Apr 15, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
Below is a great article by Shea Denning. She, along with Jeff Welty, is one of my favorite posters. Both are talented writers, and I follow them weekly. This posting highlights a recent NC case addressing the issue of how long a police officer may detain a vehicle after a routine traffic stop. As with most criminal cases, the individual facts are dispositive. However, the general guidelines presented give some benchmarks as to what Courts will have to examine in their analysis. One concept is clear. There must be some “reasonable suspicion” before the stop can last longer than it takes to write the warning or citation.
The criminal lawyers at Reeves, Aiken & Hightower, LLP, appreciate the nuances in particular cases that can mean the difference between a guilty verdict or acquittal. We carefully analyze the facts in each case and craft a comprehensive defense strategy with a singular goal – to win your case. While we certainly cannot guarantee any outcome, we can assure you that we will work tirelessly on your behalf. Compare our attorneys’ credentials to any other law firm. Then, call us today at 704-499-9000 for a private consultation. For more information, please visit our firm website at www.rjrlaw.com.
Air Fresheners? You Betcha. Eating on the Go? Not So Much.
April 3rd, 2012
By Shea Denning
Jeff has written before about whether a traffic stop may be prolonged to allow time for a drug-sniffing dog to arrive on the scene and sniff about the car (which itself is not a Fourth Amendment search, see Illinois v. Caballes, 543 U.S. 405, 409 (2005)). As Jeff noted in his paper, it is unclear whether a brief delay to allow time for a canine unit to arrive is permissible absent reasonable suspicion of criminal activity; however, it is well-established that an extended delay to await a drug dog’s arrival must be supported by reasonable suspicion. The North Carolina Court of Appeals in State v. Fisher, ___ N.C. App. ___ (March 20, 2012), recently considered whether a 20 to 25 minute detention of a defendant after he was stopped for a seatbelt violation was supported by the requisite suspicion. The case struck me as worth blogging about both because of the court’s view that any detention of the defendant beyond the issuance of the citation must be supported by reasonable suspicion and the ordinariness of the factors the State relied upon as evidence of criminal activity. Some, but not all, of those factors were accepted by the court as appropriate factors to consider in a reasonable suspicion analysis (hence, the title of this post).
The defendant in Fisher attracted the attention of a local police officer and drug investigator because he was not wearing his seatbelt and was driving “diligent[ly],” with “both hands on the wheel” in a “pack of traffic” traveling approximately 70 miles per hour along highway 70 West near Goldsboro. Slip op. at 2. The officer followed the defendant in his unmarked car for about three miles, during which time he ran the tag number on the vehicle, determining that it was registered to an elderly woman in Bayboro, N.C. The officer also saw a handprint on the trunk of the car, which was dirty. The officer considered suspicious the defendant’s driving, the registration of the car to someone else (since “90 percent of [his] drug seizures [came] from third party vehicles, meaning that the person driving the car is not the registered owner of the vehicle”) and the handprint, which indicated something had recently been placed in the trunk, “another indicator that defendant was a drug courier.” Slip op. at 2-3. The officer stopped the vehicle for the seatbelt violation.
When he approached the car, the officer noticed a strong odor of air freshener, which he also considered a sign of a drug courier. Defendant said he was going to Bayboro after a shopping trip to a mall in Smithfield. The officer thought this was suspicious since there were no bags in the car. The defendant said he went to shop for clothes, but nothing fit. Adding to the officer’s suspicion was that the defendant did not ask why he had been stopped. Furthermore, the officer considered it suspicious that the defendant had a fast food bag in the car, which he considered an indicator that the “person is in a hurry” and “does not want to leave their car unattended.” Slip. op. at 3.
After the defendant had been stopped for five or six minutes, the officer called for a canine unit because he believed the defendant was transporting drugs. He subsequently told the defendant that he would be given a warning ticket for the seatbelt violation and that he believed the defendant was transporting contraband. The defendant refused the officer’s request to search.
While he was waiting for the canine unit, the officer called the Pamlico County Sheriff’s Department (Bayboro is in Pamlico County) to ask about the defendant. A narcotics officer there told him that the defendant was “a known marijuana and cocaine distributor with pending drug charges.” Slip op. at 4. The officer further noted that defendant appeared nervous throughout the encounter “even after being told that he was only going to receive a warning.” Id.
When Emmy the drug dog arrived, she signaled to the officers that there were drugs in the defendant’s car. The officers found two pounds of marijuana in the trunk. In his trial on the drug charges that ensued, the defendant moved to suppress the evidence resulting from the search of the vehicle. The trial court granted the defendant’s motion, concluding that though the stop was justified, “there are not enough factors after the stop to continue with the detention of this defendant absent a search warrant.” Slip. op. at 7-8. The court of appeals reversed, finding that reasonable suspicion existed to detain the defendant beyond the time necessary to issue the warning citation for the seatbelt violation. The court’s analysis assumes that reasonable suspicion is required to detain a person stopped for a traffic infraction beyond the time necessary to issue a warning citation, a proposition espoused by the state’s appellate courts in several earlier opinions,see State v. McLendon, 350 N.C. 630 (1999); State v. Parker, 183 N.C. App. 1 (2007); State v. Euceda-Valle, 182 N.C. App. 268, 274 (2007), though somewhat at odds with the court of appeals’ holding in State v. Brimmer, 187 N.C. App. 451, 458 (2007), that reasonable suspicion was not required to extend a traffic stop for the time necessary for an officer to explain to the defendant a dog was going to walk around the car and the one-and-a-half minutes of the actual sniff, since “this very brief additional time did not prolong the detention beyond that reasonably necessary for the traffic stop.”
The court then noted that several of the factors identified as suspicious in Fisher—the defendant’s nervousness, the inconsistency in his explanation that he had been shopping two hours away but had made no purchases, the smell of an air freshener, and the defendant’s driving of a car registered to someone else—were similar to factors considered as among those establishing reasonable suspicion in earlier cases and were sufficient to establish the reasonable suspicion necessary for the officer to detain the defendant beyond the time necessary to issue the warning citation. And while the defendant’s pending drug charges did not support the prolonged detention at its inception, since the officer learned about those while he was awaiting arrival of the canine unit, the court held that this knowledge provided additional support for the reasonable suspicion required to justify the continued detention of the defendant.
As to the more ordinary factors relied upon by the officer, the court assumed, for the sake of argument, that driving in the flow of traffic, and having a handprint on the trunk and a fast food bag in in the car were not proper factors to consider in a reasonable suspicion analysis. So, at least for now, road trips with my family (which nearly always involve driving a dirty, hand-print laden car in a pack of traffic while consuming fast food) don’t give rise to a suspicion that criminal activity is afoot. Plus, we’ll all be wearing our seat belts.
Mar 18, 2012 | Drug Crimes and Controlled Substances Defense, Uncategorized
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 at 877-374-5999 for a private consultation. Or visit our firm’s website at www.rjrlaw.com.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Donald D. Berry, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Cherokee County
Doyet A. Early, III, Post-Conviction Relief Judge
Opinion No. 26618
Submitted November 19, 2008 – Filed March 23, 2009
REVERSED AND REMANDED
Deputy Chief Appellate Defender Wanda H. Carter, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General S. Prentiss Counts, all of Columbia, for Respondent.
JUSTICE KITTREDGE: We granted a writ of certiorari to review the denial of Donald D. Berry’s application for post-conviction relief (PCR). Berry pled guilty to a drug charge, second offense, and was sentenced to prison. The prior offense for enhancement purposes was a drug paraphernalia conviction. Because a drug paraphernalia conviction does not qualify as a prior offense for enhancement purposes under South Carolina’s statutory scheme and plea counsel neither informed Berry of this fact nor made an objection in the plea court, we reverse the denial of PCR, vacate the guilty plea, and remand to the general sessions court.
I.
Berry pled guilty to manufacturing methamphetamine, second offense, and was sentenced to seven years’ imprisonment. The plea was enhanced to a second offense by Berry’s prior conviction for possession of drug paraphernalia. As part of the plea agreement, an accompanying possession with intent to distribute methamphetamine charge was dismissed. The PCR court found Berry did not establish his entitlement to relief and denied his application. Berry sought a writ of certiorari, which we granted.
Section 44-53-470 of the South Carolina Code (Supp. 2007) states, “[a]n offense is considered a second or subsequent offense if . . . the offender has been convicted within the previous ten years of a violation of a provision of this article or of another state or federal statute relating to narcotic drugs, marijuana, depressants, stimulants, or hallucinogenic drugs . . . .” Additionally, section 44-53-375(B)(2) of the South Carolina Code (Supp. 2007) provides the following requirements for an enhanced offense:
[F]or a second offense or if, in the case of a first conviction of a violation of this section, the offender has been convicted of any of the laws of the United States or of any state, territory, or district relating to narcotic drugs, marijuana, depressant, stimulant, or hallucinogenic drugs, the offender must be imprisoned for not less than five years nor more than thirty years, or fined not more than fifty thousand dollars, or both.
