth. The search will also include any types of luggage, small or large in Mr. Thompsons [sic] poss.

Officer Phillips promptly undertook efforts to execute the warrant. The day after the warrant was issued, Phillips received information that Thompson "would be traveling down South Charleston Street [in Blacksburg] with crack cocaine and marijuana in his possession." This information was disseminated to officers in the area, and shortly thereafter, a police officer spotted Thompsons car traveling on South Charleston Street. When Officer Phillips arrived on South Charleston Street, Thompson had parked his car and entered a convenience store. When Thompson returned to his car, he was confronted by the officers. After being informed of the search warrant, Thompson stepped out of his car as instructed by the officers. Thompson then pulled two small plastic bags out of his pocket, threw them in the air, and attempted to flee. Phillips grabbed Thompson before he could get away and detained him.1 The plastic bags Thompson had tossed away were recovered by police and held as evidence. Subsequent analysis revealed the bags contained marijuana and crack cocaine.

Thompson was taken to the police department and searched. The only additional evidence the search produced was $2,654 cash found in Thompsons wallet.

Thompson was charged with possession with intent to distribute crack cocaine and possession with intent to distribute crack cocaine within a half mile of a school. Before trial, Thompson moved to suppress the crack cocaine and the marijuana evidence. Thompson claimed the drug evidence was inadmissible because it was obtained under an invalid search warrant. Specifically, Thompson argued the warrant was void because: (1) the warrant impermissibly permitted the search of Thompsons person and was otherwise overbroad with regard to the places and things it authorized law enforcement to search; (2) the affidavit submitted to obtain the warrant recited stale information insufficient to support a finding of probable cause; and (3) the warrant permitted an unreasonable bodily intrusion or strip search of Thompson. The trial court disagreed and denied the motion. Thompson was ultimately convicted of possession of crack cocaine. This appeal followed.

STANDARD OF REVIEW

In criminal cases, the appellate court sits to review errors of law only. State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001). This court is bound by the trial court's factual findings unless they are clearly erroneous. State v. Quattlebaum, 338 S.C. 441, 452, 527 S.E.2d 105, 111 (2000). A deferential standard of review likewise applies in the context of a Fourth Amendment challenge to a trial court's fact-driven affirmation of probable cause. State v. Brockman, 339 S.C. 57, 65-66, 528 S.E.2d 661, 665-666 (2000) (holding that whether a search violated the parameters of the Fourth Amendment depends upon "a number of antecedent determinations, each of which is inherently fact-specific" and "entails an inquiry into the totality of the circumstances" and the appellate court must affirm if there is "any evidence" to support the ruling). This appeal presents both factual and legal challenges to the rulings of the trial court concerning the search warrant. Following Brockman, we adhere to the "any evidence" standard of review with respect to the factual findings of the trial court.

LAW/ANALYSIS
I.Permissible Scope of Search Authorized Under the Warrant

We first address Thompsons claim the warrant failed to describe with sufficient particularity the person, place, or thing to be searched. Though we conclude there is sufficient evidence to support the trial courts finding that some portions of the warrant are overbroad, we further concur with the trial court and find this fact does not render the entire warrant void or require suppression of the evidence seized in this case.

Under both the United States and South Carolina constitutions, search warrants may not be issued except "upon probable cause, supported by Oath or affirmation," and particularly describing the place to be searched and the persons or things to be seized. U.S. Const. amend. IV; S.C. Const. art. I, 10. Following these constitutional requirements, South Carolina Code section 17-13-140 (2003) requires a search warrant be issued "only upon affidavit sworn to before the magistrate [or other judicial officer]" and only if the magistrate "is satisfied that the grounds for the application exist or that there is probable cause to believe that they exist...." The magistrate issuing the search warrant must "make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In reviewing the validity of a warrant, an appellate court may consider only information brought to the magistrate's attention. State v. Martin, 347 S.C. 522, 527, 556 S.E.2d 706, 709 (Ct.App.2001).

The specific requirement that a search warrant particularly describe the person, place, or thing to be searched "is aimed at preventing general warrants — those authorizing a general, exploratory rummaging in a persons belongings." State v. Williams, 297 S.C. 404, 407, 377 S.E.2d 308, 310 (1989) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). "By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit." Id. (quoting Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987)).

Thompson claims the warrant issued in the present case veers from the particularity requirement in three respects. First, Thompson argues that, by permitting the search of his "person," the warrant granted law enforcement unlimited discretion to search him wherever or whenever they desired. Specifically, Thompson suggests that warrants may only authorize the search of "places" and "things," not individuals. This argument is without merit.

Though not as common as warrants for the search of places, the propriety of warrants authorizing the search of persons is well settled in the law. South Carolina Code section 17-13-140, our state statute governing the issuance and execution of search warrants, clearly authorizes the search of a person. This section provides that "[t]he property described in this section, or any part thereof, may be seized from any place where such property may be located, or from the person, possession or control of any person who shall be found to have such property in his possession or under his control." S.C.Code Ann. 17-13-140 (2003) (emphasis added). Indeed, the United States Supreme Court has held that warrants authorizing the search of a person are constitutional provided that "a search or seizure of a person must be supported by probable cause particularized with respect to that person." Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Thus, there is no basis to conclude the search warrant was invalid because it authorized the search of Thompsons "person."

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