State v. Thompson , 419 S.C. 250 ( 2017 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Alphonso Chaves Thompson, Petitioner.
Appellate Case No. 2015-002221
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Spartanburg County
J. Derham Cole, Circuit Court Judge
Opinion No. 27706
Heard December 1, 2016 – Filed February 22, 2017
REVERSED
Michael Patrick Scott, of Nexsen Pruet, LLC, and Chief
Appellate Defender Robert Michael Dudek, both of
Columbia, for Petitioner.
Attorney General Alan McCrory Wilson, Assistant
Attorney General Mark Reynolds Farthing, of Columbia,
and Solicitor Barry J. Barnette, of Spartanburg, for
Respondent.
ACTING JUSTICE PLEICONES: Petitioner Thompson was convicted of
trafficking in cocaine in excess of 400 grams, possession of a weapon during the
commission of a violent crime, and possession with intent to distribute ("PWID")
marijuana. He was sentenced to concurrent sentences of twenty-five years'
imprisonment, and two terms of five years' imprisonment, respectively.
At a pre-trial hearing, Thompson challenged the admissibility of the evidence
recovered during a search conducted at his parents' home located in Spartanburg
County at 120 River Street,1 arguing the affidavit supporting the search warrant for
the property was invalid. The trial judge found the affidavit was sufficient, and
denied the motion to suppress the evidence. The Court of Appeals affirmed
Thompson's convictions and sentences. See State v. Thompson, 413 S.C. 590, 776
S.E.2d 413 (Ct. App. 2015). We granted Thompson's request for a writ of
certiorari to review the Court of Appeals' decision. Because we find the affidavit
supporting the search warrant fails to establish a fair probability that the evidence
sought would be found at 120 River Street, we hold the Court of Appeals erred in
affirming the trial judge's denial of the motion to suppress the evidence recovered
there.
FACTS
Prior to trial, Thompson moved to suppress the evidence seized from 120 River
Street. Thompson challenged the search warrant under the Fourth Amendment to
the United States Constitution, Article I, § 10 of the South Carolina Constitution,
and S.C. Code Ann. § 17-13-140 (2014). Specifically, Thompson argued the
affidavit in support of the search warrant was insufficient because it: relied on
information that was stale; provided information from informants without any
indicia of their reliability or basis of knowledge; and offered defectively unspecific
facts as to whether the evidence sought would be found at Thompson's parents'
home.
The affidavit supporting the search warrant for the premises, which was provided
to the issuing judge on May 13, 2010, states:
In June of 2007 Investigators from the Spartanburg
1
The trial judge ruled Thompson had standing to challenge the search conducted at
his parents' home, and the State does not challenge that finding on appeal.
County Sheriff's Office2 Narcotics Division had two
different Confidential Reliable Informants (CRI) give
information that they had been buying large amounts of
cocaine from a black male that they only knew as "POO
BEAR." These two CRI's [sic] stated that several large
cocaine transactions took placed [sic] over the course of
several months. These CRI's [sic] furnished information
that was able to be corroborated such as vehicle
descriptions and photo identifications. Both CRI's [sic]
stated that they knew POO BEAR to drive a gray in color
Honda Accord Station wagon when he would conduct
these drug deals. It was learned through this
Investigation that "POO BEAR" was positively identified
as Alfonso Thompson and he also had an F350 Ford
Dually [sic] blue and Gold in color. In August of 2007
the SCSO Narcotics Division arrested Keith Jeter who
stated that he was being supplied 4 ½–9 oz. of cocaine at
a time from Alfonzo Thompson aka "POO BEAR." Jeter
further stated that "POO BEAR" would bring the cocaine
to his residence on Huxley St. in Spartanburg City. In
September of 2008 the SCSO Narcotics Division
interviewed a [sic] individual named Fred Meadows who
stated that he was being supplied cocaine from "POO
BEAR" and that "POO BEAR" drove a blue and gold
Ford F–350 Dually [sic]. Meadows further stated that he
grew up with "POO BEAR" in the city and has known
him for a long time. Meadows stated that "POO BEAR"
would deliver the cocaine to his house on Virginia St. in
the city of Spartanburg. Also in late 2008 Spartanburg
City Police Narcotics had an informant who came
forward and stated the [sic] "POO BEAR" had a
residence at the end of River St. on the left hand side and
that "POO BEAR" was a large scale cocaine Trafficker
[sic]. In January of 2009 the Spartanburg County
Narcotics Division had two more different CRI's that
came forward and stated that they had purchased 18
ounces of cocaine from "POO BEAR." They identified
2
Referred to throughout the remainder of the affidavit as the "SCSO."
