           THE STATE OF SOUTH CAROLINA 

                In The Supreme Court 


   The State, Petitioner,

   v.

   Alex Robinson, Respondent.

   Appellate Case No. 2014-001545



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                 Appeal from Horry County 

          Edward B. Cottingham, Circuit Court Judge 



                     Opinion No. 27617 

        Heard October 21, 2015 – Filed March 30, 2016 



                 AFFIRMED AS MODIFIED


   Attorney General Alan McCrory Wilson and Assistant
   Attorney General Mark Reynolds Farthing, both of
   Columbia, for Petitioner.

   Dayne C. Phillips, of Lexington, and Appellate Defender
   Laura Ruth Baer, of Columbia, for Respondent.
CHIEF JUSTICE PLEICONES: Respondent Robinson was convicted of one
count of trafficking in cocaine in an amount between 100 and 200 grams. He was
sentenced to twenty-five years imprisonment and ordered to pay a $50,000 fine.
The Court of Appeals reversed Robinson's conviction holding that the search-
warrant affidavit did not include any information to establish the reliability of the
informant. State v. Robinson, 408 S.C. 268, 758 S.E.2d 725 (Ct. App. 2014). We
granted the State's petition for a writ of certiorari and now affirm the Court of
Appeals' decision as modified.
                                          FACTS

An officer of the Horry County Police Department (Officer) sought a search
warrant for a residence alleged to be Robinson's home (the Home). The search-
warrant affidavit stated, in relevant part, that a confidential informant had
purchased illegal drugs from the occupants of the Home on multiple occasions.
Based solely on this affidavit, the Circuit Court1 issued a search warrant for the
Home. When the warrant was executed, officers found multiple people living in
the Home. In one bedroom they found mail addressed to Robinson, and a bag
containing 111 grams of cocaine located on top of a pile of men's clothing. In total,
375.88 grams of cocaine were found in the Home. Robinson was not present when
the warrant was executed although a car registered to him was parked outside the
Home.

At trial, Robinson challenged the veracity of the representations in the search-
warrant affidavit under Franks v. Delaware, 438 U.S. 154 (1978), and sought to
suppress the evidence obtained from the search. Robinson claimed that contrary to
the assertions in the search-warrant affidavit, the purported confidential informant
never personally made any drug purchases from the Home. The Trial Court
conducted a Franks hearing where Officer testified that the confidential informant
referenced in the affidavit never personally purchased drugs but that Oliver, a third
party, made the purchases. The Trial Court found there were no false statements in
the affidavit and denied Robinson's motion to suppress.

On appeal, the Court of Appeals held the Trial Court erred in denying Robinson's
motion to suppress because the search-warrant affidavit did not include any
information to establish the reliability of the informant. It therefore reversed and

1
 Officer testified that because there was a chance that this case would become a
federal prosecution, he sought a search warrant from a circuit court judge instead
of a magistrate.
remanded for a new trial. See Robinson, 408 S.C. at 278, 758 S.E.2d at 730. We
granted the State's petition for a writ of certiorari to review the decision of the
Court of Appeals.

                                           ISSUES

     I.	   Whether the Court of Appeals erred in finding the search warrant invalid
           because the search-warrant affidavit contained no information establishing
           informant reliability?
    II.	   Whether the Court of Appeals erred in concluding there was intentionally 

           false information in the search-warrant affidavit? 

III.	      Whether the Court of Appeals erred in holding that the search-warrant
           affidavit could support probable cause even with the false information
           omitted?
                                                                         2
IV.	       Whether the Court of Appeals erred in concluding that Leon's good-faith
           exception to suppression did not apply?

                                         ANALYSIS

              A. Informant reliability information in the search-warrant affidavit

The State argues the Court of Appeals erred in finding there was no evidence to
support the Trial Court's finding that the search-warrant affidavit contained
information establishing informant reliability. Specifically, the State argues the
information contained in the affidavit about the confidential informant's work with
law enforcement and successful purchases of illegal drugs from the Home, was
sufficient to support the Trial Court's determination. We agree.

