1. law, govt and politics
2. law enforcement
3. police

CJA LESSON PLAN COVER SHEET
CLASS TITLE:
Legal Update 2011-2012
LESSON PLAN #:
I0221
TRAINING DEPARTMENT:
Legal
TIME ALLOCATION:
2 Hours
PRIMARY INSTRUCTOR:
Joe Lumpkin
ALT. INSTRUCTOR:
DATE LESSON PLAN PREPARED:
June 2011
STATUS (New/Revised):
New
LESSON PREPARED BY:
Joe Lumpkin
JOB TASK ANALYSIS DATE:
LESSON PLAN PURPOSE:
The purpose of this lesson is to update the student about changes in the law and procedure that relate to law
enforcement.
EVALUATION PROCEDURES:
None
TRAINING AIDS, SUPPLIES, EQUIPMENT, SPECIAL CLASSROOM/INSTRUCTIONAL REQUIREMENTS:
Student Handout
1
PERFORMANCE OBJECTIVES
CLASS TITLE:
Legal Update 2011-2012
LESSON PLAN #:
I0221
PERFORMANCE OBJECTIVES:
1.
Discuss multijurisdictional agreements.
2.
Discuss murder and manslaughter.
3.
Discuss extended vehicle stops.
4.
Discuss new search law.
5.
Discuss Miranda and Sixth Amendment.
6.
Discuss chain of evidence.
7.
Discuss plain view.
8.
Discuss probable cause and reasonable suspicion.
9.
Discuss sequestration.
10.
Discuss DUI law.
11.
Discuss First Amendment.
12.
Discuss prior inconsistent statements.
13.
Discuss non-testimonial statements.
14.
Review new laws.
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STATUS (New/Revised):
New
LESSON PLAN EXPANDED OUTLINE
CLASS TITLE:
Legal Update 2011-2012
I.
LESSON PLAN #:
I0221
STATUS (New/Revised):
New
INTRODUCTION
This unit of instruction is designed to update the student about changes in law and procedure that relate to
law enforcement.
II.
BODY
A.
MULTIJURISDICTIONAL AGREEMENTS
1.
State v. Burgess, #4823, (S.C.App. 2011)
Few, C.J. In Lawrence Burgess's appeal from his conviction for possession of crack cocaine
with intent to distribute, we consider the validity of a multijurisdictional narcotics
enforcement agreement, the admissibility of an arresting officer's employment records, and
the circumstances under which a trial judge must charge “mere presence.” We find no error
and affirm.
I.
Facts and Procedural History
On March 2, 2006, officers on the Lexington County Narcotics Enforcement Team
(NET) executed a search warrant for drugs at a trailer on Two Notch Road in
Batesburg, South Carolina. When Agent Bill Laney and Officer Emmitt Gilliam
pulled into the driveway, they saw Burgess and another individual standing by a
trailer which was not the target of the search warrant. They then saw Burgess “run
around the back side of the trailer and flee.” Gilliam ran around the other side of the
trailer “to cut him off.” Gilliam got to within five to six feet of Burgess and told him
to stop and put his hands up. He then saw Burgess drop an empty pill bottle with no
top. Gilliam testified “the pill bottle had crack residue in it.” Laney back tracked
Burgess's steps to where Burgess had been standing and located a pill bottle top and
pieces of crack cocaine on the ground. Burgess denied owning or dropping the pill
bottle. He was arrested and indicted for possession with intent to distribute crack
cocaine based on the crack found by Laney. At the time of the arrest, Gilliam was a
police officer with the Batesburg–Leesville Police Department. The arrest occurred
outside of the Batesburg–Leesville town limits. However, Gilliam was acting with
NET, which has jurisdiction for all of Lexington County pursuant to a
Multijurisdictional Drug Enforcement Unit Agreement (NET Agreement) signed by
the police chief of the Batesburg–Leesville Police Department. Burgess alleged
Gilliam lacked authority to make an arrest outside the Batesburg–Leesville town
limits, and made a pre-trial motion to dismiss the charge. He argued the NET
agreement did not comply with the statutes authorizing such extra-territorial
jurisdiction. The trial judge denied the motion because he found the agreement valid,
and therefore that Gilliam had authority to make the arrest. After the ruling on the
validity of the NET agreement, but before opening statements, the State made a
motion in limine to exclude Gilliam's employment records. The trial judge sustained
the objection and told Burgess's counsel: “If you, depending on how the case goes,
decide you want to get into that bring it to the court's attention ....“ During Gilliam's
testimony, Burgess sought to cross-examine him about why he was no longer with
the NET and to introduce the employment records. The records outline three
incidents, spanning from approximately March 2006 until February 16, 2007, in
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which Gilliam disagreed with other officers about the use of confidential informants,
used profanity, and threatened to harm another officer. The judge refused to admit
the records. After the jury charge, Burgess requested the trial judge charge the jury
on “mere presence.” …the judge denied the request, and stated: “The State indicated
that they rely only on actual possession and not constructive possession. Those cases
indicate that mere presence is not required and would be improper and for that reason
I did not charge that.” The jury found Burgess guilty, and the judge sentenced him to
three years in prison.
II.
The Multijurisdictional Drug Enforcement Unit Agreement
In September 2001, eleven law enforcement agencies in Lexington County entered
into an agreement creating the NET. The agreement states it is made pursuant to
South Carolina Code Sections 23–1–210 (1981) (amended 2007) and 23–1–215
(1987) (amended 2007).FN1 The agreement states its purpose as follows:
FN1. These code sections have been amended. See S.C.Code Ann. §§ 23–1–210, –
215 (Supp.2010). However, because the agreement was executed in 2001, we use the
prior versions of the statutes in deciding this case. [T]he parties ... consent and agree
to span the geopolitical boundaries of all areas of Lexington County to the fullest
extent allowed under South Carolina law for the express purpose of investigating the
illegal use of controlled substances and related crimes by creating this Lexington
County Multi–Agency Narcotics Enforcement Team[.]
The Batesburg–Leesville police chief signed the agreement. The State put into
evidence a videotape of the August 13, 2001 Batesburg–Leesville town council
meeting at which “the chief of police informed council of that pending matter
between the solicitor and the town of Batesburg/Leesville forming a multijurisdictional agreement for continued narcotics work in Lexington County.” A town
council member testified the police chief had “the advice and consent to enter into
this agreement of town council.”
Our analysis of Gilliam's authority to arrest Burgess begins with the premise that
“[t]he jurisdiction of a municipal police officer, absent statutory authority, generally
does not extend beyond the territorial limits of the municipality However, there are
exceptions to this general rule, including the two statutes listed as authority for
creating the NET agreement: Section 23–1–210, allowing the temporary transfer of
an officer to another municipality or county; and Section 23–1–215, providing for
agreements between multiple law enforcement jurisdictions for criminal
investigation.
The trial judge ruled the NET agreement valid under Section 23–1–210, which
provides in part:
(A)
Any municipal or county law enforcement officer may be transferred on a
temporary basis to work in law enforcement in any other municipality or
county in this State under the conditions set forth in this section, and when so
transferred shall have all powers and authority of a law enforcement officer
employed by the jurisdiction to which he is transferred.
(B)
Prior to any transfer as authorized in subsection (A), the concerned
municipalities or counties shall enter into written agreements stating the
conditions and terms of the temporary employment of officers to be
transferred. The bond for any officer transferred shall include coverage for
his activity in the municipality or county to which he is transferred in the
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same manner and to the same extent provided by bonds of regularly
employed officers of that municipality or county.
(C)
Agreements made pursuant to subsection (B) shall provide that temporary
transfers shall in no manner affect or reduce the compensation ... of
transferred officers and such officers shall continue to be paid by the county
or municipality where they are permanently employed....
The judge found the NET Agreement complied with Section 23–1–210 because
“there is nothing in here ... that would prohibit either a county or a municipality or a
town from authorizing in some way the chief of police or the sheriff to enter into
such agreements .”
We agree with the trial judge that the NET agreement meets the requirements of
Section 23–1–210. First, the concerned municipalities and county entered into a
written agreement to create multijurisdictional law enforcement authority. Second,
the agreement complies with the requirements of 23–1–210, such as stating the
employment conditions and maintaining compensation from permanent employment.
Finally, the officers acting with the NET were transferred to it on a temporary basis.
Nevertheless, Burgess argues the agreement fails to provide jurisdiction under 23–1–
210 for two reasons. First, Burgess argues “Gilliam was not temporarily transferred
but rather he was involved in an investigation focused on a case and location.” We
disagree. Even if Gilliam had been transferred for only this one investigation, it was
still a temporary transfer. Second, Burgess argues the Batesburg–Leesville police
chief who signed the agreement lacked the authority to enter into it under Section
23–1–210. We agree with the trial judge's determination that nothing in the statute
“would prohibit either a county or a municipality or a town from authorizing in some
way the chief of police or the sheriff to enter into such agreements.” The
Batesburg/Leesville police chief informed the town council of the agreement before
its execution, and the council gave him the authority to enter into it.
The Supreme Court's recent opinion in State v. Boswell, Op. No. 26941 (S.C. Sup.Ct.
filed March 14, 2011) (Shearouse Adv. Sh. No. 9 at 22), does not change this
analysis. In Boswell, the court applied Section 23–20–50(A) of the South Carolina
Code (2007) to a multijurisdictional agreement entered into between the Calhoun
County and Lexington County Sheriffs' Departments pursuant to the Law
Enforcement Assistance and Support Act.FN4 Id. at 30–32. The court held the
agreement was invalid because it was “not voted on by the county council” as
required by Section 23–20–50(A) of the Act.
Burgess did not argue to the trial court and does not argue on appeal that Section 23–
20–50(A) applies to the NET agreement in this case. In any event, we find Boswell
distinguishable because the NET agreement here was not entered pursuant to the
Law Enforcement Assistance and Support Act. Therefore, Section 23–20–50(A) of
the Act does not apply. By its own terms, the section applies to “[a]n agreement
entered into ... pursuant to this chapter ....“ §23–20–50(A) (emphasis added).FN5
Section 23–20–30(B) specifically provides that the Act does not “alter, amend, or
affect any rights, duties, or responsibilities of law enforcement authorities established
by South Carolina's ... statutory laws ... except as expressly provided for in this
chapter.” The NET agreement here was made pursuant to Section 23–1–210, part of
a different chapter from the Law Enforcement Assistance and Support Act entitled
“General Provisions.” The NET agreement does not mention the Act or Section 23–
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20–50. We find that the requirements of Section 23–20–50(A) do not apply to the
NET agreement.
Accordingly, we find the agreement is valid under Section 23–1–210 and conferred
upon Gilliam the authority to arrest Burgess outside of the Batesburg–Leesville town
limits. Because we find the agreement valid under Section 23–1–210, we do not
address whether it meets the requirements of Section 23–1–215.).
III.
Cross–Examination on Employment Records
Burgess sought to introduce portions of Gilliam's employment records as “evidence
of bias and motive to misrepresent” pursuant to Rule 608(c), SCRE. The judge
sustained the State's objection and refused to admit the records. On appeal, Burgess
argues the records “portray Gilliam as an overzealous narcotics officer who was
willing to use unreliable confidential informants in order to make an arrest and who
violated protocols of the NET concerning the use of confidential informants.” The
records include a summary of three incidents concerning Gilliam. First, in
approximately March 2006, shortly after Burgess's arrest, a superior told Gilliam he
did not think the NET should use a particular confidential informant. Gilliam “got
upset, jumped out of his chair and went upstairs saying that he was going back to
Batesburg and would not be coming back to NET.” Second, in approximately
October 2006, Gilliam's partner requested to be transferred away from him due to
disagreements and his “bad attitude.” Third, in February 2007, Gilliam used
profanity and threatened another officer over a disagreement about a controlled drug
buy, and then he drove off with the confidential informant in his car, in violation of
NET protocol. In March 2007, the Batesburg–Leesville Police Department formally
disciplined Gilliam with a two-day suspension, a ninety-day probationary period, and
a demotion to the rank of Corporal.
Evidence of bias is governed by Rule 608(c), SCRE, which states: “Bias, prejudice
or any motive to misrepresent may be shown to impeach the witness either by
examination of the witness or by evidence otherwise adduced.” Our courts have held
that “anything having a legitimate tendency to throw light on the accuracy,
truthfulness, and sincerity of a witness may be shown and considered in determining
the credit to be accorded to his or her testimony.”
In excluding the evidence in this case, the judge stated: “It is irrelevant and highly
prejudicial and I don't think it is relevant to any of the issues in this case at least at
this point in time.” Although the judge did not use the language of Baker and Jones
in his ruling, we interpret the ruling as a finding that the records did not have a
legitimate tendency to show bias on the part of the officer. Each incident in the
records occurred after Burgess's arrest, and none of them relate directly to Burgess.
