HUFF, J.
Alphonso Chaves Thompson appeals from his trafficking in cocaine, possession of a weapon during the commission of a violent crime, and possession with intent to distribute marijuana convictions. Thompson contends the trial court erred in (1) denying his motion to suppress all evidence found as the result of an illegal search, (2) denying his motion to suppress his confession, and (3) denying his motion for a directed verdict on the charge of possession of a weapon during the commission of a violent crime. We affirm.
Following issuance of a search warrant for 120 River Street
Thompson moved to suppress all of the evidence obtained as a result of the search warrant, which included the marijuana, cocaine, and weapons recovered from the warrant, as well as his confession. Thompson argued the affidavit in support of the search warrant included stale information and conclusory
Upon submission of the case to the jury, Thompson was found guilty on all charges. The trial court then sentenced him to concurrent sentences of twenty-five years on the trafficking charge, five years on the weapons charge, and five years on the possession with intent to distribute charge.
On May 13, 2010, Investigator Chris Raymond, with the Spartanburg County Sheriff's Office, executed an affidavit setting forth the following information in support of issuance of a search warrant for 120 River Street:
On appeal, Thompson contends the trial court erred in denying his motion to suppress all of the evidence found as a result of the illegal search of 120 River Street. In particular, he argues the affidavit failed to demonstrate veracity and basis of knowledge of the numerous individuals providing information for the warrant, it failed to provide a sufficient link to the River Street home to provide probable cause that drugs would be found at the property, and all the relevant information in the affidavit was stale. Accordingly, he maintains the affidavit in support of the search warrant does not pass the "totality of the circumstances test" to show a substantial basis for the issuing judge to conclude probable cause existed. We disagree.
Both the United States Constitution and the South Carolina Constitution provide a safeguard against unlawful searches and seizures, guaranteeing "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures," and avowing no warrants shall issue except upon probable cause, supported by oath or affirmation, "and particularly describing the place to be searched," as well as the persons or things to be seized. U.S. Const. amend. IV; S.C. Const. art. I, § 10. South Carolina allows issuance of a search warrant "only upon affidavit sworn to before the magistrate, municipal judicial officer, or judge of a court of record establishing the grounds for the warrant." S.C.Code Ann. § 17-13-140 (2014). "Evidence
A search warrant may issue only upon a finding of probable cause, and it is the duty of the reviewing court to ensure the issuing judge had a substantial basis upon which to conclude that probable cause existed. State v. Baccus, 367 S.C. 41, 50, 625 S.E.2d 216, 221 (2006). "[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
Id. at 235, 103 S.Ct. 2317.
"A warrant is supported by probable cause if, given the totality of 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." State v. Kinloch, 410 S.C. 612, 617, 767 S.E.2d 153, 155 (2014). Under the "totality of the circumstances" test,
State v. Johnson, 302 S.C. 243, 247, 395 S.E.2d 167, 169 (1990) (quoting Gates, 462 U.S. at 238-39, 103 S.Ct. 2317). The duty of a court reviewing a determination of probable cause for a search warrant is to ensure the issuing judge had a substantial basis for concluding that probable cause existed. State v. Bellamy, 336 S.C. 140, 144, 519 S.E.2d 347, 349 (1999). "The
In Johnson, our supreme court found an affidavit defective because "it [did] not set forth any information as to the reliability of the informant nor was the information corroborated." 302 S.C. at 247, 395 S.E.2d at 169. If an affidavit fails to include
Id. at 248, 395 S.E.2d at 169 (citation omitted). However, an informant's veracity or reliability and his basis of knowledge should not "be construed as entirely separate and independent requirements to be rigidly exacted in every case." Bellamy, 336 S.C. at 143, 519 S.E.2d at 348-49. Rather, they are closely intertwined elements and relevant considerations in the totality-of-the-circumstances analysis, and "a deficiency in one of the elements may be compensated for . . . by a strong showing as to the other, or by some other indicia of reliability." Id. at 143-44, 519 S.E.2d at 349. Further, the failure to specifically include past reliability and/or basis of knowledge of an individual providing information is not always fatal to a search warrant affidavit. Our courts have determined "non-confidential informants and eyewitnesses have more credibility than confidential informants." State v. Jones, 342 S.C. 121, 128, 536 S.E.2d 675, 679 (2000). "[E]vidence of past reliability is not usually required when information is provided by an eyewitness because, unlike the paid informer, the eyewitness does not ordinarily have the opportunity to establish a record of previous reliability." State v. Driggers, 322 S.C. 506, 510, 473 S.E.2d 57, 59 (Ct.App.1996). "[A] non-confidential informant should be given a higher level of credibility because he exposes himself to public view and to possible criminal and civil liability should the information he supplied prove to be false." Id. at 511, 473 S.E.2d at 60. Additionally, an informant may be considered reliable "if he possesse[s] a special relationship and capacity to gain knowledge that should
"In order for an affidavit in support of a search warrant to show probable cause, it must state facts so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at that time." State v. Winborne, 273 S.C. 62, 64, 254 S.E.2d 297, 298 (1979) (internal quotation marks omitted). "Whether averments in an affidavit are sufficiently timely to establish probable cause depends on the particular circumstances of the case." State v. Beckham, 334 S.C. 302, 316, 513 S.E.2d 606, 613 (1999) (internal quotation marks omitted).
