State v. Michael N. Frasier, Jr.

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Michael N. Frasier, Jr., Petitioner.
Appellate Case No. 2020-001405
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Charleston County
Deadra L. Jefferson, Circuit Court Judge
Opinion No. 28117
Heard March 15, 2022 – Filed September 28, 2022
REVERSED
Appellate Defender Kathrine Hudgins, of Columbia, for
Petitioner.
Attorney General Alan McCrory Wilson and Assistant
Attorney General Mark Reynolds Farthing, both of
Columbia, and Solicitor Scarlett Anne Wilson, of
Charleston, all for Respondent.
JUSTICE HEARN: Petitioner Michael Frasier was convicted of trafficking cocaine
in excess of 100 grams after police discovered cocaine during a traffic stop for an
inoperable brake light. The questions before the Court concern whether police had
reasonable suspicion to prolong the traffic encounter and whether Frasier consented
to the search. The trial court concluded the officer had reasonable suspicion and
Frasier consented, and the court of appeals affirmed. In deciding these two issues,
we clarify the scope of this Court's standard of review in the Fourth Amendment
context. Ultimately, we reverse the court of appeals because law enforcement lacked
reasonable suspicion to prolong the traffic stop and Frasier did not consent to the
search.
FACTS/PROCEDURAL HISTORY
During the morning of August 14, 2013, two plainclothes officers with the
North Charleston Police Department sat in an unmarked car outside a bus station
conducting a routine drug interdiction as part of the department's narcotics division.
On this particular morning, Frasier had traveled from New York to North Charleston
on a commercial bus. The two officers were approximately 75 to 100 yards away
from the bus station's exit when they observed Frasier leave the station. According
to the officers, Frasier immediately stopped after exiting the station and looked left
and right before walking about ten yards to a vehicle driven by Cheryl Jones. Frasier
entered the vehicle, and the two left the station. Officers characterized Frasier's
conduct as clearing the area for threats, including law enforcement, which they
deemed suspicious. As the vehicle left the station, the officers discovered that it had
an inoperable third brake light. Accordingly, one of the officers called Steven Hall,
a patrol officer who previously had worked in the narcotics department, to perform
a traffic stop. Although the legal basis for the traffic stop stemmed from the broken
brake light, the officers informed Hall that Frasier seemed suspicious. However, the
officers never informed Hall of the specific conduct that raised their suspicion, such
as Frasier's scanning the parking lot.
Hall subsequently caught up to the vehicle on the North Bridge over the
Ashley River after reaching a speed of 87 miles per hour. Jones used her turn signal
to get into the left lane and out of the officer's way. Apparently upon realizing that
she was being pulled over, she then turned on her flashers and moved into the right
lane before pulling off the road. Hall testified that Jones took longer than usual to
pull over although the dashcam video indicated it took less than a minute. Hall exited
his patrol car and approached Jones's vehicle. He informed Jones that her brake light
was out, and while talking with her, Hall noticed the zipper was down on her pants.
He testified that, from his experience, this suggested she was potentially hiding
contraband in her pants. Hall testified that Frasier "just appeared to be nervous. He
was sweating profusely. Did not want to really interact with me a whole lot as far as
eye contact, something like that." Hall asked them where they were traveling from,
and after repeating the question several times, Jones answered that she picked up
Frasier from the bus stop. Hall requested Jones's driver's license, but she did not have
it on her; instead, she gave him her personal information, and dispatch indicated that
she did not have any outstanding warrants. Hall can be heard on the dashcam video
telling dispatch that he is going to issue a warning ticket and try to obtain consent to
search the car. Hall subsequently exited his patrol car, walked over to Jones and
asked her to step out of her vehicle. Jones complied and consented for Hall to search
the vehicle. Another patrol officer arrived on scene during the traffic stop, and both
officers walked over to the passenger side door and asked Frasier to step out of the
vehicle. Frasier complied, and placed his hands in his pockets. Hall immediately told
Frasier to remove his hands from his pockets and asked Frasier if he would mind if
he searched him. Frasier raised his hands in the air and said, "I do, but . . . ." Frasier
subsequently placed his hands on the hood of the car at the direction of Hall.