II.
Whether a drug paraphernalia conviction qualifies as a prior offense for enhancement purposes has not been decided by this Court. The question is one of statutory construction. See State v. Dingle, 376 S.C. 643, 649, 659 S.E.2d 101, 105 (2008) (“In interpreting statutes, the Court looks to the plain meaning of the statute and the intent of the Legislature.”). Moreover, in construing a criminal statute, we are guided by the rule of lenity—the principle that any ambiguity must be resolved in favor of the accused. State v. Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991) (“[W]hen a statute is penal in nature, it must be construed strictly against the State and in favor of the defendant.”). We hold that the Legislature intended a prior offense to qualify for enhancement purposes only if the prior offense “relates to” one of the statutorily enumerated drugs.
To construe a paraphernalia conviction as “relating to” drugs would be contrary to unambiguously expressed legislative intent and additionally violate the rule of lenity long established in our jurisprudence. Moreover, were we to construe the phrase “relate to” so loosely as to include a paraphernalia conviction, there would essentially be no limitation for qualifying enhancement offenses. We therefore hold that a conviction for possession of drug paraphernalia may not be used for enhancement purposes as it does not “relate to” drugs as statutorily mandated.
III.
Ineffective Assistance of Counsel
We now turn to Berry’s PCR claim of ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel under the Sixth Amendment, a PCR applicant must prove deficient representation and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Where a defendant pleads guilty upon the advice of counsel, post-conviction relief is available only when the applicant proves the advice he received from counsel “fell below an objective standard of reasonableness” and that “but for” counsel’s deficient representation, he would not have pled guilty. Hill v. Lockhart, 474 U.S. 52, 56-59 (1985). Plea counsel for Berry acknowledges he neither challenged the State’s reliance on the paraphernalia conviction for enhancement purposes, nor informed Berry of the potential challenge.
A. Deficient Representation
We find plea counsel’s failure to inform Berry of the potential challenge of the use of the paraphernalia conviction for enhancement purposes amounts to deficient representation. Strickland v. Washington, 466 U.S. at 687. In so ruling, we recognize that a defendant, for a host of legitimate reasons, may plead guilty to an offense for which a valid legal challenge may exist. See Rollison v. State, 346 S.C. 506, 510, 552 S.E.2d 290, 292 (2001) (“A defendant may, as part of a plea bargain, agree to plead guilty to a crime for which he has been indicted (or to which he has waived grand jury presentment), but of which he is not guilty.”); Anderson v. State, 342 S.C. 54, 58, 535 S.E.2d 649, 651 (2000) (“We find the decision to accept a plea to voluntary manslaughter notwithstanding the lack of any provocation was simply a tactical maneuver to avoid the very real possibility that the jury might come back with a verdict of murder. Accordingly, we find the plea was knowingly and voluntarily entered.”). The difference in such circumstances between a valid guilty plea and an invalid guilty plea lies in the knowing and voluntary nature of the plea. Here, counsel never informed Berry of the potential challenge to the use of the drug paraphernalia conviction for enhancement. In fact, Berry’s plea counsel never gave any thought to the issue.
We believe the Sixth Amendment guarantee of effective assistance of counsel requires that counsel accurately inform a defendant, to the extent possible, of the qualifying nature of a prior offense for enhancement purposes. It may well be that in situations unlike the one before us, the answer is unclear. Yet, an accused is entitled to counsel’s considered and reasonable judgment.[1] In fact, uncertainty concerning a potential legal challenge may well provide a defendant a catalyst in plea negotiations with the State. In this regard, a defendant may choose to forgo a legal challenge and opt for what he considers a favorable plea arrangement, especially where other charges will be dismissed or sentences are run concurrently.
This “give and take” lies at the heart of virtually every guilty plea, as plea agreements allow our overly burdened criminal courts to function. The point, for purposes of the issue before us, is that such decisions must be made knowingly and voluntarily with the advice of constitutionally competent counsel. Simply saying “I never gave it a thought” falls short of the Sixth Amendment guarantee of effective assistance of counsel. As a result, we find counsel’s failure to even consider whether a paraphernalia conviction qualifies for enhancement, and so inform Berry, fell below the standard of objective reasonableness. We therefore find plea counsel provided constitutionally deficient representation.
B. Prejudice
We next turn to the second step in the analysis—whether Berry was prejudiced by the deficient representation. Strickland v. Washington, 466 U.S. at 687. As this was a guilty plea, Berry “must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. During the PCR hearing, Berry repeatedly said that he would have gone to trial had he known that his paraphernalia conviction did not qualify as a prior offense for enhancement purposes. Cf. Robinson v. State, Op. No. 26564 (S.C.Sup.Ct. filed Nov. 24, 2008) (Shearouse Adv.Sh. No. 43 at 25) (granting post-conviction relief and remanding for resentencing where prior uncounseled conviction was improperly used for enhancement and applicant insisted that he wanted to plead guilty free of the “unconstitutional prior conviction[]”). We find Berry has established the prejudice prong of Strickland v. Washington, and we grant him the relief he requests.
IV.
We grant Berry post-conviction relief and return him to his pre-guilty plea position. Berry’s conviction and sentence for manufacturing methamphetamine are vacated. Because the accompanying indictment for possession with intent to distribute methamphetamine was dismissed as part of the plea bargain, it is restored as an active charge. We remand these charges to the general sessions court for disposition.
REVERSED AND REMANDED.
TOAL, C.J., WALLER, and BEATTY, JJ., concur. PLEICONES, J., not participating.
[1] While the case at hand concerns use of prior convictions for enhancement purposes, this reference to an accused’s entitlement to counsel’s considered and reasonable judgment clearly has broad application in Sixth Amendment jurisprudence.
Mar 15, 2012 | Drug Crimes and Controlled Substances Defense, Uncategorized
This SC Supreme Court case discusses when and under what circumstances police may search the interior of a car incident to a lawful stop. As the decision points out, suppressing evidence found during such a search can prove critical to an acquittal or prison term. Here, the search was deemed illegal, but the lawyer’s failure to file a timely appeal rendered the violation of his Fourth Amendment rights moot. The client received a sentence of 25 years. In criminal defense cases, it is necessary to challenge every aspect of a stop, search, and arrest at trial. Search issues can be very complicated and case specific. Better make sure your criminal defense attorney understands the rules and is willing to fight for your rights in court. There is too much at stake to risk an inexperienced or timid 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 at 803-548-4444 for a private consultation. Or visit our firm’s website at www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Osiel Gomez Narciso, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARI
Appeal From Beaufort County
J. Cordell Maddox, Jr., Circuit Court Judge
Opinion No. 27104
Heard January 25, 2012 – Filed March 14, 2012
AFFIRMED IN PART, REMANDED IN PART
Appellate Defender Elizabeth A. Franklin-Best, of Columbia, for Petitioner.
Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Matthew J. Friedman, all of Columbia, for Respondent.
CHIEF JUSTICE TOAL: Oseil Gomez Narciso (Petitioner) appeals his conviction for trafficking cocaine, and asserts that the circuit court erred in denying his motion to suppress drug evidence seized by police during a routine traffic stop. Following his conviction, Petitioner signed a Consent Order Granting Belated Direct Appeal (Consent Order) and waived his right to raise any other post-conviction relief (PCR) allegations. Petitioner requests this Court remand his case to determine whether that waiver was entered into knowingly and voluntarily. We affirm the circuit court’s order denying Petitioner’s motion to suppress, and remand the case for a determination as to whether Petitioner’s waiver was entered into knowingly and voluntarily.
FACTUAL/PROCEDURAL BACKGROUND
On August 3, 2005, the Beaufort County Sherriff’s Office (BCSO) conducted a drug investigation focusing on Petitioner. Police believed that Petitioner may have been involved in the sale and distribution of cocaine in the Hilton Head/Bluffton area of Beaufort County. A sheriff’s deputy received information that Petitioner might be operating a vehicle in the area with expired license plates and possibly no driver’s license. The deputy conducted a traffic stop of Petitioner after confirming that his license plates were indeed expired and suspended. A “back-up officer,” arrived on scene shortly thereafter. Police placed Petitioner under arrest for operating the vehicle without a driver’s license and removed him from the vehicle. Police then conducted a “K-9” search of the vehicle. The narcotics-detection dog used in the search alerted on drug residue on the vehicle, and police conducted a search of the cargo compartment. Police seized powdered cocaine from the vehicle, and charged Petitioner with knowingly and intentionally possessing a quantity of powder cocaine with a weight in excess of one hundred grams.
