Feb 26, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
This recent SC Court of Appeals case discusses another close example of what constitutes an unreasonable search by police and subsequent challenge to seized evidence. Although the Court ultimately ruled in favor of the State, the decision reaffirms how fact specific these issues are. Because the outcome of a criminal case can turn on the admission of crucial evidence, it is imperative that your criminal defense attorney know the rules and be willing to fight to keep improperly obtained evidence excluded. It can literally make the difference between being found guilty or being acquitted. The stakes are too high to risk hiring an inexperienced lawyer.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried virtually every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Shirley Mae Geer, Appellant.
Appeal from Greenwood County
John C. Hayes, III, Circuit Court Judge
Opinion No. 4760
Heard May 19, 2010 – Filed November 24, 2010
AFFIRMED
Appellate Defender M. Celia Robinson, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General A. West Lee, all of Columbia; and Solicitor Jerry W. Peace, of Greenwood, for Respondent.
GEATHERS, J.: Shirley Mae Geer appeals her conviction for possession of crack cocaine. Geer asserts the trial court erred by (1) failing to dismiss the charges against her or to grant a continuance in order to give her time to request and review exculpatory evidence withheld by the State that was favorable to her defense; (2) denying her motion to quash the indictment on the ground of selective prosecution; (3) denying her motion to suppress drug evidence seized as the result of an unreasonable, warrantless, beneath-the-skin search that was unsupported by probable cause; and (4) denying her motion to suppress the drug evidence because the State failed to present a sufficient chain of custody. We affirm.
FACTS/PROCEDURAL BACKGROUND
At approximately 11:30 p.m. on the night of September 9, 2007, Officer Byrd and Officer Crisp responded to a dispatch call directing them to Butler Street (a dead-end street) in Greenwood County. Upon arriving at the location, they found Michael Leon Parks standing outside of his vehicle and Geer seated in the vehicle on the front, passenger seat. Officer Byrd began to question Parks about his reason for being at the location, and he determined that Parks was being dishonest. Officer Byrd continued to question Parks. After Officer Byrd told Parks that it would be in his best interest to be honest, Parks admitted that he had given Geer two rocks of crack cocaine in exchange for her performance of oral sex and that Geer had put the rocks in her mouth. Relying on Parks’ assertion, Officer Byrd approached Geer and asked her to open her mouth. When Geer complied, Officer Byrd discovered two off-white, rock-like substances underneath her tongue. Officer Byrd then asked Geer to spit the rocks onto the hood of his patrol car, and she complied. He then scooped the rocks into a manila envelope and secured the envelope in the patrol car.
Before making any arrests, the officers telephoned their supervisor. Thereafter, they decided not to arrest Parks because the situation would embarrass his girlfriend and family and would cause him embarrassment at work. Instead, they gave him a courtesy summons for solicitation of prostitution. The officers also discussed how Parks was going to get home. They could not allow him to drive because he did not have a valid driver’s license. This conversation was recorded on an audiotape from the patrol car and later stored at the Greenwood County Police Department. Geer, however, was arrested, taken into custody, and charged with prostitution and possession of crack cocaine. Even though Parks admitted to distributing the crack cocaine to Geer, he was not charged with distribution of crack cocaine, and the charge against him for solicitation of prostitution was dismissed at the request of Officer Byrd. The charge against Geer for prostitution was also dismissed, and she proceeded to trial on the charge of possession of crack cocaine.
After Geer was arrested, Officer Byrd took the manila envelope containing the crack cocaine rocks to the Greenwood City Hall, where a field test was performed on them. After the substance was tested and weighed, it was placed in a “best bag”[1] with an assigned control number, documented, and put into the evidence locker. The evidence was then taken from the locker by Officer Ed Suddeth and transferred to the control evidence room. A few days later, Officer Suddeth took the evidence to the South Carolina Law Enforcement Division (SLED) to be analyzed. From the time Officer Suddeth removed the evidence from the evidence locker until he turned it over to the SLED log-in area to be placed in a vault, the seal on the best bag was intact and the chain of custody logs were signed.
SLED Officer Larry Zivkovitch, a drug analyst, retrieved the best bag from the log-in area on October 31, 2007, and on November 28, 2007, he performed an analysis on its contents.[2] The initial spot test indicated that there was a possibility that the substance was cocaine. Officer Zivkovitch then ran a second, instrument-based test used by scientists (an FTIR test)[3] on the substance, and it was positively identified as cocaine base, commonly known as crack. After Officer Zivkovitch analyzed and weighed the substance, he placed it in a heat-sealed bag with his initials underneath the heat seal and returned it to the evidence log-in area to await its transfer by the Greenwood Police Department.
Geer’s trial was held on February 28, 2008, in Greenwood County. The trial lasted one day, and the jury returned a verdict of guilty on the charge of possession of crack cocaine. As a result of her conviction, Geer was sentenced to two years’ incarceration, suspended upon two years’ probation with substance abuse counseling and random drug and alcohol testing, and a $500 fee was imposed upon her for the use of the public defender. This appeal followed.
ISSUES ON APPEAL
The issues on appeal are: (1) whether the trial court erred in denying Geer’s motion for a continuance; (2) whether the trial court erred in denying Geer’s motion to quash the indictment, asserting selective prosecution by the State; (3) whether the trial court erred in denying Geer’s motion to suppress the drug evidence, asserting that it was obtained through an unconstitutional, warrantless search; and (4) whether the trial court erred in denying Geer’s motion to suppress the drug evidence because the State failed to present a sufficient chain of custody.
STANDARD OF REVIEW
“In criminal cases, the appellate court sits to review errors of law only.” State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Thus, an appellate court “is bound by the trial court’s factual findings unless they are clearly erroneous.” Id. “This same standard of review applies to preliminary factual findings in determining the admissibility of certain evidence in criminal cases.” State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001). “This Court does not re-evaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial judge’s ruling is supported by any evidence.” Id.
LAW/ANALYSIS
I. Motion for Continuance
Geer argues the trial court erred when it denied her motion for a continuance because evidence was withheld by the State until the day before trial. We disagree.
“The granting of a motion for a continuance is within the sound discretion of the trial court and will not be disturbed absent a clear showing of an abuse of discretion.” State v. Yarborough, 363 S.C. 260, 266, 609 S.E.2d 592, 595 (Ct. App. 2005). “An abuse of discretion arises from an error of law or a factual conclusion that is without evidentiary support.” State v. Irick, 344 S.C. 460, 464, 545 S.E.2d 282, 284 (2001); see also State v. Funderburk, 367 S.C. 236, 239, 625 S.E.2d 248, 249-50 (Ct. App. 2006) (“An abuse of discretion occurs when the trial court’s ruling is based on an error of law.”). Even if there was no evidentiary support, “[i]n order for an error to warrant reversal, the error must result in prejudice to the appellant.” State v. Preslar, 364 S.C. 466, 473, 613 S.E.2d 381, 385 (Ct. App. 2005); see also State v. Wyatt, 317 S.C. 370, 372-73, 453 S.E.2d 890, 891 (1995) (stating that error without prejudice does not warrant reversal). “[R]eversals of refusal of continuance are about as rare as the proverbial hens’ teeth.” State v. Lytchfield, 230 S.C. 405, 409, 95 S.E.2d 857, 859 (1957).
In addressing the merits of Geer’s motion for a continuance, we first analyze her contention that the State withheld evidence that was favorable to her defense until the eve of trial in violation of Rule 5, SCRCrimP. Rule 5(a)(1)(C), SCRCrimP, states in part:
Upon request of the defendant the prosecution shall permit the defendant to inspect and copy books, papers, documents, photographs, tangible objects . . . which are within the possession, custody or control of the prosecution, and which are material to the preparation of his defense or are intended for use by the prosecution as evidence in chief at the trial . . . .
