DocketNumber： Appellate Case No. 2011-182548; No. 27357
Citation Numbers： 407 S.C. 169, 754 S.E.2d 862
Judges： Beatty, Hearn, Kittredge, Pleicones, Toal
Filed Date： 2/26/2014
Status： Precedential
Modified Date： 10/17/2022
Clarence Robinson (Petitioner) appeals his conviction for armed robbery and possession of a firearm during the commission of a violent crime, claiming the trial court erred in finding the police had a reasonable, articulable suspicion to stop him and search the vehicle that he was driving. We affirm.
Facts/Procedural Background
On February 26, 2008, at approximately 9:45 p.m., four men entered Benders Bar and Grill in the West Ashley area of Charleston, South Carolina, and robbed the patrons and the establishment, stealing approximately $875. Each man carried a gun and covered his face with some sort of fabric fashioned into a bandana. The men made the patrons and
The men escaped out the front door of Benders, although no ■witness could attest whether they left in a vehicle or on foot. The police arrived at 9:51 p.m., within thirty-one seconds of the initial 911 call and two to three minutes of the robbery itself. The responding officer briefly interviewed the patrons and staff and issued an initial “be on the lookout” (BOLO) description to other patrolling officers via the police radio, describing the suspects as four armed African-American men, approximately twenty years old, and wearing all-black clothing.
At 10:06 p.m., a police officer spotted a parked vehicle with its lights off in the darkened, fenced-in parking lot of a closed church and decided to investigate, pulling his patrol car behind the parked vehicle and blocking it in. The officer was aware of the BOLO but testified that the BOLO did not include a description of the getaway vehicle, so he initially “thought maybe it was a couple that was parked there, or somebody from the church left a car there.” He called in the car’s license plate to dispatch and then approached the car. At that point, he noticed that there were four men in the vehicle who matched the approximate description of the BOLO — the correct number of men, the correct race, the correct age, and the correct approximate clothing color. Further, the testimony at trial established that the church is located within a short drive of Benders. The officer asked the driver, Petitioner, for his driver’s license and walked back to his patrol vehicle and requested backup. The officer claimed that he called in the license plate and requested the driver’s license to check for
At 10:09 p.m., two backup police officers arrived. These two officers also received the BOLO alert and knew there were four robbery suspects at large. One backup officer testified:
When I first pulled up we were in an unmarked vehicle. So I think they didn’t know we were there yet. They were talking to just [the first officer] and seemed sort of relaxed.
And it seems like when I approached and came around [one side of the vehicle], and my partner went around the other side [of the vehicle], everyone became really nervous and silent. And all four of them looked straight forward.
The officers found the men’s behavior suspicious. Therefore, the officers requested Petitioner exit the vehicle so they could pat him down for weapons. Next, they requested each passenger exit the vehicle, one-at-a-time, and patted each down for weapons. While the police found no weapons on any of the men, when the final passenger — seated in the rear passenger-side of the vehicle — exited the vehicle at the officers’ request, a .22 caliber revolver with its serial number removed became immediately visible on the floorboard.
At first, the officers detained the four suspects near the vehicle’s trunk while other officers searched the car.
Petitioner and his three co-defendants proceeded to trial for armed robbery and possession of a firearm during the commission of a violent crime. At trial, Petitioner and his co-defendants moved to suppress the guns and all other evidence found from the search of the vehicle based on their claims that the police lacked a reasonable suspicion to stop them initially and that, even if the police did have a reasonable suspicion, the warrantless search of the car’s trunk exceeded the scope of their permissible authority. The trial court, relying in part on State v. Culbreath, 300 S.C. 232, 387 S.E.2d 255 (1990), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), admitted all of the evidence, finding that (1) the officer had a reasonable suspicion that criminal activity was afoot when he stopped the car initially and (2) several exceptions to the warrant requirement justified the warrantless search.
Petitioner notified his trial counsel of his desire to appeal; however, his trial counsel miscalculated the time for appeal. Therefore, the court of appeals dismissed Petitioner’s direct appeal as untimely.