The Beaufort County Grand Jury indicted Petitioner for trafficking cocaine in excess of one hundred grams, and Petitioner proceeded to trial. The jury found Petitioner guilty as indicted. The circuit court sentenced Petitioner to twenty-five years imprisonment. Petitioner did not appeal his conviction or sentence, but subsequently filed a PCR application.
Petitioner claimed in his PCR application that his trial attorney failed to file a timely notice of appeal even after assuring Petitioner that he “had multiple grounds for appeal,” and that he “would almost certainly be successful in overturning the convictions at the appellate level.” According to the Consent Order, Petitioner’s trial counsel admitted that he failed to file an appeal even though Petitioner requested one be filed. Thus, the State consented to granting Petitioner a belated direct appeal pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974)[1]. In the same Consent Order, Petitioner “waived his right to raise any other PCR allegations.”
In a petition for writ of certiorari to this Court, Petitioner asserted that the PCR judge properly found that he did not waive his right to a direct appeal, and requested this Court remand his case to determine whether his waiver of any other PCR allegations was entered into knowingly or voluntarily. This Court granted the petition for writ of certiorari as to whether Petitioner knowingly and voluntarily waived his right to direct appeal, dispensed with further briefing on that question, and elected to proceed with further review of the direct appeal issue—the validity of the stop and search. Additionally, this Court granted review of whether Petitioner’s waiver of any other PCR allegations was entered into knowingly and voluntarily.
ISSUES PRESENTED
| Whether the circuit court erred in admitting evidence obtained as a result of Petitioner’s traffic stop. |
| Whether Petitioner’s waiver of PCR allegations, other than the belated direct appeal issue, was entered into knowingly and voluntarily. |
STANDARD OF REVIEW
On appeal from a motion to suppress on Fourth Amendment grounds, this Court applies a deferential standard of review and will reverse only if there is clear error. State v. Tindall, 388 S.C. 518, 520, 698 S.E.2d 203, 205 (2010) (citation omitted). However, this Court is not barred from conducting its own review of the record to determine whether the trial judge’s decision is supported by the evidence. Id.
On certiorari in a PCR action, the Court applies the “any evidence” standard. Accordingly, this Court will affirm if any evidence of probative value in the record exists to support the findings of the PCR court. Terry v. State, 394 S.C. 62, 66, 714 S.E.2d 326, 328 (2011) (citation omitted).
LAW/ANALYSIS
I. Whether the circuit court erred in admitting evidence obtained as a result of Petitioner’s traffic stop.
Petitioner argues that the facts presented by police to the circuit court did not rise to the level of “reasonable suspicion,” and that he was “unreasonably seized.” Thus, according to Petitioner, his Fourth Amendment rights were violated, and this Court should reverse his conviction. We agree with Petitioner that the search incident to arrest in this case violated his Fourth Amendment rights. However, for reasons explained below, the exclusion remedy is unavailable to Petitioner, and thus his conviction will stand.
In New York v. Belton, 453 U.S. 454 (1981), the United States Supreme Court initially explained the constitutionally permissible scope of a search incident to arrest. In that case, police ordered the driver of a speeding vehicle to pull over to the side of the road and stop. Id. at 455. The policeman asked to see the driver’s license and automobile registration and simultaneously smelled burnt marijuana. Id. at 455–56. The officer directed the occupants out of the car and conducted a pat down of the four men. Id. at 456. The officer then conducted a search of the passenger compartment of the car, including a black leather jacket belonging to Belton. Id. He unzipped one of the pockets of the jacket and discovered cocaine. Id.
Belton argued that the cocaine had been seized in violation of the Fourth and Fourteenth Amendments. Belton, 453 U.S. at 456–57. The Court stressed the need to provide a “workable rule,” and held that when a policeman has made a lawful custodial arrest of the occupant of an automobile, “he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 459–60. The Court reasoned that the police should also be allowed to examine the contents of any containers found within the passenger compartment, “for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.” Id. at 460–61 (citations omitted).
In the instant case, the police stopped Petitioner as part of an ongoing drug investigation, but primarily because the license tags on his automobile were expired. The police officer asked Petitioner for his driver’s license, and verified that Petitioner did not possess a valid driver’s license. Thus, he arrested Petitioner, and police searched Petitioner’s vehicle incident to that arrest.
Petitioner challenged the search at trial. The circuit court judge initially expressed concern at the vehicle search following a mere traffic stop, but denied Petitioner’s motion to suppress:
It concerns me that the law enforcement in this case would risk this investigation by making a search under these circumstances without obtaining a search warrant. It would have been a very easy thing to do. There was just no reason that it needed to be done the way that they did it . . . . But after looking especially at the case of New York v. Belton, 433 U.S. 454, is [sic] the only thing that tips the scales in the State’s favor in this case; and that is that a search may be made incident to an arrest of the passenger compartment of the vehicle, including containers located in the passenger compartment where the search incident to arrest even if the detainee has been arrested and removed from the vehicle.
Petitioner’s trial took place in 2007, two years prior to the United States Supreme Court’s holding in Arizona v. Gant, 556 U.S. 332 (2009). In Gant, the United States Supreme Court limited the expansive searches allowed by Belton. The Court noted that Beltonhad been widely understood to “allow a vehicle search incident to arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” Id. at 1718. The Court found this reading incompatible with its previous decisions regarding the basic scope of searches incident to lawful custodial arrests. Id. at 1719 (citation omitted). Therefore the Court held that police may search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search or when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. Id. (citing Thornton v. United States, 541 U.S. 615, 624–25 (2004)).
Newly announced rules of constitutional criminal procedure must apply retroactively to all cases, “pending on direct review or not yet final, with no exception for cases in which a new rule constitutes a ‘clear break’ with the past.” Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Petitioner’s conviction has not yet become final on direct review. Thus, Gant applies retroactively to this case, and Petitioner may invoke its rule of substantive Fourth Amendment law as a basis for seeking relief. However, our analysis of the instant case is further controlled by the United States Supreme Court’s decision in Davis v. United States, 131 S.Ct. 2419 (2011).
In Davis, the defendant was charged and convicted of unlawful possession of a firearm based on discovery of a revolver in a stopped automobile in which he was the only passenger. Id. at 2425–26. During the pendency of Davis’s appeal, the United States Supreme Court decided Gant. The Eleventh Circuit applied Gant‘s new rule and held that the vehicle search incident to arrest violated Davis’s Fourth Amendment rights. Id. at 2426 (citation omitted). However, the court concluded that penalizing the arresting officer for following binding appellate court precedent would do nothing to deter Fourth Amendment violations. Id. (citingUnited States v. Davis, 598 F.3d 1259, 1265–66 (2010)).
The United States Supreme Court agreed, and reasoned that the acknowledged absence of police culpability doomed Davis’s claim. Id. at 2428. “Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield ‘meaningful deterrence’ and culpable enough to be ‘worth the price paid by the justice system.'” Id. (citing Herring v. United States, 555 U.S. 135, 144 (2009)). Excluding evidence in cases where the “constable” has scrupulously adhered to governing law deters no police conduct and imposes substantial social costs. Davis, 131 S.Ct. at 2434. Thus, the Court held that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. Id.
In the instant case, the search incident to arrest violated Petitioner’s Fourth Amendment rights pursuant to Gant. However, excluding the evidence against Petitioner would not deter police misconduct because the police in this instance conducted a search incident to arrest pursuant to binding appellate precedent. See id. at 2426–28. Moreover, exclusion of the evidence in this case would result in severe social costs, including the articulation of an inexplicable and undecipherable message to law enforcement regarding how to conduct a legal search. The protection of the Fourth Amendment can only be realized if the police are acting under a set of rules which make it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement. Wayne R. LaFave, “Case-By-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 142 (1974).
This Court will only reverse the circuit court’s decision on a motion to suppress when there is clear error. State v. Tindall, 388 S.C. 518, 520, 698 S.E.2d 203, 205 (2010). The circuit court in this case applied the established law to a search executed pursuant to binding precedent. Thus, Davis v. United States, and our own standard of review, commands that the circuit court’s decision be affirmed.[2]
II. Whether the Petitioner’s waiver of PCR allegations, other than the belated direct appeal issue, was entered into knowingly and voluntarily.
Petitioner signed a consent order granting belated direct appeal and waived his right to raise any other PCR allegations. He now asks this court to remand his case for a determination as to whether he knowingly and voluntarily waived his right to raise additional PCR claims.
