State v. Anderson ( 2014 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Donald Marquice Anderson, Appellant.
Appellate Case No. 2012-212499
Appeal From Greenville County
G. Edward Welmaker, Circuit Court Judge
Unpublished Opinion No. 2014-UP-282
Heard June 17, 2014 – Filed July 9, 2014
AFFIRMED
Appellate Defender Carmen Vaughn Ganjehsani,
Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant
Attorney General Mary Shannon Williams, both of
Columbia, for Respondent.
PER CURIAM: The State indicted Donald Marquice Anderson for possession
with intent to distribute cocaine base. Anderson moved to suppress the cocaine,
arguing the detention and subsequent pat-down was unlawful under the Fourth
Amendment. The trial court denied his motion after a pretrial hearing, and
following his bench trial, found him guilty as charged. On appeal, Anderson raises
two issues to this court: (1) the police lacked reasonable suspicion to detain him
and (2) the police did not have a reasonable belief that he was armed and
dangerous to justify the pat-down. As to these two issues, we affirm.
Detective Keith Cothran of the Greenville Police Department obtained a search
warrant for a house on 106 Dobbs Street based on its connection with drug
transactions. At the suppression hearing, Det. Cothran testified drug "runners"
used a footpath1 near the house to sell drugs that came from 106 Dobbs. Based on
his belief that the footpath was "associated with [the drug activity at] 106 Dobbs,"
Det. Cothran ordered officers "to secure and detain any persons located . . . [on] the
[footpath]" while the search warrant was being executed.
Detectives Kevin Hyatt and Gary Rhinehart with the Greenville Police Department
testified they were stationed at the footpath during the search and were ordered "to
take control of any persons on the [footpath]" during the search of the house.
According to Det. Hyatt, he saw Anderson and a woman "approximately half-way
up the [footpath]" during the search. He claimed that when Anderson noticed the
police stationed on the footpath, he "immediately veered to the right in a quick
manner." Det. Rhinehart confirmed this, stating when Anderson noticed the
officers, "he made an obvious gesture to divert his path from the way he was
walking." Det. Hyatt ordered Anderson "to stop and get on the ground," and Det.
Rhinehart handcuffed him. Det. Hyatt then performed a pat-down and found a
plastic bag in Anderson's pocket containing crack cocaine.
Anderson asserted two grounds for suppressing the evidence at the pre-trial
hearing. First, he argued Det. Cothran's order to Det's. Hyatt and Rhinehart that
they seize any person on the footpath, apparently without suspicion of criminal
activity, constituted "a warrantless search that required probable cause" because it
"simply was not a Terry2 stop." The trial court denied the motion on this ground,
explicitly finding "that this was a Terry stop." We are unable to address the merits
of the trial court's ruling on this argument, however, because it was not presented
to this court on appeal. See Rule 208(b)(1)(B), SCACR ("[N]o point will be
considered which is not set forth in the statement of the issues on appeal."); S.C.
1
Det. Cothran, as well as the officers who testified at the hearing, referred to the
footpath as "the cut."
2
Terry v. Ohio, 392 U.S. 1 (1968).
Dep't of Transp. v. M & T Enters. of Mt. Pleasant, LLC, 379 S.C. 645, 659, 667
S.E.2d 7, 15 (Ct. App. 2008) ("[E]ven if an issue is preserved at the trial court
level, it must still be properly raised and argued to the appellate court."). Instead,
we are confined to addressing the issues appealed by Anderson: (1) whether the
police had reasonable suspicion to detain him and (2) whether the police had a
reasonable belief that he was armed and dangerous to justify the pat-down.
We find there is evidence to support the trial court's finding that Det. Hyatt had
reasonable suspicion to justify the stop. See State v. Taylor, 401 S.C. 104, 108,
736 S.E.2d 663, 665 (2013) (stating "[a] trial court's Fourth Amendment
suppression ruling must be affirmed if supported by any evidence"); State v.
