State v. Viard, 21414

Citation276 S.E.2d 531,276 S.C. 147
Decision Date23 March 1981
Docket NumberNo. 21414,21414
PartiesThe STATE, Appellant, v. William VIARD, Sr., and Bonnie Cox Viard, Respondents.
CourtUnited States State Supreme Court of South Carolina

Atty. Gen. Daniel R. McLeod, Asst. Attys. Gen. Buford S. Mabry and B. J. Willoughby and Staff Atty. E. Bart Daniel, Columbia, for appellant.

Paul N. Uricchio, Jr., Paul N. Uricchio, III, and Alan D. Toporek, Uricchio, Howe & Krell, Charleston, for respondents.

PER CURIAM:

This is a search and seizure case. A confidential informant made a controlled buy of drugs at the residence of respondents, William Viard, Sr., and Bonnie Cox Viard. The residence was searched, pursuant to a warrant, and a quantity of drugs seized. Respondents moved for and were granted a motion to suppress the drugs. We reverse.

The trial judge held the affidavit supporting the search warrant did not contain information about the informant's reliability and failed to set forth sufficient underlying facts to enable the magistrate to make an independent finding of probable cause. The State asserts a common-sense interpretation of the affidavit as a whole overcomes any alleged deficiency. See: U. S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); State v. Sullivan, 267 S.C. 610, 230 S.E.2d 621 (1976).

A reviewing court should accord deference to the magistrate's determination of probable cause. State v. Sullivan, supra. Doubtful or marginal cases should be resolved in favor of upholding the warrant. Ventresca, 85 S.Ct. at 746; State v. Bennett, 256 S.C. 234, 182 S.E.2d 291 (1971).

In determining the sufficiency of the affidavit, the applicable standard is the tests set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); and U. S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

Spinelli addresses the special problem the criminal informant presents. It is necessary to establish the reliability of the informant and the reliability of the information on the particular occasion. See 54 Cornell Law Review 958 (1969). The corroborating information can be hearsay, U. S. v. Meyer, 536 F.2d 963, 965 (1st Cir. 1976); State v. Beal, 40 Wis.2d 607, 162 N.W.2d 640 (1968), and can represent the police officer's own investigative survey. U. S. v. Stallings, 413 F.2d 200 (7th Cir. 1969). Affidavits must be judged on the facts presented and not on the precise wording used. U. S. v. Harris, supra; 7 Criminal Law Bulletin 726.

These cases hold that an affidavit based upon information supplied by a confidential informant (1) must describe some of the underlying circumstances necessary to enable a neutral and detached magistrate to judge the validity of the informant's conclusion the drugs are where he claimed they were and (2) must describe some of the underlying circumstances from which the magistrate can determine the affiant-officer's unnamed informant was "credible" or his information "reliable."

Although reliability may be established by the informant having previously supplied accurate information, this is not the exclusive means by which credibility may be shown. Reliability can also be established by the independent verification of the information, prior to the search. See: State v. Camargo, 23 Ariz.App. 47, 530 P.2d 893 (1975); State v. Bullard, 267 N.C. 599, 148 S.E.2d 565 (1966).

Here, the warrant must be upheld not on the basis of the past credibility of the informant, but upon the independent verification of facts by the affiant. The information...

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10 cases
  • State v. Dupree
    • United States
    • Court of Appeals of South Carolina
    • June 30, 2003
    ...tip to greater weight than might otherwise be the case. Gates, 462 U.S. at 233-34, 103 S.Ct. 2317 (citations omitted). State v. Viard, 276 S.C. 147, 276 S.E.2d 531 (1981), although decided under the more stringent pre-Gates standard, is instructive. In Viard, a confidential informant made a......
  • State v. Bowie, 3835.
    • United States
    • Court of Appeals of South Carolina
    • June 28, 2004
    ...S.C. at 683,583 S.E.2d at 441. Affidavits must be judged on the facts presented and not on the precise wording used. State v. Viard, 276 S.C. 147, 276 S.E.2d 531 (1981). Our task is to decide whether the magistrate had a substantial basis for concluding probable cause existed. State v. Adol......
  • State v. 192 COIN-OP. VIDEO GAME MACH., 25061.
    • United States
    • United States State Supreme Court of South Carolina
    • February 7, 2000
    ......have consistently recognized the value of corroboration of details of an informant's tip by independent police work."); see also State v. Viard, 276 S.C. 147, 150, 276 S.E.2d 531, 532 (1981) (upholding a warrant based on the independent verification by the affiant of an informant's tip). . ......
  • State v. Burney, 22803
    • United States
    • United States State Supreme Court of South Carolina
    • October 6, 1987
    ...(1986); State v. Stroman, 281 S.C. 508, 316 S.E.2d 395 (1984); State v. Sullivan, 277 S.C. 35, 282 S.E.2d 838 (1981); State v. Viard, 276 S.C. 147, 276 S.E.2d 531 (1981); and Ellis v. State, 267 S.C. 257, 227 S.E.2d 304 AFFIRMED. NESS, C.J., and GREGORY, HARWELL and FINNEY, JJ., concur. ...
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