Though Burgess argues the incidents relate to Gilliam's use of confidential
informants, the arrest of Burgess had nothing to do with confidential informants.
Gilliam detained Burgess because he fled from police during the execution of a
search warrant, and arrested him because the officers determined he dropped crack
cocaine as he fled. While the incidents might show Gilliam to be hot-tempered and
uncooperative with other officers, they do not show his bias against Burgess, or
otherwise relate to Gilliam's credibility. Under these circumstances, we find the
judge's decision to exclude the evidence was within his discretion.
IV.
Mere Presence Jury Charge
The judge charged the jury as follows: In this case, the State is charging the
defendant with actual possession of a controlled substance[;] actual possession of a
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controlled substance exist[s] when the controlled substance is found in the actual
physical custody of the person charged with possession. Circumstantial evidence
may be used to prove actual possession, but actual possession must be proven
beyond a reasonable doubt. It must be shown that the defendant has possession of the
controlled substance and that the defendant knew that he had the controlled
substance in his possession.... Again, in this case the State has charged and must
prove actual possession of crack cocaine as I have defined that term for you.
Burgess's counsel objected to the charge, stating: “I guess ... I should go ahead and
except to the mere presence, the failure to charge mere presence but I understand the
court's ruling.” FN6 We find no error. FN6. A mere presence jury charge would have
instructed the jury that a defendant cannot be found guilty of possession of narcotics
simply because he was present at the scene where the narcotics were found. State v.
Robinson, 306 S.C. 399, 401 n. 1, 412 S.E.2d 411, 413 n. 1 (1991). Burgess argues
his case is distinguishable … because “[n]one of the officers in the present case can
testify that Burgess actually possessed the crack cocaine found on the ground.” We
disagree. The State's theory of the case depended on Burgess's actual possession of
the crack. The State presented evidence that Gilliam saw Burgess drop the bottle
with crack cocaine residue, and that both the top to the bottle and the crack pieces
were found in Burgess's flight path. This evidence indicated Burgess had actual
possession of the cocaine. Moreover, the jury charge limited the State to proving
actual possession and gave the jury no option to find constructive possession. When
constructive possession is not an issue in the case, it is not necessary to explain the
concept of mere presence in the jury charge. In drug possession cases, the concept of
mere presence relates exclusively to constructive possession, not actual possession.
State v. James, 386 S.C. 650, 654–55, 689 S.E.2d 643, 646 (Ct.App.2010)
Therefore, in this case it was unnecessary for the judge to charge mere presence.
V.
Conclusion
We affirm the trial judge's decision that Gilliam had jurisdiction to arrest Burgess
because the multijurisdictional agreement was valid under Section 23–1–210. We
also affirm the trial judge's exclusion of Gilliam's employment records and his
decision not to charge mere presence to the jury.
2.
State v. Boswell, #26941, (S.C.2011)
Justice Beatty. After a jury convicted Robert Boswell of first-degree burglary, the circuit
court sentenced him to life imprisonment without the possibility of parole (LWOP)….
Boswell appealed his conviction and sentence on the grounds the circuit court erred in: (1)
declining to suppress his confessions as they were the direct result of an unlawful arrest by
officers acting outside their territorial jurisdiction; and (2) imposing an LWOP sentence as it
constituted an abuse of discretion and violated state and federal protections against cruel and
unusual punishment. Because we find the arrest of Boswell was unlawful, we reverse and
remand.
I.
Factual/Procedural Background
At approximately 6:15 p.m. on August 10, 2001, Amy Westbury left her Lexington
County home to go to work. When she returned home the next morning around 11:00
a.m., Westbury discovered that someone had broken into her home through a
bedroom window. Westbury's review of the home revealed that only items belonging
to her and not her husband had been taken. Specifically, Westbury noticed the
following items were missing: several dresses, a sequined gown, a taffeta gown,
several pairs of shoes, workout leotards, undergarments, a couple of children's
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dresses, a bottle of perfume, makeup, jewelry, and a pillowcase from the master
bedroom. Shortly after discovering the break-in, the Westburys contacted the
Lexington County Sheriff's Department. During the course of the investigation,
Captain Joe Quig followed up on “a lead out of Calhoun County.” According to
Captain Quig, he received information that some of the stolen items may have been
deposited in an abandoned house located off “a frontage road on I–26 right inside of
Calhoun County, right outside of Lexington County.” On August 24, 2001, Captain
Quig decided to investigate the abandoned house. Prior to entering Calhoun County,
Quig contacted the Calhoun County Sheriff's Department and spoke with Sheriff
Summers regarding the alleged stolen property. According to Quig, “the Sheriff said
help myself, go ahead and take a look at the house; and that if I found anything that
didn't belong to us, he wanted me to catalog it and turn it into the Calhoun County
Sheriff's Department for processing for possibly being a stolen item out of their area
or their jurisdiction.” When Captain Quig and other Lexington County officers
investigated the outside of the house and looked through the windows, they saw
“female clothes” and “pornographic magazines on the floor and things like that.”
Because he believed some of the items may have belonged to Amy Westbury,
Captain Quig procured a search warrant for the house. As a result of their discovery,
Captain Quig and other Lexington County officers, including Lieutenant Henry
Dukes, set up surveillance of the abandoned house on August 24 and 25, 2001.
Captain Quig claimed he had “cleared” the surveillance operation with Sheriff
Summers. Quig testified that “[t]heir edict to us was ‘Fine, have at it. We can't help
you with it. If you find anything or anything comes up, call us.’ ” On the second
night of the surveillance operation, Lieutenant Dukes made radio contact with the
Calhoun County Sheriff's Department. In response to the call, Sheriff Summers and
several of his deputies came to the surveillance location. Lieutenant Dukes then
discussed the operation with Sheriff Summers and requested that a Calhoun County
officer remain at the location. According to Lieutenant Dukes, Sheriff Summers
stated, “It looks like you are doing a fine job. You have got everything under control
as far as I'm concerned.” Sheriff Summers also did not believe it was necessary for a
Calhoun County officer to remain with Lieutenant Dukes but assured him that he
would return if assistance was needed. At approximately 10:30 p.m. on August 25,
2001, a man drove up to the abandoned house. Lieutenant Dukes observed the man,
who was later identified as Boswell, stop the vehicle and turn off all the lights except
for the interior light. As Lieutenant Dukes approached the vehicle, he saw Boswell
“bringing different items out of the vehicle and chunking them into the woods.”
When he turned his flashlight on Boswell, Lieutenant Dukes observed Boswell “with
his pants down around his ankles. He had something in his hand wrapped around his
penis, and he was masturbating as he was throwing things out of the vehicle into the
hedgerow and also onto the ground.” After Lieutenant Dukes identified himself, he
directed Boswell to stop what he was doing and put his hands where the officer could
see them. Boswell ignored the command and continued to reach into the vehicle and
throw out items, including a knife and a crowbar. As a result, the officers threw
Boswell to the ground, handcuffed him, and placed him in investigative detention.
Lieutenant Dukes then ascertained Boswell's identity, read him his MirandaFN2
rights, and placed him in a Lexington County patrol car to await the arrival of
Captain Quig. Lieutenant Dukes explained that Boswell was detained for “[b]eing at
the location nude, masturbating, also throwing weapons, and not following law
enforcement that was fully identified.” Shortly thereafter, Lieutenant Dukes
contacted Sheriff Summers and Captain Quig. When Captain Quig arrived, he spoke
to the Lexington County officers as well as Sheriff Summers and two Calhoun
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County deputies. The officers' subsequent search of Boswell's vehicle revealed what
one officer described as burglary tools, which included a pair of gloves, a hammer, a
screwdriver, and a flashlight. The vehicle also contained “gym bags” that had
“various clothing items.” After speaking with Sheriff Summers, Captain Quig
“determined that we had more [than] probable cause to arrest [Boswell] with the
burglary tools and the things that were in that field that he had thrown out on the
ground.” He then transported Boswell to the Lexington County Sheriff's Department.
On August 26, 2001, Boswell gave a recorded statement in which he confessed to
the burglary. On August 28, 2001, Captain Quig had Boswell review the transcribed
statement and check it for accuracy. That same day, Boswell agreed to give another
statement. This statement, however, was given while Boswell rode with Captain
Quig in a patrol vehicle. According to the text of the statement, Boswell directed
Captain Quig to drive to the Westburys' home. When they arrived, Boswell again
confessed to burglarizing the Westburys' home. Subsequently, a Lexington County
grand jury indicted Boswell for first-degree burglary on the ground that the entry into
the Westbury home occurred in the nighttime. Prior to trial and throughout the trial,
Boswell's counsel sought to suppress Boswell's confessions to Captain Quig on the
ground that they were the products of an unlawful arrest made without legal authority
by Lexington County law enforcement officers acting outside their territorial
jurisdiction. In response, the State offered evidence of a 1999 “multi-jurisdictional
agreement” entered into between the Calhoun County and Lexington County
Sheriffs' Departments that purported to confer the authority of officers to arrest in the
other county's jurisdiction.
In a pre-trial ruling, the trial judge denied Boswell's counsel's motion. Specifically,
he found that “the Lexington County deputies did act consistently with the standard
required by the statute.” Throughout the trial, the judge reiterated this ruling each
time Boswell's counsel interjected an objection. Following the denial of its motion
for a directed verdict, the defense presented Boswell as its sole witness. Although
Boswell admitted to committing the burglary, he testified it occurred during the
daytime and not the nighttime as stated in his confessions. In explaining this
discrepancy, Boswell testified that he was “confused” because he was not taking his
medication for bipolar disorder and he was “coming off” the Valium that he had
taken prior to his arrest. Boswell also believed he committed the burglary because he
was not taking his medication for bipolar disorder. He claimed he had not taken the
medication for approximately one year before the August 2001 burglary.
II.
Discussion
A.
Boswell argues that his confessions were inadmissible as they were the “fruit
of the poisonous tree.” FN4
B.
Because counsel and the judge simply used the term “jurisdiction,” the judge
at times seemed to interpret this term as “subject matter jurisdiction.” Given
that territorial jurisdiction and subject matter jurisdiction are separate and
distinct concepts, there was some confusion amongst counsel and the judge
as to the use of the term “jurisdiction.”... Finally, we reject any assertion that
Boswell's confessions were cumulative to Boswell's trial testimony. Because
the judge had ruled against the defense motion, counsel called Boswell as a
witness to explain these confessions. Thus, Boswell should not now be
precluded from raising this properly preserved issue on appeal.
C.
Finding the issue preserved, the question becomes whether the Lexington
County officers were authorized to arrest Boswell in Calhoun County. As an
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initial matter, it is undisputed that the Lexington County officers were not “in
pursuit” of Boswell from Lexington County into Calhoun County; thus,
Section 17–13–40 of the South Carolina Code is not relevant to our
determination of this issue. Furthermore, there is no substantiated evidence
that the Lexington County officers had a warrant for Boswell's arrest.FN6
Therefore, the only two grounds by which the Lexington County officers
could have been authorized to arrest Boswell in Calhoun County are the 1999
multi-jurisdictional agreement or via a private citizen's arrest. In order for the
1999 agreement to confer arrest authority, we must find that the agreement
was valid and that its terms covered the factual scenario presented in the
instant case. Alternatively, if we find that the 1999 agreement did not
authorize the arrest, we must determine whether the Lexington County
officers effectuated a proper citizen's arrest.
On April 16, 1999, Lexington County Sheriff James Metts and Calhoun
County Sheriff Dennis Jones signed a written agreement “for the purpose of
securing to each other the benefits of mutual aid in the event of natural
disaster, disorder, or other emergency situations....” The terms of the
agreement incorporate the text of Sections 23–1–210 and 17–13–45 of the
South Carolina Code, which govern agreements involving the temporary
transfer of law enforcement officers.FN7 In 2000, the Legislature
promulgated Section 23–20–50 to require County approval of multijurisdictional agreements. This section states:
(A)
An agreement entered into pursuant to this chapter on behalf of a law
enforcement authority must be approved by the appropriate state,
county, or local law enforcement authority's chief executive officer.
A state law enforcement authority must provide a copy of the
agreement to the Governor and the Executive Director of the State
Budget and Control Board no later than one business day after
executing the agreement. An agreement entered into with a local law
enforcement authority pursuant to this chapter must be approved by
the governing body of each jurisdiction. For agreements entered into
prior to June 1, 2000, the agreement may be ratified by the governing
body of each jurisdiction.
(B)
The officers of the law enforcement provider have the same legal
rights, powers, and duties to enforce the laws of South Carolina as the
law enforcement agency contracting for the services. S.C.Code Ann.
§23–20–50(A), (B) (2007) (emphasis added).
Given this statute was in effect at the time of Boswell's arrest, we must assess
the validity of the 1999 agreement. The last sentence of subsection A states
that “the agreement may be ratified by the governing bodies of each
jurisdiction.” The State construes the phrase “may be ratified” to mean that
the governing bodies of Calhoun and Lexington counties did not have to
formally approve the 1999 agreement after the 2000 amendment. We
disagree.