Ultimately, Hall found a white powdery substance later identified as cocaine on
Frasier and a larger quantity in Frasier's jacket in the back seat of the vehicle. Frasier
was arrested and charged with trafficking in cocaine in excess of 100 grams.
Thereafter, Frasier filed two motions to suppress, one contending Hall lacked
reasonable suspicion to prolong the traffic stop and the second asserting he never
consented to the search. Following the testimony of the officers, which was
consistent with the account relayed above, Frasier argued all the drugs should be
suppressed. The solicitor contended the following established reasonable suspicion
to prolong the traffic stop in order to obtain consent: 1) Frasier's behavior at the bus
stop, specifically traveling on a commercial bus which law enforcement knew was
frequented by drug traffickers and his "scanning" the parking lot upon exiting the
bus station; 2) Jones's purportedly "evasive driving" and the delay in pulling over;
3) the zipper down on her pants; 4) "evasively not answering very simple direct
questions" such as where they were coming from; 5) the sense of nervousness Frasier
displayed; and 6) "his sweating profusely."
Frasier contended once Hall wrote the warning ticket, the legal justification
for the stop ended, and nothing the officer relied on established reasonable suspicion
to prolong the encounter. The trial court stated that this issue "is at best a 50/50 call."
Ultimately, the court denied Frasier's motion to suppress, concluding the facts above
supported a finding of reasonable suspicion, with the exception of Jones's alleged
"evasive driving" and taking too long to pull over. The court found Jones's driving
reasonable, and thus, it did not take that fact into consideration.
As to Frasier's second argument—that he did not give Hall consent to search
him—defense counsel noted that Frasier responded, "I do, but . . ." in response to
Hall asking whether he minded being searched. The solicitor contended that, "it was
the officer's belief, as he testified earlier, that his words and actions together was
[sic] consent." The trial court concluded the dashcam video unambiguously showed
that Frasier consented to the search by virtue of his words and conduct, and it denied
the second motion to suppress as well.
Ultimately, the jury found Frasier guilty, and the trial court sentenced him to
the mandatory minimum sentence of twenty-five years imprisonment. Frasier
appealed to the court of appeals which affirmed, citing our deferential standard of
review and concluding evidence supported the trial court's decision. Frasier
subsequently filed a petition for a writ of certiorari, which the Court granted in part.1
ISSUES
I. Did the court of appeals err in affirming the trial court's decision that
Officer Hall had reasonable suspicion to prolong the traffic stop in order
to subsequently ask for consent to search?
II. Did the court of appeals err in affirming the trial court's determination that
Frasier gave Officer Hall consent to search him?
STANDARD OF REVIEW
Before reaching the merits, we take this opportunity to clarify our standard of
review when reviewing an appeal from a motion to suppress based on Fourth
Amendment grounds. Historically, we have repeatedly noted that appellate courts
review an appeal from a motion to suppress based on a violation of the Fourth
Amendment under the deferential "any evidence" standard. See, e.g., State v. Morris,
411 S.C. 571, 578, 769 S.E.2d 854, 858 (2015). Pursuant to this standard, our
appellate courts "will not reverse a trial court's finding of fact simply because it
would have decided the case differently." State v. Spears, 429 S.C. 422, 433, 839
S.E.2d 450, 455 (2020) (quoting State v. Pichardo, 367 S.C. 84, 96, 623 S.E.2d 840,
846 (Ct. App. 2005)).
In State v. Brockman, 339 S.C. 57, 528 S.E.2d 661 (2000), this Court declined
to follow the United States Supreme Court's decision in Ornelas v. United States,
517 U.S. 690 (1996) requiring federal courts to employ a more rigorous two-part
analysis where courts defer to the trial court's factual findings but review the ultimate
legal conclusion de novo. Brockman concluded that Ornelas was an advisory
1
This Court denied Frasier's argument concerning the admission of statements
Frasier made following a Miranda warning when officers had asked similar
questions before Miranda was given.