In the present case, the evidence presented to Geer by the State the evening before the trial was an audiotape of the arrest. According to Rule 5, SCRCrimP, if the evidence was considered “material to the preparation of [her] defense . . . and intended for use by the prosecution as evidence in chief at the trial,” Geer had a right to possession and review of the audiotape. Geer argued “under the solicitor’s program, the State was required to provide all discovery at the initial appearance or provide a list of things that were outstanding,” but the record does not indicate that Geer requested that the State provide any evidence as required under Rule 5.
Geer was arrested and charged with possession of crack cocaine on September 9, 2007, but her trial was not held until February 28, 2008. She had ample time to request and receive discovery information before the eve of trial. Geer did not request any information regarding the night of her arrest but relied upon the State’s production of the audiotape on the eve of trial. Geer has not shown that the discovery of information contained on the audiotape was a denial of evidence that was material to the preparation of her defense, thereby rising to the level of a Rule 5 violation. Further, the audiotape provided evidence that served to inculpate rather than exculpate her. That is, the evidence provided proof that Geer was in fact in possession of crack cocaine on the night of her arrest. Furthermore, the record does not indicate the State intended to use the audiotape “as evidence in chief at the trial.” In fact, a thorough review of the record reveals that the State never introduced the audiotape or a transcript of its contents into evidence. The facts show that there was no violation of Rule 5, and the trial court did not err in denying Geer’s motion for a continuance.
In conjunction with her assertion of a violation of Rule 5, SCRCrimP, Geer also maintains that the State’s withholding of evidence was in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”). The State argues that Geer did not raise the issue of a Brady violation in support of her motion to dismiss at the trial, and thus, it is not preserved for our review.
The State is correct in its argument that Geer did not explicitly state its late delivery of the evidence constituted a Brady violation; however, Geer presented arguments “sufficiently specific to bring into focus the precise nature of the alleged error so that it [could] be reasonably understood by the trial judge.” McKissick v. J.F. Cleckley & Co., 325 S.C. 327, 344, 479 S.E.2d 67, 75 (Ct. App. 1996). “A party need not use the exact name of a legal doctrine in order to preserve it, but it must be clear that the argument has been presented on that ground.” State v. Dunbar, 356 S.C. 138, 142, 587 S.E.2d 691, 694 (2003); see also State v. Russell, 345 S.C. 128, 132, 546 S.E.2d 202, 204 (Ct. App. 2001) (explaining that even though exact words are not used to argue an issue, if it is clear from the argument presented in the record that the motion was made on a particular ground, the argument will be considered raised to the trial court and will be preserved for review).
Nevertheless, Geer has not established that a Brady violation occurred. There are three categories of Brady violations: “(1) cases that include [non-disclosed] evidence of perjured testimony about which the prosecutor knew or should have known, (2) cases in which the defendant specifically requested the [non-disclosed] evidence, and (3) cases in which the defendant made no request or only a general request for Brady material.” Gibson v. State, 334 S.C. 515, 524-25, 514 S.E.2d 320, 325 (1999).
“Brady only requires disclosure of evidence which is both favorable to the accused and material to guilt or punishment.” State v. Taylor, 333 S.C. 159, 177, 508 S.E.2d 870, 879 (1998) (citing United States v. Bagley, 473 U.S. 667 (1985)). “A Brady claim is based on the requirement of due process.” Gibson, 334 S.C. at 524, 514 S.E.2d at 324. To establish a due process violation, an accused must demonstrate “(1) the evidence was favorable to the accused, (2) it was in the possession of or known to the prosecution, (3) it was suppressed by the prosecution, and (4) it was material to guilt or punishment.” Id.
Moreover, the State’s late disclosure of the evidence did not impair Geer’s ability to present a defense regarding whether she possessed crack cocaine. A Brady violation would have occurred only had the evidence been favorable to the defense, the State possessed and withheld it, and it was material to Geer’s guilt or punishment. Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682. Also, “[n]o due process violation occurs as long as Brady material is disclosed to a defendant in time for its effective use at trial.” United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir. 1985). Geer has not established aBrady violation occurred such that there is a reasonable probability the result of her trial would have been different had she received the evidence earlier. The audiotape was not played during trial nor did Geer attempt to use its contents to establish a defense to the charge of possession of crack cocaine. As such, the trial court did not err in denying Geer’s motion for a continuance based on a Rule 5, SCRCrimP, or a Brady violation. Thus, the decision of the trial court to deny her motion for a continuance is affirmed.
II. Motion to Quash Based on Selective Prosecution
Geer argues the trial court erred when it denied her motion to quash the indictment based on selective prosecution. The State argues that Geer’s motion to quash based on selective prosecution was in reference to the charge of prostitution, not on the drug possession charge, and is therefore not preserved for this Court’s review. We conclude that the issue was preserved, but that the trial court did not err by denying Geer’s motion to quash.
“It is well settled that an issue may not be raised for the first time in a post-trial motion.” S.C. Dep’t of Transp. v. First Carolina Corp. of S.C., 372 S.C. 295, 301, 641 S.E.2d 903, 907 (2007). “Further, it is a litigant’s duty to bring to the court’s attention any perceived error, and the failure to do so amounts to a waiver of the alleged error.” Id. “It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.” Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998); see also Jean Hoefer Toal et al., Appellate Practice in South Carolina 57 (2d ed. 2002) (stating that to be preserved for appellate review, an issue must have been “(1) raised to and ruled upon by the trial court, (2) raised by the appellant, (3) raised in a timely manner, and (4) raised to the trial court with sufficient specificity.”).
In this case, Geer argued selective prosecution because she was arrested for prostitution while Parks was not. Geer further argued that the decision not to prosecute Parks for distributing drugs was part of the overall scheme to protect his reputation as the prosecution of the drug charge would likely reveal his involvement in prostitution. The court, Geer, and the State discussed at length the State’s decision to prosecute Geer for drug possession while declining to charge Parks with drug distribution. Ultimately, the court denied Geer’s motion to quash the indictment against her. Accordingly, because the issue of selective prosecution on the drug charge was sufficiently raised and ruled upon, we hold that it has been preserved for this Court’s review.
Nevertheless, while we find the State’s exercise of its prosecutorial discretion troublesome, we conclude that Geer’s argument fails on the merits. There are two prongs that a defendant must satisfy to establish selective prosecution. First, “a defendant must first demonstrate that he has been singled out for prosecution while others similarly situated have not been prosecuted for conduct similar to that for which he was prosecuted.” United States v. Catlett, 584 F.2d 864, 866 (8th Cir. 1978). “Second, the defendant must demonstrate that the government’s discriminatory selection of him for prosecution was based upon an impermissible ground, such as race, religion or his exercise of his [F]irst [A]mendment right to free speech.” Id.
“Courts look suspiciously on selective prosecution claims because they ‘ask[ ] the court to exercise judicial power over a “special province” of the Executive [branch].'” State v. 192 Coin-Operated Video Game Machines, 338 S.C. 176, 200, 525 S.E.2d 872, 885 (2000) (quoting United States v. Armstrong, 517 U.S. 456 (1996)) (first alteration by court). Because of this balance of powers concern, a “‘presumption of regularity supports’ . . . prosecutorial decisions and, ‘in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.'” Armstrong, 517 U.S. at 465 (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)).
In order to prevail on a claim for selective prosecution, Geer would have to show not just that she “had been singled out for prosecution, but that the decision to prosecute was based on unconstitutional considerations.” United States v. Marcum, 16 F.3d 599, 602 (4th Cir. 1974). “A defendant may demonstrate that the administration of a criminal law is ‘directed so exclusively against a particular class of persons . . . with a mind so unequal and oppressive’ that the system of prosecution amounts to ‘a practical denial’ of equal protection of the law.” Armstrong, 517 U.S. at 464-65 (quoting Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886)) (omission by court).