In order to determine whether a waiver is effective, the court examines the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Spoone v. State, 379 S.C. 138, 143, 665 S.E.2d 605, 607 (2008) (citing United States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)). Numerous jurisdictions have upheld waivers of post-conviction relief, provided they were knowing and voluntary. Id. at 143, 665 S.E.2d at 607. A defendant’s knowing and voluntary waiver of statutory or constitutional rights must be established by a complete record, and may be accomplished by a colloquy between the court and defendant, between the court and defendant’s counsel, or both. Brannon v. State, 345 S.C. 437, 439, 548 S.E.2d 866, 867 (2001).
In Spoone v. State, 379 S.C. 138, 665 S.E.2d 605 (2008), this Court addressed whether a PCR court erred in enforcing a written plea agreement wherein the petitioner waived his right to direct appeal, PCR, and habeas corpus relief. The petitioner argued that his waiver was not knowing and intelligent because there was no discussion at the plea proceeding about the extent of his understanding of the waiver. Id. at 141, 665 S.E.2d at 607.
The Court took into account that although petitioner had only a ninth grade education, the text of the written plea agreement was straightforward. Id. at 143–44, 665 S.E.2d at 608. In addition, the plea colloquy showed that the PCR court specifically asked petitioner about the waiver both in the language of the plea agreement, and in “plain language.” Id. Two attorneys accompanied petitioner to the plea hearing and both signed the written plea agreement along with petitioner. Id. Thus, this Court held that the PCR court correctly enforced the waiver and dismissed petitioner’s PCR application. Id.
In this case, according to the Consent Order, Petitioner appeared before the PCR court on August 26, 2008. The Consent Order states that Petitioner waived his right to raise any other PCR allegations, but was “granted a belated direct appeal pursuant to White v. State.” The record before this Court of the colloquy between the parties consists of the following:
The court: What’s the—what we got this morning?
Mr. Friedman: Your Honor, the first one is Osiel Gomez Narcisco [sic].
The court: All right.
Mr. Friedman: May we approach on this one?
The court: Yeah
(Bench conference)
Mr. Friedman: Thank you, Your Honor.
The court: Okay. Appreciate it. Thank you.
The Consent Order signed by Petitioner is straightforward. However, Petitioner used an English-speaking interpreter throughout his original trial, and apparently has, at best, a limited command of the English language. The colloquy provided to this Court does not show that the PCR court specifically asked Petitioner about the waiver, either in the language of the Consent Order, or in “plain language.”
The State argues that Petitioner’s case is distinguishable from Spoone because in that case the issue was “whether the right to appellate review and post-conviction review may be waived by a written plea agreement . . . ,” and that “[Petitioner] proceeded to trial and was convicted.” This is a distinction without a difference. The key issue in Spoone and in Petitioner’s case is the circumstances surrounding the waiver of the right to appeal PCR allegations. Aside from the consent agreement, the record in this case does not support the conclusion that Petitioner entered into the agreement knowingly and voluntarily. Additionally, the colloquy between the court and the defendant in this case does not clearly establish that Petitioner knowingly and voluntarily waived his right to raise any other PCR allegations. This Court will affirm the PCR court’s findings if any evidence of probative value exists in the record. Terry v. State, 394 S.C. 62, 66, 714 S.E.2d 326, 328 (2011). However, finding that no such evidence exists in the instant case, we must remand for a determination as to whether Petitioner’s waiver was entered into knowingly and voluntarily.
CONCLUSION
We affirm the circuit court’s denial of Petitioner’s motion to suppress. However, the record does not adequately demonstrate whether Petitioner’s waiver was in accordance with this Court’s waiver jurisprudence. Thus, we remand the case for a determination on that issue.
AFFIRMED IN PART, REMANDED IN PART.
PLEICONES, BEATTY, KITTREDGE and HEARN, JJ., concur.
[1] In White v. State, 263 S.C. 110, 113, 208 S.E.2d 35, 36 (1974), the defendant was convicted of burglary and sentenced to twenty years imprisonment. The defendant did not appeal his conviction or sentence, but subsequently filed a petition for PCR and a circuit court denied that relief in a full evidentiary hearing. Id. The defendant argued on appeal that the PCR judge should have ordered a new trial because the defendant did not knowingly and intelligently waive the right to appeal from his conviction and sentence. Id. at 117, 208 S.E.2d at 39. The defendant’s trial counsel testified at the PCR hearing that he did not advise the defendant of his right to appeal because he was certain the defendant knew of his rights due to his prior criminal record. Id. The PCR judge found that the defendant did not knowingly and intelligently waive his right to appeal, and directed defendant’s new counsel to secure a belated appeal to this Court from his conviction and sentence. Id. at 118, 208 S.E.2d at 39. This Court found that with regard to this belated appeal, no notice of appeal had been filed, and thus the Court had no jurisdiction over such an appeal. Id. at 119, 208 S.E.2d at 39. However, the Court reviewed the record in connection with the properly presented PCR appeal and ruled that “there was no reversible error in the trial and that there was not an arguably meritorious ground of appeal, even if notice of intention to appeal had been timely served . . . .” White, 263 S.C. at 119, 208 S.E.2d at 40.
[2] Respondent argues that due to Gant, the “search-incident-to-arrest logic is no longer appropriate grounds for denying the suppression motion,” and urged this Court to find the search was justified under the automobile exception. However, the decision in Davis being dispositive, this Court need not reach the automobile exception, or any other grounds, for upholding the search. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1998) (holding that appellate courts need not discuss remaining issues when determination of a prior issue is dispositive).
Mar 10, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
This SC Supreme Court case highlights the critical importance of making proper objections during trial to the admission of evidence and/or testimony. Here, the all important videotape was introduced and admitted without objection by the criminal defense attorney. Subsequently, after being convicted, the judge on his own granted a new trial. The State appealed this action and won. The result is the prior conviction will stand, and the criminal defendant will go to prison. Had an objection been made, the outcome could have been different. Better make sure your criminal attorney knows the rules of procedure and when to object to the admission of evidence against you. As this case shows, a single, properly made objection can make or break a case.
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 Supreme Court
The State, Respondent,
v.
Jeremiah Dicapua, Petitioner.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Horry County
J. Michael Baxley, Circuit Court Judge
Opinion No. 26684
Heard February 3, 2009 – Filed July 13, 2009
AFFIRMED
Appellate Defender Robert M. Pachak, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.
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, all of Columbia; and Solicitor John Gregory Hembree, of Conway, for Respondent.
JUSTICE KITTREDGE: As a result of a videotaped sting operation, Jeremiah Dicapua was convicted and sentenced for distribution of crack cocaine and possession with intent to distribute crack cocaine. On the day following sentencing, the trial court sua sponte vacated the jury’s verdict and ordered a new trial on the basis of perceived weaknesses in the videotape evidence, even though the tape was admitted without objection. Moreover, the trial court ruled that the videotape could not be admitted in evidence in the new trial. The State appealed, contending the sua sponte grant of a new trial constituted legal error warranting reversal.
Because Dicapua waived any direct challenge to the videotape by consenting to its admission, the court of appeals reversed the trial court’s sua sponte, new trial order and reinstated the sentence. State v. Dicapua, 373 S.C. 452, 455-56, 646 S.E.2d 150, 152 (Ct. App. 2007). We granted a writ of certiorari. We affirm.
I.
The Horry County Police Department and the Myrtle Beach Police Department conducted a drug sting in a hotel. One hotel room was a control room where the officers observed the suspects and the informant. The adjoining hotel room served as the transaction room, which was set up with separate video and audio recording devices. On the day in question, the audio equipment malfunctioned.
The hotel room was initially searched by the police for drugs, and the informant was searched as well. The informant was given one hundred and eighty dollars in marked money by the police. The informant and another woman in the hotel room were arrested earlier that day for prostitution.
The informant briefly left the room and reentered with Dicapua. The informant counted out the money and placed it on the bed. Next, Dicapua counted the money and appeared to drop something on the bed. The informant then placed an unknown substance in her pocket. After the police entered the transaction room, the police searched Dicapua and found drugs. The police also located drugs on the informant for a total of 2.4 grams of crack cocaine. Dicapua admitted the informant gave him one hundred and sixty dollars.
Dicapua was tried for and convicted of distribution of crack cocaine and possession with intent to distribute crack cocaine. At trial, Dicapua did not object to the admission of the videotape. Following the State’s case, Dicapua made multiple motions: for a dismissal and a mistrial due to the lack of a link between the drugs found on the informant and Dicapua, for a directed verdict due to the “totality” of the State’s case, and for dismissal due to entrapment. Notably, these motions did not refer to the admission of the videotape.
Following the jury’s guilty verdicts, Dicapua moved to set aside the verdict as there was no evidence Dicapua intended to sell additional drugs and “the objections and request going back to the [informant], the chain, and all those things.” Again, these motions did not implicate the admission of the videotape. The trial court sentenced Dicapua to thirty months for both charges to run concurrently.