opinion, and thus, the Court declined to implement de novo review. Id. at 64-65, 528
S.E.2d at 664-65. At the time this Court issued Brockman, appellate courts routinely
reviewed cold records and depended on trial courts to review credibility and weigh
conflicting evidence in reaching its decision. However, with the dawn of the
technological age, appellate courts are no longer dependent on the trial court in our
review of evidence. The most obvious example is the advent of body and dashcam
footage, whereby this Court reviews the same video as the trial court. Accordingly,
while the need for deference remains, particularly in determining issues of
credibility, it is no longer necessary for us to defer to the trial court's overall ruling
in every case. Instead, we take this opportunity to refine our standard of review to
better align with the federal standard, which has been adopted in nearly every state.2
2
See James v. State, 197 So.3d 532, 535 (Ala. Crim. App. 2015); State v. Miller,
207 P.3d 541, 543 (Alaska 2009); State v. Fornof, 179 P.3d 954, 956 (Ariz. Ct. App.
2008); MacKintrush v. State, 479 S.W.3d 14, 17 (Ark. 2016); People v. Letner and
Tobin, 235 P.3d 62, 99-100 (Cal. 2010); People v. McKnight, 446 P.3d 397, 402
(Colo. 2019); State v. Lewis, 217 A.3d 576, 586-87 (Conn. 2019); Lopez-Vasquez v.
State, 956 A.2d 1280, 1284-85 (Del. 2008); Huffman v. State, 937 So.2d 202, 205-
06 (Fla. Dist. Ct. App. 2006); State v. Cartee, 844 S.E.2d 202, 203 (Ga. Ct. App.
2020); State v. Spillner, 173 P.3d 498, 504 (Haw. 2007) (reviewing a trial court's
ruling on a motion to suppress evidence de novo); State v. Perez, 434 P.3d 801, 803
(Idaho 2018); People v. Timmsen, 50 N.E.3d 1092, 1097 (Ill. 2016); Marshall v.
State, 117 N.E.3d 1254, 1258 (Ind. 2019); State v. Brown, 930 N.W.2d 840, 844
(Iowa 2019); State v. Hanke, 415 P.3d 966, 969 (Kan. 2018); Commonwealth v.
Conner, 636 S.W.3d 464, 471 (Ky. 2021); State v. Boeh, 324 So.3d 653, 659-60 (La.
Ct. App. 2021); State v. Sasso, 143 A.3d 124, 129 (Me. 2016); State v. Holt, 51 A.3d
1, 7 (Md. Ct. Spec. App. 2012); Commonwealth v. Henley, 171 N.E.3d 1085, 1097
(Mass. 2021); People v. Pagano, 967 N.W.2d 590, 592 (Mich. 2021); State v.
Bergerson, 671 N.W.2d 197, 201 (Minn. Ct. App. 2003); Eaddy v. State, 63 So.3d
1209, 1212 (Miss. 2011); State v. Peery, 303 S.W.3d 150, 153 (Mo. Ct. App. 2010);
State v. Neiss, 443 P.3d 435, 443 (Mont. 2019); State v. Shiffermiller, 922 N.W.2d
763, 772 (Neb. 2019); State v. Beckman, 305 P.3d 912, 916 (Nev. 2013); State v.
Francisco Perez, 239 A.3d 975, 981 (N.H. 2020); State v. Nyema, 267 A.3d. 449,
459 (N.J. 2022); State v. Ochoa, 206 P.3d 143, 147 (N.M. Ct. App. 2008) ("The
constitutionality of a search or seizure is a mixed question of law and fact and
demands de novo review."); People v. Blandford, 176 N.E.3d 1043, 1044 (N.Y.
2021); State v. Watson, 792 S.E.2d 873, 874 (N.C. Ct. App. 2016); State v. Marsolek,
964 N.W.2d 730, 735 (N.D. 2021); State v. Hawkins, 140 N.E.3d 577, 580-81 (Ohio
2019); Fuentes v. State, __ P.3d __, __ 2021 WL 3027309 (Okla. Crim. App. 2021);
State v. Maciel-Figueroa, 389 P.3d 1121, 1123 (Or. 2017); Commonwealth v. Smith,
Accordingly, appellate review of a motion to suppress based on the Fourth
Amendment involves a two-step analysis. This dual inquiry means we review the
trial court's factual findings for any evidentiary support, but the ultimate legal
conclusion—in this case whether reasonable suspicion exists—is a question of law
subject to de novo review.