“In our criminal justice system, the Government retains ‘broad discretion’ as to whom to prosecute.” Wayte v. United States, 470 U.S. 598, 607 (1985) (quoting United States v. Goodwin, 457 U.S. 368, 380, n.11 (1980)). “[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.” Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978). Here, Geer has not established that she was singled out for prosecution on unconstitutional grounds. She has not alleged nor does the record contain anything to show that the State chose to prosecute her based solely on impermissible grounds such as her gender or race. As a result, she has not proven that the State’s decision to prosecute her constitutes selective prosecution warranting reversal of the trial court’s denial of her motion to quash.
III. Warrantless, Beneath-the-Skin Search and Probable Cause
Geer argues the trial court erred when it denied her motion to suppress drug evidence on the ground that it was obtained through an unconstitutional, warrantless, beneath-the-skin search because the search was unsupported by probable cause. We disagree.
“When reviewing a Fourth Amendment search and seizure case, an appellate court must affirm the trial judge’s ruling if there is anyevidence to support the ruling.” State v. Missouri, 361 S.C. 107, 111, 603 S.E.2d 594, 596 (2004). The trial court’s factual findings on whether evidence should be suppressed due to a Fourth Amendment violation are reviewed for clear error. State v. Brockman, 339 S.C. 57, 66, 528 S.E.2d 661, 666-67 (2000) (stating that a private search is a question of fact and the trial court’s ruling will be reversed only if there is clear error).
The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const. Amend. IV.
Similarly, the South Carolina Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained.
S.C. Const. Art. I, § 10.
With respect to searches involving intrusions beyond the body’s surface, the United States Supreme Court has held:
The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.
Schmerber v. California, 384 U.S. 757, 769-70 (1966).
The acquisition of beneath-the-skin evidence requires certain considerations, namely, the existence of “probable cause to believe the suspect has committed the crime,” “a clear indication that relevant material evidence will be found,” and “the method used to secure [the evidence] is safe and reliable.” State v. Baccus, 367 S.C. 41, 53-54, 625 S.E.2d 216, 222-23 (2006). Probable cause merely requires that,
[T]he facts available to the officer would ‘warrant a man of reasonable caution in the belief,’ that certain items may be . . . . useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required.
Texas v. Brown, 460 U.S. 730, 742 (1983) (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). “Probable cause may be found somewhere between suspicion and sufficient evidence to convict.” State v. Blassingame, 338 S.C. 240, 250, 525 S.E.2d 535, 540 (Ct. App. 1999).
In the case at hand, the police responded to a call at approximately 11:30 p.m. on a dead end street and found Geer and Parks with Parks’ vehicle. When Officer Byrd questioned Parks as to why they were there, Parks began to act suspiciously and lied about the circumstances surrounding his presence at the scene. This caused Officer Byrd to believe that Parks and Geer may have been involved in criminal activity. Upon further questioning and against his interests, Parks admitted that he and Geer had been engaged in an act of prostitution and that he had paid Geer for the act with illegal drugs. Parks informed the officers that Geer had placed the drugs in her mouth, underneath her tongue. This information gave Officer Byrd a clear indication that if he searched Geer, “relevant material evidence” would be found.
Even though he initially lied about what they were doing at the scene, Parks’ eventual truthful admission gave Officer Byrd the probable cause necessary to conduct a search of Geer’s mouth, and the search was not based upon a “mere chance that [the] desired evidence might be obtained.” Schmerber, 384 U.S. at 70. The facts available to Officer Byrd led him to believe that a criminal offense had occurred and that Parks and Geer were involved. Considering the totality of the circumstances (the lateness of the hour, the dead-end street, Parks’ initial suspicious behavior and his eventual admission against his interest) Officer Byrd had a clear indication that not only had a criminal act taken place but also that evidence would be found. The record indicates that Officer Byrd did not reach into Geer’s mouth but asked her to spit the rocks onto the hood of the patrol car and she complied, thus, ensuring the evidence was found and retrieved in a safe and reliable manner.
Furthermore, our Supreme Court has held, “[a] suspect has no constitutional right to destroy or dispose of evidence by swallowing, consequently he cannot consider the mouth a ‘sacred orifice’ in which contraband may be irretrievably concealed from the police.” State v. Dupree, 319 S.C. 454, 458, 462 S.E.2d 279, 282 (1995) (quoting State v. Williams, 560 P.2d 1160, 1162 (Wash. Ct. App. 1977)). Given the nature of the evidence and the manner in which Geer sought to conceal it, it was necessary for Officer Byrd to immediately seize the evidence in order to ensure that Geer did not destroy it by swallowing it. Baccus, 367 S.C. at 53, 625 S.E.2d at 222.
As stated, when an appellate court reviews a Fourth Amendment search and seizure case, it must affirm the trial court’s ruling if any evidence supports the ruling. State v. Missouri, 361 S.C. 107, 111, 603 S.E.2d 594, 596 (2004). In this case, we agree with the trial court, finding sufficient evidence supports the search and seizure. Accordingly, Geer has not shown that the trial court committed clear error when it allowed the evidence to be admitted. Even though Officer Byrd did not secure a warrant for the search of Geer’s mouth due to the nature of the evidence and the possibility that it could be easily destroyed, this Court finds that the trial court properly found the search constitutional and supported by probable cause. Consequently, this Court finds no Fourth Amendment violation and the trial court’s denial of Geer’s motion to suppress the evidence is affirmed.
IV. Chain of Custody
Geer argues the trial court erred when it denied her motion to suppress the drug evidence because the State failed to present a sufficient chain of custody. We disagree.
“[A] party offering into evidence fungible items such as drugs or blood samples must establish a complete chain of custody as far as practicable.” State v. Sweet, 374 S.C. 1, 6, 647 S.E.2d 202, 205 (2007). “In applying this rule, [the South Carolina Supreme Court] has held that where a party has established the identity of each person in the chain of custody, issues regarding the care of the evidence only go to the weight of the specimen as credible evidence, and not its admissibility.” Id. at 8, 647 S.E.2d at 206. “The admission of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion.” State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002).
At trial, the State submitted testimony sufficient to prove the chain of custody from the time Officer Byrd secured the evidence in the patrol vehicle at the scene of the arrest until it was returned to the custody of the Greenwood Police Department. There was also testimony that the blue line seal and the heat seal on the envelope containing the evidence, although opened by each person who tested it, had not been tampered with. At trial, the evidence was also presented, examined, and found to be intact.
Geer argues that because the State admits that there were inconsistencies in the affidavit that was submitted regarding Officer Suddeth’s receipt of the evidence from Officer Byrd, the admission of the evidence should be suppressed. The affidavit states that the evidence was received “in person”; however, Officer Suddeth actually retrieved the evidence from the evidence locker. The custody form that is used to log in evidence lists two choices when logging the evidence, “in person” or “via mail.” The discrepancy was explained to and accepted by the trial court that as a matter of standard procedure, when filling out a form, if the receiver takes the evidence from the evidence locker, he or she has no other choice but to log it as received “in person.” The discrepancy was not a blatant disregard for the truth of how the evidence was transferred. Additionally, Geer argues that there was a discrepancy of one tenth of a gram in the actual weight of the substance when it was logged by Officer Byrd compared to when it was logged by Officer Zivkovitch. That discrepancy was explained to and accepted by the trial court as resulting from the field testing done at City Hall.