Petitioner filed a post-conviction relief (PCR) application, including a request for belated review of his direct appeal issues pursuant to White v. State, 263 S.C. 110, 208 S.E.2d 35 (1974). The PCR court denied his claim for ineffective assistance of counsel, finding that Petitioner failed to prove either prong of the two-prong Strickland
Petitioner sought a writ of certiorari. This Court granted the writ of certiorari pursuant to Rule 243, SCACR, and Davis v. State, 288 S.C. 290, 342 S.E.2d 60 (1986).
Issues
I. Whether the trial court erred in denying Petitioner’s motion to suppress based on its finding that the police had a reasonable suspicion of criminal activity to justify detaining Petitioner.
II. Whether the trial court erred in denying Petitioner’s motion to suppress based on its finding that several exceptions to the warrant requirement justified the warrantless search.
Standard of Review
On appeal from a motion to suppress on Fourth Amendment grounds, this Court applies a deferential standard
Analysis
I. Reasonable Suspicion
Petitioner argues that the trial court erred in failing to suppress the evidence under the Fourth Amendment because the officer did not possess reasonable suspicion to detain Petitioner. Specifically, Petitioner contends that the officer “did not provide any specific facts as to why there was an articulable suspicion to detain” Petitioner and his co-defendants other than “there might have been a couple parked at the site in the car.” Therefore, Petitioner argues that once the driver’s license and license plate came back free of outstanding warrants, there was no indication of criminal activity, so the officer should have released Petitioner, and any further action to detain Petitioner or search the vehicle exceeded the scope of a valid stop. We disagree.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. This guarantee “protects against unreasonable searches and seizures, including seizures that only involve a brief detention.” State v. Pichardo, 367 S.C. 84, 97, 623 S.E.2d 840, 847 (Ct.App.2005) (citing United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). 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. Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870; see also Pichardo, 367 S.C. at 97, 623 S.E.2d at 847 (“Temporary detention of individ
In general, a police officer “may [ ] stop and briefly detain a vehicle if they have a reasonable suspicion that the occupants are involved in criminal activity.” Pichardo, 367 S.C. at 97-98, 623 S.E.2d at 847. Reasonable suspicion is something more than an “inchoate and unparticularized suspicion” or hunch. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Instead, looking at the totality of the circumstances, reasonable suspicion requires there be an objective, specific basis for suspecting the person stopped of criminal activity.
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. Culbreath, 300 S.C. at 235, 387 S.E.2d at 257; see also United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985) (stating that once police officers detained the defendant, they “were authorized to take such steps as were reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop”); State v. Blassingame, 338 S.C. 240, 525 S.E.2d 535 (Ct.App.1999) (holding that an officer had reasonable suspicion to stop the defendant based on his presence near an abandoned truck, which had been carjacked, and his appearance, which closely matched that of the carjacking suspect, and could briefly detain him for investigative purposes).
When he pulled up behind the car, the officer knew the following: (1) there was a parked car in a closed and darkened church parking lot on a Tuesday night; (2) the car was behind a fence with its lights off; (3) the car had no reason to be within the fence at that time of night when the church was closed; and (4) the area where the car was parked was not readily open to the public. From these facts, the officer inferred that a couple might be parked in the vehicle “necking” on church grounds, a potential misdemeanor under section 16-11-760 of the South Carolina Code. We find these facts give rise to a reasonable suspicion that potential criminal activity was afoot and that the stop was therefore justified at that point based solely on the officer’s assumption that there was a couple “necking” in the car.
When the officer approached the vehicle and found four young African-American men dressed in dark-colored clothing inside, he obtained additional information that further aroused his reasonable suspicions. In addition to the facts listed above, he knew that: (1) the police were looking for four African-American men in their twenties who robbed a bar within twenty minutes of the officer’s encounter with the men; (2) the bar was in close proximity to the church parking lot; (3) there were four young men in the vehicle who matched the approximate description of the BOLO — the correct number of men, the correct race, the correct age, and the correct approximate clothing color — and (4) there were four potential suspects and only one of him.