Alfonzo Thompson in a photo lineup as being the "POO
BEAR" that they had dealt with. These two CRI's also
confirmed that "POO BEAR" had an F–350 Ford Dually
[sic] and it was Blue and Gold in color. On February 11,
2009 The [sic] Spartanburg County Narcotics Division
arrested Jose Luis Diaz–Arroyo with a kilo of cocaine.
During the interview with Arroyo he stated that his
brother in law Alejandro Sosa Galvan was supplying a
black male named "POO BEAR." Arroyo further stated
that Sosa Galvan had multiple Kilos of cocaine delivered
to "POO BEAR" at this River St. address on several
different occasions. On July 30, 2009 a fifth CRI stated
he was being supplied by a Deangelo Young aka
"LITTLE MAN" and that Young was getting his cocaine
from his cousin "POO BEAR." This CRI made a
controlled buy from "LITTLE MAN" by taking him
$4000 in Spartanburg County Sheriff's Office recorded
funds. "LITTLE MAN" left the buy location and was
followed to 1868 Tamara Way where he met with "POO
BEAR" (THOMPSON). Thompson was driving a white
in color Honda Civic Sc [sic] tag []. This Civic is
registered to a Pamela D. Jones of 1868 Tamara Way.
Pamela Jones is a known girlfriend of "POO BEAR."
"LITTLE MAN" left "POO BEAR" and met with the
CRI at the buy location where he turned over 4 ounces of
Cocaine to him.
Over the past 6 months the Spartanburg County Sheriff's
Office Narcotics Division has conducted surveillance on
120 River St. and on several occasions has seen
Thompson driving different vehicles to include the Ford
F–350 Dually [sic] blue and gold in color and the white
in color Honda Civic to and from this location.
Investigators have also seen the gray in color Honda
Accord station wagon come and go from this residence.
Over the past 6 months Investigators have witnessed
Thompson visit this 120 River St. address just before
making cocaine deliveries throughout Spartanburg City.
On May 11, 2010 Investigators bought ½ ounce of
cocaine base from Authur Jones. When Jones was
approached he started cooperating with the SCSO
Narcotics Division. Jones stated that he was buying his
cocaine from Alfonzo Thompson aka "POO BEAR."
Jones stated that "POO BEAR" was fronting him about 9
ounces of Powder [sic] Cocaine [sic] a month. Jones
stated that he would take the powder and then turn it into
cocaine base and then sell it. When it was all gone he
would call "POO BEAR" and tell him that he was ready
for him. Jones stated that he was paying $1000 an ounce
for the cocaine. On 05-11-2010 Jones placed a recorded
telephone call to Thompson stating that he was ready to
re-up. Thompson agreed to come by. Jones stated that
Thompson's M.O. was to come by in the next couple of
days. On 05-12-2010 Jones called "POO BEAR" again
with no response. At approximately 6:30 PM Jones
received a telephone call from "POO BEAR" [] asking
Jones if he was going to be home. Jones stated yes and
hung up. Jones knew this to mean that “POO BEAR”
was coming shortly. At Approximately [sic] 7:19 PM
Thompson pulled into Jones [sic] driveway driving the
white Honda Civic. Thompson exited the vehicle and
came inside. Once inside Jones handed Thompson
$9000.00 in recorded funds. Thompson stated that he
would bring the package in the morning. Jones knew this
to mean that Thompson would bring the cocaine to him
the next day. Investigators were inside the residence
watching the transaction take place as well as the
transaction being Video [sic] and Audio [sic] recorded.
