US v. Clyburn

• Citation: 806 F. Supp. 1247
• Decision Date: 04 December 1992
• Docket Number: Crim. No. 3:92-302-17.
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES of America, v. Charles E. CLYBURN and Samuel T. Scott, Defendants.

806 F. Supp. 1247

UNITED STATES of America, v. Charles E. CLYBURN and Samuel T. Scott, Defendants.

Crim. No. 3:92-302-17.

United States District Court, D. South Carolina, Columbia Division.

December 4, 1992.

Robert C. Jendron, Jr., Terry L. Wooten, Asst. U.S. Attys., Columbia, S.C., for U.S.

Thomas R. Dyson, Washington, D.C., John H. Whittleton, Sr., Columbia, S.C., for Charles E. Clyburn.

Parks N. Small, Federal Public Defender, Columbia, S.C., for Samuel T. Scott.

ORDER

JOSEPH F. ANDERSON, Jr., District Judge.

Charles E. Clyburn and Samuel T. Scott were charged in a seven count indictment with assorted violations of federal drug laws.¹ This matter is before the court on the motion of the defendants to suppress evidence on the grounds that such evidence was seized pursuant to an illegal search and seizure in violation of both the Fourth Amendment of the United States Constitution and Article 1 § 10 of the South Carolina Constitution. Specifically, the defendants argue that the state magistrate who issued the warrant improperly considered sworn oral testimony to bolster the search warrant affidavit, which was itself insufficient on its face to establish probable cause. Furthermore, defendants argue that the government cannot rely on the good faith exception to the exclusionary rule for two reasons: (1) police reliance on the search warrant was unreasonable; and (2) the magistrate who issued the warrant was not neutral and detached. A hearing on the motion was conducted on September 24, 1992. The court heard testimony from Sergeant Anthony Dennis, the officer who obtained the warrant in question, and Sumter County Magistrate William Sanders, the magistrate who issued it. For the reasons set forth below, the defendants' motion to suppress is denied.

The salient facts are not in dispute. A confidential informant contacted Sergeant Dennis, a narcotics officer with the Sumter County Police Department and advised him that Clyburn was selling illegal drugs. In addition, the informant advised Sergeant Dennis that he/she knew Clyburn personally and could make a drug purchase from him. At this time, the informant was incarcerated on shoplifting charges. Therefore, it was necessary for the informant to be released on bond so that he/she could cooperate with the Clyburn investigation. Accordingly, Sergeant Dennis contacted Magistrate Sanders who arranged for the informant to be released on bond. On April 23, 1992, the informant made a controlled purchase² of crack cocaine from Clyburn at his residence.

The next day, April 24, 1992, Sergeant Dennis prepared a search warrant for Clyburn's residence at 105 South Guignard Drive. Later that same day, Sergeant Dennis met with Magistrate Sanders to have the warrant approved. The affidavit itself was meager.³ Much of the information relayed by Sergeant Dennis to Magistrate Sanders was not in the affidavit.⁴ Magistrate Sanders placed Sergeant Dennis under oath regarding the facts that Dennis recited orally. Based on the information contained in the affidavit and the oral information regarding the controlled purchase, Magistrate Sanders concluded that probable cause existed for issuing the search warrant authorizing the search of Clyburn's residence.

Additionally, after the issuance of the warrant on April 24, 1992, and before the execution of the warrant on May 1, 1992, the informant made two additional controlled purchases from Clyburn at his residence.

The court finds that it was not inconsistent with the Fourth Amendment for the magistrate to consider sworn oral testimony in determining whether there was probable cause to issue the Clyburn search warrant. To date, the Fourth Circuit Court of Appeals has yet to directly decide this issue. However, a majority of circuit courts addressing the issue have held it constitutionally permissible for a magistrate to consider sworn oral testimony, in addition to information provided in the affidavit, in determining the existence of probable cause to support a search warrant. See United States v. Hill, 500 F.2d 315, 321 (5th Cir.1974) ("The constitution does not mandate that a sworn statement in support of an application for a search warrant be reduced to writing."); United States ex rel. Gaugler v. Brierley, 477 F.2d 516, 522 (3rd Cir.1973) ("The Fourth Amendment does not require that a sworn statement in support of an application for a search warrant must sic be reduced to writing."); Boyer v. Arizona, 455 F.2d 804, 806 (9th Cir.1972) ("In determining probable cause for the issuance of a state warrant in Arizona, magistrates may consider not only the written affidavit but also any oral testimony given to them under oath by the affiant officer."); Frazier v. Roberts, 441 F.2d 1224, 1226 (8th Cir.1971) ("The Fourth Amendment permits the warrant-issuing magistrate to consider sworn oral testimony supplementing a duly executed affidavit to determine whether there is probable cause upon which to issue a search warrant."); United States ex rel. Pugach v. Mancusi, 310 F.Supp. 691, 704 (S.D.N.Y.1970), aff'd, 441 F.2d 1073 (2d Cir.), cert. denied, 404 U.S. 849, 92 S.Ct. 156, 30 L.Ed.2d 88 (1971) ("A showing of probable cause is all that the language or spirit of the Fourth Amendment requires, regardless of whether written or oral, part of an affidavit or other document, recorded or not.").