Finally, when the two backup officers arrived, both of whom were aware of the BOLO description and that the occupants of the vehicle could potentially be involved in the robbery, the four men’s sudden “nervous[ness] and silen[ce]” and their “looking] straight forward” further aroused the officers’ suspicions. At that point, there was a reasonable suspicion that the four vehicle occupants were the four armed robbers described in the BOLO. Thus, removing the men from the car and patting them down for weapons to ensure the officers’ safety was eminently reasonable. See id. Further, once the last co-defendant stepped out of the vehicle and the altered gun became visible on the floorboard, as explained, infra, the gun supplied the probable cause needed to arrest the men and continue the search of the vehicle.
In a recent case, this Court affirmed a trial court’s finding that the record contained evidence of reasonable suspicion where the officer testified to a defendant’s extreme nervousness after he stopped the defendant in a routine traffic stop. State v. Provet, 405 S.C. 101, 105-06, 747 S.E.2d 453, 455 (2013). After the defendant produced his driver’s license and vehicle registration, the officer noticed his hands shaking excessively and his breathing accelerated. Id. After the officer made several observations, such as the vehicle’s registra
Similarly, here, we find there is evidence in the record that supports the trial court’s finding that the police officers had a reasonable, articulable suspicion to detain Petitioner and his co-defendants.
II. Exceptions to the Warrant Requirement
Generally, the Fourth Amendment requires the police to have a warrant in order to conduct a search. State v. Weaver, 374 S.C. 313, 319, 649 S.E.2d 479, 482 (2007). Evidence seized in violation of the warrant requirement must be excluded from trial. Id. However, a warrantless search may nonetheless be proper under the Fourth Amendment if it falls within one of the well-established exceptions to the warrant requirement. State v. Moore, 377 S.C. 299, 308-09, 659 S.E.2d 256, 261 (Ct.App.2008). “These exceptions include ...: (1) search incident to a lawful arrest; (2) hot pursuit; (3) stop and frisk; (4) automobile exception; (5) the plain view doctrine; (6) consent; and (7) abandonment.” State v. Brown, 401 S.C. 82, 89, 736 S.E.2d 263, 266 (2012). Furthermore, if police officers are following their standard procedures, they may inventory impounded property without obtaining a warrant. See Colorado v. Bertine, 479 U.S. 367, 372-73, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987).
The trial court found that, because the police officers had reasonable suspicion of criminal activity afoot, the officers properly seized the gun with the serial numbers removed under the plain view exception. Additionally, the trial court found that the police officers did not need a warrant to search the rest of the vehicle after discovering the initial gun because: (1) under the search-incident-to-an-arrest exception, the officers had a reasonable belief that the vehicle contained evidence of the offense for which the co-defendants were
A. Plain View Exception
“Under the ‘plain view’ exception to the warrant requirement, objects falling within the plain view of a law enforcement officer who is rightfully in a position to view the objects are subject to seizure and may be introduced as evidence.” State v. Wright, 391 S.C. 436, 443, 706 S.E.2d 324, 327 (2011). Therefore, for evidence to be lawfully seized under the plain view exception, the State must show: (1) the initial intrusion which afforded the police officers the plain view of the evidence was lawful; and (2) the incriminating nature of the evidence was immediately apparent to the seizing authorities. Id.
We find the initial intrusion that afforded the officers the plain view of the gun with the serial number removed was lawful because the officers had reasonable suspicion to initiate the stop. See supra. Further, the incriminating nature of the gun was immediately apparent upon the gun coming into view because the officers each immediately noticed that the serial number had been removed. See S.C.Code Ann. § 16-23-30(0) (criminalizing possession of a handgun with its serial number removed or obliterated). In conjunction with the officers questioning the vehicle’s occupants regarding their potential involvement in the armed robbery at Benders, we find the trial court properly admitted the gun into evidence.
B. Search Incident to a Lawful Arrest Exception
Petitioner contends that the evidence found in the trunk should have been excluded because the trunk search exceeded the scope of the search-incident-to-arrest exception. Specifically, Petitioner points out that he and his co-defendants were handcuffed and standing outside of the vehicle before the police officers searched the car after finding the gun with the serial number removed. Because we find the officers had a reasonable belief that the vehicle contained evidence of the
The permissible scope of searches incident to lawful arrests changed between the time the officers searched the vehicle Petitioner was driving and the time Petitioner’s trial occurred. It is therefore helpful to examine the recent evolution of the law.