DISCUSSION
I. Reasonable Suspicion to Prolong the Traffic Stop
Frasier contends Hall did not have reasonable suspicion to prolong the traffic
stop beyond the purpose of issuing the warning for an inoperable third brake light.
He asserts law enforcement had, at best, an "unparticularized suspicion or hunch,
not reasonable suspicion to justify the prolonged detention." Conversely, the State
argues evidence supports the trial court's determination that Hall had reasonable
suspicion of potential criminal activity, and therefore, the extension of the initial
traffic stop was constitutionally permissible. Applying the facts as found by the trial
court, we disagree these findings rise to the level of reasonable suspicion.
"A person has been seized within the meaning of the Fourth Amendment at
the point in time when, in light of all the circumstances surrounding an incident, a
reasonable person would have believed that he was not free to leave." Robinson v.
State, 407 S.C. 169, 181, 754 S.E.2d 862, 868 (2014). Once police pull over a motor
vehicle for a traffic violation, "the police may order the driver to exit the vehicle
without violating Fourth Amendment proscriptions on unreasonable searches and
seizures." State v. Pichardo, 367 S.C. 84, 98, 623 S.E.2d 840, 847 (Ct. App. 2005)
(citing Pennsylvania v. Mimms, 434 U.S. 106 (1977)). "In carrying out the stop, an
officer may request a driver's license and vehicle registration, run a computer check,
and issue a citation." Id. (citing United States v. Sullivan, 138 F.3d 126 (4th Cir.
1998)).
164 A.3d 1255, 1257 (Pa. Super. Ct. 2017); State v. Taveras, 39 A.3d 638, 645-46
(R.I. 2012); State v. Moore, 415 S.C. 245, 251 781 S.E.2d 897, 900 (2016); State v.
Aaberg, 718 N.W.2d 598, 600 (S.D. 2006); State v. Smith, 484 S.W.3d 393, 399
(Tenn. 2016); Herrera v. State, 546 S.W.3d 922, 926 (Tex. App. 2018); Salt Lake
City v. Street, 251 P.3d 862, 865 (Utah Ct. App. 2011); State v. Rutter, 15 A.3d 132,
135 (Vt. 2011); McArthur v. Commonwealth, 845 S.E.2d 249, 252 (Va. Ct. App.
2020); State v. Gatewood, 182 P.3d 426, 427-28 (Wash. 2008); State v. Bookheimer,
656 S.E.2d 471, 476 (W.Va. 2007); State v. Reed, 920 N.W.2d 56, 65-66 (Wis.
2018); Jennings v. State, 375 P.3d 788, 790 (Wyo. 2016).
In order to prolong or exceed the scope of a stop beyond the initial traffic
violation, law enforcement must have reasonable suspicion that criminal activity
may be afoot. Robinson, 407 S.C. at 182, 754 S.E.2d at 868-69 ("If, during the stop
of the vehicle, the officer's suspicions are confirmed or further aroused—even if for
a different reason than he initiated the stop—the stop may be prolonged, and the
scope of the detention enlarged as circumstances require."). Although reasonable
suspicion is not susceptible to a rigid, formulaic approach, it requires more than a
mere hunch or unparticularized suspicion. Id. at 182, 754 S.E.2d at 868. In other
words, for an officer to have reasonable suspicion, "there [must] be an objective,
specific basis for suspecting the person stopped of criminal activity." Id. While
reasonable suspicion is not a high bar and "is a less demanding standard than
probable cause and requires a showing considerably less than preponderance of the
evidence, the Fourth Amendment requires at least a minimal level of objective
justification for making the stop." Illinois v. Wardlow, 528 U.S. 119, 123 (2000).
This inquiry involves the totality of the circumstances, and "[c]ourts must give due
weight to common sense judgments reached by officers in light of their experience
and training." State v. Moore, 415 S.C. 245, 252-53, 781 S.E.2d 897, 901 (2016).