“While proof need not negate all possibility of tampering, it is generally held that the party offering such specimen is required to establish, at least as far as practicable, a complete chain of evidence, tracing possession from the time the specimen is taken from the human body to the final custodian by whom it is analyzed.” Benton v. Pellum, 232 S.C. 26, 33, 100 S.E.2d 534, 537 (1957) (internal citation omitted). Conversely, if the State had failed to establish an adequate chain of custody such that the inconsistency or discrepancy in the chain was critical, the chain of custody would have been considered fatally deficient and the trial court would have erred in admitting the evidence. State v. Joseph, 328 S.C. 352, 364-65, 491 S.E.2d 275, 281-82 (Ct. App. 1997). Here, the State has established a complete chain of custody from the time the evidence was taken from Geer until it was admitted at trial. None of the minor discrepancies rise to the level of reversible error. Consequently, the decision of the trial court to deny Geer’s motion to suppress the evidence based on an insufficient chain of custody is affirmed.
CONCLUSION
Based on the foregoing, the trial court did not err or abuse its discretion when it denied Geer’s motion for a continuance, her motion to quash based on selective prosecution, and her motion to suppress the drug evidence. Accordingly, the decision of the trial court is
AFFIRMED.
KONDUROS, J., concurs.
LOCKEMY, J., dissents.
Lockemy, J: I agree with the majority that the State’s exercise of its prosecutorial discretion is “troublesome” to say the least. However, I respectfully dissent because I believe the search of Geer’s mouth violated the Fourth Amendment’s prohibition against an unreasonable search. The only fact available to Officer Byrd indicating a search of Geer’s mouth would reveal relevant material evidence was Parks’s mere assertion that Geer had placed drugs in her mouth, which he made after previously lying to Officer Byrd. I would hold this sole assertion from someone with doubtful veracity is insufficient to establish a clear indication drugs would be found in Geer’s orifice to support a search. U.S. Const. amend. IV; S.C. Const. art. I, §10; see State v. Dupree, 319 S.C. 454, 459, 462 S.E.2d 279, 282 (1995) (finding a clear indication drugs would be found in Dupree’s mouth existed where officers observed Dupree standing in a laundromat known for drug activity, holding what the they believed were drugs, placing his hand to his mouth and attempting to leave through the back door). As in Dupree, I believe more facts are necessary to establish a clear indication.
[1] A best bag is a sealable envelope in which evidence is placed. In order to ensure that it is not tampered with, after the bag is sealed, a blue line sticker is placed on it. If it is ever tampered with, the line would break and it would be easy to detect that the contents had been compromised.
[2] The record indicates that the evidence was in the custody of Officer Zivkovitch from October 31, 2007, until he took it “back down to the vault, down in the log-in area for the officers to pick back up.” Officer Zivkovitch did not perform the test until November 28, 2007. The record does not indicate exactly where within Officer Zivkovitch’s custody the evidence was actually secured, and Geer made no objection concerning this issue.
[3] A Fourier Transform Infrared Spectroscopy (FTIR) or Full Spectrum Scan is an instrument that “shines infrared light through a sample” substance.
[T]he light that is absorbed or transmitted is measured by the instrument. An IR spectrum, or printout, is created that shows the light absorbed at different wavelengths. An IR spectrum is much like a fingerprint in that it is unique to a substance and can therefore be used to make a positive identification.
State of Alaska Department of Public Safety, Scientific Crime Detection Laboratory, Controlled Substances, http://www.dps.alaska.gov/Crimelab/ services/controlledsubstances.aspx (last visited Aug. 3, 2010).
Feb 26, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
This recent SC Court of Appeals case reflects the importance of making motions to suppress evidence based on improper warrantless searches by police. Here, the arresting officer clearly searched a closed duffel bag looking for evidence of other crimes without first getting a warrant. The suspect was already in custody and placed in the back of the patrol car. He posed no threat to the officer’s safety. With a proper warrant, this individual would have been sentenced to 25 years in prison. Due to the hard work and tenacity of his criminal defense lawyer, his charges were ultimately defeated, and he is free. Better make sure your criminal lawyer is experienced and willing to fight all the way for you.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried just about every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Danny Cortez Brown, Appellant.
Appeal From Horry County
Steven H. John, Circuit Court Judge
Opinion No. 4697
Heard March 2, 2010 – Filed June 14, 2010
REVERSED
Appellate Defender Elizabeth A. Franklin, of Columbia, for Appellant.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Assistant Attorney General Suzanne H. White, all of Columbia; and John Gregory Hembree, of Conway, for Respondent.
SHORT, J.: Danny Brown was charged with trafficking cocaine. Following a jury trial, he was convicted and sentenced to twenty-five years incarceration. He appeals, arguing the trial court erred by denying his motion to suppress the drugs seized after his arrest for an open container violation. We reverse.
FACTS
Officer Daryl Williams was on patrol in Myrtle Beach, South Carolina. While traveling down a road, he observed a 1976 Plymouth next to him and saw a passenger drinking what appeared to be a beer. The passenger, Brown, saw Officer Williams and tucked the beer can between his legs. Officer Williams pulled the car over and noticed a small duffel bag on the floorboard between Brown’s legs. Officer Williams testified he was suspicious of the occupants because the driver acted nervous while Brown appeared “artificially laid back.”
Initially, Brown denied having a beer, but then he pulled the can up from his lap. Officer Williams removed Brown from the car, recovered the beer can, arrested him for an open container violation, and placed his duffel bag on the sidewalk. He handcuffed Brown and placed him in a patrol car. After securing Brown, Officer Williams returned to the car to make “small talk” with the driver. He returned to the duffel bag, searched it, and found cocaine concealed inside a Fritos bag. Officer Williams stated he closed the duffel bag and resumed conversation with the driver. He ran the driver’s license, discovered it was suspended, and placed the driver under arrest for that offense.
During trial, Brown moved to suppress the drugs on a violation of his Fourth Amendment rights. The trial court denied the motion to suppress, finding there was probable cause to stop the car, and Brown’s arrest was lawful. The trial court held the search was proper because it was a search incident to a lawful arrest. Brown was found guilty and sentenced to twenty-five years imprisonment. This appeal followed.
STANDARD OF REVIEW
When reviewing a Fourth Amendment search and seizure case, we do not review the trial court’s ultimate determination de novo, rather we apply a deferential standard. State v. Khingratsaiphon, 352 S.C. 62, 70, 572 S.E.2d 456, 459-60 (2002). This court reviews the trial court’s ruling like any other factual finding, and we will reverse only if there is clear error. Id. Therefore, we will affirm if any evidence exists to support the trial court’s ruling. Id.
LAW/ANALYSIS
On appeal Brown argues the trial court erred by denying his motion to suppress the drugs in violation of his Fourth Amendment rights. We agree.
The Fourth Amendment provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV. Any evidence seized in violation of the Fourth Amendment must be excluded. Mapp v. Ohio, 367 U.S. 643, 655 (1961).
It is well established that warrantless searches and seizures by the police are per se unreasonable, unless they fall within one of several recognized exceptions. State v. Weaver, 361 S.C. 73, 80-81, 602 S.E.2d 786, 790 (Ct. App. 2004). These exceptions include: (1) search incident to a lawful arrest; (2) hot pursuit; (3) stop and frisk; (4) automobile exception; (5) plain view doctrine; (6) consent; and (7) abandonment. Id.
