                      THE STATE OF SOUTH CAROLINA 

                           In The Supreme Court 


             The State, Petitioner,

             v.

             Bryant Kinloch, Respondent.

             Appellate Case No. 2012-212981



       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                       Appeal From Charleston County 

             The Honorable Roger M. Young, Sr, Circuit Court Judge. 



                                Opinion No. 27473 

                  Heard October 8, 2014 – Filed December 23, 2014 



                         REVERSED AND REMANDED


             Attorney General Alan McCrory Wilson and Assistant
             Attorney General William M. Blitch, Jr., both of
             Columbia, for Petitioner.

             Appellate Defender Kathrine Haggard Hudgins, of
             Columbia, for Respondent.


JUSTICE PLEICONES: Bryant Kinloch was charged with trafficking cocaine,
trafficking heroin, and possession with intent to distribute heroin within proximity
of a park after law enforcement obtained a search warrant and discovered cocaine
and heroin at 609 A Pleasant Grove Lane in Charleston. Before trial, Kinloch
moved to suppress the drugs, raising the following grounds to support his motion
to suppress: (1) the search warrant affidavit was not sufficient to establish probable
cause to search 609 A; (2) the good faith exception to the exclusionary rule did not
apply; and (3) even if the affidavit were sufficient, law enforcement intentionally
omitted exculpatory information, which, if included, would defeat probable cause.
The trial judge suppressed the drugs, finding the search warrant affidavit was
insufficient to establish probable cause. The Court of Appeals affirmed. State v.
Kinloch, Op. No. 2012-UP-432 (S.C. Ct. App. filed July 18, 2012). The State
petitioned for a writ of certiorari, and we granted the petition.

                         Factual/Procedural Background
Law enforcement prepared an affidavit, setting forth the following facts in support
of obtaining a search warrant for 609 A.

      On January 2, 2008, law enforcement conducted surveillance of 609 A
      after receiving "numerous complaints about heroin and cocaine
      transactions" at 609 A "over the past several months."1 During its
      surveillance, law enforcement observed two white males meet with a
      black male wearing a red shirt, red pants and red hat.2 The parties
      entered the residence for about "one minute," and the white males
      exited the residence, walking in the direction of Highway 17. On
      three or four other occasions, law enforcement observed the black
      male in a red shirt exit the residence and meet unknown parties, with
      whom the black male in a red shirt engaged in quick "hand-to-hand"
      transactions. Law enforcement observed the black male in a red shirt
      counting money after the transactions as he returned to 609 A. During
      each transaction, the black male in a red shirt was accompanied by

1
  At the time of law enforcement's surveillance and the complaints regarding drug
activity, it was not clear whether 609 A was Kinloch's residence. There has been
no challenge to whether Kinloch maintained a "legitimate expectation of privacy"
in 609 A. See State v. Missouri, 361 S.C. 107, 111, 603 S.E.2d 594, 594 n.2
(2004) (noting whether a party may challenge a search under the Fourth
Amendment depends on whether there is a "legitimate expectation of privacy in the
. . . the premises searched").
2
 When law enforcement executed the search warrant, it identified Kinloch as the
man in the red shirt, red pants, and red hat.
      another male wearing a black puffy jacket. Law enforcement
      observed the black male in a red shirt walking into and out of the
      residence on several occasions. At around 5:00 p.m. that same day,
      law enforcement observed the male in the black puffy jacket exit the
      residence and walk towards a gas station on Highway 17. The subject
      handed an unknown black male, later identified as Redondo Burns, a
      clear plastic wrapping in exchange for money. Law enforcement
      approached Burns, at which point he dropped a clear plastic baggy
      containing a white powdery substance, which tested positive for
      heroin. Law enforcement observed the male in the black puffy jacket
      return to 609 A.

