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 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.”