In contrast to the State's interpretation, we construe subsection A as requiring
governing bodies to formally approve a pre-existing agreement if it is to
retain its validity.FN8 Taking into account the significance of territorial
jurisdiction, we believe a more stringent approach needs to be followed in
order to confer this type of authority.
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In the instant case, the General Counsel for the Lexington County Sheriff's
Department admitted that the 1999 agreement had been “sent to” but not
voted on by the county council. Based on the failure to satisfy the requisite
statutory provisions, we find the 1999 agreement was invalid. Thus, it could
not have operated to authorize the Lexington County officers to arrest
Boswell in Calhoun County.
Even assuming the 1999 agreement was valid, the terms of the agreement did
not cover the actions of the Lexington County officers as the employment of
officers from the adjacent jurisdiction was to occur only in the event of
emergency situations or when one jurisdiction specifically requested the
assistance of officers from the adjacent jurisdiction.FN9 Moreover, the
agreement clearly intended for the Lexington County and Calhoun County
officers to work simultaneously.
None of the above-outlined requirements were present in the instant case.
Here, Lexington County officers “cleared” their surveillance operation with
the Sheriff of Calhoun County. Although Sheriff Summers and several
officers were present at the beginning of the surveillance operation, Sheriff
Summers did not feel that it was necessary for his county officers to remain
at the surveillance site. Furthermore, no Calhoun County officers were
present at the time of Boswell's arrest. In view of the specific facts of instant
case, we conclude the 1999 agreement did not authorize the Lexington
County officers to arrest Boswell in Calhoun County.
In view of our finding that the 1999 agreement did not authorize the
Lexington County officers to arrest Boswell outside of their territorial
jurisdiction, the question becomes whether the officers acting as “private
citizens” could have effectuated the arrest.
The key case in this determination is State v. McAteer, 340 S.C. 644, 532
S.E.2d 865 (2000). In McAteer, an off-duty (but still uniformed) municipal
officer observed McAteer drive his automobile approximately 250 yards on a
dirt road outside the municipality's city limits. The officer approached the
car, and McAteer rolled down the window. The officer smelled alcohol and
observed open alcoholic beverage containers in the car, and detained
McAteer until a Highway patrolman arrived. The patrolman administered
several field sobriety tests to McAteer, then formally arrested him and
transported him to the York County Detention Center where McAteer blew a
.18 on the breathalyzer. Because the officer was outside the municipality's
city limits when he first observed McAteer, this Court found that he had no
police authority to detain McAteer. We, however, considered the question of
whether the officer was authorized to arrest McAteer as a private citizen.
After conducting a thorough survey of statutory and common law, this Court
ultimately held that “there is no common law right to make warrantless
citizen's arrests of any kind and that such rights as exist are created by statute
in South Carolina.”
Our decision in McAteer clearly limited a citizen's power to arrest only in
those instances involving a felony.
Here, Boswell's actions may have supported an arrest for indecent exposure;
however, this offense is a misdemeanor. Because the Lexington County
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officers did not witness Boswell commit a felony, they could not have
effectuated a citizen's arrest of Boswell under McAteer.
Thus, the question becomes whether there is any other ground to support a
citizen's arrest. The only conceivable avenue would be pursuant to Section
17–13–20(d) of the South Carolina Code, which provides for a citizen's arrest
if the citizen witnesses another disposing of stolen items in the nighttime. We
find the facts do not support a citizen's arrest under Section 17–13–20(d).
When Boswell arrived at the abandoned house, Lieutenant Dukes observed
him throw several items out of the vehicle, including a crowbar and a knife.
Although these items could have been legitimately construed as burglary
tools, it would have been purely speculative for Lieutenant Dukes to identify
these items as stolen. Lieutenant Dukes essentially admitted this fact when he
conceded that he had no way of knowing whether any of the items came from
Lexington County. Based on his observations, he could only discern that the
items “were consistent with items that we were looking for from the burglary
that happened in Lexington County.”
Based on the foregoing, we conclude Boswell's arrest was unlawful as there
was no specific statutory authorization or valid agreement between
Lexington County and Calhoun County to authorize the warrantless arrest.
B.
MURDER VS. MANSLAUGHTER
State v. Strickland, No. 4714 (Ct. of Appeals) July 2010
Appellant argues the trial court erred in denying his directed verdict motion because he established
self-defense as a matter of law. We disagree. These charges arose after Appellant became involved
in a knife fight with William Huckabee (Father), and his son, Christopher Huckabee (Victim), in
Spartanburg County, South Carolina. Victim died as a result of the altercation. Three witnesses
testified about what occurred: Father; Appellant's common law wife, Jennifer Weathers (Wife); and
a neighbor, Barry Smith (Neighbor). Officer Allen Wood, of the Spartanburg County Sheriff's
Office, testified Wife's testimony conflicted with a statement she gave to the police a few hours after
the incident. In that statement, she stated Appellant came into Father's trailer and said, "Where the
fuck is my door key[?]" The statement also indicated that after this exchange between Appellant and
Wife, Victim told Appellant to "get the fuck out of my house." According to Wife's statement,
Victim punched Appellant in the face, and Appellant responded in kind. Father jumped into the
fight after Victim and Appellant exchanged blows. Neighbor testified he arrived at Father's trailer
the night of the incident to find Father present. Wife arrived at the trailer, and thereafter, Victim
appeared. Appellant arrived and knocked on the door, and Victim answered. Appellant addressed
Wife and asked for the key to their trailer. Appellant was outside of the trailer, and Victim was
standing in the doorway. The two stared each other down, then Victim made a move and a fight
ensued. The two landed inside the trailer, and Father joined the fight. Victim pulled out a knife and
kicked Appellant. At this point, Neighbor exited the trailer and did not witness anything else.
Appellant argues the trial court erred in denying his directed verdict motion because he established
self-defense as a matter of law. We disagree.
To establish self-defense, four elements must be present:
(1)
the defendant must be without fault in bringing on the difficulty;
(2)
the defendant must have been in actual imminent danger of losing his life or sustaining
serious bodily injury, or he must have actually believed he was in imminent danger of losing
his life or sustaining serious bodily injury;
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(3)
if his defense is based upon his belief of imminent danger, a reasonably prudent man of
ordinary firmness and courage would have entertained the same belief, if the defendant was
actually in imminent danger, the circumstances were such as would warrant a man of
ordinary prudence, firmness and courage to strike the fatal blow in order to save himself
from serious bodily harm or losing his own life; and
(4)
the defendant had no other probable means of avoiding the danger of losing his own life or
sustaining serious bodily injury than to act as he did in the particular instance.
Although the three witnesses presented differing accounts of the incident, Father testified he struck
Appellant after Appellant told Victim to "shut your fucking mouth." We believe whether this
language might reasonably have been expected to bring on the difficulty was a question for the jury.
C.
EXTENDED VEHICLE STOPS
1.
State v. Corley, #26957, 4/4/2011
*1 We granted a writ of certiorari to review the court of appeals' decision in State v. Corley,
383 S.C. 232, 679 S.E.2d 187 (Ct.App.2009). We affirm as modified.
At approximately 2:50 in the morning, Greenwood City police officer Nicholas Futch saw
Petitioner Glenn Ireland Corley drive up to a known drug house, FN1 get out of his vehicle,
walk to the back of the house, stay for less than two minutes, return to his vehicle and leave.
Officer Futch briefly followed Corley's vehicle, then stopped Corley when Corley failed to
use a turn signal. While Futch requested Corley's license, insurance, and registration
documents, he noticed Corley was nervous, “fidgety,” short of breath and avoiding eye
contact. As a result, Futch asked Corley to step out of his vehicle.
Officer Futch asked Corley about his presence in the neighborhood so early in the morning.
Corley informed Futch that he had just left a particular home, but not the residence he had
actually visited. Futch confronted Corley with the false information, which soon resulted in
Corley's admission that he purchased crack cocaine from the drug house he visited
immediately prior to the stop. The traffic stop lasted approximately five to seven minutes.
Corley was arrested and charged with possession of crack cocaine.
Following Corley's unsuccessful motion to suppress his statements during the traffic stop and
the drugs that were recovered, he was convicted. The court of appeals affirmed.
We affirm the court of appeals' excellent opinion, with one modification.
The court of appeals affirmed the trial court's determination that Officer Futch had probable
cause to stop Corley and investigate for possible drug activity. This was error. Nevertheless,
the vehicle stop was justified based on the presence of reasonable suspicion. See State v.
Foster, 269 S.C. 373, 378, 237 S.E.2d 589, 591 (1977) (“It is recognized that the police may
briefly detain and question a person upon a reasonable suspicion, short of probable cause for
arrest, that he is involved in criminal activity.”); State v. Woodruff, 344 S.C. 537, 546, 544
S.E.2d 290, 295 (Ct.App.2001) ( “The term ‘reasonable suspicion’ requires a particularized
and objective basis that would lead one to suspect another of criminal activity. In
determining whether reasonable suspicion exists, the whole picture must be considered. If
the officer's suspicions are confirmed or are further aroused, the stop may be prolonged and
the scope enlarged as required by the circumstances.” (citations omitted)); see also U.S. v.
Mason, 628 F.3d 123, 128–30 (4th Cir.2010) (providing a thorough discussion of how a
motorist's behavior during a traffic stop, including his nervousness and his inconsistent
statements regarding the purpose of his trip, created a reasonable suspicion that the motorist
was engaged in illegal activity).
AFFIRMED AS MODIFIED.
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2.
State v. Wallace, #4800, (3/2/2011)
Timothy L. Wallace appeals his conviction and twenty-five year sentence for trafficking
cocaine. His primary contention is that the arresting officer did not have reasonable
suspicion to detain him after the conclusion of a traffic stop, and thus that the trial judge
erred in not suppressing evidence seized during the subsequent search. He also contends the
judge erred in not suppressing a statement he made to the officer just before the drugs were
found and in not granting a mistrial. We affirm.
I.
Facts
Corporal Thomas Crompton of the Oconee County Sheriff's Office stopped Wallace
on Interstate 85 for driving his car left of the center line. During the approximately
twelve minutes it took Crompton to complete the traffic stop, he made numerous
observations that led him to suspect that Wallace was engaged in serious criminal
activity. Crompton issued Wallace a traffic ticket, but he continued to question him.
He asked if there was anything illegal in the car and sought consent to search it.
Wallace did not answer the question about anything illegal, and he refused several
times to give consent to search. Crompton then said “hang tight just a second” and
retrieved a drug-sniffing dog from his patrol vehicle. At that point, Wallace was
detained a second time and not free to leave. When Crompton walked the dog around
Wallace's car, the dog alerted on the driver's door and the trunk. Crompton then
searched the car. As he pulled bags out of the back, he asked who owned each bag.
Wallace claimed ownership of a bag in which Crompton discovered 752 grams of
cocaine.
After Crompton found the cocaine, Sergeant Dale Colegrove, who had been called to
the scene for backup, read Wallace his Miranda warnings. Wallace agreed to speak
to Colegrove without an attorney present. Wallace told him that he had picked up the
cocaine and was delivering it to someone in North Carolina. Wallace was arrested
and later indicted for trafficking more than 400 grams of cocaine.
II.
Applicable Law
Wallace concedes there was probable cause for the traffic stop. The State concedes
Wallace was detained a second time while Crompton used the drug dog and then
searched the car. These concessions narrow the issue before us to whether
Crompton's suspicion that Wallace was engaged in serious criminal activity was
reasonable under the Fourth Amendment based on information available to
Crompton at the time he told Wallace to “hang tight.”
III.
Application of Law to Facts
In its brief, the State summarizes all of this evidence in the following fourteen points:
(1) after he activated his blue lights, Wallace hit the brakes, let off the brakes, got
right to the exit ramp, then hit the brakes again and drove halfway up the exit ramp
before pulling off the road, all of which was outside the normal behavior for traffic
stops; (2) Wallace fumbled around for his license and the car paperwork for longer
than the normal time in routine traffic stops; (3) the passenger (Hood) stared straight
ahead and did not even acknowledge Cpl. Crompton's presence; (4) Wallace and
Hood gave different accounts of their travel time and itinerary; (5) rather than
calming down, Wallace became increasingly nervous during his discussions with
Cpl. Crompton; (6) a black BMW pulled up behind Cpl. Crompton's patrol car on the
side of the exit ramp, sat there for a couple of minutes and then drove away as Cpl.
