State v. Covert

628 S.E.2d 482, 368 S.C. 188, 2006 S.C. App. LEXIS 6

• Court: Court of Appeals of South Carolina
• Decided: January 17, 2006
• Docket: 4071
• Status: Published

Opinions

SHORT, J.:

Kevin Covert appeals his convictions for possession with intent to distribute cocaine in proximity of a school and trafficking in cocaine. Covert argues the trial court erred by denying his motion to suppress evidence due to a defective search warrant, allowing improper closing arguments, and using an unusual verdict form. We reverse and remand.

FACTS

Kevin Covert, Charles Henderson, and others were present in Covert’s house in Greenville County when police searched it on September 26, 2002. When the officers entered the house they found Henderson in the living room with a coffee grinder containing a white powder substance, small plastic bags of white powered substance, a cutting agent, sifting instruments, and an electronic scale, all in front of him on a coffee table. A cell phone box on the couch next to him contained a large plastic bag of cocaine, weighing 441.50 grams. Cocaine, weighing 22.89 grams, was found on the coffee table. Two smaller quantities of cocaine, weighing 6.47 grams and 1.62 grams, were also recovered. Police also found $1,950 on the floor in front of the couch. Additionally, police found a pistol on a bookshelf. Henderson was the only person in the living-room. Covert was found in a bedroom on the other side of the house. A holster for a gun, a 9-mm. magazine, and several dozen rounds of ammunition were found in an adjacent bedroom that belonged to Henderson.

All the individuals in the house were arrested and charged with trafficking in cocaine. However, Covert and Henderson were also charged with possession of a weapon during the commission of a violent .crime. Donald Myers and Roger Harris, both charged with trafficking, pled guilty to simple possession and were to receive suspended sentences in exchange for testifying for the State. Myers testified he purchased cocaine from Covert and Henderson at the house numerous times. Myers stated his purchases usually amounted to between one hundred and two hundred dollars each for between one and three-quarters grams and three and one-half grams of cocaine. Myers also téstified he had seen both Covert and Henderson bagging cocaine. On September 26, Myers was at the house to purchase cocaine from Covert.

Harris also testified he had purchased cocaine from Covert and Henderson at their house at least twice a week for the previous two years. Harris stated Henderson sometimes delivered cocaine to his house. Harris further testified that on the morning of September 26, Covert asked him to give him a ride to Atlanta. Harris testified they drove to a bar in Atlanta where Covert met another individual. Covert asked for Harris’s “electronic door opener.” Covert returned about thirty minutes later and they drove back to Greenville. Although the State attempted to establish that Harris drove Covert to Atlanta to obtain over 400 grams of cocaine, Harris did not see any cocaine during the trip.

After his arrest, Covert gave a statement to the police and admitted he purchased cocaine in Atlanta on September 26. Covert’s statement identifies his connection in Atlanta and details the activities of the trip. Covert did not testify at trial. On Henderson’s motion, Covert’s statement was redacted to remove all references to Henderson and the edited version was read into the record. Covert was tried together with his co-defendant, Henderson, and convicted of both charges. Covert was sentenced to concurrent sentences of 25 years for the trafficking charge and 10 years for the distribution charge. Covert now appeals.

LAW/ANALYSIS

I. Suppression of Evidence

Covert contends the trial judge erred by denying his motion to suppress evidence and by applying a good faith exception to the statutory warrant requirement because the warrant was defective. We agree.

In criminal cases, an appellate court reviews errors of law only and is bound by factual findings of the trial court unless clearly erroneous. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001). “A court’s ruling on the admissibility of evidence will not be reversed on appeal absent an abuse of discretion or the commission of legal error that results in prejudice to the defendant.” State v. Adams, 354 S.C. 361, 377, 580 S.E.2d 785, 793 (Ct.App.2003).