The next day the trial court sua sponte ordered a new trial because of concerns about the videotape. The trial court additionally ordered, “it is the decision of this Court to suppress the introduction of the videotape in any new trial to be had on the charges.”[1] The State served its notice of appeal. The trial court subsequently held a hearing to supplement the record and further explain its decision.[2]
The State appealed the trial court’s sua sponte order. The court of appeals reversed. State v. Dicapua, 373 S.C. 452, 456, 646 S.E.2d 150, 152 (Ct. App. 2007). The court of appeals majority found an abuse of discretion by the trial court’s granting of a new trial for a waived issue, the admission of the videotape. Id. at 455, 646 S.E.2d at 152. One panel member of the court of appeals concurred, addressing the matter of appealability. Id. at 457, 646 S.E.2d at 153. This Court granted Dicapua’s petition for certiorari.
II.
We first address the threshold matter of appealability. “The State may only appeal a new trial order if, in granting it, the trial judge committed an error of law.” State v. Johnson, 376 S.C. 8, 10, 654 S.E.2d 835, 836 (2007). To determine if an error of law occurred, it is necessary to examine the merits of the case. Id. at 11, 654 S.E.2d at 836. We find an error of law occurred when the trial court granted a new trial on the basis of evidence admitted with Dicapua’s consent. Because of the error of law, the matter is appealable.
We now turn to the legal issue which resolves this case—may a trial court in a criminal case sua sponte order a new trial on a ground not raised by a party? We answered this question “no” in the context of a civil proceeding in Southern Railway Co. v. Coltex, Inc., 285 S.C. 213, 214, 329 S.E.2d 736, 736 (1985) (“The sole issue is whether a trial judge ex mero motu[3] can grant a new trial on a ground not raised by a party. We hold he cannot.”).[4] We hold the same result must follow in a criminal case.[5] Moreover, to affirm the grant of a new trial on a waived issue in a criminal case would lend this Court’s imprimatur to a trial court’s impromptu grant of post conviction relief.
By consenting to the admission of the videotape evidence, Dicapua waived any direct challenge to the admission of the evidence. Concomitantly, the trial court lacked authority to grant relief on the basis of a ground not raised by Dicapua. We hold the granting of a new trial sua sponte on a ground waived by a party is an error of law.
AFFIRMED.
TOAL, C.J., WALLER, PLEICONES and BEATTY, JJ., concur.
[1] Counsel for Dicapua conceded at oral argument that it was error to preemptively suppress the videotape at a new trial.
[2] Because the filing of the appeal deprived the trial court of jurisdiction, we may not consider the trial court’s post-appeal explanation.
[3] Ex mero motu is a synonymn for sua sponte. Black’s Law Dictionary 596 (7th ed. 1999).
[4] As in the case at hand, in Southern Railway, Southern waived the ground on which the trial court sua sponte granted a new trial. 285 S.C. at 215-16, 329 S.E.2d at 737-38. Specifically, the trial court in Southern Railway stated that “[t]his new trial is not granted on the grounds as contended by [Southern] . . . .” Id. at 215, 329 S.E.2d 737. In reversing the sua sponte grant of a new trial, we held “Southern waived the right to claim the omitted charge was error by not objecting to its omission at the trial level. Therefore, the omitted charge was not properly before the trial court, the Court of Appeals, or this Court.” Id. at 216, 329 S.E.2d at 737-38.
[5] We acknowledge Rule 59(d), SCRCP, allows a civil trial court to order a new trial within ten days of the entry of judgment for “any reason for which [the trial court] might have granted a new trial on motion of a party.” We further acknowledge that when a civil trial court exercises its discretionary right to sit as a thirteenth juror and grants a new trial when the verdict is contrary to the evidence, its decision will be upheld if there is any evidence to support it. Southern Railway, 285 S.C. at 216, 329 S.E.2d at 738.
Mar 3, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
This SC Supreme Court decision demonstrates how important every detail can be in a criminal case. Here, the trial judge sentenced the defendant to a statutorily required 25 years in prison and a $100,000 fine for trafficking cocaine based upon an amount of cocaine not proven by the State. However, on appeal, it was concluded that the jury was charged inappropriately and could only support a greatly reduced sentence of 3-10 years and a $25,000 fine. Every nuance in a criminal case can make all the difference. Better make sure your defense attorney investigates every aspect of your case and knows how to take full advantage at trial. There is too much at stake to risk 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 Supreme Court
Gina L. Dervin, Petitioner,
v.
State of South Carolina, Respondent.
ON WRIT OF CERTIORARO
Appeal From Kershaw County
L. Casey Manning, Circuit Court Judge
Opinion No. 26755
Submitted November 18, 2009 – Filed December 21, 2009
REVERSED AND REMANDED
Appellate Defender Kathrine H. Hudgins, of South Carolina Commission on Indigent Defense, of Columbia, for Petitioner.
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Brian T. Petrano, all of Columbia, for Respondent.
JUSTICE WALLER: We granted a writ of certiorari to perform an Austin v. State review of the denial of Petitioner Gina Dervin’s application for post conviction relief (PCR). We reverse and remand for resentencing.
FACTS
Dervin was indicted for trafficking cocaine. The indictment alleged she had trafficked between 200-400 grams of cocaine. During her trial, the court twice instructed the jury that Dervin could be convicted of trafficking if she was in actual or constructive possession of ten grams or more of cocaine. The jury found her guilty.
At sentencing, Dervin requested the judge sentence her to the minimum possible sentence, to which the court responded:
Trafficking in cocaine — and in this case trafficking in cocaine in a substantial amount — the amount in this case is from 200 grams – more than 200 grams but less than 400 grams. And that I will tell you is the second highest category or volume of traffic of cocaine provided for in the trafficking statute. . . .
Our Legislature has mandated a sentence in a trafficking case, and that is a mandatory 25-year sentence and a mandatory $100,000 fine. So I have no choice other than to impose the sentence required by law.
Accordingly, Dervin was sentenced to twenty-five years and a $100,000 fine for trafficking. The Court of Appeals affirmed her convictions and sentences on direct appeal. State v. Dervin, Op. No. 2003-UP-484 (S.C. Ct. App. filed August 20, 2003).
Dervin’s first PCR application was denied, and no appeal was filed. Dervin filed this subsequent PCR application in May 2007, alleging PCR counsel was ineffective in failing to appeal the denial of the first PCR application. The court held Dervin was entitled to a belated review of the denial of her first application pursuant to Austin v. State, 305 S.C. 453, 409 S.E.2d 395 (1991), and we granted certiorari.
ISSUE
Was trial counsel ineffective in failing to object to Dervin’s twenty-five year sentence for trafficking more than 200 grams of cocaine when the trial judge only charged the jury to consider whether petitioner was guilty of trafficking ten or more grams of cocaine?
DISCUSSION
Dervin contends trial counsel was ineffective in failing to object to imposition of a twenty-five year sentence for trafficking between 200-400 grams of cocaine, because the jury was only required to determine she trafficked ten or more grams of cocaine, but that it did not necessarily determine she possessed over 200 grams. Dervin contends the United States Supreme Court’s decisions inApprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004) require the amount of drugs to be submitted to the jury to be proven beyond a reasonable doubt. We agree.
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000), the United State Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” See also Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (court explained that “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant).
The state asserts there is no Apprendi violation because the twenty-five year sentence imposed here is within the statutory maximum. While the state is correct in asserting that S.C. Code Ann. § 44-53-370(e)(2)(e) permits up to a thirty year sentence and a $200,000 fine for trafficking over 400 grams of cocaine, the only amount actually charged to the jury here was that it could convict Dervin if it found she possessed “more than 10 grams.” There is no indication in the jury’s verdict that it found anything more than this amount. Accordingly, given the trial court’s instruction, the applicable sentence for possession of ten grams falls under § 44-53-370(e)(2)(a)(1) and is a maximum of ten years and a $25,000 fine. Accord United States v. Booker, 543 U.S. 220 (2005) (statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant).
Due process requires the State to prove every element of a criminal offense beyond a reasonable doubt. State v. Brown, 360 S.C. 581, 602 S.E.2d 392 (2004) (citing In re Winship, 397 U.S. 358 (1970)). A defendant, therefore, cannot “be exposed to a greater punishment than that authorized by the jury’s guilty verdict.” United States v. Page, 232 F.3d 536, 543 (6th Cir. 2000).
In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court reiterated its holding inApprendi that, under the Sixth Amendment, all facts used to increase a defendant’s sentence beyond the statutory maximum must be charged and proven to a jury. 542 U.S. at —-, 124 S.Ct. at 2536. The relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Simpson v. United States, 376 F.3d 679 (7th Cir. 2004). See also United States v. Booker, 375 F.3d 508 (7th Cir. 2004). UnderBlakely, the relevant statutory maximum “is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant.” 542 U.S. at 303-304, 124 S.Ct. at 2537.
