State v. Herring ( 2009 )

Justice KITTREDGE,

concurring.

I concur in affirming the convictions and sentence of H. Dewain Herring. I join the majority in all respects save its determination concerning the initial search. I disagree that, from an objective standard, exigent circumstances existed upon the arrival of law enforcement at Herring’s residence two hours after the shooting of John Johnson at Chastity’s strip club.

What the majority characterizes as a “peek by police into [Herring’s] garage” was, in my judgment, an unwarranted trespass and warrantless search. Upon the arrival of the police at Herring’s residence approximately two hours after the crime, exigent circumstances for Fourth Amendment purposes did not exist. More to the point, nothing occurred at the residence to create an exigency to justify a warrantless search. There was neither hot pursuit, nor an imminent threat of danger to police or others, nor other conditions that reasonably fit exigent circumstances jurisprudence. See State v. Abdullah, 357 S.C. 344, 351, 592 S.E.2d 344, 348 (Ct.App.2004) (discussing law of exigent circumstances).

The majority acknowledges that at the time of “Officer Linfert’s peek into the garage ... [,][i]t is undisputed that police had knowledge of Herring’s identity, his residence, the make and model of his vehicle, and his license tag number.” The police responded to this purported exigent circumstance by ringing the doorbell. When no one answered the doorbell, police “stationed men at the house and went to obtain a warrant.” Even from a subjective point, it is clear that law enforcement did not harbor the view that exigent circumstances justified a warrantless search.

Although I believe the peek into the garage constituted an illegal search, I agree with the majority that the search yielded no evidence. The evidence at the residence linking Herring to the shooting was seized as a result of the subsequent valid SLED search warrant.

PLEICONES, J., concurs.