A. Search Incident to Arrest[1]
Under the search incident to arrest exception, if the arrest is supported by probable cause, police officers may search an arrestee’s person and the area within his or her immediate control for weapons and destructible evidence without first obtaining a search warrant. State v. Ferrell, 274 S.C. 401, 405, 266 S.E.2d 869, 871 (1980). However, this doctrine does not allow law enforcement officers to conduct a warrantless search of an arrestee’s automobile after the arrestee has been handcuffed or otherwise prevented from regaining access to the car, unless it is reasonable to believe (1) the arrestee might access the vehicle at the time of the search, or (2) that the vehicle contains evidence of the offense of the arrest. Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 1723-24 (2009) (limiting New York v. Belton, 453 U.S. 454 (1981) and Thornton v. U.S., 541 U.S. 615 (2004)).
The burden of establishing the existence of circumstances constituting an exception to the general prohibition against warrantless searches is upon the State. Weaver, 361 S.C. at 81, 602 S.E.2d at 790.
In the present case, neither of the exceptions stated in Gant apply. Officer Williams testified he had Brown exit the car to be handcuffed and arrested for the offense of open container. He took the duffel bag from the car, placed it on the sidewalk, and then put Brown in the back of his patrol car. After securing Brown, Officer Williams returned to the car and made “small talk” with the driver. He testified:
I wanted to deal with him later, but I just wanted to get a glance into the bag, so I did unzip the bag, and look in. It was personal items like, perhaps deodorant, undergarments . . . and there was a bag of Fritos potato chips, corn chips, whatever . . . and it was open, so it was kind of crumpled shut, I believe, so I went and just opened it up to get a look into the bag, and then I seen inside that bag a — what appeared to be a plastic bag with a white powdery substance, which is — you know, looks — appears to be cocaine.
It is clear from Officer Williams’ testimony that Brown was handcuffed and securely placed in the patrol car prior to Officer Williams searching the duffel bag. During Officer Williams’ search, Brown could not have accessed the vehicle or the duffel bag. Thus, it was impossible that Brown could have accessed the vehicle at the time of the search, making the first exception in Gant inapplicable.
As to the second Gant exception, Officer Williams was not looking for evidence for the offense charged. There was no evidence presented that Officer Williams had a reasonable belief that the duffel bag or Frito bag held further evidence of the open container violation. Brown told Officer Williams he did not have any more beer. More to the point, when asked if the beer can was taken into evidence, Officer Williams explained, for this type of charge “we don’t take that sort of thing in evidence.” We therefore conclude the search incident to arrest exception does not apply in the present case.[2]
B. The Automobile Exception
Because of its mobility and the lessened expectation of privacy in motor vehicles, a motor vehicle may be searched without a warrant based solely on probable cause. State v. Cox, 290 S.C. 489, 491, 351 S.E.2d 570, 571-72 (1986). Just like a driver of an automobile, passengers possess a reduced expectation of privacy with regard to the property that they transport in cars. Wyoming v. Houghton, 526 U.S. 295, 303 (1999). The standard for probable cause to make a warrantless search is the same as that for a search with a warrant. State v. Bultron, 318 S.C. 323, 332, 457 S.E.2d 616, 621 (Ct. App. 1995).
Articulating precisely what probable cause means is not possible. Ornelas v. U.S., 517 U.S. 690, 695-96 (1996). Probable cause is a commonsense, nontechnical conception that deals with the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Id. Probable cause to search exists where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found in a particular place. Id. The principal components of the determination of probable cause will be whether the events which occurred leading up to the search, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause. Id. The scope of a warrantless search of an automobile is defined by the object of the search and the places in which there is probable cause to believe that the object may be found. State v. Perez, 311 S.C. 542, 546, 430 S.E.2d 503, 505 (1993).
If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. Houghton, 526 U.S. at 301-02. This rule applies to all containers within a car, without qualification as to ownership of a particular container and without a showing of individualized probable cause for each container. Id.
As noted above, Officer Williams placed Brown under arrest for an open container. Officer Williams had already recovered the beer can, which interestingly he did not take into evidence, prior to searching the duffel bag. Based on this, the only evidence Officer Williams could have been searching for was more beer. The bag in question was not a grocery bag where one would expect to find beer. Rather, the bag was a zipped-up duffel bag that would be used to carry clothes. One of the officers stated, “The black duffel bag was more like a gym bag, like a small carry-on bag to take on an airplane, or to a gym. . . .”
Additionally, Officer Williams never testified he searched the bag to find evidence of a crime. According to Officer Williams, he removed the bag from the car because it posed a “safety issue,” and because he wanted to separate the bag from the driver. Officer Williams stated after he placed Brown in the patrol car, he searched the duffel bag because he “wanted to get a glance into the bag.”
Viewing the evidence and testimony through the lens that the State bears the burden to prove an exception to the prohibition against warrantless searches, as we must, we conclude Officer Williams did not have probable cause to search the bag.
C. The Exclusionary Rule, Inevitable Discovery, and Inventory Search
The State urges us to accept that the drugs would have been inevitably discovered during an inventory search. We disagree.
The exclusionary rule provides that evidence obtained as a result of an illegal search must be excluded. State v. Sachs, 264 S.C. 541, 560, 216 S.E.2d 501, 511 (1975). The inevitable discovery doctrine is an exception to the exclusionary rule and states that if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, the information is admissible despite the fact it was illegally obtained. Nix v. Williams, 467 U.S. 431, 443-44 (1984). The fruit of the poisonous tree doctrine, most often associated with violations of the Fourth Amendment’s prohibition of unreasonable searches and seizures, prohibits the use of evidence obtained directly or indirectly through an unlawful search or seizure. Wong Sun v. U.S., 371 U.S. 471, 484 (1963).
If the police are following standard procedures, they may inventory impounded property, including closed containers, to protect an owner’s property while it is in police custody. Colorado v. Bertine, 479 U.S. 367, 372-73 (1987). Standardized criteria or established routine must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. Florida v. Wells, 495 U.S. 1, 3 (1990).
The State provided very scant testimony, at best, that the duffel bag or car would have been taken into police custody after Brown and the driver were arrested.[3] Although commonsense dictates the police would have done exactly this, we are confined by the law that the prosecution bears the burden to establish by a preponderance of the evidence that the evidence would inevitably have been discovered. Nix, 467 U.S. at 443-44. Additionally, police must follow standard procedures to conduct an inventory search and no such testimony was presented. Thus, we conclude the inevitable discovery doctrine does not apply and the trial court erred by failing to exclude the evidence. See State v. Grant, 174 S.C. 195, 177 S.E.2d 148, 149 (1934) (“The right of people to go about their business without being subjected to undue search and seizure . . . by the authorities of the law . . . . are essential to an orderly government.”). Consequently, we reverse Brown’s conviction and vacate his sentence.
CONCLUSION
Accordingly, the trial court’s decision is
REVERSED.
WILLIAMS and LOCKEMY, JJ., concur.
[1] Initially, the State argues this issue is not preserved for review. We disagree. Trial counsel asked the trial court to suppress the evidence, and the trial court denied this request. This issue was raised to and ruled upon by the trial court and is properly before this court. Wilder Corp. v. Wilke, 330 S.C. 71, 76, 497 S.E.2d 731, 733 (1998) (“It is axiomatic that an issue cannot be raised for the first time on appeal, but must have been raised to and ruled upon by the trial judge to be preserved for appellate review.”).
[2] In fairness to the trial court, it did not have the guidance provided to us by the United States Supreme Court in the Gant case.
[3] The solicitor asked an officer, “Did you have occasion to search that vehicle pursuant to the arrest?” In reply the officer testified, “Yes. Yes sir. Under lawful search incident to arrest of the vehicle (sic), in the passenger area, and pursuant also to guidelines of doing inventory of the vehicle before towing, we searched that vehicle.”