In Chimel v. California, the United States Supreme Court initially held that, in the cases of a lawful custodial arrest, the police may conduct a contemporaneous, warrantless search of the person arrested and the immediate surrounding area. 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The Supreme Court justified these warrantless searches because they (1) ensured officer safety by “removing] any weapons that the [arrestee] might seek to use in order to resist arrest or effect his escape” and (2) “prevented the] concealment or destruction” of evidence. Id.
Chimel’s rule “proved difficult to apply, particularly in cases that involved searches inside of automobiles after the arrestees were no longer in them.” Davis v. United, States, — U.S.-,-, 131 S.Ct. 2419, 2424, 180 L.Ed.2d 285 (2011) (quoting New York v. Belton, 453 U.S. 454, 458-59, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)) (internal marks omitted). The Supreme Court therefore clarified the Chimel rule in Belton by outlining a bright-line rule concerning arrests of automobile occupants. Specifically, the Supreme Court held that, “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 460, 101 S.Ct. 2860. The Supreme Court justified the search on the grounds that the “articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within the area into which an arrestee might reach in order to grab a weapon or evidentiary item.” Id. (emphasis added) (quoting Chimel, 395 U.S. at 763, 89 S.Ct. 2034) (internal marks omitted). The Supreme Court held that, while searching the passenger compartment, the officers could also examine the contents of any containers found within the passenger compartment as well because “if the passenger
The Belton court specifically excluded the trunk from the permissible scope of a search incident to an arrest. Id. at 460 n. 4, 101 S.Ct. 2860. In a separate Fourth Amendment case decided the same day as Belton, Justice Powell explained in his concurring opinion that Belton prohibited trunk searches because the trunk “is not within the control of the passengers either immediately before or during the process of arrest.” Robbins v. California, 453 U.S. 420, 431-32, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) (Powell, J., concurring in the judgment), overruled on other grounds by United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).
However, subsequent courts found that, in certain situations, the “ ‘trunk’ (in the traditional sense) [ ] constituted] part of the passenger compartment for purposes of search incident to arrest.” United States v. Olguin-Rivera, 168 F.3d 1203, 1205-06 (10th Cir.1999). In general, courts would find the trunk part of the passenger compartment — and thus subject to a warrantless search incident to a lawful arrest — when the trunk was “reachable without exiting the vehicle, without regard to the likelihood in the particular case that such a reaching was possible.” United States v. Doward, 41 F.3d 789, 794 (1st Cir.1994) (quoting 3 Wayne R. Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 7.1(c), at 16-17 (2d ed.1987)); see also Olguin-Rivera, 168 F.3d at 1206 n. 1 (collecting cases); United States v. Pino, 855 F.2d 357, 364 (6th Cir.1988) (holding that this rule “satisfies the twin objectives of Belton in preventing a suspect’s access to weapons and easily-destroyed evidence within his vehicle and creating a standardized rule of criminal procedure which the police can follow routinely”).
Courts faithfully applied the Belton rule for the next twenty-eight years and allowed the police to search the passenger compartment of a vehicle incident to the arrest of a recent occupant of the vehicle, even if the arrestee had been handcuffed and secured in the back of the officer’s patrol car prior to the search. See Davis, — U.S.-,-, 131 S.Ct. at 2424, 2424 n. 3 (collecting cases). However, in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the
We note initially that the search of the vehicle here occurred while Belton was in effect. However, because this is Petitioner’s belated direct appeal, we nonetheless must apply the law as it currently stands and therefore look to the Gant rule for direction on whether the search of the trunk was permissible. Narciso v. State, 397 S.C. 24, 31, 723 S.E.2d 369, 372 (2012) (“Newly announced rules of constitutional criminal procedure must apply retroactively to all cases, pending on direct review or not yet final, with no exception for cases in which a new rule constitutes a clear break with the past.”) (quoting Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)) (internal quotation marks omitted); see also Davis, — U.S.-,-, 131 S.Ct. at 2426 (applying Gant on direct appeal when the search occurred while Belton was the prevailing law); Brown, 401 S.C. at 94-95, 736 S.E.2d at 269 (same).
