State v. Eubanks

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

James R. Eubanks, Appellant.

Appellate Case No. 2010-154086

Appeal From Spartanburg County
Roger L. Couch, Circuit Court Judge

Unpublished Opinion No. 2012-UP-602
Heard October 17, 2012 – Filed November 7, 2012

AFFIRMED

Appellate Defender Breen Richard Stevens, of Columbia,
for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney
General John W. McIntosh, Senior Assistant Deputy
Attorney General Salley W. Elliott, and Assistant
Attorney General Christina J. Catoe, all of Columbia; and
Solicitor Barry J. Barnette, of Spartanburg, for
Respondent.
PER CURIAM: James R. Eubanks appeals his conviction for trafficking cocaine
in an amount between 200 and 400 grams. On appeal, Eubanks argues that the trial
court erred in failing to suppress drug evidence seized from his residence and
outbuilding pursuant to a defective search warrant. Specifically, Eubanks asserts
that (1) the search warrant was not supported by probable cause, and (2) the
affidavit in support of the search warrant was misleading and demonstrated a
reckless disregard for the truth in violation of Franks v. Delaware, 438 U.S. 154
(1978). We affirm.

1. As to whether the search warrant affidavit presented to the magistrate was
misleading and demonstrated a reckless disregard for the truth, we find this issue is
not preserved for appellate review. At trial, Eubanks moved to quash the search
warrant solely on the ground that the affidavit in support of the search warrant did
not contain sufficient information to support probable cause. Eubanks did not
assert to the trial court that false information was recklessly included in the
affidavit, nor did he assert that exculpatory information was recklessly omitted
from the affidavit. See State v. Davis, 354 S.C. 348, 360-61, 580 S.E.2d 778, 784-
85 (Ct. App. 2003) (holding Franks issue was not preserved for review when the
defendant did not assert below that false information was intentionally or
recklessly included in the affidavit and the trial judge made no ruling on that
issue); see also State v. Rutledge, 373 S.C. 312, 318, 644 S.E.2d 789, 792 (Ct.
App. 2007) ("There is a presumption of validity with respect to the affidavit
supporting the search warrant.") (quoting Franks v. Delaware, 438 U.S. at 171);
State v. Missouri, 337 S.C. 548, 554, 524 S.E.2d 394, 397 (1999) (stating a
defendant's attack on a search warrant must include "allegations of deliberate
falsehood or reckless disregard for the truth, and those allegations must be
accompanied by an offer of proof").

2. As to whether the search warrant was supported by probable cause, we find the
magistrate had a substantial basis for concluding probable cause existed. See State
v. Bellamy, 336 S.C. 140, 144, 519 S.E.2d 347, 348 (1999) (stating a magistrate
may issue a search warrant only upon a finding of probable cause); State v.
Weston, 329 S.C. 287, 290, 494 S.E.2d 801, 802 (1997) ("A reviewing court
should give great deference to a magistrate's determination of probable cause.");
State v. Dupree, 354 S.C. 676, 683, 583 S.E.2d 437, 441 (Ct. App. 2003) ("An
appellate court reviewing the decision to issue a search warrant should decide
whether the magistrate had a substantial basis for concluding probable cause
existed. This review, like the determination by the magistrate, is governed by the
'totality of the circumstances' test." (citations omitted)). In this case, the search
warrant affidavit stated a confidential informant (CI) had recently observed the sale
of cocaine at Eubanks's residence and "[i]n the past [CI] has observed quantities of
cocaine being stored inside the residence." The affidavit further provided, "[CI]
has provided information to the Spartanburg County Sheriff's Office in the past
that has led to the arrest of subjects and the confiscation of illegal contraband."
See Dupree, 354 S.C. at 689, 583 S.E.2d at 444 (stating that if a controlled buy is
properly conducted "it alone can provide facts sufficient to establish probable
cause for a search warrant"); id. at 691, 583 S.E.2d at 445 (stating evidence of a
drug transaction supports an "inference that more will be found at the place of
operation"); Davis, 354 S.C. at 356, 580 S.E.2d at 782 (stating a magistrate may
find probable cause exists if there is a fair probability that contraband will be found
in a particular place); State v. Scott, 303 S.C. 360, 363, 400 S.E.2d 784, 786 (Ct.
App. 1991) ("In the case of drug dealers, evidence is likely to be found where the
dealers live."); see also State v. Hammond, 270 S.C. 347, 352-53, 242 S.E.2d 411,
414 (1978) (finding an affidavit was sufficient to establish probable cause when
the affiant had been told by a confidential informant that the informant had
recently observed the use and sale of drugs "at the above named location" and had
provided information in the past that had led to arrests and convictions).
Accordingly, we hold the trial court did not err in refusing to suppress the drug
evidence seized from Eubanks's residence and outbuilding.

AFFIRMED.

HUFF, THOMAS, and GEATHERS, JJ., concur.