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Littlejohn, Justice: James Huggins was convicted of possession of marijuana with intent to distribute. He appeals, asserting that certain hearsay testimony was improperly admitted and that the evidence gathered as the result of a warrantless search should have been excluded. We affirm.
*231 Huggins was the proprietor of a public business in Harts-ville known as the Sociable Club. On the afternoon of the arrest, a police officer’s informant made a controlled purchase of marijuana at the club. 'The officer received this evidence and sent the informant back to the club while he at-, tempted to contact a magistrate to procure a search warrant. About 30 to 60 minutes later, the informant returned to the police station and indicated that the marijuana was being sold at a rapid pace. Having been unable to contact a magistrate and fearing that the evidence would be dispersed, the police officer proceeded to enter and search the club without a warrant. The officer discovered over three ounces of marijuana, packaged for sale, in a brown paper bag behind the bar. Huggins, who was not present at the time of the search, was arrested later that day for being in constructive possession of the marijuana.The first exception raised by Huggins maintains that certain hearsay evidence was improperly admitted at trial. The testimony in question was that of a police officer relating matters stated to him by the informant. Whether this testimony is hearsay or not is unimportant, since the informant later testified at the trial. As stated by Professor Wigmore:
“The theory of the hearsay rule is that the many possible-deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-examinaton. . . . the hearsay rule, as accepted in our law, signifies a rule rejecting assertions, offered testi-monially, which have not been in some way subjected to the test of cross-examination.” 5 Wigmore, Evidence § 1362’ (Chadbourn rev., 1974).
Accordingly, the admission of the testimony was rendered' harmless by the subsequent testimony of the person who> made the statement. He was available for cross-examination.
*232 Huggins next asserts that the marijuana found during the warrantless search should have been excluded from evidence. We disagree. This court in State v. Peters, 271 S. C. 498, 248 S. E. (2d) 475 (1978), said:“It is well settled that searches conducted without a warrant are per se unreasonable unless an exception to the warrant requirement is presented, and the burden is upon the State to justify a warrantless search.” Footnote omitted, citing Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L. Ed. (2d) 564 (1971).
The exceptions to the warrant requirement are based upon the conclusion that under certain situations the exigencies of a situation make an immediate search and seizure imperative. United States v. Hare, 589 F. (2d) 1291 (6th Cir. 1979). The facts and circumstances of each case must be examined to determine whether such exigent circumstances were present. We are convinced that the facts and circumstances surrounding this incident made this warrantless search reasonable.
There can be no doubt but that the police officer could have made a probable-cause showing before a judicial officer. An informant who had given him reliable information on previous occasions, reported to him “. . . that drugs were being sold in the business establishment known as the Sociable Club, . . .” Thereafter he sent the informant to make a purchase. He returned with “. . . a small bag of marijuana.” Thereupon the officer sought, but was unable to find a judicial officer to issue a search warrant. His efforts to procure a warrant were obviously in good faith. It was not until after he failed to find a judicial officer that he proceeded with the search. He explains his action as follows:
“Well, from the information that I had found out the drugs were being sold fast and furious and we were afraid we were going to lose them, I mean we were afraid that they were going to be gone if we waited and allowed too much
*233 time to elapse. Most of the time when drugs come in like that the words get out on the street and they go out real quick. You don’t have much time to get them, so we had to go quick.”At that time the police officer did not know the quantity of drugs present in the bar and thus ran the risk that the marijuana could be distributed through sale or otherwise to the consuming public. The threat of removal was real and, under the circumstances, it was not unreasonable for the police officers to act quickly. Delay might easily have made the search useless. The search did not involve a home or a private office, but rather a public place where persons gathered for the purpose of drinking alcoholic beverages. Further, the search was conducted in the middle of the afternoon and concentrated in the area where the informant indicated the drugs were stored. Under the whole of the circumstances, we conclude that the search without a warrant was not unreasonable.
Affirmed.
Lewis, C. J., and Gregory and Harwell, JJ., concur. Ness, J., dissents.
Document Info
Docket Number: 21281
Citation Numbers: 269 S.E.2d 334, 275 S.C. 229, 1980 S.C. LEXIS 430
Judges: Littlejohn, Lewis, Gregory, Harwell, Ness
Filed Date: 7/30/1980
Precedential Status: Precedential
Modified Date: 11/14/2024