Based on the above information, the magistrate issued a warrant to search 609 A
for drugs and items related to the purchase and distribution of drugs. No
supplemental testimony was taken

Upon executing the search warrant, law enforcement recovered the following from
609 A: (1) twenty grams of heroin from Kinloch's pocket; (2) two baggies each
containing ten grams of white powder; (3) a one dollar bill containing a brown
powder substance on the kitchen counter; (4) cocaine base on the kitchen counter;
(5) a brown wrapper containing a green leafy substance on the kitchen counter; and
(6) items suggesting Kinloch manufactured or distributed narcotics.

Kinloch moved to suppress the drugs, arguing the search warrant affidavit did not
set forth sufficient facts to establish probable cause to search 609 A and thus, the
search violated the Fourth Amendment.3 Specifically, Kinloch contended the
suspicious foot traffic outside 609 A, coupled with finding drugs on Burns, a
person who was never connected to the residence, was not sufficient to establish
probable cause to search 609 A. Thus, Kinloch argued the search warrant affidavit
was insufficient because there was not a sufficient nexus to connect the drugs that
were recovered from Burns to 609 A

The trial judge granted Kinloch's suppression motion, finding the affidavit was
insufficient because the affidavit failed to link the drugs recovered from Burns to
609 A. The trial judge relied on State v. Gentile, 373 S.C. 506, 646 S.E.2d 171
(Ct. App. 2007), and stated that while there was a lot of suspicious activity outside

3
 Kinloch also raised a state constitutional argument and an argument as to the
purported infirmity of the search warrant pursuant to S.C. Code Ann. § 17-13-140
(2014). Neither impacts our analysis or decision today.
609 A, law enforcement only recovered drugs "some distance from 609 A" and that
was not sufficient to establish probable cause to search the residence.

The State appealed, arguing the trial judge erred in finding the affidavit was
insufficient to establish probable cause because in doing so, the trial judge
improperly required the affidavit to establish with "near certainty" that drugs
would be found at 609 A, rather than the proper "fair probability" standard. The
State further argued the tips of drug activity outside 609 A, and law enforcement's
observance of "hand-to-hand" transactions outside the residence collectively were
sufficient to establish probable cause to search 609 A. Thus, the State contended
the trial judge's suppression ruling should be reversed since the trial judge utilized
an improper standard of review, and since a sufficient nexus was established
between 609 A and Kinloch's drug activity.

The Court of Appeals affirmed. The Court of Appeals cited "clear error" as the
standard of review for determining whether the trial judge erred in finding the
search warrant was not supported by probable cause. Kinloch, Op. No. 2012-UP-
432 (S.C. Ct. App. filed July 18, 2012). However, the Court of Appeals then cited
Gentile and parenthetically noted the magistrate in Gentile did not have a
"substantial basis" for his probable cause determination because the search warrant
affidavit failed to connect the evidence of drug activity to Gentile's residence. Id.

                                         Issue
      Did the Court of Appeals err in finding the search warrant affidavit
      was insufficient to establish probable cause?

                                  Law/Application

The Fourth Amendment protects against unreasonable searches and seizures. U.S.
Const. amend. IV. A search or seizure does not violate the Fourth Amendment if it
is authorized by a warrant that is supported by probable cause.4 Id.; see State v.
Baccus, 367 S.C. 41, 50, 625 S.E.2d 216, 221 (2006), cert. denied, 555 U.S. 1074
(2008). A warrant is supported by probable cause if, given the totality of the
circumstances set forth in the affidavit, there is a fair probability that contraband or


4
 Section 17-13-140 also states that a search 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." S.C. Code Ann. § 17-13-
140 (2014).
evidence of a crime will be found in a particular place. Baccus, 367 S.C. at 50,
625 S.E.2d at 221 (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).

