State v. Young

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

James
Young,        Appellant.

Appeal From Orangeburg County

Luke N. Brown, Jr., Special Circuit
Court Judge

Unpublished Opinion No. 2003-UP-071

Heard September 11, 2002 - Filed January
24, 2003

AFFIRMED

Chief Attorney Daniel T. Stacey, of Columbia, for
appellant.

Attorney General Henry Dargan McMaster, Attorney General
John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, all
of Columbia; and Solicitor Walter M. Bailey, of Summerville, for respondent.

PER CURIAM:  A jury convicted James Young
of trafficking in crack cocaine and possession with intent to distribute same
within proximity of a school or park.  He appeals, arguing the trial court erred
in overruling his motion to suppress and in admitting evidence of a prior drug
transaction.  We affirm. 

FACTS/PROCEDURAL HISTORY

On May 11, 1999, former Holly Hill police officer
Mark Wright was involved in an undercover narcotics buy by Alvin Thomas, a
confidential informant.  According to Wright, Thomas was monitored as he went
to the buy location at 1204 Unity Road.  Thomas conducted the transaction
with Evelyn Green, James Young=s co-defendant.  Young, who had a daughter
with Green, sometimes lived in her house.  The substance purchased by Thomas
was later determined to be 0.18 grams of crack cocaine.  Based on this undercover
buy, police obtained a warrant to search Green=s home on Unity Road. 

On March 19, 1999, Orangeburg detectives Jerry
Brown and John  Cokely executed the warrant at "James and Evelyn's
residence."  Brown and Cokely entered the residence through the back door, went down a
hall, and saw Young in the living room.  According to Brown, Young was
"peeping"
at them down the hall but waited until the officers had nearly reached him
before turning, apparently panicked, lifting up a chair cushion, and placing
something under it.  Brown subsequently discovered and seized several baggies
of crack cocaine from under the cushion, later identified as weighing 2.72
grams, 1.21 grams, and 14.72 grams. 

An Orangeburg County grand jury indicted Green
and Young for trafficking in crack cocaine and possession with intent to distribute
within proximity of a school or park.  At a joint trial the jury acquitted
Green but convicted Young on both charges, and the trial court sentenced him
to concurrent terms of thirty and ten years, respectively.  This appeal followed.  

LAW/ANALYSIS

Young first argues the trial court erred in denying
his motion to suppress, because the search of Green=s home resulted from a warrant
that failed to set forth probable cause sufficient to satisfy the requirements
of the Fourth Amendment.  Specifically, Young argued the warrant did not provide
a basis to conclude probable cause existed because it failed to address the
reliability of Alvin Thomas, the confidential informant relied upon.  Although
the solicitor agreed the warrant was facially insufficient, he maintained it
was adequately supplemented by additional information provided to the magistrate
by the officer who obtained the warrant.  We agree.  

Jeff Younginer of the Holly Hill police department
testified in camera that he obtained the search warrant from a municipal judge. 
In regard to Thomas, Younginer testified as follows: 

A. Yes, sir.  Well, on this particular case [the judge] read
the warrant and asked me who the confidential informant was, and I told him. 
He wasn't really familiar with him, so I told him that he had given me good
information in the past, and that he had made this buy for us.

Q. And did [the judge] know the buy was controlled?

A. Yes, he did.

Q.  Okay.  And did that information prove reliable?

A. It did prove to be reliable. 

On cross-examination, Younginer further stated: 

A: I told [the judge] . . . that I had worked with [Thomas]
in the past and asked him about different people that were doing things around
town, and he had told me, and that had proven, you know, --

Q: To be reliable?

A: To be good.  And that on this occasion that he had gone
B that we had searched him and he had gone and made the buy and come back with
the drugs.

When deciding whether to issue a search warrant,
the job of the magistrate is "to make a practical, common sense decision as
to 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 a particular
place."  State v. Arnold, 319 S.C. 256, 259, 460 S.E.2d 403, 405 (Ct.
App. 1995).  This Court, in reviewing that decision, must determine
"whether
the magistrate had a substantial basis for concluding probable cause
existed."  Id.  Although an appellate court should consider the totality of the
circumstances in reviewing a determination of  probable cause, see State
v. Jones, 342 S.C. 121, 536 S.E.2d 675 (2000), it may only consider information
that was brought to the magistrate=s attention.  Arnold, 319 S.C. at
259, 460 S.E.2d at 405. 

In making his decision, the magistrate must consider
the veracity of the person supplying information to support the warrant along
with the basis of his  knowledge.  State v. Robinson, 335 S.C. 620, 518
S.E.2d 269 (Ct. App. 1999).  It is well settled, however, that a search warrant
insufficient in itself to establish probable cause "may be supplemented by sworn
oral testimony."  State v. Weston, 329 S.C. 287, 290, 494 S.E.2d 801,
802 (1997); see State v. Adolphe, 314 S.C. 89, 92, 441 S.E.2d
832, 833 (Ct. App. 1994) ("If the affidavit standing alone is insufficient to
establish probable cause it may be supplemented by sworn oral testimony before
the magistrate.").  Although the affidavit in this instance provided no information
to the magistrate about Thomas, Younginer's sworn, in camera testimony sufficiently
supplemented the affidavit to sustain a finding of probable cause. 

Young further argues the trial court erred in permitting
the State to introduce evidence of the drug transaction that occurred on March
11 in violation of State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). 
This issue is not preserved for review. 

The record reveals Green's attorney moved
in limine to exclude evidence of the March 11 drug sale, which the trial court
denied.  However, there is absolutely no indication in the record that
Young's
attorney either made a similar motion or joined in the one made by his co-defendant. 
Accordingly, the issue is not preserved for appeal.  See State v.
Nichols, 325 S.C. 111, 123, 481 S.E.2d 118, 124 (1997) ("[An] appellant
may not use the objection of another defendant to gain review."); State v.
Brannon, 347 S.C. 85, 552 S.E.2d  773 (Ct. App. 2001) (stating an appellant
may not bootstrap an appeal issue by way of his co‑defendant=s objection). 

AFFIRMED. 

GOOLSBY, HOWARD, and SHULER, JJ., concur.