Crompton was walking toward Wallace's car to talk with Hood; (7) as Cpl. Crompton
14
approached the car to talk with Hood, a cell phone on the seat next to Hood started
ringing but Hood did not answer it; (8) drug dealers frequently use decoy cars and
communicate via cell phones when transporting drugs; (9) Hood would not look at
Cpl. Crompton when they were talking; (10) Hood was sweating even though it was
a mild day, and he was visibly nervous; (11) after Cpl. Crompton spoke to Hood,
Wallace changed his story about where they had been and how long they were there;
(12) the car Wallace was driving belonged to a third party who was not present,
which is common in drug cases; (13) I–85 is a known drug corridor; and (14) Atlanta
is a known drug source/hub city.
While none of these items independently amounts to a reasonable suspicion of
criminal activity, blending each of these “tiles” into the “entire mosaic” of the
totality of the circumstances, we believe Crompton had reasonable suspicion to
detain Wallace while he walked the drug dog around the car. Thus, the trial judge
ruled correctly to deny the motion to suppress the cocaine.
3.
State v. Tindall , 388 S.C. 518, 698 S.E.2d 203, (S.C. 2010)
Facts
One morning in 2004, an officer stopped Tindall's vehicle for speeding, following another
vehicle too closely, and failure to maintain his lane. The officer asked Tindall to exit the
vehicle and to have a seat in the patrol car. The officer questioned Tindall and,
approximately fifteen to twenty minutes into the stop, asked Tindall if he could search his
car, to which he replied “I don't care” or “I don't mind.” The officer searched the vehicle and
discovered a large quantity of cocaine hidden beneath the rear bumper.
Tindall was placed in custody and given Miranda warnings, after which he gave a statement
to the officer admitting that he was being paid $1,500 to drive the Jeep from Atlanta to
Durham. Tindall never admitted knowing that the cocaine was in the vehicle. At trial, Tindall
moved to suppress the cocaine and his statement to police. The trial court denied the motions
and Tindall was convicted and sentenced. The Court of Appeals affirmed on direct appeal.
This Court granted certiorari to review the decision of the Court of Appeals.
The officer stopped Tindall for speeding, following too closely behind another vehicle, and
failing to maintain his lane. He obtained Tindall's driver's license, registration, proof of
insurance, and a copy of the car rental agreement and asked him to have a seat in the front
passenger seat of his patrol car. The officer testified that as Tindall exited the vehicle, he did
a “felony stretch,” raising his hands in a stress relief action which officers are taught to look
for in criminal patrol classes. He then patted-down Tindall and Tindall took a seat in the
patrol car. A police dog was in the back of the vehicle.
The officer asked Tindall about his destination and he responded that he was driving to
Durham to meet with his brother. The officer then called in the driver's license and vehicle
information. Approximately three minutes later, the dispatcher reported back that there were
no problems with either the license or vehicle and the officer informed Tindall that he would
write him a warning ticket.
At this point, the purpose of the traffic stop was accomplished except for the issuance of the
warning ticket. However, rather than issue the ticket, the officer continued to question
Tindall for an additional six to seven minutes, inquiring as to where he was going, the
purpose for the trip, what exit he would take to get to Durham, whether he had ever been
charged with any drug crimes, what type of business he was in, and various questions about
his business.FN3 During this questioning, two other officers called in for back-up stood
outside of the patrol car door.
15
FN3. Tindall stated that he had recently been laid off by Northwest Airlines and that he and
his wife were opening a day care center. The officer then asked Tindall questions about day
care regulations, including the ratio of staff to children and the amount of square footage
provided per child.
We find the officer's continued detention of Tindall exceeded the scope of the traffic stop
and constituted a seizure for purposes of the Fourth Amendment. A reasonable person in
Tindall's position-seated in the front seat of the patrol car with two officers standing at his
door, another officer to his left, and a police dog in the back seat-would not have felt free to
terminate the encounter. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386,
115 L.Ed.2d 389 (1991) (seizure for purposes of Fourth Amendment where reasonable
person would not feel free to disregard the police and go about his business).
The question therefore becomes whether the officer reasonably suspected a serious crime at
the point at which he chose not to conclude the traffic stop, despite his stated intention to
issue a warning ticket, instead opting to continue his questioning. See Sullivan, 138 F.3d at
131. At that point, the officer had ascertained the following information: (1) Tindall was
driving to Durham to meet his brother; (2) Tindall was driving a rental car rented the
previous day by another individual which was to be returned to Atlanta on the day of the
stop; (3) Tindall did a “felony stretch” on exiting the vehicle; and (4) Tindall seemed
nervous. We find these facts did not provide the officer with a “reasonable suspicion” that a
serious crime was afoot. Consequently, the continued detention was illegal and the drugs
discovered during the search of the vehicle must be suppressed.
The fact that Tindall “consented” to the search of the vehicle does not alter our conclusion as
the consent was the product of the unlawful detention. “Undoubtedly, a law enforcement
officer may request permission to search at any time. However, when an officer asks for
consent to search after an unconstitutional detention, the consent procured is per se invalid
unless it is both voluntary and not an exploitation of the unlawful detention.” State v. Adams,
377 S.C. 334, 339, 659 S.E.2d 272, 275 (Ct.App.2008), citing State v. Pichardo, 367 S.C. 84,
105, 623 S.E.2d 840, 851 (Ct.App.2005). Having found the seizure violated the Constitution,
we find nothing in the record to rebut this presumption of invalidity.
As we find that the cocaine was discovered after an unlawful detention and invalid consent,
we conclude that Tindall's statement should have been suppressed. See State v. Copeland,
321 S.C. 318, 323, 468 S.E.2d 620 (1996) (“The ‘fruit of the poisonous tree’ doctrine
provides that evidence must be excluded if it would not have come to light but for the illegal
actions of the police, and the evidence has been obtained by the exploitation of that
illegality.”).
Conclusion
We find the officer's actions after completion of the license and registration computer check
exceeded the scope of the initial traffic stop. The continued stop beyond this point, without
reasonable suspicion, constituted an illegal detention and the evidence and statement should
have been suppressed. The decision of the Court of Appeals, which upheld the trial court's
denial of Tindall's motions to suppress, is therefore
REVERSED.
4.
State v. Provet, #4787, 391 S.C. 494, 706 S.E.2d.513, S.C. App. 2011
On the night of May 1, 2002, Corporal John Owens (Owens) of the South Carolina Highway
Patrol was patrolling on Interstate 85 in Greenville County, South Carolina, when he
observed a 1997 Ford Expedition (the vehicle). The vehicle had a burned out tag light and
16
was following another vehicle too closely. Owens commenced a traffic stop and asked
Provet for his driver's license and vehicle registration.
During the stop, Owens observed: Provet's hands were noticeably shaking and his
breathing was accelerated. Additionally, there were numerous air fresheners in the vehicle.
Upon checking Provet's vehicle registration, Owens learned the vehicle was registered to a
third-party. Owens then asked Provet to exit the vehicle and proceeded to perform a pat
down search of Provet. After Provet exited the vehicle, Owens asked Provet a series of
questions.
Owens inquired:
… where Provet was coming from, and Provet responded he had been visiting his girlfriend
at a nearby Holiday Inn. Owens testified he knew Provet was not coming from the Holiday
Inn because he observed the traffic violation prior to where the Holiday Inn exit was located.
Owens then asked Provet if he knew the location of the Holiday Inn exit. Provet did not
know the location.
Owens questioned Provet about the vehicle's third-party registration, his employment status,
and the duration of his stay in Greenville. Provet informed Owens that the vehicle's owner
was another girlfriend who lived in Charlotte, North Carolina. He stated that he recently
graduated from a technical institution but was unemployed. Provet informed Owens he was
in Greenville for two days but was not carrying any luggage.
Based on Provet's responses, Owens believed Provet was deceptive, prompting Owens to call
Trooper Eddie Aman (Aman), an officer assigned with the drug detection canine unit, to
report to the scene. After contacting Aman, Owens returned to Provet's vehicle to check the
vehicle identification number. When looking through the front windshield, Owens observed:
several air fresheners, numerous fast food bags, a cell phone, and some receipts. Consistent
with Provet's admission at the commencement of the stop, Owens stated he saw no luggage
in the vehicle, only one bag on the rear seat. However, Owens later stated that there was a
luggage bag on the rear seat. When subsequently asked to clarify his observations regarding
the bag on the rear seat at trial, Owens stated that he did not recall whether the bag was a
luggage bag. Despite this apparent inconsistency regarding the presence of luggage, Owens'
experience and observations caused him to conclude Provet was involved in criminal
activity. Owens returned Provet's driver's license and vehicle registration and then issued a
traffic warning citation. After explaining the warning citation, Owens immediately asked
Provet whether he had anything illegal in the vehicle. Provet responded in the negative.
Owens then asked to search the vehicle, and Provet consented to the search. As Aman was
attempting to remove a fast food bag as a precautionary measure for the drug detection
canine, Provet fled the scene, running across six lanes of traffic on Interstate 85. Provet was
apprehended. The drug detection canine alerted to the cocaine in the fast food bag. Provet
was indicted by a Greenville County grand jury for resisting arrest and trafficking cocaine
more than 100 grams. Before trial, Provet made a motion to suppress the cocaine because it
was obtained through an illegal search. The trial court denied Provet's motion and concluded
Owens had probable cause to conduct a traffic stop and reasonable suspicion of a serious
crime. The trial court found Provet's consent was voluntarily given. A jury convicted Provet,
and the trial court sentenced him to twenty-five years imprisonment. This appeal followed.
Detention
Provet does not appeal the trial court's ruling that Owens had probable cause to conduct a
traffic stop of the vehicle based on his observation that Provet was following another vehicle
too closely and had a burned out tag light. However, Provet contends his detention was
17
unlawfully prolonged because Owens' questioning of Provet was unrelated to the traffic stop.
We disagree.
We conclude Owens' questions were tangentially related to the traffic stop. See State v.
Rivera, 384 S.C. 356, 359, 682 S.E.2d 307, 309 (Ct.App.2009) (concluding officer's
questions concerning where the defendants were coming from, how long they had been
there, where they were going, and the purpose of their trip were tangentially related to the
purpose of the traffic stop). Moreover, even if Owens' questioning of Provet was unrelated to
the purpose of the traffic stop, Provet's argument is not persuasive because the Fourth
Amendment does not per se prohibit questions unrelated to the purpose of the traffic stop
unless the unrelated questions unreasonably extend the traffic stop's duration. In this case,
we conclude Owens did not unreasonably extend the traffic stop, because the entire traffic
stop amounted to less than eleven minutes. Furthermore, Owens' series of questions and
observations occurred prior to the conclusion of the traffic stop because Owens was waiting
to hear from dispatch regarding Provet's license and registration, and a warning citation had
yet to be issued. As a result, we conclude the traffic stop was not unreasonably extended
Reasonable Suspicion
Provet argues Owens did not have reasonable suspicion of a serious crime. We disagree.
Lengthening the detention for further questioning beyond that related to the initial stop is
acceptable in two situations: (1) the officer has an objectively reasonable and articulable
suspicion illegal activity has occurred or is occurring; or (2) the initial detention has become
a consensual encounter.
…We are keenly aware that some of the items found in Provet's vehicle are commonplace
and consistent with innocent travel. However, after reviewing the record to determine if the
trial court's ultimate determination is supported by the evidence and analyzing the totality of
the circumstances, we conclude there is evidence to support the trial court's ruling that
reasonable suspicion existed in this case.
… Provet asserts the trial court's finding of reasonable suspicion would amount to a finding
of reasonable suspicion of illegal activity for a majority of the vehicles on South Carolina's
roadways. However, the combination of the commonplace items (i.e., numerous air
fresheners, fast food bags, and several receipts) together with the surrounding circumstances
(i.e., traveling two days without any luggage and inconsistent stories about where he was
coming from and going to) eliminate a substantial portion of innocent travelers.
Voluntary Consent
Provet also argues he did not voluntarily consent to the search of the vehicle. We disagree.
Warrantless searches and seizures are reasonable within the meaning of the Fourth
Amendment when conducted under the authority of voluntary consent. Pichardo, 367 S.C. at
105, 623 S.E.2d at 851. Undoubtedly, a law enforcement officer may request permission to
search at any time. Id. The State bears the burden of establishing the voluntariness of the
consent. Id. The voluntariness of a consent to search is a question of fact to be determined
from the totality of the circumstances. Id. A trial court's conclusions on issues of fact
regarding voluntariness will not be disturbed on appeal unless so manifestly erroneous as to
be an abuse of discretion. Pichardo, 367 S.C. at 106, 623 S.E.2d at 851–52.
We conclude Provet's consent was voluntary based on the totality of the circumstances.
During the suppression hearing, Owens testified he was not going to let Provet leave when
he asked for Provet's consent to search Provet's vehicle. However, Owens did not convey this
statement to Provet and stated Provet should have felt free to go because his driver's license
and vehicle registration were returned and his traffic warning citation was issued. Moreover,
18
Owens testified that he and Aman were the only officers at the scene at the time of the
consent, Aman arrived in an unmarked police vehicle, and the drug detection canine was
inside Aman's vehicle. Also, Owens indicated he did not make any promises in exchange for
Provet's consent, no physical force was used, no guns were pointed, and no threatening tone
was used in obtaining Provet's consent. Thus, we conclude based on the totality of the
circumstances, the trial court did not err in concluding Provet voluntarily consented to the
search of the vehicle.