Equally unavailing is the defendants' contention that the South Carolina Constitution requires exclusion of the evidence. A magistrate is free under the South Carolina Constitution to consider unrecorded sworn oral testimony in determining whether probable cause exists to support a search warrant. Responding to a challenge under both state and federal constitutions the South Carolina Supreme Court recently stated that, "a search warrant which is itself insufficient to establish probable cause may be supplemented before the magistrate by sworn oral testimony." State v. McKnight, 291 S.C. 110, 352 S.E.2d 471, 472 (1987) (citing State v. White, 275 S.C. 500, 272 S.E.2d 800 (1980); State v. Sachs, 264 S.C. 541, 216 S.E.2d 501 (1975)); see also State v. Crane, 296 S.C. 336, 372 S.E.2d 587, 588 (1988).

Although the court has determined that the procedures employed by Sergeant Dennis do not violate the federal or state constitutions, the court feels compelled to note that the preferred course of action is to include in the affidavit all information provided to the judicial officer who issues the warrant. If officers routinely rely on oral testimony to supplement an affidavit, difficult factual issues will inevitably be presented to reviewing courts, which will then be required to make probable cause determinations based on faded memories. Such a practice is to be discouraged.

Having discerned no constitutional violation arising out of the magistrate's consideration of matters outside of the affidavit, the court now turns its attention to the question of whether probable cause was shown.

Probable cause did exist to support the search warrant of Clyburn's residence considering the information contained in the affidavit together with the sworn oral testimony provided by Sergeant Dennis. Currently, the Supreme Court employs a totality of the circumstances approach to determine whether probable cause exists to support the issuance of a search warrant as mandated by the Fourth Amendment. Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527 (1983). In explaining the totality of the circumstances approach, the Gates Court stressed the "practical, nontechnical" common sense nature of the test. Id. at 231-232, 103 S.Ct. at 2328-29. The Supreme Court also stated that, "a magistrate's `determination of probable cause should be paid great deference by reviewing courts.'" Id. at 236, 103 S.Ct. at 2331 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637 (1969)). In Gates, the Court abandoned the rigid two-pronged test espoused in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), under which both the informant's reliability and his basis for the knowledge had to be shown independently to establish probable cause. Gates, 462 U.S. at 233, 103 S.Ct. at 2329. Although the informer's veracity and basis of knowledge remain highly relevant factors under the Gates formula, these two factors should not be accorded independent status and instead "are better understood as relevant considerations in the totality-of-the-circumstances analysis ... therefore a deficiency in one factor may be compensated for, in determining the reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability." Id.

Applying the Gates test, the information provided to Magistrate Sanders was sufficient to establish probable cause. Although the informant's reliability was questionable since he/she had been incarcerated on shoplifting charges and had a reputation in the community for being untrustworthy,⁵ the basis of the informant's knowledge was highly reliable. The informant first gave details of Clyburn's drug activities and later personally purchased illegal narcotics from Clyburn. As stated in Gates, "even if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing along with a statement that the event was observed firsthand, entitles his tip to greater weight...." Id. at 234, 103 S.Ct. at 2330.

Moreover, Sergeant Dennis substantially corroborated the informant's tip through the successful completion of a controlled purchase which overcomes any deficiency in the informant's reliability. See Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959) (officer's corroboration of the defendant's physical attributes, clothing, and mannerisms sufficient to establish probable cause); see also United States v. Miller, 925 F.2d 695, 699 (4th Cir.1991) (Powell, J., sitting by designation) ...