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24957 - State v. Bellamy

Shearouse Adv. Sh. No. 22
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

James Tyrone Bellamy, Petitioner.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal From Horry County

Sidney T. Floyd, Judge

Opinion No. 24957

Heard May 7, 1997 - Filed June 28, 1999

AFFIRMED

Ronald W. Hazzard, of Myrtle Beach, for Petitioner.

Attorney General Charles Molony Condon, Deputy Attorney

General John W. McIntosh, Assistant Deputy Attorney General

Salley W. Elliott, Assistant Attorney General G. Robert DeLoach,

III, all of Columbia; and Solicitor Ralph J. Wilson, of Conway, for

Respondent.





TOAL, A.J.: James Tyrone Bellamy petitioned this Court for a writ

of certiorari to review the decision of the Court of Appeals affirming his

conviction for possession of crack cocaine with intent to distribute. Bellamy

challenges the validity of a search warrant, contending that the Court of

Appeals erred in affirming the trial court's refusal to suppress evidence

obtained pursuant to the warrant. We affirm.

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State v. Bellamy





FACTUAL/PROCEDURAL BACKGROUND



In June 1993, the Police Chief of Atlantic Beach requested the

assistance of the State Law Enforcement Division ("S.L.E.D.") concerning a

break-in at the Atlantic Beach Police Department. Weapons had been stolen

from the Department. The Police Chief informed S.L.E.D.1 a short time later,

that an individual named Luther Stanley, who was in jail in North Myrtle

Beach on unrelated drug charges, had information about the missing

weapons.





Joseph W. Vaught, a S.L.E.D. field officer ("Officer"), interviewed

Stanley. During the interview, Stanley stated that he had seen the weapons

at a particular apartment in Atlantic Beach. The weapons he described

included a 25 mm pistol, a .38 caliber pistol, and a .22 caliber Derringer.

These weapons fit the description of three of the more than twenty weapons

stolen from the Police Department. Stanley gave Officer directions to the

Atlantic Beach apartment. Stanley was familiar with the location because

he had lived at the apartment for days at a time. Accordingly, he knew the

people who resided there. Stanley gave Officer the names, including

Bellamy's, of the individuals who normally would be in the apartment. In

addition to seeing the weapons at the apartment, Stanley claimed he had

been at the apartment one late night when weapons were fired. Furthermore,

Stanley told Officer that he had seen drugs at the apartment in early July

and at other times.





Officer submitted to the magistrate the following affidavit in support

of the search warrant:

At 1420 hours,, July 08, 1993, Luthor Spencer Stanley, after being

advised of his rights, stated that [during] the early morning

hours of July 08, 1993, Stanley observed Lamont Gause fire two

shots from a 25 mm pistol while standing outside of the above

described premises. [A]ccording to Stanley, he then observed

Gause immediately take the 25 mm pistol inside the premises

and left it. Stanley further stated that on July 06, 1993, he

observed Lamont Gause take a 38 cal pistol and a 22 cal

Derringer into the above described premises. These three

weapons are the same [description] as weapons stolen from the

Atlantic Beach Police department located in Atlantic Beach, S.C.

on or about June 23, 1993. [Stanley] further stated that cocaine

is usually kept in above residence, inside the refrigerator or the

microwave oven.

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State v. Bellamy





The magistrate issued a search warrant, which was executed on July

8, 1993. Police found drugs in the kitchen and the bedroom of the

apartment, which belonged to Lamont Gause. Bellamy was in the apartment

when the officers executed the warrant. He was arrested and eventually

tried for possession of crack cocaine with intent to distribute. At trial,

Bellamy moved to suppress the evidence seized from the apartment. He

argued that the search warrant should be quashed because it was based on

a deficient affidavit in that the applicant failed to recite the reliability of

Stanley, the in-custody informant. The motion was denied. Bellamy was

found guilty of possession of crack cocaine with intent to distribute.





He appealed his conviction, arguing that the trial court erred in

admitting the evidence seized during the execution of the search warrant,

which he alleged was issued without probable cause. The Court of Appeals

affirmed his conviction, with one judge dissenting. This Court granted

Bellamy's petition for certiorari to review whether the Court of Appeals erred

in affirming the finding of the trial court that the officer's affidavit recited

sufficient probable cause to support issuance of the search warrant. We

affirm.





LAW/ANALYSIS



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). The South Carolina

General Assembly has enacted a requirement that search warrants may be

issued "only upon affidavit sworn to before the magistrate ... establishing

the grounds for the warrant. " S.C. Code Ann. ยง 17-13-140 (1985). In Illinois

v. Gates, 462 U.S.213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548

(1983), the United States Supreme Court adopted a "totality-of-the

circumstances" test for probable cause determinations:

The task of the issuing magistrate is simply to make a practical,

common-sense decision whether, given all the circumstances set

forth in the affidavit before him, including the "veracity" and

"basis of knowledge" of persons supplying hearsay information,

there is a fair probability that contraband or evidence of a crime

will be found in a particular place.

See also State v. Williams, 297 S.C. 404, 377 S.E.2d 308 (1989). Gates

departed from the strict two-prong approach of Aguilar v. Texas, 378 U.S.