Feb 25, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
The following article details the end of the federal government’s tolerance for growing medical marijuana in California. Of course, this new crackdown will presumably be enforced throughout the country. After decades of fighting a “war on drugs,” we do not seem any closer to winning. In fact, we are clearly losing same. Not all drugs can be legalized, but the arguments for continued marijuana laws are diminishing. Possession in most states results in a monetary fine. Think of the tax revenue that could be generated. Imagine taking the criminal element out of the process. Think of the research that has already been done to show legitimate medical uses for treatment of disease and resulting pain relief.
The attorneys at Reeves, Aiken & Hightower, LLP, do not encourage or endorse any illegal drug use. However, we support the legalization of marijuana for the above reasons and aggressively defend those charged with drug related crimes, including possession, distribution, and/or manufacturing. Our experienced trial attorneys include a former SC prosecutor, a former NC District Attorney intern, and a former SC public defender. Attorney Art Aiken has tried criminal cases of all types in both state and federal courts. If you have been arrested for a drug crime, we would welcome an opportunity to sit down and review your particular case. Compare our attorneys’ credentials to any other law firm. Then call us for a private consultation. www.rjrlaw.com
Federal Warning Ends County Truce With Pot-Growers
By LISA LEFF Associated Press
SAN FRANCISCO February 25, 2012 (AP)
Residents of Mendocino County, the redwood and marijuana-rich territory in California’s fabled Emerald Triangle, thought they had reached détente in the decades-old clash between pot growers and local law enforcement two years ago when the sheriff agreed to stop raiding medical cannabis producers who paid to have their crops inspected.
For a $1,500 fee and adherence to rules over water usage, odor control and distance from neighbors, marijuana farmers working for groups of patients could grow up to 99 plants on five acres of land. Numbered red zip ties had be affixed to each plant, confirming the county’s seal of approval and giving a visiting deputy proof the pot was legally grown.
The one-of-a-kind program generated $663,230 for the sheriff’s department — and prompted inquiries from other jurisdictions interested in creating their own.
But this month, the permitting system became the most striking casualty of the crackdown on medical marijuana cultivation and distribution by California’s federal prosecutors. The board of supervisors ended the experiment after the U.S. attorney for Northern California threatened take the county to court for helping produce an illegal drug.
“We thought we had something that was working and was making our life easier so we could turn our attention to other pressing matters,” Supervisor John McCowen said. “We were creating an above-ground regulatory framework that protected public safety and protected the environment. It was truly a landmark program.”
After four-and-a-half months, the federal government’s highly publicized offensive has reverberated unevenly throughout California. It has resulted in a near-total shutdown of storefront pot dispensaries in some cities that welcomed federal intervention. It has upset officials in pot-friendly places, who thought they had found the right formula for facilitating legal use. And it has created uncertainty in localities still struggling to curtail their pot outlets.
Medical pot is legal to varying degrees in 16 states and the District of Columbia. And officials in more than half of them have been told government workers implementing medical marijuana laws could face criminal charges.
But California, which in 1996 became the first state to legalize marijuana for medical use, has come under special scrutiny. Its laws remain the nation’s most liberal, allowing doctors to issue pot recommendations for almost any ailment and giving local authorities broad discretion, but little guidance, in how to implement them.
The state’s laws stand in conflict with federal law, which holds marijuana is illegal substance with no recognized health benefits. And the current offensive is designed to make dispensaries and local government officials comply with it.
The primary tool the U.S. attorneys have used is threatening to seize the properties of landlords who knowingly leased farms or retail spaces to the commercial medical marijuana trade. But they also have filed criminal and civil charges against owners of nonprofit dispensaries they say were pocketing tons of money and furnishing pot to people who had no medical need for it. And in some cases, such as Mendocino’s, they have warned government officials.
“These licensing schemes are inconsistent with federal law,” Melinda Haag, Northern California’s U.S. attorney, said in October. “We are simply reminding local officials the ordinances are illegal.”
As part of the statewide crackdown, about 90 dispensaries in 19 Southern California cities were sent letters telling them to close or face possible criminal charges and fines. More than a dozen building owners where marijuana clinics were once located have been subjected to federal forfeiture lawsuits.
In Orange County, the city of Lake Forest had a dozen dispensaries operating a year ago. After officials sought help from federal prosecutors, only one pot shop remains.
In San Diego, the vast majority of the 180 or so pot shops whose landlords were sent warning letters have closed. And in unincorporated parts of Sacramento County, where the Board of Supervisors cited the federal crackdown when outlawing dispensaries, all 97 pot shops are gone.
“What the feds bring to the party is they can do things under their federal law that cities and counties and even the state of California cannot do,” said Jeffrey Dunn, an attorney who has helped Lake Forest and other Southern California cities shutter dispensaries. “There are no disputes about medicinal use because it doesn’t matter. If you are distributing marijuana, end of discussion.”
Federal authorities have not yet weighed into Los Angeles, where city officials tried to limit the number of pot shops two years ago and are now considering a total ban.
City officials believe there still may be hundreds of shops doing business right now. “As of today, we don’t know how many exist,” said special assistant city attorney Jane Usher. “The last thing they are inclined to do is to tell us they are open.”
Until Mendocino County officials bowed to pressure, the federal offensive was not very visible in pot-tolerant places either. In San Francisco, only five of the city’s 26 dispensaries have closed, with federal prosecutors saying they were targeted because of their proximity to places such as schools and playgrounds. Only one of neighboring Marin County’s six clinics closed, and Fairfax town officials appealed to keep it and its tax revenue.
Advocates and experts say Justice Department directives have sent mixed signals since the election of President Barack Obama —first saying that prosecutors would no longer pursue dispensaries following state law, then stating that cultivating, selling and distributing marijuana was still against the law.
The pressure by California’s federal prosecutors came in response to the second directive and the unsuccessful efforts by local governments to keep dispensaries in check, said McGregor Scott, a former U.S. attorney in Sacramento.
“The perception by proponents of medical marijuana was that, if they… were complying with state law, the feds were going to leave them alone,” Scott said. “I think what happened is, the administration realized they had made a mistake by taking the lid off.”
Supporters of medical marijuana have questioned why the federal government is derailing attempts to create legal frameworks for getting pot to people authorized to use it.
“They claim they don’t have any problem with individual medical marijuana patients accessing their medicine, but then go out of their way to prevent the creation of any kind of responsible system from being developed,” said Stephen Gutwillig, the Drug Policy Alliance’s director in California. “It’s basically a form of sabre rattling.”
Associated Press writer Greg Risling contributed to this article from Los Angeles.
Feb 15, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
This recent SC Court of Appeals decision discusses issues of what constitutes “expectation of privacy” and “reasonable suspicion.” Both of these critical legal concepts are always fact specific, and a ruling can make the difference between a conviction or having your criminal charges dismissed. Better make sure your criminal attorney understands these issues thoroughly and can make the necessary arguments to protect your 4th Amendment rights.
At Reeves, Aiken & Hightower LLP, our attorneys have over 70 years of combined trial experience in both civil and criminal courts. We are available by mobile phone in the evenings, on weekends, and even holidays. Our lawyers are licensed in both South Carolina and North Carolina and are effective criminal trial attorneys. We are not afraid to go to Court and often do. Tyler Burns is a former 16th Circuit (York County) prosecutor, and Art Aiken is a accomplished criminal attorney who has tried just about every type of criminal case in both state and federal courts. And, Bea Hightower is a former Richland County public defender in Columbia. We welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials and experience to any other law firm. Then call us for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Jomar Antavis Robinson, Appellant.
Appeal From York County
Lee S. Alford, Circuit Court Judge
Opinion No. 4942
Heard October 3, 2011 – Filed February 15, 2012
AFFIRMED
Appellate Defender Elizabeth Franklin-Best, of Columbia, for Appellant.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Attorney General Harold M. Coombs, and Solicitor Kevin Brackett, all of Columbia, for Respondent.
