Davis Adv. Sh. No. 35
In The Supreme Court
The State, Respondent,
Kelvin Weston, Appellant.
Appeal From Richland County
Joseph A. Wilson, II, Judge
Opinion No. 24724
Heard October 9, 1997 - Filed December 15, 1997
REVERSED AND REMANDED
Assistant Appellate Defender Robert M. Pachak, of
South Carolina Office of Appellate Defense, of
Columbia, for appellant.
Attorney General Charles Molony Condon,
Assistant Deputy Attorney General Donald J.
Zelenka, Assistant Attorney General John P.
Riordan, all of Columbia, for respondent.
TOAL, A.J.: Appellant Kelvin Weston was convicted of murder
and armed robbery. On appeal, Weston challenges the validity of a search
warrant and argues that the evidence seized pursuant to such search warrant
should have been suppressed at trial. We reverse and remand for a new
On August 31, 1994, Addie Lee Scott Argoe left her residence at 2224
Manse Street at around 7:00 p.m., locking both locks of her front door.
James G. Alford lived with Argoe and remained in the house after Argoe left.
When Argoe returned at 8:45 p.m., she found the front door ajar and Alford
lying face down on the floor. Alford's pants' pockets were pulled out and
money was missing from his wallet. The police later concluded that Alford
had been shot and killed with a .25 caliber bullet.
On September 16, 1994, Claude Crumlin provided police with a written
statement concerning an incident which occurred on March 18, 1994.
Crumlin claimed that Kelvin Weston had attempted to rob him at gun point.
Based on Crumlin's statement, warrants were issued on September 16, 1994,
for Weston's arrest.
In the early afternoon of September 19, 1994, police went to a Chevron
Station on Main Street to seize Weston's 1978 Datsun. After towing the
Datsun to the City Police Department, police obtained a search warrant from
a ministerial recorder to search its contents. Police stated in the search
warrant that they were searching for property related to the Crumlin crime.
The affidavit supporting the search warrant provided:
The search was conducted on September 19, at 2:59 p.m. During the search,
police discovered a box of .25 caliber bullets. Police forwarded the bullets to
the FBI for elemental composition analysis. An FBI agent would later testify
at trial that the elemental composition of the .25 caliber bullets found in
Weston's Datsun matched the elemental composition of the .25 caliber bullet
which killed Alford.
On November 13-16, 1995, Weston was tried for the murder and armed
robbery of Alford. He was found guilty on both charges and sentenced to life
imprisonment for murder and thirty years for armed robbery.
Weston appeals, raising, inter alia, the following issue:
Did the trial court err in refusing to suppress ammunition seized from
Weston's car because the affidavit underlying the search warrant was
insufficient to support a finding of probable cause?
A search warrant may issue only upon a finding of probable cause.
State v. Owen, 275 S.C. 586, 274 S.E.2d 510 (1981). Under S.C. Code Ann.
§ 17-13-140 (1985), a search warrant may be issued "only upon affidavit
sworn to before the magistrate ... establishing the grounds for the warrant."
A search warrant that is insufficient in itself to establish probable cause may
be supplemented by sworn oral testimony. State v. Johnson, 302 S.C. 243,
395 S.E.2d 167 (1990). A reviewing court should give great deference to a
magistrate's determination of probable cause. State v. Crane, 296 S.C. 336,
372 S.E.2d 587 (1988).
Weston argues that the affidavit underlying the search warrant in this
case was insufficient to support a finding of probable cause. We agree.
In Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527
(1983), the United States Supreme Court rejected the application of a rigid
two-pronged test in which an informant's veracity and basis of knowledge
were considered as separate and independent requirements to finding
probable cause. Instead, the Court adopted a totality of the circumstances
test where veracity and basis of knowledge were relevant to, but not
inflexible requirements of, a determination of probable cause:
Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L. Ed. 2d at 548; accord State
v. Johnson, 302 S.C. 243, 395 S.E.2d 167 (1990); State v. Williams, 297 S.C.
404, 377 S.E.2d 308 (1989). Under this formula, veracity and basis of
knowledge are treated "as closely intertwined issues that may usefully
illuminate the commonsense, practical question whether there is 'probable
cause' to believe that contraband or evidence is located in a particular place."
Gates, 462 U.S. at 230, 103 S. Ct. at 2328, 76 L. Ed. 2d at 543. "[T]he duty
of a reviewing court is simply to ensure that "the magistrate had a
'substantial basis' for ... conclud[ing] that probable cause existed." Id. at
238-39, 103 S. Ct. at 2332, 76 L. Ed. 2d at 548.