During the trial, Covert and Henderson moved to suppress evidence seized during the search on the basis that although the search was conducted on September 26, 2002, the magistrate’s signature is dated September 28, 2002 on the warrant itself. The magistrate’s signature and the date of September 26, 2002 only appear on two separate pages of the affidavit. During the trial, Detective Timothy Conroy testified that he did not see the magistrate sign the search warrant on the 26th and that “most probably she didn’t sign that night and that was brought back to her on some other occasion to sign.” Upon finding the warrant was defective under section 17-13-140 of the South Carolina Code (2003), the trial judge ruled a good faith exception to the Fourth Amendment’s exclusionary rule should apply to South Carolina’s statutory warrant requirement and denied the motion to suppress all evidence obtained during the September 26 search.

First, we must determine whether the warrant was defective because the signature was dated two days after the search was conducted. Section 17-13-140 of the South Carolina Code (2003) states that a warrant shall be “issued only upon affidavit sworn to before the magistrate, municipal judicial officer, or judge of a court of record establishing the grounds for the warrant.” Though the statute does not specifically require that the warrant be signed, it requires that it be “issued.” In Davis v. Sanders, 40 S.C. 507, 19 S.E. 138 (1894), “[our supreme] court held that the warrant was not ‘issued’ as required by law, and conferred no authority on the sheriff to make the arrest, because the magistrate did not sign at the foot as he intended to do, and because he did not intend the indorsement on the back as his signature of the warrant.” Du Bose v. Du Bose, 90 S.C. 87, 90, 72 S.E. 645, 646 (1911). Therefore, a warrant is not issued until signed by an appropriate magistrate, municipal judicial officer, or judge of a court of record. See 77-370 S.C. Op. Att’y Gen. 295 (1977) (stating a warrant is properly issued only when signed by the magistrate and only upon a sworn affidavit). Thus, the warrant in this case was defective because there was no evidence that the magistrate signed the warrant before the search was conducted and the signature on the warrant is dated two days after the search was conducted.

Courts of other states have also held a search warrant must be signed because it is the confirmation that the magistrate determined the facts asserted in the affidavit support a finding of probable cause.¹ In State v. Surowiecki, 184 Conn. 95, 440 A.2d 798, 799 (1981), the Connecticut Supreme Court held that a warrant is not “issued” without a lawful signature on the search warrant by the person authorized to issue it. The court reached this conclusion even though there was no doubt the judge intended to sign the search warrant and failed to do so because of a “mere oversight.” Id. at 798. There are also several public policy considerations to support a requirement that the warrant be signed prior to a search: it impresses upon the magistrate the importance of his action in issuing a warrant; it discourages police misconduct by dictating that officers can not reasonably rely on an unsigned document as an authorization for conducting a search and by requiring officers to take corrective measures before they conduct a search; and it provides needed protections and assurances to persons in control of the property to be searched that the search has been authorized. State v. Hentkowski, 154 Mich.App. 171, 397 N.W.2d 255, 258 (1986).

Having found the warrant was defective because the signature was dated two days after the search was conducted, we must next determine whether the good faith exception to the Fourth Amendment’s exclusionary rule should apply to South Carolina’s statutory warrant requirement. The trial judge allowed the introduction of the evidence seized pursuant to a good faith exception as adopted by the United States Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Leon rule applies when a search warrant is defective on Fourth Amendment grounds. Id. However, in this case, the evidence Covert sought to have excluded was obtained because of a defective search warrant based on a state statutory violation, not a constitutional violation.

In South Carolina, the statutory warrant requirement is separate and distinct from the prohibition in the federal and state constitutions against unreasonable searches and seizures. S.C.Code Ann. 17-13-140 (2003); see U.S. Const, amend. IV; S.C. Const. art. I, 10. In fact, as the South Carolina Supreme Court has recognized, section 17-13-140 of the South Carolina Code actually imposes stricter warrant requirements than the constitutional provisions. See State v. Jones, 342 S.C. 121, 128, 536 S.E.2d 675, 678 (2000). Therefore, the Leon good faith exception is not applicable to this case and we must determine whether there is a good faith exception to the statutory warrant requirement in South Carolina.