5.
U.S. v. Mason, 628 F.3d 123, C.A.4 (S.C.),2010.
Niemeyer, Circuit Judge:
After completing a traffic stop of Victor Mason on Interstate 20, between Atlanta and South
Carolina, with the issuance of a warning ticket, the Georgia state trooper making the stop
extended it for several minutes, based on the trooper's suspicion of criminal activity, to allow
a drug-detection dog to sniff Mason's vehicle. The dog alerted multiple times to the presence
of a narcotics odor and then jumped into the car through an open window and sat on the back
seat of Mason's vehicle, again alerting to the presence of a narcotics odor. A search of the
vehicle thereafter uncovered approximately 10 kilograms of cocaine, for which Mason was
convicted of conspiracy to violate 21 U.S.C. § 841(a) and sentenced to a mandatory term of
life imprisonment, under 21 U.S.C. § 841(b)(1)(A).
Mason's appeal challenges the constitutionality of the search on the ground that the trooper
impermissibly extended the traffic stop to obtain probable cause to search the vehicle, as
well as the enhancement of his sentence by reliance on two allegedly invalid previous drugtrafficking convictions. For the reasons that follow, we affirm.
At approximately 11:40 a.m. on August 12, 2005, Georgia State Patrol Trooper Blake
Swicord observed Mason driving eastbound on Interstate 20 in Morgan County, Georgia, in
a vehicle that had, in Trooper Swicord's opinion, excessively tinted windows. Swicord
activated his patrol car's blue lights to pull Mason over, which automatically activated audio
and video recording equipment, capturing the traffic stop on tape.
Trooper Swicord testified that after he turned on his blue lights, it took Mason “a while to
pull over,” which “was not normal,” and that he observed Mason having a conversation with
his passenger, which “raised [his] suspicion.” After Mason pulled over and lowered his
window, Trooper Swicord noticed, as he approached the vehicle, that Mason was nervous
and sweating. He also immediately smelled an “extreme odor” of air freshener coming from
the vehicle. Officer Swicord testified at the suppression hearing that the odor was
“absolutely abnormal” and strong enough to give an occupant of the car a headache. Swicord
also observed that there was only one key on the key ring and that there was no luggage in
the interior of the vehicle. He saw on the back seat the newspaper for that day (recognizing
Tiger Woods' picture) with a label on it that said “Radisson Hotel.” Swicord testified that
these factors led him to believe that Mason and his passenger, Nathaniel Govan, were on a
“turn-around” trip to Atlanta, a known source city for drugs. Swicord also testified that Inter
state 20 was common route for drug traffickers.
After Mason provided his driver's license and the vehicle's registration, Trooper Swicord
asked him to step out of the vehicle. When he asked Mason who owned the car, Mason
replied that his daughter did. Swicord then asked Mason his daughter's name and the name of
his passenger, as well as the purpose for their journey. Mason told Swicord that he had
driven to Atlanta to see his uncle about getting a deed. Swicord then walked to the
passenger-side window and asked Govan, who had remained in the vehicle, the reason for
their trip. Govan told a different story, stating that they had driven to see a friend, giving two
different names. Swicord's questioning of Mason lasted just over two minutes (11:41:20 a.m.
19
to 11:43:34 a.m.) and his questioning of Govan lasted just over one minute (11:43:40 a.m. to
11:44:50 a.m.). Because the two stories conflicted and the newspaper indicated that Mason
and Govan had stayed in a motel, Trooper Swicord concluded that both were “lying about
their itinerary and were involved in criminal activity.”
Trooper Swicord returned to his patrol car, where he radioed Sergeant Michael Kitchens, a
member of the K–9 unit, requesting that Kitchens come to the scene with a drug-detection
dog. He then exited to test the tint of the windows of Mason's vehicle and determined that
they were in fact illegally tinted. Swicord returned to the patrol car to write a warning ticket
regarding the illegal tint and to relay to his dispatcher Mason's and Govan's names, as well as
insurance and registration information. This practice was routinely followed as a part of a
traffic stop to verify information about the vehicle and to check for any outstanding warrants.
Swicord again exited his patrol car and handed the warning ticket to Mason regarding the
illegal tint. This occurred at 11:50:45 a.m., less than 11 minutes after Swicord first activated
his blue lights. At this point, Swicord had finished all the steps necessary to complete the
traffic stop.
Trooper Swicord then asked Mason for consent to search his vehicle, and Mason refused.
Swicord informed Mason that he believed that there were drugs in the car and that he was
going to have a dog sniff the car to determine whether drugs were inside. Swicord ordered
Govan out of the car, by which point in time Sergeant Kitchens had arrived. Sergeant
Kitchens took his drug-detection dog on a leash around the outside of Mason's vehicle, and
on the first lap around the vehicle (at 11:55:02 a.m.), the dog alerted at both the passengerside and driver-side doors. On a second lap around the vehicle, the dog jumped into the
vehicle through the open driver-side window and gave a positive indication of the presence
of drugs by pointing her nose next to the speaker in the back seat and sitting down on the
seat.
After Sergeant Kitchens coaxed the dog out of the car, Trooper Swicord searched the
vehicle. In the trunk, he found approximately 10 kilograms of cocaine powder in a black
gym bag.
Following Mason's indictment for conspiracy to possess with intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1),FN* Mason filed a
motion to suppress the evidence found in the vehicle, contending that his Fourth Amendment
rights were violated because (1) Trooper Swicord lacked reasonable suspicion to detain him
beyond completion of the traffic stop and (2) the dog's entry into his vehicle was not
supported by probable cause.
FN* While Mason was stopped in Georgia, the indictment charged a conspiracy “in the
District of South Carolina and elsewhere.”
The district court denied Mason's motion to suppress after a suppression hearing, at which
Trooper Swicord and Sergeant Kitchens testified. The court found that Swicord had
reasonable suspicion of drug activity when he had finished processing the warning ticket for
the tint violation, justifying his extending the traffic stop. The court also found that the dog
alerted to drugs on the outside of the car before jumping into the vehicle on its own, without
any command from the officers. The court ruled that the dog's positive indication by entry
into the car provided probable cause to justify the search. The court also ruled that when an
officer handling a dog does not prompt the dog's entrance into the vehicle, the dog's entrance
in response to the “plain smell” of narcotics does not violate the Fourth Amendment.
Following Mason's conviction by a jury, the district court sentenced him to a mandatory life
sentence under 21 U.S.C. § 841(b)(1)(A), based on the verdict finding him guilty of
trafficking in five kilograms or more of cocaine and on his prior felony drug convictions. To
20
satisfy the statutory requirement of at least two prior convictions, the government relied on
(1) a conviction in the U.S. District Court for the District of South Carolina on January 25,
1993, for possession of cocaine base with intent to distribute it; (2) a conviction in a
Richland County, South Carolina court on February 9, 1988, for possession of cocaine with
intent to distribute it; and (3) a conviction in an Orangeburg, South Carolina court on July
22, 1988, for possession of cocaine with intent to distribute it. Mason objected to the use of
the two prior state convictions, contending that he did not have an attorney when he pleaded
guilty to those charges, and he submitted documents purportedly demonstrating his lack of
representation. At the sentencing *128 hearing, the district court found that the
documentation did not demonstrate that Mason's prior convictions were uncounseled. Rather,
the court found that the evidence indicated beyond a reasonable doubt that on both occasions
Mason had the assistance of counsel. Accordingly, the court imposed the mandatory life
sentence under § 841(b)(1)(A).
From the court's judgment, Mason filed this appeal, challenging the denial of his suppression
motion and the enhancement of his sentence.
Since Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), a “reasonable
suspicion” of criminal activity has justified an officer's brief stop or detention of the suspect
sufficient to permit the officer to allay the suspicion. “Reasonable suspicion” is demonstrated
when an officer “point[s] to specific and articulable facts which, taken together with rational
inferences from those facts, evince more than an inchoate and unparticularized suspicion or
hunch of criminal activity.” United States v. Branch, 537 F.3d 328, 336 (4th Cir.2008)
(internal quotation marks and citations omitted). We have recognized that this standard “is
not readily, or even usefully, reduced to a neat set of legal rules, but, rather, entails common
sense, nontechnical conceptions that deal with factual and practical considerations of
everyday life.” Foreman, 369 F.3d at 781. For that reason, in assessing reasonable suspicion,
courts must “consider the totality of the circumstances” and “give due weight to common
sense judgments reached by officers in light of their experience and training.” United States
v. Perkins, 363 F.3d 317, 321 (4th Cir.2004); see also Branch, 537 F.3d at 336–37 (noting
that courts may “credit the practical experience of officers who observe on a daily basis what
transpires on the street” (internal quotation marks and citation omitted)).
At bottom, we conclude that the objective facts facing Trooper Swicord created a reasonable
suspicion of criminal activity and that he was therefore justified, under Terry and its
progeny, in extending the stop for the brief period necessary to allay that suspicion.
D.
SEARCHES
State v. Brown, No. 4697 (Ct. of App.) June, 2010
Officer Daryl Williams was on patrol. While traveling down a road, he observed a 1976 Plymouth
next to him and saw a passenger drinking what appeared to be a beer. The passenger, Brown, saw
Officer Williams and tucked the beer can between his legs. Officer Williams pulled the car over and
noticed a small duffel bag on the floorboard between Brown's legs. Officer Williams testified he was
suspicious of the occupants because the driver acted nervous while Brown appeared “artificially laid
back.”
Initially, Brown denied having a beer, but then he pulled the can up from his lap. Officer Williams
removed Brown from the car, recovered the beer can, arrested him for an open container violation,
and placed his duffel bag on the sidewalk. He handcuffed Brown and placed him in a patrol car. He
returned to the duffel bag, searched it, and found cocaine concealed inside a Fritos bag.
During trial, Brown moved to suppress the drugs on a violation of his Fourth Amendment rights. The
trial court denied the motion to suppress, finding there was probable cause to stop the car, and
21
Brown's arrest was lawful. The trial court held the search was proper because it was a search
incident to a lawful arrest.
On appeal Brown argues the trial court erred by denying his motion to suppress the drugs in
violation of his Fourth Amendment rights.
Under the search incident to arrest exception, if the arrest is supported by probable cause, police
officers may search an arrestee's person and the area within his or her immediate control for
weapons and destructible evidence without first obtaining a search warrant. State v. Ferrell, 274 S.C.
401, 405, 266 S.E.2d 869, 871 (1980). However, this doctrine does not allow law enforcement
officers to conduct a warrantless search of an arrestee's automobile after the arrestee has been
handcuffed or otherwise prevented from regaining access to the car, unless it is reasonable to believe
(1) the arrestee might access the vehicle at the time of the search, or (2) that the vehicle contains
evidence of the offense of the arrest. Arizona v. Gant, --- U.S. ----, 129 S.Ct. 1710, 1723-24, 173
L.Ed.2d 485 (2009).
The court held that neither of the Gant exceptions existed here and overturned the conviction.
E.
MIRANDA AND SIXTH AMENDMENT
State v. Rios, No. 4710. (Ct. of App.) 2010.
The State alleged Rios shot and killed his wife, Eliza Hernandez, in their home on November 23,
2006. The night of the shooting, Rios told a responding police officer three black male intruders
robbed their home and shot Hernandez. Later that evening, investigators questioned Rios at the
Spartanburg County Sheriff's Department (the Department). Initially, Rios maintained that intruders
shot Hernandez. However, Rios later changed his story and told investigators he and Hernandez got
into an argument that led to a physical confrontation and a struggle between them for the gun. At a
pre-trial Jackson v. Denno[2] hearing, defense counsel argued Rios's statements to investigators
were not knowingly and intelligently given. Defense counsel asserted Rios, a native of Mexico, did
not have the capacity to waive his Miranda rights because his native language was Tarascan, and he
was given Miranda warnings in Spanish. After Rios was advised of his rights, he provided an oral
statement to Sergeant Balderama and Investigator William Gary in Spanish, and Sergeant Balderama
transcribed the statement in English. Sergeant Balderama testified he had no trouble communicating
with Rios in Spanish and never felt Rios had trouble understanding him. Later that night, Rios gave
a second statement to Officer Diaz, another Spanish interpreter for the Department. Rios told Officer
Diaz he and Hernandez got into an argument and were struggling over the gun when it fired. Officer
Diaz also testified he did not have any difficulty communicating with Rios in Spanish. At the
hearing, Rios relied on People v. Jiminez, 863 P.2d 981 (Colo. 1993), to support his argument that
his waiver of his Miranda rights was not knowing and intelligent. Jiminez functioned at the level of a
six year old, had never been to school, and had a very limited vocabulary even in his native
language, Kickapoo. Because a Kickapoo translator was not available, Jiminez selected Spanish for
the interrogation. Here, the trial court distinguished the present case from Jiminez and determined
Rios's statements were freely, voluntarily, and knowingly given. The trial court noted Rios presented
no testimony concerning his mental capacity or ability. Furthermore, the trial court found the State
presented evidence Rios communicated fluently in Spanish and in English while on the job, and
noted Rios presented no evidence he had a limited vocabulary in any of the languages he spoke.
