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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Petitioner,

v.

Lorenzo Labelle Jones and Melvin Patrick Riles,

Respondents.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Florence County

Marc H. Westbrook, Circuit Court Judge

Opinion No. 25188

Heard June 6, 2000 - Filed August 21, 2000

AFFIRMED

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant Deputy

Attorney General Salley W. Elliott, Senior Assistant

Attorney General Harold M. Coombs, Jr., of Columbia,

and Solicitor E. L. Clements, III, of Florence, for

petitioner.

Frederick A. Hoefer, II, and Kevin M. Barth of

Harwell, Ballenger, Barth & Hoefer, L.L.P., for

respondents.

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JUSTICE PLEICONES: We granted certiorari to review

the Court of Appeals' holding in State v. Jones, 331 S.C. 228, 500 S.E.2d 499

(Ct. App. 1998) that probable cause did not exist to issue a search warrant

when the affidavit contained a false statement. We affirm.

ISSUE

Did the Court of Appeals err in holding that a magistrate did not have a

substantial basis for finding probable cause to issue a search warrant even

when an affiant substituted truthful oral information for false information he

had intentionally included in the affidavit?

FACTS

The Drug Unit of the Florence Police Department received a tip from a

confidential informant that cocaine had been stored at a particular home in

Florence and that a shipment would be arriving that weekend. The

informant described the van that would be used to transport the drugs, and

told the officers that the van would pull behind the house, to prevent it from

being seen from the road.

The Drug Unit set up surveillance of the house. After the arrival of the

van, an officer took an affidavit for a search warrant to a magistrate. The

affidavit stated:

Over the past three weeks an agent of the Florence Combined Drug Unit has

observed a quantity of cocaine being stored on the premises. That agent has

been responsible for the seizure of illicit drugs and the arrest of illicit drug

violators in the past. Information given by this agent has been corroborated

by surveillance agents pertaining to this case. (emphasis added).

The affiant, a police officer, verbally advised the magistrate that he had

intentionally used the term "agent" instead of "informant" in the affidavit in

order to protect the identity of his informant. The affiant truthfully repeated

the information his informant had given him and also told the magistrate

about the surveillance by police agents.

The magistrate found that probable cause existed to search the house

and signed the warrant. Cocaine and other incriminating evidence were

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found in the house, and Lorenzo Labelle Jones and Melvin Patrick Riles

(Defendants) were arrested.

Defendants moved during the trial to suppress the evidence obtained as

a result of the search warrant, arguing that the informant was falsely

identified as an "agent" in the affidavit. In an evidentiary hearing, the

magistrate testified that even after the verbal information provided by the

affiant, he was under the impression that the "agent/informant" was a police

officer. And he would possibly have asked more questions had he known that

such was not the case. The trial court denied Defendants' motion, holding

that the magistrate had a substantial basis to find probable cause.

Defendants were convicted of trafficking cocaine, and sentenced to

imprisonment of thirty years.

In State v. Jones, 331 S.C. 228, 500 S.E.2d 499 (Ct. App. 1998), the

Court of Appeals reversed the trial court and remanded for a new trial. The

Court of Appeals held that the evidence should be suppressed because the

false affidavit circumvented the affidavit requirement of S.C. Code Ann. § 17-

13-140 (1985) and State v. McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987).

The Court of Appeals then denied the State's petition for rehearing.

We granted certiorari, and now affirm.

DISCUSSION

When reviewing a magistrate's decision to issue a search warrant, we

must consider the totality of the circumstances. See State v. Missouri, 337

S.C. 548, 524 S.E.2d 394 (1999)(citing Illinois v. Gates, 462 U.S. 213, 103

S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Although great deference must be given

to a magistrate's conclusions,1 a magistrate may only issue a search warrant

upon a finding of probable cause. See State v. Bellamy, 336 S.C. 140, 519

S.E.2d 347 (1999).

A defendant has the right to challenge misstatements in a search

p.524

warrant affidavit. See Franks v. Delaware, 2 438 U.S. 154, 98 S.Ct. 2674, 57

L.Ed.2d 667 (1978); State v. Sachs, 264 S.C. 541, 216 S.E.2d 501(1975). A

defendant is entitled to an evidentiary hearing if the following criteria are

met: (1) the defendant's attack is more than conclusory and is supported by

more than a mere desire to cross-examine; (2) the defendant makes

allegations of deliberate falsehood or of reckless disregard for the truth which

are accompanied by an offer of proof; and, (3) the affiant has made the

allegedly false or reckless statement. Further, if the foregoing criteria have

been met, and the remaining content is insufficient to find probable cause

after the allegedly false or reckless material has been set aside, the defendant

is entitled to his hearing, under the Fourth and Fourteenth Amendments.