In Moore, a police officer pulled over a vehicle on I-85 for speeding. Id. at
248, 781 S.E.2d at 899.3 The officer testified he smelled alcohol, and the occupant
admitted to having a couple drinks. During the stop, Moore passed two of three field
sobriety tests. The vehicle was registered out of state to a third party, and the officer
found $600 on Moore during a consensual pat down. Id. at 249, 781 S.E.2d at 899.
The officer subsequently asked Moore if he could search the vehicle, but Moore
declined. Id. The officer decided not to charge Moore with driving while impaired,
but he did request a canine unit, which subsequently alerted to the presence of drugs.
The State relied on the following facts to support the presence of reasonable
suspicion:
3
The officer in Moore testified the driver took longer than usual to pull over and
was evasive because he initially used his left turn signal before finally pulling onto
the right shoulder. Id. at 250, 781 S.E.2d at 899. Officer Hall testified Jones was
evasive as she took longer than usual to pull off the side of the road and initially
switched to the left lane before exiting the highway on the right shoulder. However,
the trial court expressly rejected this factor in its totality of the circumstances
approach. Nevertheless, the State continues to argue that this fact is relevant. We
disagree, as the video in question clearly shows Jones did not attempt to evade
police.
(1) Moore initially turned on his left turn signal but then pulled his
vehicle over to the right; (2) the time Moore took to pull over was longer
than average, indicating the possibility of flight; (3) Deputy Owens
noticed an odor of alcohol emanating from the vehicle, which led him
to believe that Moore had been drinking in order to calm his nerves; (4)
Moore smoked several cigarettes, which was also an indicator that he
might be trying to calm his nerves; (5) Moore continued to talk on the
phone during the traffic stop, which was an indicator of criminal
activity as phones provide a means of communication between drug
traffickers; (6) Moore's hands were shaking when he handed Deputy
Owens his driver's license and rental agreement; (7) Moore's pulse
appeared to be rapid; (8) Moore's breathing was heavy; (9) Moore tried
to pick up his cell phone when he was asked to exit his vehicle, also
indicating the possibility of flight; (10) Moore was carrying a large sum
of money in his pocket despite being unemployed; (11) Moore was
driving a rental car, which was rented by a third party; and (12) Moore
was leaving a suburb of Atlanta, which is a known drug trafficking hub.
Id. at 249-50, 781 S.E.2d at 899-900. Notably, while the Court determined at least
some evidence supported the trial court's decision to deny the motion to suppress, it
acknowledged that nervousness is typically present in any encounter with police.
The Court cautioned law enforcement that although "nervous behavior is a pertinent
factor in determining reasonable suspicion, we, like many appellate courts,
have become weary with the many creative ways law enforcement attempts to parlay
the single element of nervousness into a myriad of factors supporting reasonable
suspicion." Id. at 254-55, 781 S.E.2d at 902.
Here, even after accepting the trial court's factual findings as we must do since
they are supported by some evidence, we conclude that Hall lacked reasonable
suspicion as a matter of law pursuant to de novo review.4 The two plainclothes
officers relayed to Hall that Frasier seemed suspicious, but that was only based on a
subjective hunch. While "scanning the parking lot" is a relevant factor, it is far from
establishing reasonable suspicion. Accordingly, in order for Hall to prolong the
traffic encounter, there had to be more indications of criminal activity once Hall
initiated the traffic stop. Although the State contends the following additional facts
4
We note the trial court believed the issue was at best 50/50 but ruled in favor of the
State. When a case boils down to a flip of the coin, the Fourth Amendment requires
that we find in favor of the defendant since the State has the burden to demonstrate
reasonable suspicion.