The veracity and the basis of knowledge of persons supplying the information in a
search-warrant affidavit are considerations in the determination of whether there is
probable cause to issue a search warrant. State v. Johnson, 302 S.C. 243, 395
S.E.2d 167 (1990) (internal citation omitted). An appellate court gives great
deference to the issuing judge's probable cause determination. State v. Dupree, 354
S.C. 676, 583 S.E.2d 437 (Ct. App. 2003). An affidavit based solely on
information provided by a confidential informant must contain information
supporting the credibility of the informant and the basis of his knowledge. See
State v. Martin, 347 S.C. 522, 527, 556 S.E.2d 706, 709 (2001) (citing State v. 192

2
    468 U.S. 807 (1978).
Coin-Operated Video Game Machines, 338 S.C. 176, 192, 525 S.E.2d 872, 881
(2000)).

The pertinent parts of this search-warrant affidavit include:

             REASON FOR AFFIANT'S BELIEF THAT THE PROPERTY
             SOUGHT IS ON THE SUBJECT PREMISES . . .
             A confidential and reliable informant working for the Horry County
             Police Department purchased a quantity of off white powder
             substance represented as being cocaine and field-testing positive for
             cocaine attributes from the occupants of the house identified as [the
             Home]. That the informant has been able to make recent continuous
             purchases of illegal drugs from this residence leads to the affiant's
             belief that there is the possibility there may be more illegal drugs
             located at this residence.

The contents of the affidavit were sufficient to provide the Circuit Court a
substantial basis to believe that the: (1) Horry County Police Department; (2) had a
confidential informant; (3) who bought a substance that tested positive for
cocaine; (4) from the Home; and (5) the informant had made other recent
purchases of illegal drugs from the Home. However, as explained below excepting
that the confidential informant worked for the Horry County Police Department,
none of these assertions were true. Looking at the four corners of the affidavit,
there is information from which the Circuit Court could conclude the confidential
informant was reliable. See Dupree, 354 S.C. at 685, 583 S.E.2d at 442. We agree
with the State that the Court of Appeals erred in finding the affidavit, on its face,
lacked sufficient information to establish the reliability of the confidential
informant. Nevertheless, we affirm the result of the Court of Appeals as explained
below.

         B. Intentionally false statements in the search-warrant affidavit

Under the Fourth and Fourteenth Amendments to the United States Constitution, a
defendant has the right to challenge false statements in a search-warrant affidavit.
See State v. Jones, 342 S.C. 121, 126, 536 S.E.2d 675, 678 (2000) (citing Franks v.
Delaware, 438 U.S 154 (1978)). In order to obtain relief, the defendant must prove
the affiant knowingly and intentionally, or with reckless disregard for the truth,
included false statements in the search-warrant affidavit. The burden is on the
defendant to establish the falsity by a preponderance of the evidence. See Franks,
438 U.S. at 156.

At the Franks hearing, Officer testified that the Home became the target of his
investigation when a confidential informant said she knew someone who could
purchase drugs from within the Home. According to Officer's testimony, three
purchases were made prior to the execution of the search-warrant affidavit. All
three purchases happened in substantially the same way. The confidential
informant picked up a third party, Oliver, and drove to a location close to the
Home. Oliver was then dropped off a short distance away from the Home in order
to avoid suspicion. The confidential informant stayed in the car and watched as
Oliver walked into the Home. Oliver then returned to the car with drugs. The drugs
were later tested and confirmed to be cocaine. The confidential informant was
debriefed after the buys during which she informed Officer of what Oliver told her.
When seeking the search warrant, Officer relied solely on his affidavit; he did not
orally supplement the affidavit before the Circuit Court.

When Officer wrote the affidavit, he was aware that the confidential informant had
not personally made the alleged drug purchases. After each of the three alleged
transactions, Officer was informed that Oliver was the actual purchaser. Officer
acknowledged, at the Frank's hearing, he knew of Oliver's role, but offered no
explanation why he did not include this information in the affidavit.

The State argues the Court of Appeals erred in holding clearly erroneous the Trial
Court's finding that no false statements were contained in the search-warrant
affidavit. Because the confidential informant drove Oliver close to the Home, gave
Oliver "buy money," watched him enter the Home, and watched him exit the
Home, the State argues that the confidential informant actually "purchased and
obtained the drugs from [the Home]" herself. We disagree.