Franks, 438 U.S. at 171, 98 S.Ct. at 2684, 57 L.Ed.2d at 677.

In this case, the affidavit contained false information, i.e., the

identification of the informant as an "agent,." The affiant admitted to the

magistrate that he had intentionally used the term "agent" to mislead

Defendants. While the officer attempted to correct this false statement with

truthful oral information, the testimony of the magistrate indicates that the

officer did not, in fact, correct the magistrate's misunderstanding. The

magistrate's assumption that the informant was an undercover police officer

was not altered, and the magistrate relied upon the false statement when

making his probable cause determination. This is made clear from the

magistrate's testimony that he "possibility" [sic] would have questioned the

affiant more extensively had he known the informant was not a police officer.

Setting aside the first three mentions of "agent" in the affidavit means that

only the corroborating evidence of the police "agents"' surveillance of the

residence would remain. This evidence alone is insufficient to establish

probable cause. Under a Franks analysis, probable cause did not exist under

the Fourth Amendment of the United States Constitution.

The General Assembly has imposed stricter requirements than federal

law for issuing a search warrant. Both the Fourth Amendment of the United

States Constitution and Article I, § 10 of the South Carolina Constitution

the search warrant affidavit is a false statement under a Franks analysis has

not been preserved for review. However, the solicitor told the trial judge that

the "controlling authority" in Defendants' pre-trial motion for suppression

was Franks. The Defendants' attorney agreed, and the evidentiary hearing

proceeded on that premise.

p.525

require an oath or affirmation. before probable cause can be found by an

officer of the court, and a search warrant issued. U.S. Const. amend. IV; S.C.

Const. art. I, § 10. Additionally, the South Carolina Code mandates that a

search warrant "shall be issued only upon affidavit sworn to before the

magistrate, municipal judicial officer, or judge of a court of record. . ." S.C.

Code Ann. § 17-13-140 (1985). Oral testimony may also be used in this state

to supplement search warrant affidavits which are facially insufficient to

establish probable cause. See State v. Weston, 329 S.C. 287, 494 S.E.2d 801

(1997). However, "sworn oral testimony, standing alone, does not satisfy the

statute." State v. McKnight, 291 S.C. 110, 352 S.E.2d 471(1987).

The Court of Appeals characterized the false affidavit as the equivalent

of not having an affidavit at all, and held that § 17-13-140 had been violated

since McKnight requires a written affidavit. This conclusion is logical,

because if an affidavit is not truthful, then the magistrate must depend

totally on information provided orally by the affiant in order to determine if

probable cause exists.

The Court of Appeals also correctly concluded, that because of

utilization of the false term in the affidavit, the veracity of the informant was

not established under the "totality of the circumstances" test. Under the

"totality of the circumstances" test, a reviewing court considers all

circumstances, including the status, the basis of knowledge, and the veracity

of the informant, when determining whether or not probable cause existed to

issue a search warrant. See State v. Bellamy, 336 S.C. 140, 519 S.E.2d 347

(1999) and State v. Driggers, 322 S.C. 506, 473 S.E.2d 57 (1996) (non

confidential informants and eyewitnesses have more credibility than

confidential informants).

In this instance, the magistrate erroneously believed the confidential

informant to have been a police officer, and indicated his view that in these

circumstances, a police officer would be more credible than a confidential

informant. Therefore, we agree with the Court of Appeals that the

magistrate did not have sufficient information about the informant's veracity

to determine whether or not there was probable cause.

We agree with the Court of Appeals' holding that oral information may

only be used by an affiant to supplement or to amend incorrect information in

an affidavit which was not knowingly, intentionally, or recklessly supplied by

the affiant. See State v. Sachs, 264 S.C. 541, 216 S.E.2d 501(1975) and State

v. Workman, 272 S.C. 146, 249 S.E.2d 779 (1978) (search warrant can be

p.526

validly amended prior to execution by sworn oral communication to the

issuing magistrate).

CONCLUSION

Based on the foregoing discussion, the opinion of the Court of Appeals is

AFFIRMED.

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

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