establish reasonable suspicion—repeating questions, noticing Jones's unzipped
zipper, sweating, and being nervous—we disagree.5 Hall did not see any items that
would demonstrate potential criminal activity—such as cash on hand, hollowed out
blunt cigars, or the smell of marijuana—before deciding to extend the stop. See
Moore, 415 S.C. at 249, 781 S.E.2d at 899 (officers found a "wad" of $600 in cash);
Morris, 411 S.C. at 581, 769 S.E.2d at 859 (police saw hollowed out cigars and
smelled marijuana). It is equally apparent that this was a drug stop masquerading as
a traffic encounter. Indeed, the goal of the stop was to "try to obtain consent," as Hall
can be heard telling dispatch on the dashcam video. While we do not suggest that
pretexual stops are illegal, in order to prolong the stop, there must be an objective
basis for concluding that criminal activity may be afoot. Simply put, "[i]n law,
the ends do not justify the means." State v. Adams, 409 S.C. 641, 654, 763 S.E.2d
341, 348 (2014). Because the State failed to meet its burden of demonstrating
reasonable suspicion, we reverse.
5
Jones told Hall during the traffic stop that her zipper was undone because she had
just taken a shower before meeting Frasier at the bus station. Concerning the fact
that Frasier sweated, we agree with the trial court's statement that "[e]verybody
sweats profusely in August in Charleston. I sweat profusely in Charleston in August.
It's hot at 6 in the morning. As soon as you walk out the door, it's 90 to 100 percent
humidity." The solicitor responded that he had the almanac showing the temperature
and humidity for the day in question and "would be happy to give it to you." The
court answered, "No. I live in Charleston. I've lived in Charleston my whole life . . .
." Further, although Hall testified that the driver door opening during the stop was
unusual, he never articulated a reason as to how that fact was potentially indicative
of illegal behavior.
II. Frasier's Consent
Frasier contends the court of appeals erred in affirming the trial court's
conclusion that he gave Hall consent to search him. The State asserts there is
evidence in the record to support the trial court's decision. We agree with Frasier.
Warrantless searches are generally considered per se unreasonable unless they
fall within a recognized exception under the Fourth Amendment. Police may search
an individual if that person consents, but the burden is on the State to demonstrate
consent. State v. Harris, 277 S.C. 274, 276, 286 S.E.2d 137, 138 (1982) ("However,
the State bears the burden of proving the voluntariness of a consent to search from
the totality of the surrounding circumstances."). Law enforcement must obtain
consent voluntarily, which is a fact-intensive inquiry viewed under the totality of the
circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973). Police do not
need to tell an individual that he can refuse to consent, but it is a factor in the overall
analysis. Id.; State v. Forrester, 343 S.C. 637, 645, 541 S.E.2d 837, 841 (2001)
("Therefore, like the federal standard, our state standard does not require a law
enforcement officer conducting a search to inform the defendant of his right to refuse
consent.").
During the pretrial testimony, Hall noted that he asked Frasier "if he minded
if I checked him out or searched him, and he said, 'I do, but,' and just kind of put his
hands up on top of the car." The State also described the encounter as, "[R]egarding
his actions, Frasier shrugged his shoulders, placed his hands on top of Jones's
vehicle, positioned himself in a manner such that the officer could search him, and
exposed both his body and his pockets to the officer." Because we are able to view
the same video as the trial court, we can make an independent finding and are not
constrained to defer to the trial court's conclusion that Frasier consented through his
words and conduct. The video clearly indicates that Frasier stepped out of the vehicle
at the direction of one of the officers, with a second officer standing beside him.
Once Frasier began to place his hands in his pockets, Hall understandably told
Frasier to remove them. In response, Frasier raised his hands over his head and began
to turn. Hall testified it was Frasier's conduct that indicated he consented to a search,
but it is clear from the video that Frasier only placed his hands on the vehicle at the
direction of the officer. Indeed, after asking whether Frasier had any weapons on
him, Hall asked Frasier to "put his hands up on the car for me." Accordingly, because
Frasier's conduct was at the direction of the officer, it was not a voluntary decision
to allow Hall to search him. Thus, the State failed to prove that Frasier voluntarily
consented, and we therefore reverse on this ground as well.
CONCLUSION
We hold law enforcement lacked reasonable suspicion to prolong the traffic
stop, and thus, the discovery of cocaine was the product of an illegal seizure. We
also conclude that Frasier did not voluntarily consent. Accordingly, we reverse the
court of appeals.
REVERSED.
BEATTY, C.J., KITTREDGE, FEW and JAMES, JJ., concur.