The affidavit in support of the search warrant in this case can be summarized as providing the following pertinent information:
1. In June 2007, two unnamed informants indicated Thompson had been supplying them with large amounts of cocaine.
2. In August 2007 and September 2008, two named individuals, Keith Jeter and Fred Meadows, stated Thompson was supplying them with cocaine, noting Thompson would deliver the cocaine to their homes.
3. In late 2008, another unnamed informant stated Thompson was a large scale cocaine trafficker and that Thompson had "a residence at the end of River St."
4. In January 2009, two unnamed informants stated they had purchased eighteen ounces of cocaine from Thompson, identifying Thompson in a photo line-up.
5. On February 11, 2009, a named individual, Jose Luis Diaz-Arroyo, who had been arrested with a kilo of cocaine, stated that his brother-in-law was supplying Thompson and that his brother-in-law had multiple kilos of cocaine delivered to Thompson at the River Street address "on several different occasions."
6. On July 30, 2009, another unnamed informant stated he was being supplied by a cousin to Thompson who was getting cocaine from Thompson. The unnamed informant made a controlled buy from the cousin by taking the cousin $4,000. The cousin left the location and was followed to the home of
7. In the six months preceding the affidavit, surveillance had been conducted on 120 River Street, and Thompson was observed on several occasions driving different vehicles to and from this location.
8. In the six months preceding the affidavit, investigators "witnessed Thompson visit this River Street address just before making cocaine deliveries throughout Spartanburg."
9. On May 11, 2010, after investigators purchased cocaine from a named individual, Arthur Jones, Jones began cooperating with authorities, informing them he was buying his cocaine from Thompson and that Thompson would front him about nine ounces of cocaine a month. On May 11, 2010, Jones placed a recorded call to Thompson stating he was ready to "re-up, and Thompson agreed to come by." On May 12, 2010, Jones received a phone call from Thompson asking if the individual was going to be home, and within an hour from the call Thompson arrived at Jones's home. Inside the home, Jones handed Thompson $9,000 in recorded funds and Thompson stated he would "bring the package in the morning," which Jones knew to mean Thompson would bring him cocaine. Investigators were inside Jones's home watching the money transaction take place, and the transaction was video and audio recorded.
We agree with Thompson that the affidavit fails to set forth information as to the veracity, reliability or basis of knowledge of several of the informants referenced. However, even disregarding all of the information supplied by the unnamed informants, there is substantial other evidence from named and/or eyewitness informants contained in the affidavit, and the affidavit includes information which is sufficiently closely related in time to the issuance of the search warrant so as to justify a finding of probable cause.
As to the information that, in August 2007 and September 2008, Thompson was supplying two of the informants with cocaine and delivered the cocaine to their homes, the affidavit specifically provides the names of these two individuals, Keith
Based upon the above, a review of the matter convinces us that, under the totality of the circumstances set forth in the affidavit, the issuing judge had before him information supporting a fair probability that contraband or evidence of a crime would be found at 120 River Street, and the judge therefore had a substantial basis upon which to conclude that probable cause existed for issuance of the search warrant.
Thompson also made an in limine motion to suppress his statement to police. In a Jackson v. Denno
On appeal, Thompson contends his confession should have been suppressed because (1) it flowed from an illegal arrest and (2) it was coerced. We find no error.
First, Thompson argues his arrest was unsupported by probable cause because the affidavit in support of his arrest was deficient.
This argument is clearly not preserved for our review. In order to be preserved for appellate review, an issue must have been raised to and ruled upon by the trial
Thompson also contends his confession was improperly coerced and, because it was obtained under duress, it should have been suppressed. We disagree.
