The short answer is: usually, but you never know until you investigate and challenge it. In State v. Thompson, the S.C. Supreme Court reversed the Court of Appeals and the trial court, finding that extensive documentation of the defendant’s drug dealings and connection to a particular residence does not constitute probable cause to issue a search warrant. Probable cause for a search warrant requires a more specific connection to a residence than what was provided in this case.
What is Probable Cause?
In the context of a search warrant, probable cause is a reasonable belief that the evidence law enforcement is looking for will be found at the place they want to search. The officer or detective who wants to search a particular location will present a request for a search warrant to a magistrate, along with an affidavit stating the specific location, what evidence they are looking for and why they believe the evidence will be found at the location. Although the search warrant affidavit can be supplemented by oral testimony as to what was told to the magistrate, if no supplemental oral testimony exists then the state is bound by what the search warrant affidavit states as probable cause.
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).
What Facts Would Support Probable Cause for a Search Warrant?
In this case, the officer provided plenty of information in the search warrant affidavit regarding historical drug sales by the defendant to informants. The officer also included a statement from an informant that cocaine had been delivered to the residence on several occasions, without specific dates or details. The officer also stated in the affidavit that “in the six months preceding the affidavit, investigators ‘witnessed Thompson visit this 120 River Street address just before making cocaine deliveries throughout Spartanburg.'”
Plenty of information was provided in the search warrant affidavit, but none of it contained anything specific that would have indicated that there were drugs present in the residence on the specific date that the search warrant was executed. “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.”
The Court goes through some examples of cases where the Court “found a timely and direct nexus between the contraband sought and the location to be searched,” and notes that “specific details of surveillance of a
suspect conducting a drug transaction immediately upon leaving a residence” would be sufficient:
- numerous tips indicating drug activity at a residence along with police surveillance of drug related activity at the residence (State v. Kinloch);
- surveillance of a defendant leaving a residence to sell drugs at another location (State v. Gore); and
- when officers stated in the affidavit that they had visual contact with defendant from the time he left his home until a subsequent traffic stop where drugs were discovered on the defendant (State v. Scott).
The most common scenario is where an informant makes an undercover purchase (sometimes several on multiple occasions), and then the officers will obtain a search warrant based on the informant’s first hand observations along with an arrest warrant for the distribution(s). Obviously there are many fact patterns that would justify probable cause for a search warrant, but the information must be specific and not stale (the observations justifying the warrant must have been within a reasonable period of time, sufficient to believe the evidence is still there), and there must be a sufficient connection to the location that is to be searched.