We find the maximum permissible sentence here, pursuant to Apprendi and Blakely, is controlled by the amount which was specifically submitted to the jury, i.e., that it could convict Dervin of trafficking if it believed she possessed ten or more grams of cocaine. Accordingly, the maximum sentence in the present case should have been that for trafficking between 10-28 grams, which is 3-10 years, and a $25,000 fine. Therefore, the trial court’s imposition of a twenty-five year sentence for trafficking between 200-400 grams of cocaine violated Apprendi because the jury did not find beyond a reasonable doubt that Dervin possessed that amount of cocaine. Further, we find counsel was ineffective in failing to object to impostion of a 25 year sentence. We reverse the denial of PCR and remand for resentencing.[1]
REVERSED AND REMANDED FOR RESENTENCING.
TOAL, C.J., PLEICONES, BEATTY and KITTREDGE, JJ., concur.
[1] Although an Apprendi error may be deemed harmless, Washington v. Recuenco, 548 U.S. 212 (2006), we do not find the error harmless in the present case.
Feb 28, 2012 | Criminal Defense, Drug Crimes and Controlled Substances Defense, Uncategorized
This recent NC Supreme Court case deals with fairly common issues associated with any police stop involving a vehicle. At what point do the police have a basis to search your car without a warrant. If a court finds the police went too far, the remedy is a Motion to Suppress any evidence illegally obtained, no matter what they find. Better make sure your attorney knows these critical rules and is willing to fight for you in court. We do and will.
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
IN THE SUPREME COURT OF NORTH CAROLINA
No. 33A11
STATE OF NORTH CAROLINA v. OMAR SIDY MBACKE
Appeal pursuant to N.C.G.S. ‘ 7A-30(2) from the decision of a divided panel of the Court of Appeals, ___ N.C. App. ___, 703 S.E.2d 823 (2011), reversing an order denying defendant‟s motion for appropriate relief entered on 16 June 2009 by Judge Ronald E. Spivey in Superior Court, Forsyth County. Heard in the Supreme Court on 6 September 2011.
Roy Cooper, Attorney General, by Martin T. McCracken, Assistant Attorney General, for the State-appellant.
Tin Fulton Walker & Owen, PLLC, by Noell P. Tin and Matthew G. Pruden,for defendant-appellee.
EDMUNDS, Justice.
In this case, we consider whether the search of defendant Omar Sidy Mbacke‟s automobile following his arrest for carrying a concealed gun violated his Fourth Amendment right against unreasonable searches and seizures. Because it was reasonable for the arresting officers to believe that they might find evidence of the offense of arrest in defendant‟s vehicle, we conclude that defendant‟s rights were not violated. Accordingly, we reverse the Court of Appeals decision and instruct that court to reinstate the trial court‟s denial of defendant‟s motion for appropriate relief.
Defendant was indicted for the offenses of trafficking in cocaine by possession, trafficking in cocaine by transportation, possession with intent to sell and deliver cocaine, and carrying a concealed gun. Prior to trial, defendant filed a motion to suppress evidence seized from his vehicle during a search that was conducted only after officers had arrested him and placed him in a police car. The trial court held a hearing on defendant‟s motion, during which the State presented evidence that on 5 September 2007, Winston-Salem police officers were dispatched to 1412 West Academy Street in response to a 911 call placed by Sala Hall. Hall reported that a black male who was armed with a black handgun, wearing a yellow shirt, and driving a red Ford Escape was parked in his driveway. Hall added that the male had “shot up” his house the previous night. The dispatcher relayed this information to the officers. Officers Walley and Horsley arrived at the scene at approximately 3:08 p.m., less than six minutes after Hall called 911. They observed a black male (later identified as defendant) who was wearing a yellow shirt and backing a red or maroon Ford Escape out of the driveway at the reported address. The officers exited their patrol cars, drew their service weapons, and moved toward defendant while ordering him to stop his car and put his hands in the air. At about the same time, Officer Woods arrived and blocked the driveway to prevent the Escape‟s escape. Defendant initially rested his hands on his vehicle‟s steering wheel, but then lowered his hands towards his waist. In response, the officers began shouting louder commands to defendant to keep his hands in sight and to exit his vehicle.
Defendant raised his hands and stepped out of his car, kicking or bumping the driver‟s door shut as he emerged. The officers ordered defendant to lie on the ground and then handcuffed him, advising him that while they were not arresting him, they were detaining him because they had received a report that a person matching his description was carrying a weapon. In response to a question from the officers, defendant said that he had a gun in his waistband. Officer Walley lifted defendant‟s shirt and saw a black handgun. After Officer Woods retrieved the pistol and rendered it safe, defendant was arrested for the offense of carrying a concealed gun.
The officers secured defendant in the back seat of a patrol car, then returned to defendant‟s Escape and opened the front door on the driver‟s side. Officer Horsley immediately saw a white brick wrapped in green plastic protruding from beneath the driver‟s seat where defendant had been sitting. As Officer Horsley was showing Officer Walley what he had found, defendant slipped one hand out of his handcuffs, reached through the partially opened window of the police car in which he had been placed, and attempted to open the vehicle door using the exterior handle. After resecuring defendant, the officers searched the entirety of his car incident to the arrest but found no other contraband. A field test of powdery material from the white brick was positive for cocaine, and a subsequent analysis by the State Bureau of Investigation laboratory determined that the brick consisted of 993.8 grams of cocaine.
At the conclusion of the suppression hearing, the trial court made oral findings of fact and conclusions of law, then denied defendant‟s motion to suppress. These findings of fact and conclusions of law were later set out in a written order issued by the court after defendant‟s trial.
When the case was called for trial, defense counsel confirmed with the trial court that his objection to the trial court‟s denial of his motion to suppress was on the record. Later that day, defense counsel renewed the motion to suppress,bringing to the court‟s attention a case that had been issued just that morning by the Supreme Court of the United States, Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). After some discussion with the trial judge, defensecounsel advised the court that he would not ask for a hearing during the trial on the applicability of Gant, but instead would pursue that particular issue via a motion for appropriate relief. As a result of defense counsel‟s decision not to seek an immediate ruling on the effect of Gant, the trial court‟s pretrial denial of defendant‟s motion to suppress stood unaffected. Defense counsel preserved his objection by objecting during trial when the State elicited testimony from the officers regarding the search and by renewing his motion to suppress at the close of the State‟s evidence. The objection was overruled and the renewed motion denied.
The jury found defendant guilty of all charges. The trial court sentenced defendant to concurrent terms of 175 to 219 months of imprisonment. On 1 May 2009, defense counsel timely filed a motion for appropriate relief. In it, defense counsel argued that Gant retroactively applied to defendant‟s case andthat the evidence found in the vehicle should be suppressed pursuant to Gant‟s analysis of searches incident to arrest. At a 20 May 2009 hearing, the State presented additional evidence regarding the search. After applying Gant to all the evidence presented, the trial court denied the motion for appropriate relief in an order entered on 16 June 2009.
Defendant appealed. Although defendant addressed five assignments oferror in his brief, the Court of Appeals observed that defendant‟s notice of appeal raised only the trial court‟s denial of his motion for appropriate relief. ___ N.C. App. ___, ___, 703 S.E.2d 823, 825 (2011). Accordingly, the Court of Appeals limited its review to that issue. Id. at ___, 703 S.E.2d at 825-26.
The Court of Appeals majority reversed the trial court‟s decision, holding that “it was not „reasonable to believe [Defendant‟s] vehicle contain[ed] evidence of the offense‟ of carrying a concealed weapon.” Id. at ___, 703 S.E.2d at 830 (alterations in original) (quoting Gant, 556 U.S. at ___, 129 S. Ct. at 1723, 173 L. Ed. 2d at 501). The dissenting judge disagreed, arguing that evidence of intent to conceal the weapon, or “indicia of ownership or use of the firearm seized,” or both, could have been in the car. Id. at ___, 703 S.E.2d at 831 (Stroud, J., dissenting). In addition,the dissenting judge argued that, under the facts presented here, the officers‟ actions were reasonable. Id. at ___, 703 S.E.2d at 831. The State appealed to this Court on the basis of the dissent.