A "confession may not be extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of improper influence." State v. Rochester, 301 S.C. 196, 200, 391 S.E.2d 244, 246 (1990) (alteration in original) (internal quotation marks omitted). A police threat to arrest family members unless a defendant confesses to a crime could render the defendant's confession involuntary if it in fact occurred. State v. McClure, 312 S.C. 369, 371, 440 S.E.2d 404, 405 (Ct.App. 1994). However, the question of the voluntariness of such a confession can come down to a question of credibility, which may be resolved by the trial court in favor of the officers. Id. at 371-72, 440 S.E.2d at 405-06. "On appeal, the conclusion of the trial [court] on issues of fact as to the voluntariness of a confession will not be disturbed unless so manifestly erroneous as to show an abuse of discretion." Rochester, 301 S.C. at 200, 391 S.E.2d at 247. "When reviewing a trial court's ruling concerning voluntariness, [the appellate court] does not reevaluate the facts based on its own view of the preponderance of the evidence, but simply determines whether the trial court's
Here, though Thompson testified he was threatened with the arrest of his parents if he did not confess to ownership of the drugs, Investigator Raymond denied any promises or threats were made to Thompson and particularly denied threatening that Thompson's parents would go to jail. As in McClure, the issue boils down to one of credibility. Accordingly, based upon the record before us, there is evidence to support the trial court's ruling and we find no error.
At trial, the State presented evidence that, along with cocaine located in the detached garage and marijuana located in both the house and in the detached garage, numerous weapons were found during the search of the house at 120 River Street, including an Intratec 9mm pistol. A trace on the pistol showed it was purchased by Thompson on November 17, 2000, at a pawn shop. The police had no documentation linking Thompson to any of the other weapons. One of the bags of marijuana found in the house was located in the same bedroom as the pistol that was registered to Thompson.
Following the presentation of evidence by the State, Thompson moved for a directed verdict with respect to the weapons charge, asserting the State failed to present evidence (1) he constructively possessed any of the weapons found in the home or (2) that he was engaged in a violent crime. The solicitor argued one of the firearms found there was registered to Thompson. The trial court found there was some evidence tending to establish the elements of the crime and, therefore, denied the motion. After Thompson testified in his own defense and rested his case, he renewed his motion for a directed verdict as to the weapons charge, arguing his testimony showed the only weapon linked to him was given by Thompson to his father. He maintained the State failed to meet its burden of (1) linking him to any weapons found and (2) showing he was "guilty in any way of a violent crime." The trial court again denied the motion.
On appeal, Thompson argues his weapons conviction should be reversed because the State (1) failed to prove he constructively
Thompson argues, of the various weapons introduced by the State that had been found at the River Street home, the State only attempted to link the 9mm pistol to him, and the State's witnesses conceded he was not present when the pistol was found and he did not reside at the home. He further notes, although he initially testified the pistol that was purchased ten years earlier was his, he explained he had given this gun to his father. Thus, he maintains there was no direct or circumstantial evidence to show he constructively possessed any weapon found at the River Street home, and the trial court therefore erred in denying his motion for directed verdict on the weapons charge. We disagree.
"When reviewing a denial of a directed verdict, [an appellate court] views the evidence and all reasonable inferences in the light most favorable to the state." State v. Weston, 367 S.C. 279, 292, 625 S.E.2d 641, 648 (2006). "If there is any direct evidence or any substantial circumstantial evidence reasonably tending to prove the guilt of the accused, the [appellate court] must find the case was properly submitted to the jury." Id. at 292-93, 625 S.E.2d at 648.
In State v. Halyard, 274 S.C. 397, 264 S.E.2d 841 (1980), "the South Carolina Supreme Court resolved the issue of whether a person not in actual possession of a firearm could nevertheless be convicted for possession of the firearm." State v. Jennings, 335 S.C. 82, 86, 515 S.E.2d 107, 109 (Ct.App.1999). In Halyard, the court held, "[t]o prove constructive possession [of an item], the State must show a defendant had dominion and control, or the right to exercise dominion and control over the [item]." 274 S.C. at 400, 264 S.E.2d at 842. "Constructive possession may be established through either direct or circumstantial evidence, and possession may be shared." Jennings, 335 S.C. at 87, 515 S.E.2d at 109.
Thompson also argues, even if the State presented sufficient evidence that he constructively possessed a firearm, it failed to provide a sufficient nexus between any firearm and any violent crime. Citing Whitesides, Thompson contends the State failed to show any firearm was accessible to him, that he ever let anyone know he carried a weapon, or that any weapon ever provided him with a defense against potential robbers. We find this argument is not properly preserved.
