State v. Ferrell

Gregory, Justice

(dissenting) : I respectfully dissent.

The only question presented by this appeal is whether the second search of the appellant Ferrell was lawful. The validity of the search warrant for Mason’s apartment, the validity of the pat-down or first search of the appellant, and the search of Mason’s automobile are not at issue.

The majority opinion justifies this second search as a search incident to the lawful warrantless arrest of appellant. This justification for the search, however laudatory it may be in view of the fact that appellant actually was in possession of the phencyclidine,¹ was introduced into this case for the first time by the majority opinion.

The record reveals that no arrest was made by any law enforcement officer at the scene prior to the second search of appellant:

“MR HETRICK: Now, at the time that car pulled up, what exactly happened ? Did you immediately go to the car and place the individuals under arrest, or were they on their way inside the apartment when you accosted them ?

“SGT. PARSONS: We approached the car, we placed no one under arrest at that time. They were being detained.

* * *

“Q : He was under arrest at that point?

“A: I wouldn’t say he was under arrest, he was being detained. We had no — no officer at the time had said, “You are under arrest.’ ”

In fact, the record reveals that no arrest was made until after the second search:

“SOLICITOR WILKINS: All right, after finding these pills on Mr. Ferrell’s person, did you take him into arrest custody and transport him to the Law Enforcement Center ?

“SGT. PARSONS: Yes, sir, I informed him at that time that he was under arrest for possession with intent to distribute PCP and that he would be taken to the Greenville County Detention Center.” (Emphasis added.)

Thus, the law enforcement officer in charge asserts no arrest of Ferrell was made prior to the second search.

At trial, no argument was presented by the capable solicitor that the second search was made as an incident to the arrest of Ferrell. The solicitor argued that the second search of appellant was lawful under the “automobile exception” to the warrant requirement. The trial judge agreed and admitted the phencyclidine into evidence on the ground that the second search was lawful under the automobile exception, not the search incident exception.

On appeal, the State actually argues that Ferrell was not arrested until after the second search, and the brief of the State contains the following synopsis of the testimony of the law enforcement officers: “The police consistently testified that he [Ferrell] was not arrested until after the pills were found in his possession.”

Since the law enforcement officers had no warrant to search appellant, the burden was upon the State to show that the search was permissible without a warrant. State v. Ellefson, 266 S. C. 494, 224 S. E. (2d) 666 (1976). At no stage of the proceedings in this case has the State attempted to justify the second search of appellant as an incident of a lawful, warrantless arrest.

Assuming, however, that the State had advanced the “search incident” justification to the trial court, the facts of this case simply will not support the finding of probable cause necessary for the warrantless arrest and search of appellant.

The law enforcement officers at the scene did not observe appellant enter or leave Mason’s apartment prior to the time of the second search. The police could neither identify the grey Corvette that drove away from the apartment complex nor the two' occupants of the automobile. Although the Corvette drove in the direction of the Donaldson Center, no one followed the car to determine whether it went to the Donaldson Center.

When a grey Corvette later drove into the apartment complex the police were unable to say whether it was the same grey Corvette that had left the complex earlier, and if it was, whether the two individuals who got out of the automobile were the same two individuals who had left in it.

The police searched the automobile for drugs, and conducted a pat-down search for weapons and drugs of both Mason and appellant. Nothing even remotely suspicious was uncovered by any of these searches. Every circumstance negated probable cause for a warrantless arrest and search of appellant, who was not known to the police officers as a criminal or one connected with drug trafficking. It is also worthy of note that the search of Mason’s apartment, which occurred after the second search of Ferrell, revealed no drugs.

Moreover, even if the officers, suspicion that appellant was connected with the drug trafficking were reasonable, nothing short of particularized probable cause would have permitted the search of appellant for drugs. His mere presence on premises subject to a valid search warrant, without more, is not enough. Ybarra v. Illinois, - U. S. -, 100 S. Ct. 338, 64 L. Ed. (2d) - (1979). This is especially true since the police ordered appellant into the premises after having conducted a fruitless Terry pat-down outside the premises.

[A] person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U. S. 40, 62-63 [88 S. Ct. 1889, 1902, 20 L. Ed. 2d 917]. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be.

Ybarra, supra, - U. S. at -, 100 S. Ct. at 342.

In my view, none of the informant’s tips were remotely corroborated by the police prior to the time of the second search. Because of this total lack of corroboration, the informant’s tips never ripened into probable cause and the phencyclidine was seized as a result of a warrantless search made mithout probable cause for a warrantless arrest.

I would reverse appellant’s conviction and sentence.

Rhodes, J., concurs.

1 As a result of a recent amendment to Section 44-53-210(f), 1976 Code, phencyclidine is now a Schedule II controlled substance. See Act No. 118 of 1979.