There was [sic] also outside surveillance units near the
scene. Thompson was loosely followed in the Honda
Civic after the transaction.
This investigator feels that Thompson has demonstrated a
pattern over the course of the last 2 years of large scale
cocaine trafficking. It is believed that Items [sic] related
to the Drug Trafficking Trade [sic] will be located inside
this residence as well as Cocaine [sic] and or Cocaine
Base [sic]. It is also known by Investigators that Drug
Traffickers [sic] hide their drugs and proceeds from
drugs [sic] sales in various places about the residence and
cartilage [sic] areas. Due to the violent Nature of Drug
Trafficking Organizations [sic] a "NO KNOCK
WARRANT IS REQUESTED."
The search warrant affidavit was presented to a circuit court judge as opposed to a
magistrate. It appears there was no oral testimony provided supplementing the
contents of the affidavit.3 The circuit court judge issued the search warrant.
While the search warrant for 120 River Street was being executed, Thompson was
arrested at his place of employment.4 Simultaneously, law enforcement was
conducting searches at Thompson's residence in Greenville County and his
girlfriend's Spartanburg residence. The search of 120 River Street resulted in
several bags of marijuana, several bags of cocaine, and several firearms being
seized. No drugs were recovered at the other locations, only cash and firearms.5
Thompson was charged with trafficking in cocaine, PWID marijuana, possession
of a weapon during the commission of a violent crime, and possession of a stolen
weapon.
A pretrial suppression hearing was held regarding the evidence recovered at 120
River Street. The trial judge denied Thompson's motion to suppress, finding that
considering the facts and circumstances set forth in the affidavit, combined with
"the reasonable inferences that might be derived from those facts as alleged,"
probable caused existed to issue the search warrant.
The Court of Appeals affirmed the trial judge's refusal to suppress the evidence
3
At the suppression hearing, Thompson' attorney stated the judge who issued the
search warrant informed him "there is no file on the search warrant" as it appeared
to be missing. The issuing judge further informed Thompson's attorney he had no
recollection of any sworn testimony supplementing the affidavit.
4
The arrest warrant was issued for Thompson prior to the search of his parents'
home, and was based on an incident not related to that address.
5
Thompson does not challenge the search of his residence or his girlfriend's
residence.
recovered from 120 River Street. See State v. Thompson, 413 S.C. 590, 776 S.E.2d
413 (Ct. App. 2015). We granted Thompson's petition for a writ of certiorari to
review the decision of the Court of Appeals.
ISSUE
Did the Court of Appeals err in finding the trial judge properly refused
to suppress the evidence seized from the River Street address?
ANALYSIS
Thompson contends the Court of Appeals erred in affirming the trial judge's refusal
to suppress the evidence seized from his parents' home. We agree.
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. Zurcher v. Stanford Daily, 436 U.S. 547, 556 (1978)
(emphasis supplied). In South Carolina, the judicial officer asked to issue a search
warrant must make a practical, common sense decision concerning whether, under
the totality of the circumstances set forth in the affidavit, there is a fair probability
that evidence of a crime will be found in the particular place to be searched. State
v. Tench, 353 S.C. 531, 534, 579 S.E.2d 314, 316 (2003) (emphasis supplied)
(citing State v. Weston, 329 S.C. 287, 494 S.E.2d 801 (1997); State v. Philpot, 317
S.C. 458, 454 S.E.2d 905 (Ct. App. 1995)). If no supplemental oral testimony is
taken, an issuing judge's probable cause determination is limited to the four corners
of the search warrant affidavit. State v. Kinloch, 410 S.C. 612, 616, 767 S.E.2d
153, 155 (2014) (citation omitted).