We find that the first justification under the Gant rule (arrestee unsecured and within reach of area to be
However, we find that the second justification under Gant (reasonable to believe vehicle contains evidence of a crime) does apply in this instance. The officers arrested the suspects for the unlawful possession of a handgun with its serial number removed. Finding this gun, in conjunction with their knowledge of the BOLO and their suspicion that Petitioner and his co-defendants were in fact the four men involved in the armed robbery at Benders, provided the officers probable cause to likewise arrest them for armed robbery.
Furthermore, although Belton — and thus presumably Gant — excluded the trunk from the permissible scope of a search incident to a lawful arrest, we have not previously had the opportunity to address the issue of whether the trunk may, at times, be part of the passenger compartment, as many other courts have likewise found. We hereby adopt the view that the trunk may be considered part of the passenger
Here, the other three guns were found in the trunk and would normally be excluded from the permissible scope of the search; however, because the passenger compartment contained a gap into the trunk that made the guns visible and freely accessible from the backseat, we believe the guns and the trunk area were “within the control of the passengers either immediately before or during the arrest.” Robbins, 453 U.S. at 431-32, 101 S.Ct. 2841 (Powell, J., concurring in the judgment). We therefore find that the trial court properly admitted the evidence in the trunk as part of the search of the passenger compartment.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
. However, several witnesses provided detailed information about the men's footwear because their feet were in their line of sight during the robbery. For example, one witness stated that two of the men wore black Timberland boots and black and white high-top Nike tennis shoes, known as "Willie-D's.” Another witness remembered one of the men wearing red and black Air Jordan tennis shoes with white shoelaces. According to the witness, Air Jordan tennis shoes are only made with a red and black color scheme, and black shoelaces are standard. Therefore, the non-standard white shoelaces caught his attention.
. South Carolina law criminalizes possession of a handgun with its serial number removed or obliterated. S.C.Code Ann. § 16 — 23—30(C) (2013).
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. The initial search of the passenger area of the vehicle revealed a pair of black gloves, a yellow Nike knit hat, and a piece of red cloth tied into a bandana.
. The officers also found a black hooded sweatshirt, two pairs of black gloves, a pair of clear latex gloves, a black and white knit hat, a black knit hat, a pair of black and red Nike Air Force One tennis shoes, and a piece of gray cloth tied into a bandana. The officers then escorted the manager at Benders — the same man who had identified the shoes of one of the men — to the parking lot to attempt to make a positive identification. The manager identified the black and red Air Jordan tennis shoes with the white laces as those on the car-owner’s feet. Similarly, Petitioner wore black and white Willie-D's that another bar patron had described. A third suspect wore black Timberland boots described by the same patron. Between the four suspects, $870 was recovered.
. Specifically, the trial court found the search was justified by the plain view exception with respect to the gun with the obliterated serial
. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
. We respectfully disagree with the concurrence that our opinion implies that reasonable suspicion is "subjective rather than objective judgment." Rather, we explicitly state the opposite in the previous sentence.
. Although the officer did not explicitly connect his awareness of the BOLO and the ongoing search for the robbers with the actions he took after initially approaching Petitioner and his co-defendants in the car, his testimony and actions raise a strong inference that he did so, and we
. We find no indication in any subsequent case law that the new Gant rule in any way changed the scope of the permissible search area when searching incident to an arrest, i.e., the passenger compartment only.
. Probable cause is defined as "a fair probability that contraband or evidence of a crime will be found.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "Probable cause to arrest depends upon whether, at the moment the arrest was made ... the facts and circumstances within the arresting officers’ knowledge and of which they had reasonably trustworthy information was sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense.” Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)) (internal marks omitted). The record is not clear whether the police arrested Petitioner solely for unlawful possession of a handgun with its serial number removed or for armed robbery as well. However, Petitioner has never raised this issue, and we find there was probable cause to arrest him for armed robbery after the officers saw the gun on the floorboards.
. The State argues in the alternative that the search of the trunk was justified by the automobile exception and the inventory search exception to the warrant requirement. However, because the other issues are dispositive, we need not reach these issues. Wilkinson ex rel. Wilkinson v. Palmetto State Transp. Co., 382 S.C. 295, 307, 676 S.E.2d 700, 706 (2009) (finding that an appellate court need not discuss remaining issues when determination of prior issue is dispositive).