WILLIAMS, J.: Jomar Antavis Robinson (Robinson) was convicted of possession of crack cocaine with intent to distribute, possession of crack cocaine with intent to distribute within one-half mile of a public park, unlawful carrying of a pistol, possession of marijuana, and resisting arrest. The circuit court sentenced Robinson to life imprisonment. Robinson appeals, arguing the circuit court erred in (1) denying Robinson’s motion to suppress drugs found as a result of an illegal search and seizure; and (2) allowing the State to qualify the Commander of the Drug Enforcement Unit as an expert witness. We affirm.
FACTS/PROCEDURAL HISTORY
On March 20, 2010, Sergeant Rayford Louis Ervin, Jr. (Ervin) with the York County Drug Enforcement Unit (the Drug Enforcement Unit) conducted surveillance of the Hall Street Apartments in response to numerous anonymous complaints of criminal activity in the area. Ervin stated he observed conduct consistent with drug transactions and called for back-up. Lieutenant James M. Ligon (Ligon) and Officer Brian Schettler (Schettler) with the Drug Enforcement Unit responded. Upon their arrival, Ervin informed the officers he observed an individual, wearing a black leather jacket, meeting vehicles that pulled into the parking lot, going up to the vehicles’ windows for a short time, and then returning to the porch of an apartment.
Ligon and Schettler approached the porch and smelled a strong odor of marijuana. Of the five individuals on the porch, two men were wearing black jackets matching Ervin’s description. Ligon and Schettler asked the men for their identification. Ligon noticed one of the individuals, later identified as Robinson, had a pistol hanging out of the right pocket of his jacket. Ligon told the two individuals he could smell marijuana and see Robinson’s pistol, and he was going to conduct a Terry[1] search. As Robinson began to retreat, both Ligon and Robinson reached for Robinson’s pistol, and a fight between Ligon and Robinson ensued. During the struggle, Robinson’s jacket fell to the ground and Robinson fled the scene. Ligon pursued him, and after an altercation, Ligon placed Robinson in handcuffs. Once Robinson was in custody, Schettler searched the inside of Robinson’s jacket and found the pistol, a bag containing marijuana, and a bag containing crack cocaine.
A York County grand jury indicted Robinson for possession of crack cocaine with intent to distribute, possession of crack cocaine with intent to distribute within one-half mile of a public park, unlawful carrying of a pistol, possession of marijuana, and resisting arrest.
Robinson moved in limine to suppress the pistol, marijuana, and crack cocaine found in Robinson’s pocket, arguing the contents of his jacket were the result of an illegal search. The circuit court denied this motion finding the search did not violate Robinson’s Fourth Amendment rights; Robinson did not have an expectation of privacy on the porch; and the officers had reasonable suspicion to investigate. When the State introduced the pistol and crack cocaine into evidence during trial, Robinson timely objected. However, despite his motion in limine to suppress the marijuana, Robinson offered the bag of marijuana into evidence during the cross-examination of one of the State’s witnesses as a trial strategy.[2]
The State called Commander Marvin Brown (Commander Brown) of the Drug Enforcement Unit as a witness. The State offered Commander Brown as an expert in “how crack cocaine is packaged, sold, the going price, the typical intoxicating dose, and the different habits between the typical addict, the user, and the typical drug dealer.” Robinson objected, arguing Commander Brown was not qualified as an expert witness under Rule 702 of the South Carolina Rules of Evidence. After voir dire of Commander Brown, the circuit court concluded he was qualified to testify as an expert.
Following the State’s case-in-chief, Robinson moved for a directed verdict. In addition, Robinson renewed his motion to suppress the evidence obtained from the search, but he specifically conceded the marijuana was admissible based on his introduction of the marijuana during trial. The court denied Robinson’s motions. Robinson was convicted of all charges and was subsequently sentenced to life imprisonment pursuant to section 17-25-45 of the South Carolina Code (Supp. 2010).[3] This appeal followed.
STANDARD OF REVIEW
In criminal cases, the appellate court reviews errors of law only. State v. Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct. App. 2003). The appellate court is bound by the circuit court’s factual findings unless they are clearly erroneous. State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001).
LAW/ ANALYSIS
I. Motion to Suppress
Robinson argues the marijuana and cocaine were improperly admitted at trial because they were obtained in an unlawful manner. We disagree.
a. Marijuana
Robinson introduced the marijuana into evidence during his cross-examination of Ligon; therefore, he cannot now complain of its admission on appeal. See State v. Johnson, 298 S.C. 496, 498, 381 S.E.2d 732, 733 (1989) (holding a defendant who expressly consented to the admission of evidence at trial waived any right to raise the issue of admissibility on appeal); State v. O’Neal, 210 S.C. 305, 312, 42 S.E.2d 523, 526 (1947) (holding a defendant may not complain of admission of evidence when he introduced the same kind of evidence on cross-examination); State v. Beam, 336 S.C. 45, 52, 518 S.E.2d 297, 301 (Ct. App. 1999) (holding a defendant cannot complain about the admission of evidence on appeal when he opened the door to the introduction of that evidence).
b. Crack Cocaine
Robinson argues the circuit court erred in admitting the crack cocaine at trial when (1) he had a reasonable expectation of privacy on the porch; and (2) Ligon and Schettler entered without a warrant and in the absence of exigent circumstances. We disagree and address each argument in turn.
i. Expectation of Privacy
Robinson contends the search was in violation of his Fourth Amendment rights because he had an expectation of privacy on the porch. We disagree.
For Robinson to establish a Fourth Amendment violation, he must show a legitimate expectation of privacy on the porch. See State v. Missouri, 361 S.C. 107, 112, 603 S.E.2d 594, 596 (2004) (“To claim protection under the Fourth Amendment of the U.S. Constitution, defendants must show that they have a legitimate expectation of privacy in the place searched.”). “A legitimate expectation of privacy is both subjective and objective in nature: the defendant must show (1) he had a subjective expectation of not being discovered, and (2) the expectation is one that society recognizes as reasonable.” Id. (quoting Oliver v. U.S., 466 U.S. 170, 177 (1984)).
“A reasonable expectation of privacy exists in property being searched when the defendant has a relationship with the property or property owner.” State v. Flowers, 360 S.C. 1, 5, 598 S.E.2d 725, 728 (Ct. App. 2004). While an overnight guest may have a reasonable expectation of privacy in the host’s property, “a person present only intermittently or for a purely commercial purpose does not have a reasonable expectation of privacy.” Id.
Here, the circuit court found Robinson did not have the same expectation of privacy as he would have in his own home. Robinson did not live in the apartment connected to the porch or any apartment located in the Hall Street Apartment complex. Furthermore, there is no evidence he was an overnight guest or otherwise had a connection to the premises or apartment lessee to give him a reasonable expectation of privacy. Robinson failed to establish he had an expectation of not being discovered on the porch, nor did he ask the police to leave. See In the Matter of Brazen, 275 S.C. 436, 436, 272 S.E.2d 178, 178 (1980) (finding the defendant did not have a subjective expectation of privacy in an open garage when he had an opportunity to demonstrate an expectation of privacy or ask the police to leave, but instead did nothing). Therefore, Robinson failed to show he had a reasonable expectation of privacy on the porch.
ii. Reasonable Suspicion
Robinson also argues Ligon and Schettler violated his Fourth Amendment rights because they entered the porch without a warrant and in the absence of exigent circumstances. We disagree.