Since Gates, we have found in only two cases that an affidavit was
insufficient to establish probable cause. In State v. Smith, 301 S.C. 371, 392
S.E.2d 182 (1990), this Court considered an affidavit which read:
We held that the affidavit was defective because it "set forth no facts as to
why police believed Smith robbed the Master Host Inn." Smith, 301 S.C. at
373, 392 S.E.2d at 183. We stated, "Mere conclusory statements which give
the magistrate no basis to make a judgment regarding probable cause are
insufficient." Id. In State v. Johnson, we found that an affidavit was
defective because "it [did] not set forth any information as to the reliability
of the informant nor was the information corroborated." Johnson, 302 S.C.
at 247, 395 S.E.2d at 169.
In this case, the affidavit failed to set forth any facts as to why police
believed Weston committed the Crumlin crime. The first three sentences of
the affidavit were mere conclusory statements. While the fourth sentence
provided information linking Weston to his car at the time of the incident,
it offered nothing to link Weston or the Datsun to the Crumlin crime itself.
Additionally, there was absolutely nothing on the face of the affidavit from
which the ministerial recorder could have assessed the veracity and basis of
knowledge of the informant. Therefore, based on the totality of the
circumstances, we find the affidavit could not have provided the ministerial
recorder with a substantial basis for finding probable cause to search
A search warrant that is insufficient in itself to establish probable
cause may be supplemented by sworn oral testimony. See Johnson, 302 S.C.
243, 395 S.E.2d 167. In this case, during the hearing on pretrial motions,
the trial judge asked the prosecutor if the affiant had supplemented the
warrant with any oral testimony before the ministerial recorder. The
prosecutor stated that neither the affiant nor the ministerial recorder could
remember, and it was not the practice of the ministerial recorder to ask
The State argues that probable cause had already been established by
another magistrate who issued arrest warrants for Weston on September 16,
1994. The finding of probable cause for these arrest warrants was based on
a detailed statement provided by Crumlin identifying Weston as the
perpetrator. However, the arrest warrants and Crumlin's statement were not
included in the affidavit or search warrant. Consequently, they could not
have been part of the basis for finding probable cause to search Weston's car.
The State argues that the search warrant should be upheld under
United States v. Leon, 468 U.S. 897, 920, 104 S. Ct. 3405, 3419, 82 L. Ed.
2d 677 (1984). We disagree. In Leon, the Supreme Court carved out a good
faith exception to the exclusionary rule. The Court held that when an officer
acting in objective good faith has obtained a search warrant from a judge or
magistrate and acted within its scope, a reviewing court should not order a
suppression of the evidence based on a lack of probable cause. The Court
went on to list three situations in which it had, in the past, held that
deference to a magistrate's finding of probable cause was not warranted:
Leon, 468 U.S. 914-15, 104 S. Ct. at 3416, 82 L. Ed. 2d at 693 (emphasis
added). However, the Supreme Court observed that "[o]nly in the first of
these situations . . .has the Court set forth a rationale for suppressing
evidence obtained pursuant to a search warrant; in the other areas, it has
simply excluded such evidence without considering whether the Fourth
Amendment interests will be advanced." Id. at 915-16, 104 S. Ct. at 3417,
82 L. Ed. 2d at 694.
ln State v. Johnson, we interpreted Leon as precluding application of
the good-faith exception when an affidavit fails to provide a magistrate with
a substantial basis for finding probable cause.1 However, Johnson should not
be read as prohibiting application of the good-faith exception everytime an
affidavit fails to satisfy the technical requirements of Gates. Suppression is
appropriate in only a few situations, including when an affidavit is "so
lacking in indicia of probable cause as to render official belief in its existence
entirely unreasonable." Leon, 468 U.S. at 923, 104 S.Ct. at 3421, 82 L. Ed.
2d at 699. We find the affidavit in this case lacked any indicia of probable
cause. Therefore, the good-faith exception would not apply.
We hold that the ministerial recorder lacked any basis for finding
probable cause. We therefore find the trial court erred in refusing to
suppress the ammunition.
For the foregoing reasons, this matter is REVERSED and REMANDED
for a new trial.
FINNEY, C.J., MOORE, WALLER and BURNETT, A.J., concur.
Wilhelm, 80 F.3d 116 (4th Cir. 1996).