In State v. Sachs, 264 S.C. 541, 559, 216 S.E.2d 501, 510 (1975), the Supreme Court of South Carolina found a good faith exception permits the introduction of evidence seized pursuant to a warrant that is defective under section 17-13-140 of the South Carolina Code if the officers have made a good faith attempt to comply with the affidavit requirement. In Sachs, the affidavit the officers relied on contained misstated facts; however, the court determined that such misstatements in an affidavit were “necessary hazards” encountered when federal and state authorities search in a joint effort and the affidavit satisfied a good-faith attempt to comply with the statute relating to search warrants. Id.

In State v. McKnight, 291 S.C. 110, 112-13, 352 S.E.2d 471, 472 (1987), the officers orally recited the facts upon which the warrant was based, but no affidavit was ever executed. As a result, the court found that there was no good faith effort to comply with the statute; however, the court declined to decide whether there is a good faith exception for officers who execute a search with objectively reasonable reliance on a warrant that is ultimately found to be invalid. Id. at 114, 352 S.E.2d at 473. The instant case falls somewhere between the cases of McKnight and Sachs. This is not a case of the “necessary hazards” of obtaining a warrant as in the case of Sachs and it is not a failure to comply with the statutory warrant requirement as in MeKnight. Here, the officers failed to notice that either the magistrate did not sign the warrant on September 26 or that the signature on the warrant itself was misdated as September 28, while the search was conducted on September 26, 2002.² The officers could have discovered either error by simply looking at the warrant itself; therefore, we find there was no good faith effort to comply with the statute.

Because we find the warrant was defective and the good faith exception to the warrant requirement does not apply in this case, we must finally determine if the admission of the evidence found with the defective warrant constituted harmless error. “Error is harmless where it could not reasonably have affected the result of the trial.” State v. Reeves, 301 S.C. 191, 193-94, 391 S.E.2d 241, 243 (1990). Generally, appellate courts will not set aside convictions due to insubstantial error not affecting the result. State v. Davis, 364 S.C. 364, 409, 613 S.E.2d 760, 784 (Ct.App.2005). The violation found in this case cannot be seen as harmless error because exclusion of the evidence could have reasonably affected the result of the trial and the issue of the amount of cocaine allegedly possessed by Covert was a central issue in this case.

II. Trafficking Statute

Covert claims the judge erred by submitting the actual text of the trafficking statute to the jury in written form. We agree.

This is a novel question of law in South Carolina; however, historically, as a common practice, trial judges in South Carolina have not given the actual text of a statute in written form to a jury. The Court of Appeals of New York has ruled that the “consent of defense counsel is an ‘absolute precondition’ to furnishing the jury with the text of a statute because ‘questions may arise concerning which sections of pertinent statutory material should be given to the jury.’ ” People v. Sanders, 70 N.Y.2d 837, 838, 523 N.Y.S.2d 444, 517 N.E.2d 1330 (1987) (citations omitted). Therefore, we find that the judge’s submission of the actual text of the statute was in error because Covert’s counsel did not consent to it being given to the jury.

REVERSED AND REMANDED.

ANDERSON, J., concurs in a separate opinion. GOOLSBY, J., dissents in a separate opinion.

1 . Courts in other states have made the same determination: Kelley v. State, 55 Ala.App. 402, 316 So.2d 233 (Crim.App.1975); Martin v. State, 344 So.2d 248 (Fla.Dist.Ct.App.1976); Byrd v. Commonwealth, 261 S.W.2d 437 (Ky.Ct.App.1953); United States v. Carignan, 286 F.Supp. 284 (Mass.Dist.Ct.1967); People v. Hentkowski, 154 Mich.App. 171, 397 N.W.2d 255 (1986); State v. Fleming, 240 Mo.App. 1208, 227 S.W.2d 106 (1950); State v. Williams, 57 Ohio St.3d 24, 565 N.E.2d 563 (1991); State v. Cochrane, 84 S.D. 527, 173 N.W.2d 495 (S.D.1970).

2 . The Slate did not offer any evidence that the magistrate signed the warrant on September 26, 2002, and the magistrate did not testify at trial.