Sergeant Balderama and Officer Diaz both testified they had no trouble communicating with Rios in
Spanish. Furthermore, Sergeant Balderama testified he specifically asked Rios if he understood his
Miranda rights and he said "yes." Moreover, Robert Reeder, the trainer and safety director at the
Milliken Cotton Blossom plant where Rios worked, testified Rios completed forty hours of training
in English and was able to communicate in both English and Spanish. Rios had also lived in the
United States for ten years at the time of his arrest. Accordingly, we affirm the trial court's decision
to admit Rios's statements.
22
F.
CHAIN OF EVIDENCE
State v. Hatcher, #26950, 3/21/2011
Courts have abandoned inflexible rules regarding the chain of custody and the admissibility of
evidence in favor of a rule granting discretion to the trial courts. United States v. De Larosa, 450
F.2d 1057, 1068 (3d Cir.1971). “The trial judge's exercise of discretion must be reviewed in the light
of the following factors: ‘... the nature of the article, the circumstances surrounding the preservation
and custody of it, and the likelihood of intermeddlers tampering with it.’ ” Id. (citation omitted). “If
upon the consideration of such factors the trial judge is satisfied that in reasonable probability the
article has not been changed in important respects, he may permit its introduction in evidence.”
Gallego v. United States, 276 F.2d 914, 917 (9th Cir.1960).
Considering those factors here, we find no abuse of discretion in the trial judge's admission of the
drug evidence in Hatcher's case. We agree with the Court of Appeals that the mere fact that evidence
is sealed upon presentation for testing does not, in itself, establish a sufficient chain of custody.
Evidence is still required as to how the item was obtained and how it was handled to ensure that it is,
in fact, what it is purported to be. However, we have consistently held that the chain of custody need
be established only as far as practicable, and we reiterate that every person handling the evidence
need not be identified in all cases.
In this case, the Buyer who purchased the drugs from Hatcher, the police officer who received the
drugs from the Buyer and transported them to SLED in two sealed, tamper-evident bags (one inside
the other), and the SLED agent who retrieved the drugs from the Log–In Department at SLED (still
double-sealed) and tested them, all testified about the chain of custody and their handling of the
drugs and the fact that there was no evidence of tampering. The ultimate goal of chain of custody
requirements is simply to ensure that the item is what it is purported to be. The record here indicates
the drugs received for testing were in fact, those taken from Hatcher without any alteration,
tampering, or substitution.
Conclusion
The State need not establish the identity of every person handling fungible items in all
circumstances; rather, the standard is whether, in the discretion of the trial judge, the State has
established the chain of custody as far as practicable. This determination will necessarily depend on
the unique factual circumstances of each case. We conclude the trial judge did not abuse his
discretion in finding a sufficient chain of custody existed to allow admission of the drug evidence.
Consequently, we reverse the decision of the Court of Appeals.
REVERSED.
G.
PLAIN VIEW
State v. Wright, #26931, 391 S.C. 436, 706 S.E.2d 324, (SC 2011)
Facts/Procedural Background
On November 26, 2006, the Clarendon County Sheriff's Office received an anonymous tip about
dogfighting at a mobile home off Jackson Road in Clarendon County. Respondents Orlando Coulette
(Coulette) and Jennifer Lyles (Lyles) lived in the mobile home. This tip was received around 7:00
p.m. when the officers were just about to change shifts. Because the tip came in around shift change,
the deputies were instructed to stay over and wait at a church approximately two miles from the
mobile home in case they were needed. Two deputies then drove past the Jackson Road address on a
public road and observed a large number of vehicles parked at the mobile home and spotlights
shining in an area next to the mobile home. *326 Approximately forty-five minutes to an hour after
receiving the anonymous tip, law enforcement gathered at the church, paired up in several cars, and
drove to the address to investigate further. The mobile home was located down a dirt road shared by
23
at least one other mobile home.FN1 The deputies initially had their car headlights off as they drove
down the shared road. When the deputies turned their headlights on, they saw people and dogs
running away from the mobile home. Sergeant Clay Conyers testified that as he got out of his car to
chase the people and the dogs, he could hear dogs fighting in the woods behind the mobile home.
Two deputies testified that while they were driving down the dirt road they saw a portable
dogfighting pit in the area with the spotlights. Corporal Bernie Thorton testified that as the deputies
arrived, people were trying to dismantle the dogfighting pit. FN1. It appears from the Record that
the dirt road is a private road. The deputies apprehended and detained the people who ran away, and
captured as many loose dogs as possible. Sergeant Dan Cutler (Sergeant Cutler) was the
investigations supervisor called to the Jackson Road location after the deputies found evidence of
dogfighting there. After Sergeant Cutler observed the dogfighting pit with fresh blood and hair on
the panels, and a dog with fresh lacerations, he advised the deputies to place the Respondents under
arrest for dogfighting. While securing the scene, deputies saw in plain view dogfighting
paraphernalia, including a dogfighting pit, dog muzzles, drugs, syringes, several injured dogs, and a
dog suspension collar. Deputies obtained a search warrant the next day and seized additional
evidence from the yard and from inside the mobile home. The probable cause for the search warrant
was premised on the evidence seized the previous night.
Prior to trial, Coulette and Lyles moved to suppress all evidence seized on the property on the
ground that law enforcement did not have a warrant and there was not an emergency such that the
deputies could come onto the property. The other Respondents joined the motion to suppress,
contending their seizures and subsequent arrests were premised on their presence at the scene and
the illegally seized evidence. The State argued Respondents had no expectation of privacy in the
driveway and the visible front of the residence. Moreover, the fleeing people and dogs created
exigent circumstances that justified the warrantless entry onto the property. The State further
asserted the evidence seized without a warrant was in plain view, and the arrests were based on that
evidence. After hearing testimony, the circuit court granted Respondents' motion to suppress,
finding the exigent circumstances exception did not apply, and the plain view exception was
precluded because discovery of the evidence was not inadvertent. Because the search warrant for the
mobile home was obtained based on the evidence seized without a warrant, the court suppressed all
of the State's evidence, precluding further prosecution of the State's case.
Issue
Did the circuit court err in granting Respondents' motion to suppress because the evidence at issue
was properly seized under the plain view and exigent circumstances exceptions to the warrant
requirement, and inadvertent discovery is not required for purposes of the plain view exception to
the warrant requirement?
Analysis
The State contends the circuit court erred as a matter of law in granting Respondents' motion to
suppress because the evidence at issue was properly seized under the plain view and exigent
circumstances exceptions to the warrant requirement. The State further contends that inadvertent
discovery is not required for purposes of the plain view exception to the Fourth Amendment warrant
requirement. We agree.
I.
Plain View
“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.” Consistent with federal law prior to
1990, South Carolina case law regarding the plain view exception requires: (1) the initial
intrusion which afforded the authorities the plain view was lawful; (2) the discovery of the
evidence was inadvertent; and (3) the incriminating nature of the evidence was immediately
24
apparent to the seizing authorities. However, in Horton v. California, 496 U.S. 128, 110
S.Ct. 2301, 110 L.Ed.2d 112 (1990), the United States Supreme Court (USSC) discarded the
inadvertent discovery requirement for the plain view exception. In doing so, the USSC
noted, “evenhanded law enforcement is best achieved by the application of objective
standards of conduct, rather than standards that depend upon the subjective state of mind of
the officer.” Moreover, “[t]he fact that an officer is interested in an item of evidence and
fully expects to find it in the course of a search should not invalidate its seizure if the search
is confined in area and duration by the terms of a warrant or a valid exception to the warrant
requirement.” We take this opportunity to join with the majority of states and adopt Horton,
thereby discarding the inadvertence requirement of the plain view doctrine. Hence, the two
elements needed to satisfy the plain view exception are: (1) the initial intrusion which
afforded the authorities the plain view was lawful and (2) the incriminating nature of the
evidence was immediately apparent to the seizing authorities.
Initial Intrusion Was Lawful The State argues that the deputies' observations from the public
highway and the dirt road, the anonymous tip, and the exigent circumstances that developed
after the deputies entered the shared dirt road justified the initial intrusion onto the property
surrounding Coulette's residence to capture fleeing suspects and dogs, ensure public safety,
and prevent further destruction of evidence. We agree. At trial, the State conceded that the
anonymous tip alone would not have created probable cause to search. The State contends
that the circuit court erroneously interpreted this concession to mean there was no probable
cause at the time the deputies entered Coulette's property. We agree. The State argued
throughout the motion hearing that the search and seizure was supported by the exigent
circumstances and plain view doctrines.
Investigative Authority and Exigent Circumstances “What a person knowingly exposes to
the public, even in his own home or office, is not a subject of Fourth Amendment
protection.” (citations omitted). “A policeman may lawfully go to a person's home to
interview him.... In doing so, he obviously can go up to the door....” (citations omitted). “A
police officer without a warrant is privileged to enter private property to investigate a
complaint or a report of an ongoing crime.”. “A warrantless search is justified under the
exigent circumstances doctrine to prevent a suspect from fleeing or where there is a risk of
danger to police or others inside or outside a dwelling “In such circumstances, a protective
sweep of the premises may be permitted.” “[T]he Fourth Amendment's concern with
‘reasonableness' allows certain actions to be taken in certain circumstances, whatever the
subjective intent (citations omitted) . In the Fourth Amendment context, a court is concerned
with determining whether a reasonable officer would be moved to take action. In this case,
the deputies responded to an anonymous tip by first driving by the residence on a public
road. From this road, deputies observed a large number of vehicles at the mobile home and
saw spotlights shining next to the mobile home. These observations were not subject to any
Fourth Amendment protection because they were knowingly exposed to the public.
Moreover, these observations would give a reasonable police officer in the deputies' position
cause to go forward. However, even absent these observations, the police had the
investigative authority to approach the front door of the mobile home in order to investigate
the anonymous tip. Respondent Coulette's defense counsel admitted that the police may
lawfully knock on the door after receiving a complaint. If the deputies could properly drive
up the dirt driveway to get to the front door, then their observations of the dogfighting pit
and fleeing people and dogs did not exceed their investigative authority. The deputies'
observations as they drove down the dirt road corroborated the anonymous tip and gave them
ample reason to believe dogfighting was in progress. Exigent circumstances developed when
the suspects started fleeing. Moreover, the presence of dogs created a potential danger to the
deputies. Hence, the deputies had the authority to perform a protective sweep of the
25
premises. The initial intrusion by the deputies onto Coulette's property was lawful, both
because the deputies had the investigative authority to enter the property, pursuant to the
anonymous tip and observation from a public road, and because exigent circumstances
developed after entering the private driveway. Therefore, we find that the State has satisfied
the first element of the plain view exception to the warrant requirement.
Incriminating Nature of Evidence Was Immediately Apparent The State argues that the
incriminating nature of the evidence they saw in plain view was immediately apparent. We
agree. While securing the scene, deputies saw in plain view dogfighting paraphernalia,
including the dogfighting pit, dog muzzles, drugs, syringes, several injured dogs, and a dog
suspension collar. The incriminating nature of this evidence was immediately apparent
considering the deputies were there to investigate a tip concerning dogfighting.
Conclusion
As noted above, the better approach to the plain view doctrine is to discard the inadvertent discovery
requirement as the United States Supreme Court did in Horton. Thus, the two elements necessary for
the plain view doctrine are: (1) the initial intrusion which afforded the authorities the plain view was
lawful and (2) the incriminating nature of the evidence was immediately apparent to the seizing
authorities. In this case, the initial intrusion by the deputies was lawful and the incriminating nature
of the evidence was immediately apparent, hence, the suppression of the evidence by the circuit
court is reversed.
H.
PROBABLE CAUSE AND REASONABLE SUSPICION
1.
State v. Taylor, No. 4687 (May, 2010)
Deputy Toby Bellamy received an anonymous tip indicating “a black male on a bicycle ...