When reviewing a trial court‟s ruling on a motion for appropriate relief, the appellate court must “determine whether the findings of fact are supported by evidence, whether the findings of fact support the conclusions of law, and whether the conclusions of law support the order entered by the trial court.” State v. Stevens, 305 N.C. 712, 720, 291 S.E.2d 585, 591 (1982). “If no exceptions are taken to findings of fact [made in a ruling on a motion for appropriate relief], such findings are presumed to be supported by competent evidence and are binding on appeal.‟ State v. Baker, 312 N.C. 34, 37, 320 S.E.2d 670, 673 (1984) (quoting Schloss v. Jamison, 258 N.C. 271, 275, 128 S.E.2d 590, 593 (1962)). In such a case, the reviewing court considers only “whether the conclusions of law are supported by the findings, a question of law fully reviewable on appeal.” State v. Campbell, 359 N.C. 644, 662, 617 S.E.2d 1, 13 (2005) (citations omitted), cert. denied, 547 U.S. 1073, 126 S. Ct. 1773, 164 L. Ed. 2d 523 (2006). Accordingly, because defendant did not assign error to any of the trial court‟s findings of fact, we review only the trial court‟s conclusions of law.
Our review necessarily begins with a discussion of Arizona v. Gant, in which the Supreme Court considered whether searching an automobile incident to arrest violated the defendant driver‟s Fourth Amendment rights when he had been arrested for a traffic offense only and had no access to his car at the time of the search. 556 U.S. at ___, 129 S. Ct. at 1714-15, 173 L. Ed. 2d at 491-92. Gant‟s car was not searched until he had been arrested, handcuffed, and locked in the back of a patrol car. Id. at ___, 129 S. Ct. at 1715, 173 L. Ed. 2d at 492. Although the officers had no apparent reason to suspect at the time of the search that Gant‟s vehicle contained any contraband, they found cocaine and a weapon in the car. Id. at ___, 129 S. Ct. at 1715, 173 L. Ed. 2d at 492.
The Supreme Court‟s analysis of the propriety of the search focused on its opinion in New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768(1981), in which the Court held that an officer may search the passenger area of a vehicle incident to the arrest of the driver. Gant, 556 U.S. at ___, 129 S. Ct. at 1716-23, 173 L. Ed. 2d at 493-501 (citing Belton, 453 U.S. at 460, 101 S. Ct. at 2864, 69 L. Ed. 2d at 774-75). The majority in Gant noted that the Court in Belton had reasoned that such an approach was consistent with the purposes set out in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969), of ensuring both police officer safety and the preservation of evidence. Gant, 556 U.S. at ___, 129 S. Ct. at 1716-18, 173 L. Ed. 2d at 493-95. However, the Supreme Court observed in Gant that many lower courts had interpreted Belton expansively “to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” Id. at ___, 129 S. Ct. at 1718, 173 L. Ed. 2d at 495. The majority in Gant concluded that such broad readings undermined Belton‟s and Chimel‟s dual rationales. Id. at ___, 129 S. Ct. at 1719, 173 L. Ed. 2d at 496. The Court repudiated these interpretations and limited Belton‟s application by holding that when a defendant is arrested, the defendant‟s car can be searched “only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” or “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.‟ Id. at ___, 129 S. Ct. at 1719, 173 L. Ed. 2d at 496 (quoting Thornton v. United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 2137, 158 L. Ed. 2d 905, 920 (2004) (Scalia & Ginsburg, JJ., concurring in the judgment)).
In its conclusions of law, the trial court here found that “[t]here has been no change in circumstances or in the Law to warrant the Court setting aside its ruling on [defendant‟s] Pre–trial Motion” because “[t]he main issue of contention in the Pre-trial Motion to Suppress was whether the Winston-Salem Police officers involved had a sufficient articulable and reasonable suspicion to stop the Defendant‟s vehicle. This issue was not affected by the Supreme Court‟s ruling in Arizona v. Gant.” This conclusion by the trial court remains unchallenged.
The trial court then turned its attention to the applicability of Gant to defendant‟s motion for appropriate relief and found that defendant had been
secured in a police vehicle and was not within reaching distance of the passenger compartment of his car when officers searched his vehicle. Thus, no search was permitted under the first alternative set out in Gant. However, as to Gant‟s second prong, the trial court found that defendant had been arrested for carrying a concealed gun and that the officers had reason to believe that evidence of the offense of arrest, such as “other firearms, gun boxes, holsters, ammunition, spent shell casings and other indicia of ownership of the firearm” “would be located in the interior of the Defendant‟s vehicle.” Concluding that Gant did not foreclose the search of a vehicle pursuant to an arrest under those circumstances, the trial court denied the motion.
The Supreme Court subsequently has left no doubt that Gant applies to the case at bar because defendant’s case was “not yet final‟ when Gant was decided. Davis v. United States, 564 U.S. ___, ___, 131 S. Ct. 2419, 2430-31, 180 L. Ed. 2d 285, 298 (2011) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649, 661 (1987)) (stating that Gant applies retroactively to such cases). Accordingly, we must consider whether the trial court properly applied the holding in Gant to the evidence at bar when it denied defendant‟s motion for appropriate relief.
Despite defendant‟s apparent attempt to escape the police car in which he had been confined, the trial court was correct in finding that Gant‟s first prong did not permit a search because defendant was neither unsecured nor within reaching distance of the passenger compartment of his car at the time of the search. Our inquiry must then focus on whether it was reasonable for the police to believe that defendant‟s vehicle might contain evidence of the crime of arrest. See Gant, 556 U.S. at ___, ___, 129 S. Ct. at 1714, 1719, 173 L. Ed. 2d at 491, 496-97. Because the Supreme Court did not define the term “reasonable to believe,”some analysis is appropriate to provide guidance to law enforcement personnel who must apply Gant in their daily work. Despite the suggestion in United States v. Williams, 616 F.3d 760, 764-65 (8th Cir. 2010), cert. denied, ___ U.S. ___, 131 S. Ct. 1548, 179 L. Ed. 2d 310 (2011), that “probable cause” and “reasonable to believe” are equivalent concepts, we are satisfied that the reasonable to believe standard enunciated in Gant establishes a threshold lower than probable cause. See United States v. Vinton, 594 F.3d 14, 25 (D.C. Cir.) (“Presumably, the “reasonable to believe‟ standard requires less than probable cause, because otherwise Gant’s evidentiary rationale would merely duplicate the automobile exception,‟ which the Court [in Gant] specifically identified as a distinct exception to the warrant requirement.”), cert. denied, ___ U.S. ___, 131 S. Ct. 93, 178 L. Ed. 2d 58 (2010).
Instead, we conclude that the “reasonable to believe” standard set out in Gant parallels the objective “reasonable suspicion” standard sufficient to justify a Terry stop. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). Although the rationales for the two standards differ somewhat, in that Gant addresses officer safety and evidence preservation, Gant, 556 U.S. at ___, ___, 129 S. Ct. at 1715-16, 1719, 173 L. Ed. 2d at 492-93, 496-97, while Terry addresses “effective crime prevention and detection” along with officer and public safety, Terry, 392 U.S. at 22-24, 88 S. Ct. at 1880-81, 20 L. Ed. 2d at 906-08, we believe the underlying concept of a reasonable articulable suspicion discussed in Terry, id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906, is readily adaptable to a scenario in which a search of a vehicle is contemplated after the occupants have been arrested and detained. See also United States v. Place, 462 U.S. 696, 702, 103 S. Ct. 2637, 2642, 77 L. Ed. 2d 110, 117-18 (1983) (explicitly adopting the “reasonable, articulable suspicion” standard implied in Terry). In addition, law enforcement officers and courts have worked with the Terry standard for decades, making application of Gant’s similar objective standard a straightforward matter. Accordingly, we hold that when investigators have a reasonable and articulable basis to believe that evidence of the offense of arrest might be found in a suspect‟s vehicle after the occupants have been removed and secured, the investigators are permitted to conduct a search of that vehicle.
Here, defendant was arrested for the offense of carrying a concealed gun. The arrest was based upon defendant‟s disclosure that the weapon was under his shirt. Other circumstances detailed above, such as the report of defendant‟s actions the night before and defendant’s furtive behavior when confronted by officers, support a finding that it was reasonable to believe additional evidence of the offense of arrest could be found in defendant‟s vehicle. Accordingly, the search was permissible under Gant, and the trial court properly denied defendant‟s motion for appropriate relief. Our holding is consistent with the results reached by other courts. Although we are not bound by these cases, we consider their analyses informative. See State v. Warren, 252 N.C. 690, 696, 114 S.E.2d 660, 666 (1960) (noting that North Carolina is “not bound by the decisions of the Courts of the other States,” but that “overwhelming authority” in favor of a certain interpretation of law is “highlypersuasive”).