As noted, in order to be preserved for appellate review, a matter must have been raised to and ruled upon by the trial court, and arguments which have not been raised to and ruled upon by the trial court will not be considered on appeal. Dunbar, 356 S.C. at 142, 587 S.E.2d at 693-94. Though "[a] party need not use the exact name of a legal doctrine in order to preserve it, but it must be clear that the argument has been presented on that ground." Id. at 142, 587 S.E.2d at 694. Further, "[a] party may not argue one ground at trial and an alternate ground on appeal." Id.
While Thompson's argument on appeal as to constructive possession is properly preserved for our review, his appellate argument concerning the State's failure to show a nexus to a violent crime is not. At most, trial counsel argued the State failed to present evidence Thompson committed a violent crime. Thus, Thompson never asserted to the trial court, as he does on appeal, that the State was required to show a nexus between a violent crime and his actual or constructive possession of a firearm during its commission.
Based upon the foregoing, we affirm the trial court's denial of Thompson's motion to suppress all the evidence, finding under the totality of the circumstances the search warrant affidavit set forth facts from which the issuing judge could conclude there was a fair probability that drugs would be
WILLIAMS, J., concurs.
FEW, C.J., dissenting.
I agree with the majority the trial court correctly admitted Thompson's confession into evidence and denied his motion for a directed verdict on the weapons charge. I also agree with the circuit judge who issued the warrants—and the trial court—the officers had probable cause to search Thompson's residence, his business, and his girlfriend's residence, and to arrest Thompson on drug charges. I do not agree, however, the officers had probable cause to search the River Street home. On this point, I respectfully dissent. Because the vast majority of the drugs for which Thompson was convicted were seized from the River Street home, I would find the error of denying his motion to suppress that evidence prejudiced Thompson, and I would reverse his convictions.
I begin my analysis by emphasizing two important categories of facts. The first relates to the locations where all of this took place. The River Street home is Thompson's parents' home—not Thompson's. It is located in downtown Spartanburg. Thompson lived in Fountain Inn, in a different county. Thompson's girlfriend—whose home was also searched—lived approximately seven miles from the River Street home. Thompson's business—which was searched—was located in Boiling Springs, also miles from the River Street home.
The second category relates to timing. The affidavit submitted in support of the warrant to search the River Street home shows Thompson engaged in extensive drug-related activity from at least June 2007 through July 30, 2009, much of which is directly connected to the River Street home. The affidavit also shows Thompson was engaged in drug-related activity on May 11 and 12, 2010. However, the affidavit—dated May 13, 2010—contains no specific facts showing any connection between Thompson's drug-related activity and the
While the affidavit contains extensive and specific evidence of Thompson's drug-related activity over a long period of time, these non-specific references to Thompson's activity at the River Street home after February 2009 do not provide a substantial basis to support a finding of probable cause that evidence of his crimes would be found at River Street in May 2010. See State v. Kinloch, 410 S.C. 612, 617, 767 S.E.2d 153, 155 (2014) (stating "circuit court judges must determine whether the issuing magistrate had a substantial basis upon which to conclude that probable cause existed"); see also United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir.1993) ("In determining whether a search warrant is supported by probable cause, the crucial element is not whether the target of the search is suspected of a crime, but whether it is reasonable to believe that the items to be seized will be found in the place to be searched.").
In fact, the specific detail in the affidavit of Thompson's activities before July 2009 and during May 2010 compared with the conclusory descriptions of his activities in the interim has the opposite effect of supporting probable cause. The statements that officers "on several occasions ha[ve] seen Thompson driving different vehicles . . . to and from" River Street and "Investigators have witnessed Thompson visit . . . 120 River St[reet] . . . just before making cocaine deliveries" are representations that officers saw these events, and thus demonstrate the officers had access to the same level of detail the affidavit contains of other events. This comparison raises serious questions as to why that specific detail is lacking for the fifteen months immediately preceding the search. Importantly, the circuit judge who signed the search warrant did not
The officers clearly believed there was a connection between Thompson's drug-related activities and the River Street home. In retrospect, they were correct. The Fourth Amendment, however, does not permit officers to make the decision that probable cause exists to support a search warrant—that decision must be made by the judge who issues the warrant. Otherwise, "`the inferences from the facts which lead to the complaint' will be drawn not `by a neutral and detached magistrate,' as the Constitution requires, but instead, by a police officer `engaged in the often competitive enterprise of ferreting out crime.'" State v. Johnson, 302 S.C. 243, 248, 395 S.E.2d 167, 169 (1990) (quoting Aguilar v. Texas, 378 U.S. 108, 115, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964)).
In my opinion, this affidavit did not provide the judge with a substantial basis for a finding of probable cause that evidence of Thompson's drug-related activity would be found at River Street. I respectfully dissent.