The duty of the reviewing court is to ensure the issuing judge had a substantial
basis for concluding probable cause existed. Kinloch, 410 S.C. at 616, 767 S.E.2d
at 155 (citation omitted). Although great deference must be given to an issuing
judge's conclusions, the judge may only issue a search warrant upon a finding of
probable cause. State v. Jones, 342 S.C. 121, 126, 536 S.E.2d 675, 678 (2000)
(citing State v. Bellamy, 336 S.C. 140, 519 S.E.2d 347 (1999)).
The appellate courts of this state have routinely held that information contained in
an affidavit providing a timely and direct nexus between the contraband sought and
the location to be searched—e.g., inter alia, specific details of surveillance of a
suspect conducting a drug transaction immediately upon leaving a residence—is
sufficient to support a search warrant. See Kinloch, 410 S.C. at 618, 767 S.E.2d at
156 (concluding probable cause existed to issue a search warrant based on
"namely, the numerous tips indicating drug activity was probably present at 609 A
and the subsequent surveillance of 609 A during which seemingly drug-related
behavior was observed"); State v. Gore, 408 S.C. 237, 248, 758 S.E.2d 717, 722–
23 (Ct. App. 2014) (cert. dismissed as improvidently granted) (finding surveillance
of defendant leaving residence to sell drugs at another location provided a
sufficient nexus to the residence to justify a search warrant); cf. State v. Scott, 303
S.C. 360, 362–63, 400 S.E.2d 784, 785–86 (Ct. App. 1991) (cert. denied)
(upholding subsequent search warrant of defendant's home when affidavit stated
officers had visual contact with defendant from time he left his residence until the
time of the traffic stop and drugs were uncovered on defendant at stop).
However, in this case, only two pieces of information in the affidavit tie drug
activity to 120 River Street: (1) a 2009 hearsay statement that cocaine was
delivered there "on several different occasions"; and (2) the assertion that "in the
six months preceding the affidavit, investigators 'witnessed Thompson visit this
120 River Street address just before making cocaine deliveries throughout
Spartanburg.'" We find neither statement, independently or together, demonstrates
a sufficiently specific indication that the drugs Thompson was selling were being
accessed at that address on or near May 2010. See Zurcher, 436 U.S. at 556 ("The
critical element in a reasonable search is not that the owner of the property is
suspected of crime but that there is reasonable cause to believe that the specific
'things' to be searched for and seized are located on the property to which entry is
sought"); Tench, 353 S.C. at 534, 579 S.E.2d at 316 (citations omitted) (finding a
search warrant is valid if the affidavit supporting it shows a fair probability the
contraband sought will be found in the location to be searched).
More to the point, the assertions in the affidavit in this case contain no specific
facts showing any connection between drug-related activity and 120 River Street
after February 2009. See Tench, 353 S.C. at 534, 579 S.E.2d at 316; Kinloch, 410
S.C. at 616, 767 S.E.2d at 155. And we find the non-specific statement in the
affidavit—that in the past six months law enforcement observed Thompson stop at
120 River Street "just before making cocaine deliveries throughout Spartanburg
County"—is insufficiently specific to provide a fair probability the evidence
sought by the search warrant would be located there.
Accordingly, we find the Court of Appeals erred in holding the trial judge properly
denied the motion to suppress the evidence recovered from 120 River Street. See
State v. Khingratsaiphon, 352 S.C. 62, 69, 572 S.E.2d 456, 459 (2002) ("The
Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures. Evidence seized in violation of the Fourth Amendment must
be excluded from trial" (citing Mapp v. Ohio, 367 U.S. 643 (1961))).
CONCLUSION
We reverse the Court of Appeals' decision, which affirmed the trial judge's denial
of the motion to suppress the evidence located at 120 River Street.
REVERSED.
BEATTY, C.J., HEARN, J., and Acting Justices James E. Moore and William
P. Keesley concur.