In general, courts examining an offense involving weapons have inferred that the offense, by its nature, ordinarily makes it reasonable to believe the defendant‟s car will contain evidence of that offense, so that searching a defendant’s car incident to an arrest for a weapons offense is almost always consistent with the Fourth Amendment. See, e.g., United States v. Rochelle, 422 F. App‟x 275, 277 (4th Cir.) (unpublished per curiam decision) (finding that officers had reason to believe the defendant‟s vehicle contained evidence of the offense of arrest, unlawful firearms possession), cert. denied, ___ U.S. ___, 132 S. Ct. 438, 181 L. Ed. 2d 285 (2011); Vinton, 594 F.3d at 25-26 (same after arrest for possession of a prohibited weapon); United States v. Leak, No. 3:09-cr-81-W, 2010 WL 1418227, at *5 (W.D.N.C. Apr. 5, 2010) (same after arrest for both driving with a suspended license and carrying a concealed weapon); United States v. Wade, No. 09-462, 2010 WL 1254263, at *2-3, *5 (E.D. Pa. Mar. 29, 2010) (finding that the officer had reason to believe the defendant‟s jacket, which the defendant had left in the car in which he had been riding when the police approached, might contain additional evidence of the offense of arrest, illegal possession of a firearm), aff’d on other grounds, ___ F. App ___, No. 10-3847, 2011 WL 5524995 (3d Cir. Nov. 14, 2011) (unpublished); People v. Osborne, 96 Cal. Rptr. 3d 696, 698, 705, 175 Cal. App. 4th 1052, 1056-57, 1065 (concluding that officers had reason to believe the car the defendant appeared to be burglarizing at the time of his apprehension would contain evidence relating to the offense of arrest, illegal possession of a firearm), rev. denied, No. S175724, 2009 Cal. LEXIS 11474 (Oct. 28, 2009). But see United States v. Brunick, 374 F. App 714, 716 (9th Cir.) (unpublished) (concluding that the defendant‟s arrest for carrying a concealed weapon, a knife, did not give rise to a reason to believe evidence would be found in the defendant‟s vehicle because there was no likelihood of finding additional evidence related to the offense for which the defendant was arrested; however, vehicle search allowed under inventory search exception), cert. denied, ___ U.S. ___, 131 S. Ct. 355, 178 L. Ed. 2d 230 (2010).
Even though we conclude that the search of defendant‟s vehicle was constitutionally permissible, we stress that we are not holding that an arrest for carrying a concealed weapon is ipso facto an occasion that justifies the search of a vehicle. We believe that the “reasonable to believe” standard required by Gant will not routinely be based on the nature or type of the offense of arrest and that the circumstances of each case ordinarily will determine the propriety of any vehicular searches conducted incident to an arrest.
The decision of the Court of Appeals is reversed, and that court is instructed to reinstate the trial court‟s denial of defendant‟s motion for appropriate relief.
REVERSED.
Justice TIMMONS-GOODSON dissenting.
Defendant was arrested for carrying a concealed weapon after telling police he had a gun in his waistband. He then was handcuffed and secured in the back of a police car. Next, rather than seek a warrant, law enforcement conducted a warrantless search of defendant‟s vehicle. The majority condones this search, but I must respectfully dissent. There was no reason to believe defendant‟s vehicle contained evidence that he was carrying a concealed weapon, and the majority unjustifiably rewrites Fourth Amendment jurisprudence set forth by the Supreme Court of the United States.
Warrantless searches “are per se unreasonable under the Fourth Amendment,” save a “few specifically established and well–delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338, 173 L. Ed. 2d 485, 493 (2009) (citation and quotation marks omitted). In Gant, the Supreme Court carved out one such exception, which permits police officers to search a vehicle incident to a lawful arrest “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Id. at 343, 173 L. Ed. 2d at 496 (citation and quotation marks omitted). In the same breath that it declared this exception, the Supreme Court recognized that “[i]n many cases ... there will be no reasonable basis to believe the vehicle contains relevant evidence.” Id. (citations omitted). This is one of those “many cases.”
At the time police officers searched defendant‟s vehicle, there was no reason to believe it contained evidence relevant to the crime of arrest—carrying a concealed weapon. First, defendant lowering his hands toward his waist may suggest that defendant had a gun, but this action did not indicate that his vehicle contained evidence of carrying a concealed weapon. After all, if defendant was lowering his hands to hide something, he would be trying to hide his weapon—the weapon he relinquished to police. Similarly, that a 911 caller identified defendant as the man who shot up his house the night before does not suggest that defendant’s car contained evidence that he was carrying a concealed weapon. Finally, the majority contends that defendant, by closing his vehicle door, gave the officers reason to believe the automobile contained evidence of the offense of arrest. This reasoning dangerously undermines the right to privacy. On the one hand, if defendant choses North Carolina law generally prohibits the intentional carrying of a concealed handgun off of one’s own property. N.C.G.S. § 14-269 (a1) (2011). the vehicle door when complying with an officer‟s order to exit the vehicle, then law enforcement, under today’s opinion, can search the car. On the other hand, if defendant leaves the door open, officers can conduct a broader plain view search of the passenger compartment. Protecting one‟s privacy from police searches by closing a vehicle door does not give rise to a reasonable belief to justify a warrantless search.2
The majority attempts to mollify concerns about the breadth of today’s opinion by stating that the weapons charge does not ipso facto justify the warrantless search. But without an explanation of how the facts actually create a reasonable belief that relevant evidence is located in defendant‟s vehicle, the Court’s opinion does exactly what it purports to avoid—permit a warrantless search based upon the nature of the offense.3 The absence of facts in this case suggesting that defendant‟s vehicle contained evidence of the crime of arrest signals that the Court will permit the search of an arrestee‟s vehicle in any concealed weapons case. In my view, the Court reads the Gant exception too broadly and allows searches beyond the scope contemplated by the Supreme Court.
I also disagree with the majority‟s suggestion that the Fourth Amendment permits officers to search the passenger compartment of a defendant‟s vehicle when the secured defendant has an air of “furtiveness” surrounding him. The majority‟s “furtiveness” argument has no precedent in Fourth Amendment jurisprudence. The Court compounds this problem by emphasizing that its opinion is consistent with decisions in other jurisdictions in that “an offense involving weapons… , by its nature, ordinarily makes it reasonable to believe that the defendant‟s car will contain evidence of that offense, so that searching a defendant‟s car incident to an arrest for a weapons offense is almost always consistent with the Fourth Amendment opinion‟s lack of specificity leaves law enforcement without a clear fact pattern for comparison with other scenarios. Officers, thinking they have complied with this opinion, may conduct vehicle searches only to have the fruits of those searches excluded from trial.
In addition to the majority‟s misapplication of Gant to the facts of this case, Idisagree with the majority‟s decision to equate the “reasonable, articulable suspicion” standard described in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889 (1968), with the reasonable belief requirement set forth in Gant. First, as a threshold matter, the majority fails to establish that the Gant phrase “reasonable to believe” needs clarification. The Supreme Court thought this phrase was adequately instructive to law enforcement, and so do I. This phrase is meaningful to judges, lawyers, and police officers alike. As the saying goes, “If it ain‟t broke, don‟t fix it.”
Second, the Supreme Court was well aware of the Terry standard when it authored Gant in 2009, yet it chose to adopt a reasonable belief standard, not the “reasonable, articulable suspicion” standard of Terry. I would not import Terry jurisprudence into the Gant analysis without direction from the Supreme Court.
Third, contrary to the assertion by the majority, law enforcement‟s familiarity with the Terry standard will not make the application of Gant by law enforcement officers “straightforward.” Officers‟ experience applying Terry is irrelevant to answering the question at hand: whether it is reasonable to believe that defendant‟s vehicle contains evidence of the offense of arrest. Substituting the Terry standard confuses the matter by conflating different areas of Fourth Amendment jurisprudence, stop and frisk compared with a search incident to arrest. In short, the majority‟s substitution of the Terry standard for the standard chosen by the Supreme Court in Gant introduces confusion with no benefit.
Finally, I also must point out that the majority offers absolutely no authority to support its rewriting of Fourth Amendment jurisprudence. The majority cites to United States v. Place, 462 U.S. 696, 702, 77 L. Ed. 2d 110, 117-18 (1983), as support for its proposition that “the underlying concept of a reasonable articulable suspicion discussed in Terry . . . is readily adaptable to a scenario in which a search of a vehicle is contemplated after the occupants have been arrested and detained.” Place, however, offers no support for this proposition, as it permits dogs to sniff luggage for narcotics and does not address the search of a vehicle incident to arrest. Id. at 706, 77 L. Ed. 2d at 120.
Today‟s opinion is especially troublesome because there was plenty of time to seek a warrant. Defendant was secured, and neither officer safety nor evidence preservation was a concern. Further, there was no reason to believe that defendant‟s vehicle contained evidence relevant to his arrest for carrying a concealed weapon. As a result, the decision of the majority to rewrite Fourth Amendment jurisprudence set forth by the Supreme Court of the United States is unwarranted and unhelpful. This revision to constitutional law unfortunately diminishes the Fourth Amendment rights guaranteed to our state‟s citizens with no benefit to the interests of law enforcement.