[was] possibly selling dope” on the “dirt portion of Ervin Street.” The tip did not include a
clothing description. Bellamy drove his patrol car down Gilyard Street, which intersects
Ervin Street, and observed a black male, later identified as Taylor, riding a bicycle on the
dirt road. Bellamy testified he decided to approach the area on foot to “see exactly what was
basically going on.” Bellamy and Lieutenant Darren Yarborough walked toward the
intersection of Ervin and Gilyard Streets. As they turned onto Ervin Street from Gilyard
Street, Bellamy again observed Taylor on a bicycle, this time “huddled close together” with
another black male. As the officers approached, Bellamy did not witness anything pass
between the two men. However, Bellamy testified when Taylor and his companion noticed
the officers nearing, Taylor mounted his bicycle and rode toward Bellamy, while the other
individual walked in the opposite direction toward the wooded area. Taylor pedaled past
Bellamy on his bicycle, glanced at him, and Bellamy ordered him to stop. When Taylor
ignored Bellamy's second command to stop and get on the ground, Bellamy conducted an
arm-bar takedown. As a result, Taylor was forced off his bicycle and onto the ground. Once
apprehended, Bellamy searched Taylor and discovered a tennis ball containing crack
cocaine.
Taylor was arrested and charged with PWID cocaine base. At trial, Taylor sought to exclude
the drug evidence, arguing the stop, search, and arrest were unlawful. During an in camera
hearing, Bellamy testified to receiving an anonymous tip of possible drug activity in an area
known for previous drug related incidents; observing Taylor on a bicycle where the tipster
indicated; approaching Taylor on foot; and witnessing Taylor engrossed in a close
conversation with another individual. Additionally, Bellamy indicated Taylor's close
proximity to the other man led him to suspect illegal drug activity; he stated: “in [his] line of
work and with recent experiences ... any time two males [were] that close huddled up [they
were] trying to hide something ... [and] 90 percent of the time[,] ... some sort of illegal
activity [was] going on.” He stated Taylor pedaled his bicycle as if he would not stop when
26
riding away from his companion and toward the officers. Accordingly, Bellamy ordered
Taylor to put his hands up and get on the ground to ensure the officers' safety and because
Bellamy believed that he had probable cause drug activity might be taking place.
Taylor was convicted and he appealed. The court of Appeals held that the officers lacked
reasonable suspicion to stop Taylor. Deputy Bellamy stated his belief that Taylor was
involved in criminal activity was based on: (1) the anonymous tip; (2) Taylor's presence in
an area associated with high crime; (3) Taylor's closeness to his companion; and (4) each
man's departure from the scene when the officers approached. We find the anonymous tip
Bellamy relied on was one in which the reliability could not be tested because the tipster was
nameless, the tipster's location was unidentified, the tipster remained unaccountable, and the
tipster failed to explain the origin of the allegation of criminal activity, provide any
predictive information, or supply a basis for believing the tipster possessed inside
information into Taylor's affairs. Furthermore, the tip failed to provide any specific
information indicating the tipster's knowledge of concealed criminal activity; therefore, the
tipster did not risk his or her credibility and was free to fabricate the information with
impunity. The tip described readily observable information, such as the individual's location
and appearance, and stated the individual was possibly selling drugs. While the anonymous
tip was trustworthy in the limited sense it assisted Bellamy in identifying Taylor as a person
matching the description of the individual whom the tipster wished to accuse, the tip
demonstrated neither an extensive degree of familiarity with Taylor's actions, nor any
independent reliability in terms of the alleged possibility of criminal activity as required by
Florida v. J.L., 529 U.S. 266, 272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). Therefore, due
to the tip's inherent unreliability, the tip was merely a conclusory allegation and more
information was required to establish the requisite quantum of suspicion before the officers
were entitled to stop Taylor.
Moreover, the officers were on Ervin Street based solely on the anonymous and unreliable
tip and made no supplemental observations suggesting any illegal activity was afoot. The
officers' observations did nothing more than confirm the readily noticeable conditions
communicated by the anonymous tipster.FN17 Additionally, Bellamy's initial suspicion
remained unsubstantiated when he failed to observe Taylor behave in a way to suggest drug
activity. Hence, this scenario involved an anonymous tip far less specific than the tip in State
v. Green, 341 S.C. 214, 532 S.E.2d 896 (Ct.App.2000). There, the officer knew the
individual's gender, race, name, point of origin, the model and color of his vehicle, and that
he would be carrying a large sum of money and narcotics. Id. at 216, 532 S.E.2d at 896.
Here, the officers knew a nameless tipster suspected a black man riding a bicycle on the dirt
portion of Ervin Street might be selling drugs. The tipster failed to supply a specific
description of the individual other *121 than his general mode of transportation, his readilyobservable location, his gender, and his race. Accordingly, we find the anonymous tip lacked
the requisite indicia of reliability to be employed as reasonable suspicion for conducting an
investigatory stop. For these reasons, the court reversed the conviction.
I.
SEQUESTRATION
State v. Huckabee ,No. 4696.(Ct. of App) (2010)
Huckabee was convicted of voluntary manslaughter and assault of a high and aggravated nature. He
now appeals, arguing the trial court … erred in allowing the State’s primary witness to testify on
reply following Huckabee's testimony when the witness was under a sequestration order but had
been present in the courtroom following her initial testimony during the State’s case-in-chief,… On
July 18, 2007, Kelly Ann Tavenier drove Jerry Bridwell to pick up Karim Hudani in Spartanburg,
South Carolina. Bridwell was going to purchase Lortab pills from Hudani. Once Tavenier picked up
Hudani, he told Tavenier to drive down a road where his friend lived. Tavenier traveled down a dead
27
end street until Huckabee drove up in a white car with his girlfriend in the passenger seat. Hudani
got out of Tavenier's car and went over to Huckabee. Huckabee got out of his car and walked over to
the passenger side of Tavenier's car where Bridwell was seated. Huckabee then pulled out a gun,
placed it in Bridwell's face, and demanded that Bridwell give Huckabee all of his money. Bridwell
replied that he did not have any money, at which point Huckabee fired several shots at the ground
and continued to demand Bridwell's money. Tavenier then sped off and heard three or four gun
shots. …Huckabee testified that when he approached Tavenier's vehicle, he asked Tavenier and
Bridwell what they wanted, at which point Tavenier unzipped her pocketbook, pulled out a gun, and
aimed it at Huckabee. Huckabee stated that Tavenier demanded that Huckabee give her all of his
money and "dope." Huckabee further testified that Tavenier then fired the gun and Huckabee fell to
the ground as he heard another shot fired. Once she shot again, Huckabee pulled his gun out and
started shooting into the truck… After the defense rested, the State called Tavenier in reply. Defense
counsel objected to her reply testimony because she had been seated in the courtroom since her
initial testimony and, thus, would be in violation of the sequestration order. The court responded,
"[t]his is reply testimony," to which defense counsel stated, "I understand. But she was allowed to
stay in the courtroom." The court noted defense counsel's objection and proceeded to allow Tavenier
to testify. During her reply testimony, Tavenier stated that she has never owned a purse in her life
and only carries a man's wallet. Huckabee argues he was prejudiced by the reply testimony of
Tavenier because her testimony cast doubt upon his self-defense theory. He claims the State called
Tavenier in reply for the purpose of shaping her testimony to counteract the testimony of Huckabee.
We disagree. "The purpose of the exclusion rule is, of course, to prevent the possibility of one
witness shaping his testimony to match that given by other witnesses at the trial; and if a witness
violates the order he may be disciplined by the court. The question of the exclusion of the testimony
of the offending witness, however, depends upon the particular circumstances and lies within the
sound discretion of the trial court. A circuit court may order the sequestration of any witness by
order or by motion of a party. Rule 615, SCRE. Reply testimony should be limited to rebuttal of
matters raised by the defense, rather than to complete the plaintiff's case-in-chief. "Nevertheless, the
improper admission of this evidence may not serve as the basis for reversal unless found to be
prejudicial."
Here, the trial court did not abuse its discretion by allowing Tavenier to testify in reply.
On reply, Tavenier was asked only three questions:(1) did she own a purse; (2) did she own a
pocketbook; and (3) had she ever owned a purse, pocketbook, or a shoulder strap of any kind.
J.
DUI LAW
1.
Murphy v. State SC Court of Appeals # 4816 (2011)
Denise Murphy appeals her conviction for driving under the influence (DUI). We affirm.
Facts
On April 4, 2007, Officer Jerry Rothell stopped Murphy's vehicle after noticing her swerving
and weaving. Rothell conducted three field sobriety tests and arrested Murphy for DUI. A
subsequent Datamaster breath test revealed Murphy had a blood alcohol level of 0.13. A
dashboard video camera in Rothell's vehicle recorded the traffic stop.
During the traffic stop Murphy was made to walk a straight line. However, during this
sobriety test, the videotape only recorded her from essentially the knees up, and in portions
only displayed half her body as she walked to the limit of the camera's field of view. In
addition, a horizontal gaze nastagmus test was conducted, in which Murphy was made to
follow the movement of a pen with only her eyes. However, Rothell conducted this test in
the spot where Murphy stood after completing the straight line test, with her back to the car,
on the fringe of the dashboard camera's field of view.FN2 On cross-examination, Rothell
explained:
28
I could have done it completely in front of the car and you wouldn't have seen it. The reason
for it is it's checking for an involuntary twitching of the eye.I turned around and pointed her
back toward the car to do that because the blue [light] is going to flash in and out and create
problems with her eyes focusing. That's the reason I moved her to the side and had her turn
her back to the car and made sure that she didn't feel like the blue lights were bothering her
at all.
Pre-trial, Murphy unsuccessfully moved to suppress the videotape of the traffic stop and
sobriety tests because (1) two of the field sobriety tests were not conducted in full view of
the camera and (2) the video camera continued recording after she was placed in Rothell's
police vehicle.
Additionally, Murphy's unsuccessfully moved to suppress the results of her Datamaster
breath alcohol test because the Datamaster device used in her case required repairs sixteen
days after her test was conducted. At trial, Murphy cross-examined Rothell in detail about
SLED's repair records for the Datamaster breath alcohol test device, which Murphy acquired
from SLED's website.
The jury found Murphy guilty of DUI. Murphy appealed to the circuit court, and the circuit
court affirmed. This appeal followed.
Issues On Appeal
I.
Did the circuit court err in failing to suppress the incident site videotape of Murphy's
traffic stop?
II.
Did the circuit court err in failing to suppress Murphy's breath alcohol test results?
Standard Of Review
“[O]ur scope of review is limited to correcting the circuit court's order for errors of law.”
City of Rock Hill v. Suchenski, 374 S.C. 12, 15, 646 S.E.2d 879, 880 (2007).
Law/Analysis
I.
Videotape
Section 56–5–2953 of the South Carolina Code provides:
(A)
A person who violates Section 56–5–2930, 56–5–2933, or 56–5–2945 must
have his conduct at the incident site and the breath test site videotaped.
(1)
The videotaping at the incident site must:
(a)
begin not later than the activation of the officer's blue lights
and conclude after the arrest of the person for a violation of
Section 56–5–2930, 56–5–2933, or a probable cause
determination that the person violated Section 56–5–2945;
and
(b)
include the person being advised of his Miranda rights before
any field sobriety tests are administered, if the tests are
administered.
S.C.Code Ann. § 56–5–2953(A) (2006).FN3
a.
Remedy available under Section 56–5–2953
Initially, although not raised by either party, we must note that throughout the
course of this matter, Murphy is inconsistent as to the remedy she seeks.
Before the magistrate, Murphy argued for “suppression” of the videotape, on
29
appeal to the circuit court Murphy argued the magistrate erred in failing to
“dismiss” the charge, and now on appeal to this court Murphy argues the trial
court erred in failing to “suppress” the video.
Under subsection (A) of the statute, “[t]he videotapes of the incident site and
of the breath test site are admissible pursuant to the South Carolina Rules of
Evidence in a criminal, administrative, or civil proceeding by any party to the
action.” S.C.Code Ann. § 56–5–2953(A). However, the remedy for
noncompliance with the statute is dismissal. See City of Rock Hill v.
Suchenski, 374 S.C. 12, 17, 646 S.E.2d 879, 881 (2007) (“[D]ismissal of the
DU [I] charge is an appropriate remedy provided by § 56–5–2953 where a
violation of subsection (A) is not mitigated by subsection (B) exceptions.”);
S.C.Code Ann. § 56–5–2953(B) (stating that “[f]ailure ... to produce the
videotapes required by [subsection (A) ] is not alone a ground for dismissal
... if [certain exceptions are met]”). However, regardless of the fact that
Murphy asked to suppress the videotape for noncompliance, we find the issue
of the trial court's interpretation of the statute is properly before this court.
Further, in light of our holding infra—that the statutory requirements of
subsection (A) were met—the inconsistencies in the remedy sought are not of
consequence to this appeal.
b.
Failure to record a full view of all field sobriety tests
Murphy alleges the videotape of the incident cite does not comply with the
statute because it fails to “record most of the field sobriety tests.” We
disagree.
“All rules of statutory construction are subservient to the maxim that
legislative intent must prevail if it can be reasonably discovered in the
language used.” State v. Gaines, 380 S.C. 23, 32–33, 667 S.E.2d 728, 733
(2008).
