THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE

CITED OR RELIED ON AS PR ECEDENT IN ANY PROCEEDING

EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Respondent,

v.

Antonio Miller, Petitioner.

Appellate Case No. 2015-000365

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Aiken County Doyet A. Early, III, Circuit Court Judge

Memorandum Opinion No. 2016-MO-009 Heard January 12, 2016 – Filed March 30, 2016

REVERSED

Chief Appellate Defender R obert Michael Dudek, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Donald J. Zelenka, andAssistant Attorney General J. Anthony Mabry, all of Columbia, and Solicitor James Strom Thurmond, Jr., of Aiken, for Respondent.

PER CURIAM: We granted certiorari to review the Court of Appeals' decision affirming the trial judge's finding that th e affidavit supporting the search warrant issued for petitioner's residence establis hed the requisite probable cause. See State

v. Miller , Op. No. 2014-UP-409 (S.C. Ct. App. filed Nov. 19, 2014). We find the affidavit, which was not supplemented w ith oral testimony, failed to establish probable cause that evidence of a crime may be contained within the residence sought to be searched. See State v. Kinloch , 410 S.C. 612, 616, 767 S.E.2d 153, 155 (2014) (applying the fair probability standard and stating the duty of a reviewing court is to ensure the magistra te had a substantial basis for its probable cause determination (citing State v. Bellamy , 336 S.C. 140, 143–45, 519 S.E.2d 347, 348–49 (1999))); State v. Tench , 353 S.C. 531, 534, 579 S.E.2d 314, 316 (2003) (asserting the magistrate must make a practical, common sense decision concerning whether, under the totality of the circumstances set forth in the affidavit, there is a fair probability th at evidence of a crim e will be found in the particular place to be searched (citation omitted)); State v. Jones , 342 S.C. 121, 126, 536 S.E.2d 675, 678 (2000) ("Although great deference must be given to a magistrate's conclusions, a magistrate may only issue a search warrant upon a finding of probable cause ." (citation omitted)); State v. Smith , 301 S.C. 371, 373, 392 S.E.2d 182, 183 (1990) (finding mere c onclusory statements which give a magistrate no basis to make a judgment regarding probable cause are insufficient as the magistrate's actions "cannot be a me re ratification of the bare conclusions of others" (quoting Illinois v. Gates , 462 U.S. 213, 239 (1983))); State v. Viard , 276

S.C. 147, 149, 276 S.E.2d 531, 532 (1981) (noting the affidavit supporting a search warrant must contain sufficient underlyi ng facts and information upon which the magistrate may make a determination of probable cause); State v. Owen , 275 S.C. 586, 588, 274 S.E.2d 510, 511 (1981) ("[I]n passing upon the validity of the warrant, a reviewing court may consider only the information brought to the magistrate's attention."). Accordingly, we reverse petitioner's convictions, and note should the State seek to retry petitio ner, it will be permitted to argue the evidence seized pursuant to the invalid s earch warrant may be admissible on some basis independent of our finding that the affidavit did not establish the requisite probable cause.REVERSED

PLEICONES, C.J., BEATTY, KITTREDGE , HEARN, JJ., and Acting Justice James E. Moore, concur.