“A police officer may stop and briefly detain and question a person for investigative purposes, without treading upon his Fourth Amendment rights, when the officer has a reasonable suspicion supported by articulable facts, short of probable cause for arrest, that the person is involved in criminal activity.” State v. Taylor, 388 S.C. 101, 109, 694 S.E.2d 60, 64 (Ct. App. 2010) (quoting State v. Blassingame, 338 S.C. 240, 248, 525 S.E.2d 535, 539 (Ct. App. 1999)). “‘Reasonable suspicion’ requires a ‘particularized and objective basis that would lead one to suspect another of criminal activity.'” State v. Khingratsaiphon, 352 S.C. 62, 69, 572 S.E.2d 456, 459 (2002) (quoting U.S. v. Cortez, 449 U.S. 411, 418 (1981)). In determining whether reasonable suspicion exists, the totality of the circumstances should be evaluated. State v. Corley, 383 S.C. 232, 240, 679 S.E.2d 187, 191 (Ct. App. 2009). While anonymous tips do not supply the indicia of reliability to establish reasonable suspicion, an “anonymous tip can provide the basis of an investigatory stop if the officer conducting the stop verifies the tip’s reliability by observing the suspect engaged in criminal activity.” Taylor, 388 S.C. at 114, 694 S.E.2d at 66. The officer’s experience and intuition is an additional factor to consider in determining whether reasonable suspicion exists. Id. at 116, 694 S.E.2d at 68.
Here, the circuit court held:
[T]aking the totality of the circumstances, the officer’s knowledge about the area, what had been reasonably observed, that there were anonymous tips, the police officers investigation and observing the area, . . . the drug transactions [that] were going on in the parking lot based on an officer’s knowledge of what drug transactions look like in those situations, . . . they are going there simply to determine the identification of the people who are there, . . . heightened by the fact that they smelled the green marijuana, and heightened by the fact that they saw a weapon hanging out of the defendant’s pocket. So all of that, taking the totality of the circumstances they would have reasonable suspicion to investigate further and to pat down the defendant . . . .
Ligon and Schettler testified to specific and articulable facts to show they had reasonable suspicion that criminal activity was afoot. Based on Ervin’s observation of conduct consistent with drug transactions, Ligon and Schettler approached the porch, and Ligon asked for Robinson’s identification. Ligon and Schettler both testified this was a consensual encounter, and Robinson could have terminated the encounter at any time. See State v. Foster, 269 S.C. 373, 380, 237 S.E.2d 589, 592 (1977) (holding an officer’s request to see identification does not constitute a seizure within the meaning of the Fourth Amendment). The fact that the officers smelled marijuana as they approached the porch reasonably heightened their suspicion. See State v. Banda, 371 S.C. 245, 253, 639 S.E.2d 36, 40 (2006) (holding the court recognizes there is an “indisputable nexus between drugs and guns” to justify a frisk for weapons when an officer has reasonable suspicion that drugs are present) (internal citation omitted). When Schettler saw the pistol hanging out of Robinson’s jacket pocket, he had reasonable suspicion to frisk Robinson for weapons. We find the police had reasonable suspicion to stop Robinson, and thus did not violate his Fourth Amendment rights.
Accordingly, we affirm the circuit court’s denial of Robinson’s motion to suppress the crack cocaine.
II. Expert Witness Qualification
Robinson next argues the circuit court erred in qualifying Commander Brown as an expert witness. We disagree.
A person is competent as an expert when he or she has acquired knowledge, skill, or experience so that he or she is better able than the jury to form an opinion on the subject matter. Rule 702, SCRE; see also Gooding v. St. Francis Xavier Hosp., 326 S.C. 248, 252-53, 487 S.E.2d 596, 598 (1997) (“To be competent to testify as an expert, ‘a witness must have acquired by reason of study or experience or both such knowledge and skill in a profession or science that he is better qualified than the jury to form an opinion on the particular subject of his testimony.'”) (internal citation omitted). “An expert is not limited to any class of persons acting professionally.” Id. at 252, 487 S.E.2d at 598 (internal citation omitted). “The party offering the expert has the burden of showing his witness possesses the necessary learning, skill, or practical experience to enable the witness to give opinion testimony.” State v. Schumpert, 312 S.C. 502, 505, 435 S.E.2d 859, 861 (1993). However, defects in the amount or quality of education or experience go to the weight of the expert’s testimony and not its admissibility. State v. Myers, 301 S.C. 251, 256, 391 S.E.2d 551, 554 (1990).
Robinson questioned Commander Brown regarding writings, publications, and experience in the area of narcotics enforcement. Commander Brown indicated he wrote an article in a national magazine for the United States Attorney’s Office detailing how the Drug Enforcement Unit was organized. He testified he teaches three classes: search and seizure, asset forfeiture, and basic narcotics. In addition, Commander Brown makes an annual appearance as a guest instructor at a commander’s school for the United States Attorney’s Office regarding drug enforcement and drug trends. Commander Brown testified he was the narcotics supervisor for over twenty years. Further, he stated he worked on the first crack cocaine case in York County and has observed crack cocaine “evolve as to how it’s packaged and sold throughout the years, especially . . . in York County.” Moreover, Commander Brown stated he had been qualified more than six times as an expert in previous state court criminal cases in “how cocaine is packaged, sold, the going price, the typical intoxicating dose.” Commander Brown also affirmed that he has been qualified as an expert in federal court twice on the same subject matter.
We find Commander Brown’s thirty years of experience in narcotics enforcement coupled with his involvement in hundreds of crack cocaine cases sufficient to qualify him as an expert on this topic. See State v. Henry, 329 S.C. 266, 273, 495 S.E.2d 463, 466 (Ct. App. 1997) (“There is no abuse of discretion as long as the witness has acquired by study or practical experience such knowledge of the subject matter of his testimony as would enable him to give guidance and assistance to the jury in resolving a factual issue which is beyond the scope of the jury’s good judgment and common knowledge.”).
Moreover, because the qualification of Commander Brown did not require the jury to give his testimony any greater weight than that given to a lay witness, Robinson did not suffer any prejudice from Commander Brown’s expert qualification. See State v. Douglas, 380 S.C. 499, 503, 671 S.E.2d 606, 609 (2009) (finding a defendant was not prejudiced by the witness’s expert qualification because the fact that the witness was qualified as an expert did not require the jury to accord her testimony any greater weight than that given to any other witness); State v. White, 382 S.C. 265, 271, 676 S.E.2d 684, 687 (2009) (finding the circuit court properly instructed the jury to give the expert witness’s testimony “such weight and credibility as you deem appropriate as you will with any and all witnesses that will testify at this trial”); State v. Commander, 384 S.C. 66, 75, 681 S.E.2d 31, 35 (Ct. App. 2009) (“As with any witness, the jury is free to accept or reject the testimony of an expert witness.”) (internal citation omitted).
The State offered Commander Brown’s testimony to advise the jury as to how crack cocaine was sold and packaged, which is information not commonly known to the average juror. Further, this information would aid the jury in determining whether Robinson intended to distribute the crack cocaine or only possessed the crack cocaine for personal use. Therefore, the circuit court did not abuse its discretion in qualifying Commander Brown as an expert witness.
CONCLUSION
Accordingly, the circuit court’s rulings are
AFFIRMED.
SHORT and GEATHERS, JJ., concur.
[1] Terry v. Ohio, 392 U.S. 1 (1968).
[2] Robinson’s attorney affirmed at trial he introduced the marijuana into evidence as a trial strategy.
[3] Pursuant to section 17-25-45, upon conviction of possession of crack
cocaine with intent to distribute within one-half mile of a public park:
“[A] person must be sentenced to a term of imprisonment for life without the possibility of parole if that person has two or more prior convictions for: (1) a serious offense; (2) a most serious offense; (3) a federal or out-of-state offense that would be classified as a serious offense or most serious offense under this section; or (4) any combination of the offenses listed in (1), (2), and (3) above.”