108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964) and Spinelli v. United States,

393 U.S. 4105, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). Aguilar and Spinelli

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State v. Bellamy





required that separate findings be made of the informant's veracity or

reliability and his basis of knowledge.1





The Supreme Court wrote in Gates that it did not agree with the lower

court's reasoning that the Aguilar-Spinelli elements should be construed as

entirely separate and independent requirements to be rigidly exacted in every

case. Rather, "they should be understood simply 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. These are "relevant considerations in the totality-of-the-circumstances

analysis." Id. at 233, 103 S. Ct. at 2329, 76 L. Ed. 2d at 545. Gates went on

to declare that a deficiency in one of the elements may be compensated for,

in determining the overall reliability of a tip, by a strong showing as to the

other, or by some other indicia of reliability. Id. The case gave the following

examples of the interaction of the relevant considerations:

If, for example, a particular informant is known for the unusual

reliability of his predictions of certain types of criminal activities

in a locality, his failure, in a particular case, to thoroughly set

forth the basis of his knowledge surely should not serve as an

absolute bar to a finding of probable cause based on his tip.

Likewise, if an unquestionably honest citizen comes forward with

a report of criminal activity -- which if fabricated would subject

him to criminal liability -- we have found rigorous scrutiny of the

basis of his knowledge unnecessary. Conversely, 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 than might otherwise be the case.




1 See Owen, 275 S.C. 586, 274 S.E..2d 510 (Where the affidavit is based

on an informant's statement, it must set forth facts which show the reliability

of the informant and the underlying factual circumstances that support the

accuracy of the informant's information.); State v. Viard, 276 S.C. 147, 276

S.E.2d 531 (1981)(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 that the drugs are where he claimed they were

and (2) must describe some of the underlying circumstances from which the

magistrate can determine whether the affiant-officer's unnamed informant

was "credible" or his information "reliable.").





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State v. Bellamy





Gates, 462 U.S. at 233-34, 103 S. Ct. at 2329-30, 76 L. Ed. 2d at 545

(citations omitted).





We conclude that the magistrate had a substantial basis for concluding

that probable cause existed. See Gates, 462 U.S. at 238-39, 103 S. Ct. at

2332, 76 L. Ed. 2d at 548 (The duty of a reviewing court is simply to ensure

that the magistrate has a substantial basis for concluding that probable cause

existed.). In this case, given all the circumstances set forth in the affidavit,

there was a fair probability that evidence of a crime would be found in the

place identified. The informant was a witness to the events described in the

affidavit. Moreover, these events were described with great specificity: in the

early morning hours of July 8th, informant observed a named individual, who

was standing in front of certain described premises, fire two shots from a 25

mm pistol. He further observed the individual take the 25 mm pistol inside

the premises. Additionally, the informant stated that he observed the

individual two days earlier take a .38 caliber pistol and a .22 caliber

Derringer into the same premises. Furthermore, he said that cocaine was

usually kept in refrigerator or the microwave oven of the residence. In

addition to its specificity, the affidavit was confirmed to the extent that the

weapons described by the informant matched those that had been stolen from

the Atlantic Beach Police department just days earlier.





Although the affidavit is weak on the element of the reliability of the

informant, this deficiency is compensated for by the strong showing of

specificity, first-hand observation, and partial corroboration. In fact, the

present facts paint the picture of the very hypothetical envisioned by the

United, States Supreme Court in Gates: "[E]ven 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 than might otherwise be the case." Gates,

462 U.S. at 234, 103 S. Ct. at 2330, 76 L. Ed. 2d at 545. Accordingly, we

agree with the Court of Appeals' majority opinion upholding the sufficiency

of the affidavit.





CONCLUSION

Based on the foregoing, this matter is AFFIRMED.

MOORE, WALLER, and BURNETT, JJ., concur. FINNEY, C.J.,

dissenting in a separate opinion.

p.5


STATE v. BELLAMY





FINNEY, C.J.: I respectfully dissent. In my opinion, the affidavit fails to

establish probable cause be cause there is no information supporting the

informant's reliability. While I agree that this deficiency may be compensated

for by an "explicit and detailed description of alleged wrongdoing, along with a

statement that the event was observed firsthand", Illinois v. Gates, 462 U.S.

213 (1983), we have no such corroboration in this case. The "firsthand

wrongdoing" detailed here consists of firing a gun in the city limits, and a

vague reference to drugs on the premises-there is no firsthand observation of

the relevant crime, the theft of the guns. While there is an assertion that the

persons in the apartment possessed three weapons which were of the same

caliber and/or make as three of the twenty guns stolen from the police

department, there is simply nothing to link these common guns or the

individuals to that crime.





The specificity in the affidavit is illusory, and the majority's

assertion that "the weapons described by the informant matched those that

had been stolen ... just days earlier" is an exaggeration. The reliability of this

informant is critical, since he gave the statement only after his own arrest on

drug charges, inferentially in an attempt to mitigate his own situation. I

would find the affidavit insufficient, and reverse and remand for a new trial.

p.6