Corley, 383 S.C. 232, 240, 679 S.E.2d 187, 191 (Ct. App. 2009), aff'd as modified,
392 S.C. 125, 708 S.E.2d 217 (2011) (stating an officer may detain a person "when
[he] has a reasonable suspicion supported by articulable facts . . . that the person is
involved in criminal activity"). Det. Hyatt possessed personal knowledge of the
high-crime area in which Anderson was detained and its association with drug
traffic. See United States v. Lender, 985 F.2d 151, 154 (4th Cir. 1993) (stating "an
area's propensity toward criminal activity is something an officer may consider" in
determining the existence of reasonable suspicion, which includes personal
knowledge that an area "ha[s] a large amount of drug traffic"). Specifically, he
knew the footpath served as a thoroughfare for drug "runners" and was associated
with the known drug activity at 106 Dobbs. See Corley, 383 S.C. at 242, 679
S.E.2d at 192 (relying on defendant being at a "known drug house where several
cases had been made and search warrants executed" to find reasonable suspicion
existed). Additionally, Det. Rhinehart testified Anderson was "coming from the
area of the search warrant," and when he noticed the officers, he made a suspicious
movement "to divert his path." See Taylor, 401 S.C. at 110, 736 S.E.2d at 666("Evasive conduct, although stopping short of headlong flight, may inform an
officer's appraisal of a street corner encounter." (quoting Lender, 985 F.2d at 154)).
Considering this evidence in combination, we find the evidence supports the trial
court's finding that reasonable suspicion existed to detain Anderson. See State v.
Khingratsaiphon, 352 S.C. 62, 69, 572 S.E.2d 456, 459 (2002) ("In determining
whether reasonable suspicion exists, 'the totality of the circumstances—the whole
picture—'must be considered." (quoting United States v. Cortez, 449 U.S. 411,
417, 101 S. Ct. 690, 695 (1981))).
Anderson cites Bailey v. United States, 133 S. Ct. 1031 (2013), to argue his
detention was unlawful because the footpath was outside the scope of the search
warrant. We find Bailey inapplicable. In that case, the Supreme Court considered
the constitutionality of a detention incident to the execution of a search warrant and
explicitly declined to address whether the detention was justified by the existence
of reasonable suspicion under Terry. See 133 S. Ct. at 1043 (stating the Court
"expresses no view" as to whether "stopping [the defendant] was lawful under
Terry").
We also find evidence to support the trial court's finding that Det. Hyatt had a
reasonable belief that Anderson was armed and dangerous to justify the pat-down.
See Khingratsaiphon, 352 S.C. at 69, 572 S.E.2d at 459 (stating an officer may
conduct a pat-down for weapons when "the officer has reason to believe the person
is armed and dangerous"). Our supreme court has recognized that because of the
"indisputable nexus between drugs and guns," when an officer has reasonable
suspicion that drugs are present, "there is an appropriate level of suspicion of
criminal activity and apprehension of danger" to justify a pat-down of an
individual. State v. Banda, 371 S.C. 245, 253, 639 S.E.2d 36, 40 (2006). Given
(1) "the frequent association between drugs and guns," 371 S.C. at 254, 639 S.E.2d
at 41, (2) the fact that the search warrant was being executed when the pat-down
occurred, and (3) the officers' belief that the occupants of 106 Dobbs possessed
weapons, we find it was reasonable for Det. Hyatt to conduct the pat-down.
Additionally, we rely on Det. Hyatt's testimony that he performed the pat-down in
search of weapons, not "narcotics or anything [else]."
Anderson asserts the pat-down was unlawful because at the hearing, Det. Hyatt
agreed that he "didn't see anything that looked like a weapon on [Anderson]" when
he ordered him to the ground. As expressed by our supreme court, "[i]n assessing
whether a suspect is armed and dangerous, '[t]he officer need not be absolutely
certain that the individual is armed.'" Khingratsaiphon, 352 S.C. at 69-70, 572
S.E.2d at 459 (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at
909). Instead, the test is whether an officer can "point to specific and articulable
facts which, taken together with rational inferences from those facts," create a
reasonable "belief that his safety or that of others was in danger." Id. Based on
our above analysis, we find the pat-down was justified by "specific and articulable
facts" implicating Det. Hyatt's safety, as well as the safety of the other officers. Id.AFFIRMED.
FEW, C.J., and SHORT and GEATHERS, JJ., concur.