SC: Informant not properly supported; showing of PC fails under GFE

The affidavit for the search warrant was false in that it omitted that the informant was really an agent of the police in this endeavor, but it wasn’t material enough for Franks. The crux of the case is that the informant’s tale was completely unsupported by facts and circumstances showing that the informant should be credited at all, and the court finds probable cause lacking; so lacking that the good faith exception doesn’t even apply. State v. Robinson, 2014 S.C. App. LEXIS 88 (April 23, 2014):

Under Franks v. Delaware, however, the court may not order suppression simply because the officer made a false statement in, or omitted key facts from, an affidavit supporting a search warrant. 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667, 672 (1978) (establishing the two-prong test for challenging the veracity of a search warrant affidavit). The defendant must also demonstrate “those false statements or omissions were material, i.e., rendered the affidavit unable to ‘support a probable cause finding.'” United States v. McKenzie-Gude, 671 F.3d 452, 462 (4th Cir. 2011) (quoting United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011)). We find Sergeant Donald’s false statement in the affidavit does not require suppression because the existence of probable cause depended on the accuracy of what the informant told Sergeant Donald. In other words, including in the affidavit the correct information about Oliver’s involvement would not have changed the fact that probable cause existed, if the informant was telling the truth.

. . .

The only information in the affidavit about the events and circumstances at Robinson’s residence, and thus the only information provided to the issuing judge regarding the existence of probable cause, came from the informant. As the issuing judge observed during the suppression hearing, “There were drugs there if the allegations [in the affidavit] are true.” Thus, the existence of probable cause in this case depended entirely on the informant’s hearsay statements to Sergeant Donald—whether the informant told the truth—particularly as to (1) whether there were any drugs purchased at all and (2) whether the drugs were purchased from Robinson’s residence. Concerning these key points, if the informant gave Sergeant Donald incorrect information, there would be no probable cause to search Robinson’s residence. Therefore, we find it was necessary that Sergeant Donald demonstrate the informant’s reliability to the issuing judge. See State v. Martin, 347 S.C. 522, 527, 556 S.E.2d 706, 709 (Ct. App. 2001) (“‘A warrant based solely on information provided by a confidential informant must contain information supporting the credibility of the informant and the basis of his knowledge.'” (quoting State v. 192 Coin-Operated Video Game Machs., 338 S.C. 176, 192, 525 S.E.2d 872, 881 (2000))); State v. Adolphe, 314 S.C. 89, 92, 441 S.E.2d 832, 833 (Ct. App. 1994) (“The task of a magistrate when determining whether to issue a warrant … includes consideration of the veracity of the person supplying the information and the basis of his or her knowledge.” (internal citations omitted)).