Applying a common-sense reading to the search-warrant affidavit, it states that this
confidential informant personally made drug purchases out of the Home. There is
nothing that reasonably suggests an alternative interpretation. See State v. Thomas,
275 S.C. 274, 276, 269 S.E.2d 768, 769 (1980) (stating that affidavits are to be
given a "common-sense reading") overruled in part on other grounds, State v.
Mcknight, 287 S.C. 167, 337 S.E.2d 208 (1985). Not only did this confidential
informant not make the purchases, she did not witness Oliver's alleged purchases.
At best, the informant could reliably state that: (1) Oliver left the car with the
stated intention to buy drugs; (2) Oliver walked into the Home; and (3) Oliver
returned to the car with drugs he claimed he had purchased from the occupants of
the Home. The confidential informant could not provide any first-hand information
about drug purchases from the Home.

We therefore agree with the Court of Appeals that the Trial Court erred in holding
there were no false statements in the search-warrant affidavit. Officer's testimony
makes clear that he knowingly and intentionally made false statements in the
search-warrant affidavit. As a result, Robinson has met his initial burden under
Franks. We hold that the false statements in the search-warrant affidavit were
made knowingly and intentionally in violation of Franks. We next decide whether
the search-warrant affidavit supported probable cause absent the false statements.

         C. Probable cause absent false statements

The Court of Appeals reversed and remanded because it found that the search-
warrant affidavit did not include any information establishing informant reliability.
It also held that despite the Franks violation, the affidavit could support probable
cause even if the false information were omitted. The State argues that the Court of
Appeals correctly held that suppression was not required on this basis because
even with Oliver's involvement included in the affidavit, probable cause would
have still existed. We disagree.

Once it is established that the affiant has knowingly and intentionally or with
reckless disregard for the truth made false statements, the search-warrant affidavit's
remaining content must be reviewed to determine if probable cause exists. See
Franks, 438 U.S. at 155-156. The remaining content must allow a reviewing judge
to make a common sense decision whether, under the totality of the circumstances,
including veracity and basis of knowledge of person(s) supplying information,
there is a fair probability that contraband or evidence of a crime will be found in
the particular place to be searched. If the remaining content cannot support this
determination, then the trial judge should suppress the evidence. Id.

With the false statements excised from this search-warrant affidavit, there no
longer exists a substantial basis for a finding of probable cause. Contrary to the
holding of the Court of Appeals and the argument of the State, the search-warrant
affidavit supports probable cause only if Oliver, not the confidential informant,
were telling the truth. Since the confidential informant stayed in the car, down the
road from the Home, her knowledge hinges on the reliability of Oliver, whose
credibility has not been established.3 With the false information removed, nothing
remains in the search-warrant affidavit to establish a substantial basis for a finding
of probable cause.

          D. Leon's good faith exception to suppression

Finally, the State argues the Court of Appeals erred in holding that the good faith
exception to an otherwise invalid search warrant did not apply. We disagree. In
U.S. v. Leon, the United States Supreme Court held that evidence should not be
suppressed which resulted from a search where law enforcement reasonably relied
on a search warrant, which was ultimately found to be invalid . See 468 U.S. 807,
920 (1978). The Court, however, held suppression remains the appropriate remedy
when a reviewing judge is intentionally misled by information in an affidavit that
the affiant knew was false or would have known was false except for his reckless
disregard of the truth. Leon, 468 U.S. at 923.


The State argues that the Court of Appeals erred when it held that the good-faith
exception to suppression does not apply because the affidavit is "so lacking in
indicia of probable cause as to render official belief in its existence entirely
unreasonable." Robinson, 408 S.C. at 277, 758 S.E.2d at 730. We agree with the
Court of Appeals that Leon does not apply. We hold that the good faith exception
is not available, where, as here, the warrant issued is based on a search-warrant
affidavit of the officer which contained representations known to be false. See
Leon, 468 U.S. at 923.


                                    CONCLUSION
As explained in subsection A, supra, we hold that because the search-warrant
affidavit, on its face, supports a finding of probable cause, an objective law
enforcement officer's belief in it could be reasonable. Thus, the Court of Appeals
erred in holding otherwise. However, because the information in the search-
warrant affidavit concerning the informant/purported purchaser's reliability was
intentionally false, see subsections B and C, supra, the credibility of the entire
affidavit is compromised.

3
  Moreover, as Oliver was never searched prior to entering the Home, nothing in
the record establishes that he did not possess the drugs prior to the alleged
transactions.
For the reasons given above, the decision of the Court of Appeals is

AFFIRMED AS MODIFIED.



BEATTY, KITTREDGE, HEARN, JJ., and Acting Justice Jean H. Toal,
concur.