In reviewing a magistrate's probable cause determination, circuit court judges must
determine whether the issuing magistrate had a substantial basis upon which to
conclude that probable cause existed. Baccus, 367 S.C. at 50, 625 S.E.2d at 221;
see also State v. Bellamy, 336 S.C. 140, 143–45, 519 S.E.2d 347, 348–49 (1999)
(applying the fair probability standard and stating the duty of a reviewing court is
to ensure the magistrate had a substantial basis for its probable cause
determination). As the Supreme Court in Gates noted, reviewing a magistrate's
probable cause determination based on the "substantial basis" standard encourages
law enforcement to seek a warrant, rather than conduct warrantless searches with
the hope of relying on some other exception to the warrant clause. See Gates, 462
U.S. at 237. If no supplemental testimony is taken, a magistrate's probable cause
determination is limited to the four corners of the search warrant affidavit. See,
e.g., State v. Herring, 387 S.C. 201, 214, 692 S.E.2d 490, 497 (2009)

In finding the search warrant affidavit insufficient to establish probable cause, both
the trial judge and the Court of Appeals relied on State v. Gentile, a case in which
the following facts were insufficient to support the magistrate's probable cause
finding: (1) anonymous tips indicating a high volume of traffic frequented outside
Gentile's residence; (2) a citizen complaint regarding the smell of marijuana near
the residence; and (3) the arrest of a visitor to Gentile's residence, during which
law enforcement recovered marijuana from the visitor. 373 S.C. 506, 514–18, 646
S.E.2d 171, 175–77 (Ct. App. 2007).

Although Gentile is factually similar, it is not dispositive. Rather, here, unlike
Gentile, the facts set forth in the affidavit establish that law enforcement received
numerous complaints over the course of several months regarding drug activity at
609 A. After receiving those complaints, but prior to seeking a search warrant, law
enforcement observed activity consistent with drug activity when they observed
parties conducting "hand-to-hand" transactions outside 609 A and saw a man
counting money as he returned to the residence. Based, in part, on this
observation, law enforcement followed the man they had seen outside 609 A to a
nearby gas station, where they saw this man hand another unknown man, later
identified as Burns, a clear plastic wrapping in exchange for money. When law
enforcement approached Burns, he dropped the clear plastic baggy, the contents of
which tested positive for heroin.
We find based on these facts that the Court of Appeals erred in affirming the
circuit court's suppression ruling as the magistrate had a substantial basis for
reaching his probable cause determination. See Baccus, 367 S.C. at 50, 625 S.E.2d
at 221 (reviewing a magistrate's finding of probable cause under the "substantial
basis" standard of review). We reach this conclusion after acknowledging that
independently each fact set forth in the search warrant affidavit is merely
suspicious, but the totality of the circumstances—namely, the numerous tips
indicating drug activity was probably present at 609 A and the subsequent
surveillance of 609 A during which seemingly drug-related behavior was
observed—distinguishes this case from Gentile. Likewise, we note that our
decision today is based, in part, on the uncertainty as to the standard applied to
review the magistrate's probable cause determination. See Kinloch, Op. No. 2012-
UP-432 (S.C. Ct. App. filed July 18, 2012) (reciting, erroneously, "clear error" as
the standard by which it was reviewing the trial judge's decision).

Accordingly, we reverse and remand with instructions that the circuit court
proceed in a manner consistent with this opinion.5

TOAL, C.J., BEATTY, KITTREDGE and HEARN, JJ., concur.




5
  We do so reminding the parties that they are free to litigate the issues not
addressed in this opinion. For example, in Kinloch's suppression motion, he also
argued that the drugs should be suppressed because he was entitled to a Franks
hearing based on exculpatory information that law enforcement intentionally
omitted. See, e.g., State v. Missouri, 337 S.C. 548, 557, 524 S.E.2d 394, 398
(1999) (applying Franks v. Deleware, 438 U.S. 154 (1978), and finding, inter alia,
that evidence should be suppressed when it was obtained on the basis of a search
warrant affidavit that excluded exculpatory information). The circuit court did not
reach Kinloch's argument as its determination as to the existence of probable cause
was dispositive. The merits of that issue have yet to be decided.

Further, we decline to reach the State's remaining argument regarding the
applicability of the good faith exception set forth in United States v. Leon, 468
U.S. 897 (1984), for we find our resolution of the issue regarding the sufficiency of
the search warrant affidavit is dispositive. See State v. Henson, 407 S.C. 154, 167,
754 S.E.2d 508, 515 n.4 (2014) (declining to reach an additional argument where
the resolution of the first issue was dispositive).