Here, the statute provides a person “must have his conduct at the incident site
and breath test site videotaped.” The videotaping at the incident site must
“(a) begin not later than the activation of ... blue lights and conclude after the
arrest ...” and “(b) include the person being advised of his Miranda rights
before any field sobriety tests are administered, if the tests are administered.”
S.C.Code Ann. § 56–5–2953(A)(1)(a)–(b).
Therefore, in regard to what must be recorded, the plain language of the
statute is not violated as long as the recording captures (1) the accused's
conduct and (2) Miranda warnings prior to field sobriety tests, if such tests
occur. Murphy does not allege the video fails to capture her being advised of
Miranda, but only that the statute requires that she remain in full view and
record all field sobriety tests. However, nothing in the plain language of the
statute indicates that an accused remain in full view of the camera for the
duration of the encounter. Rather, the statute only requires her “conduct” be
recorded. Conduct is generally defined as one's behavior, action, or
demeanor. The Oxford Dictionary 158 (2d ed.2001). Failure of the video to
maintain a full view of the accused for the duration of a field sobriety test in
which she is made to walk a line, for instance, does not fail to display her
behavior, demeanor, and general state. Thus, an accused need not remain in
full view of the camera at all times in order for the recording to capture her
conduct.
30
The statute speaks to the sobriety tests by stating the video must “include the
person being advised of his Miranda rights before any field sobriety tests are
administered, if the tests are administered.” S.C.Code Ann. § 56–5–
2953(A)(1)(b). While certainly an individual's performance on such tests
would be part and parcel of his or her “conduct” at the incident site, as
mentioned, an unbroken recording of the tests is not necessary to capture
conduct. Therefore, the recording need not display all field sobriety tests
provided it captures the accused's conduct.FN4
Accordingly, we find the plain language of the statute does not require that
the recording capture a continuous full view of the accused, or capture all
field sobriety tests. Rather, provided all other requirements are met, the video
need only record the accused's conduct. For this reason we find the trial court
did not err in finding the video complied with section 56–5–2953(A).
c.
Terminating the video upon arrest
Next, Murphy argues the statute was violated when Rothell failed to stop the
videotape when she was placed in the police cruiser. We disagree.
The statute provides: “The videotaping at the incident site must (a) begin not
later than the activation of ... blue lights and conclude after the arrest of the
person....” S.C.Code Ann. § 56–5–2953(A)(1)(a) (emphasis added).
Murphy alleges the provision that the recording “must ... conclude after the
arrest” required Rothell to end the recording when she was placed in the
police cruiser. However, in State v. Dowd, the Supreme Court affirmed a
defendant's resisting arrest conviction, holding the arrest did not conclude
until the defendant was locked in his jail cell. 306 S.C. 268, 270, 411 S.E.2d
428, 429 (1991). In rejecting the argument that the arrest ended upon being
taken into custody, the court defined arrest as “an ongoing process, finalized
only when the defendant is properly confined.” Id.
Accordingly, we find the statute did not require the video be terminated upon
Murphy being placed in the police cruiser. Thus, the trial court did not err in
finding the video recording complied with the statute.
II.
Suppression of the breath test
Finally, Murphy argues the trial court erred in failing to suppress the results of her
Datamaster breath test in light of documents from the SLED website that the
machine was repaired sixteen days after her test. We disagree.
Section 56–5–2954 of the South Carolina Code requires:
The State Law Enforcement Division and each law enforcement agency with a breath
testing site is required to maintain a detailed record of malfunctions, repairs,
complaints, or other problems regarding breath testing devices at each site. These
records must be electronically recorded. These records, including any and all
remarks, must be entered into a breath testing device and subsequently made
available on the State Law Enforcement Division web site.
S.C.Code Ann. § 56–5–2954 (Supp.2010).
First Murphy argues “there are no local records as required [and] the SLED records
are erroneous and misleading.” However, in State v. Landon, our supreme court
found that Section 56–5–2954 “is satisfied by the fact that SLED's internet records
are available at the testing site itself.” 370 S.C. 103, 108, 634 S.E.2d 660, 663
31
(2006). Moreover, Murphy has failed to include the SLED records in the record on
appeal.
Next, Murphy argues, “[d]espite ... finding that the [a]ppellant had made a prima
facie showing of prejudice as required in Landon, the result [was] not suppressed....”
In Landon, the Supreme Court held:
We are aware, however, that information regarding the DataMaster is exclusively
within the State's control. Because SLED's failure to provide a detailed record
significantly hampers the defendant's ability to show prejudice in this situation, we
hold that once a defendant makes a prima facie showing of prejudice, the burden
must shift to the State to prove the defendant was not prejudiced, either by providing
records to show the machine was working properly at the time of testing or by some
other contemporaneous evidence.
Id. at 109, 634 S.E.2d at 663.
In this case, Murphy argues only that she made a prima facie showing of prejudice.
Interestingly, it appears that the trial court agreed as in response to Murphy's pre-trial
motion to suppress the test results, the trial court stated:
I'm going to deny your motion.... It's something that can be cross-examined and I
guess I'm basing it on the number of tests that were conducted between the subject
test, ... and the date that there was some repair made on this Datamaster. Anyway, I
feel like the State has satisfied the requirement of Landon but it still I guess is a jury
issue as to how they want to treat the weight of the Datamaster.
(emphasis added).
First, we are compelled to state that a prima facie showing of prejudice does not
render the test results inadmissible per se but simply shifts the burden to the State to
show the machine was working properly at the time of the test. See Landon, 370 S.C.
at 109, 634 S.E.2d at 663. Therefore, even if we were to accept Murphy's contention
that she made a prima facie showing of prejudice, because she does not allege the
trial court erred in finding the State satisfied its burden under Landon, she offers this
court no basis on which to reverse the ruling of the trial court.
However, notwithstanding that Murphy does not allege the trial court erred in finding
the State met its burden under Landon, we find the evidence supports the trial court's
conclusion that it did. The State presented evidence that the Datamaster conducts a
series of self-diagnosing checks to insure that it is operating correctly both prior to
and subsequent to any actual breath testing. In this regard evidence exists to
demonstrate that the Datamaster in question conducted this series of checks at least
twenty-five times after Murphy's test without indicating a malfunction or need for
repair.
Accordingly, even if we were to accept Murphy's claim that she presented a prima
facie showing of prejudice, we find the evidence supports the determination that the
State met its burden under Landon and that the issue was one proper for the jury.
Conclusion
For the reasons stated above, the ruling is AFFIRMED.
2.
SCDMV v. McCarson 705 S.E. 2d 425 (2011)
I.
Factual/Procedural History
32
At approximately 2:00 a.m. on January 1, 2006, First Sergeant Kimbrell was on
routine patrol near the junction of US 221 and I–385 in Laurens County. While on
patrol, Kimbrell observed McCarson drive his vehicle over a curb, fail to yield the
right of way, make an improper turn, and make a wide turn on an entrance ramp of I–
385 near a divider wall. Because his patrol vehicle was not equipped with a video
camera, Kimbrell requested assistance after pulling McCarson over for the driving
violations.
Shortly thereafter, Trooper Michael Jones arrived at the location where McCarson
was being detained by his supervisor, Sergeant Kimbrell. Upon his arrival, Kimbrell
advised Jones of the reason for the traffic stop. Jones then requested that McCarson
step to the rear of the vehicle. After reading McCarson his Miranda rights, Jones
ordered McCarson to perform several field sobriety tests. According to Jones,
McCarson performed “poorly” on the Horizontal Gaze Nystagmus (HGN) test and
the “one-leg stand” test. As a result, Jones arrested McCarson for DUI and
transported him to the Laurens County Law Enforcement Center.
After being read the Advisement of Implied Consent rights and his Miranda rights,
McCarson agreed to submit to a DataMaster breathalyzer test. The test results
revealed that McCarson had a blood alcohol level of 0.17 percent. Because
McCarson's blood alcohol level was greater than 0.15 percent, Jones issued
McCarson a Notice of Suspension pursuant to Section 56–5–2951(A) of the South
Carolina Code.FN4
Within the statutorily-prescribed time period, McCarson filed a request for an
administrative hearing before the DMVH to challenge the license suspension.
Kimbrell was not present at the hearing, but his written report of his observations
was introduced by Trooper Jones. McCarson contended that the report of Kimbrell
was hearsay. The Hearing officer found no probable cause.
On appeal Judge McLeod concluded that “South Carolina courts have promulgated a
common law exception to hearsay, to wit, that hearsay testimony is admissible to
establish probable cause to arrest.” Thus, Judge McLeod concluded that the Incident
Report as well as the other proffered evidence should have been admitted to establish
probable cause for McCarson's arrest. Accordingly, Judge McLeod reversed Hearing
Officer Holland's order and remanded for a new hearing on the merits as the record
on appeal was “woefully inadequate.”
II.
Discussion
McCarson contends the primary question before this Court is “whether or not
hearsay evidence, in the form of an incident report containing evidence that the
testifying witness [cannot] independently testify to, can be admitted to establish
probable cause in the context of an administrative hearing conducted pursuant to
S.C.Code Ann. § 56–5–2951(F)(1) (2006).”
In answering this question, McCarson claims the ALC's decision to admit the
challenged evidence was erroneous for the following reasons: (1) Summersell should
not have served as the basis for the ALC's decision as it was vacated by this Court;
(2) the Rules of Evidence, which are applicable in administrative hearings, expressly
exclude the hearsay testimony; and (3) our state common law, which permits hearsay
evidence to establish probable cause in preliminary hearings for criminal cases, does
not apply to administrative, license-suspension hearings.
…. we agree with each of McCarson's contentions.
33
The rule against hearsay prohibits the admission of evidence of an out-of-court
statement by someone other than the person testifying that is used to prove the truth
of the matter asserted. Watson v. State, 370 S.C. 68, 71, 634 S.E.2d 642, 644 (2006).
It is well settled that evidence is not hearsay unless offered to prove the truth of the
matter asserted. State v. Brown, 317 S.C. 55, 63, 451 S.E.2d 888, 894 (1994).
Based on the well-established definition of hearsay, Sergeant Kimbrell's observations
of McCarson's erratic driving constituted hearsay as it was testified to by Trooper
Jones and was offered to establish probable cause for the DUI arrest.
Because the Rules of Evidence are clearly applicable to driver's license-suspension
hearings, the question becomes whether the challenged evidence is admissible
pursuant to a hearsay exception.
Given the significant difference between a preliminary hearing and a licensesuspension hearing, we decline to extend the probable cause cases relied on by the
Department to circumvent the well-established rules against hearsay. Thus, in
proving that a driver was lawfully arrested or detained for DUI, the Department must
present admissible evidence of probable cause. If we were to find otherwise, we
would essentially render meaningless the procedure established by our Legislature in
Section 56–5–2951.
III.
Conclusion
Based on the foregoing, we hold the Department failed to present admissible
evidence that McCarson was lawfully arrested or detained for DUI. Accordingly, we
find the ALC erred in reversing the Hearing Officer's order reinstating McCarson's
driver's license privileges.
REVERSED.
3.
State v. Branham, South Carolina Court of Appeals #4803 (2011)
Background: Defendant was convicted by jury in the magistrate's court of driving under the
influence (DUI). Defendant appealed. The Circuit Court, Lexington County affirmed the
magistrate's refusal to dismiss the case due to state's failure to provide defendant with a
videotape of his breath alcohol analysis test. Defendant appealed.
Holdings: The Court of Appeals, Pieper, J., held that:
K.
(1)
state's obligation in DUI prosecution to “produce” a breath test site video means to
create a video of the breath test site, as opposed to physically handing over or turning
over the videotape; and
(2)
state met any statutory obligation to “produce” breath test site video, even assuming
that the word “produce” meant to hand over or turn over, by making breath test site
video available online and accessible to the defendant.
FIRST AMENDMENT
Snyder v. Phelps 131 S.Ct. 1207 (2011)
For the past 20 years, the congregation of the Westboro Baptist Church has picketed military
funerals to communicate its belief that God hates the United States for its tolerance of
homosexuality, particularly in America's military. The church's picketing has also condemned the
Catholic Church for scandals involving its clergy. Fred Phelps, who founded the church, and six
Westboro Baptist parishioners (all relatives of Phelps) traveled to Maryland to picket the funeral of
Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty. The picketing
took place on public land approximately 1,000 feet from the church where the funeral was held, in
34
accordance with guidance from local law enforcement officers. The picketers peacefully displayed
their signs-stating, e.g., “Thank God for Dead Soldiers,” “Fags Doom Nations,” “America is
Doomed,” “Priests Rape Boys,” and “You're Going to Hell”-for about 30 minutes before the funeral
began. Matthew Snyder's father (Snyder), petitioner here, saw the tops of the picketers' signs when
driving to the funeral, but did not learn what was written on the signs until watching a news
broadcast later that night.
Snyder filed a diversity action against Phelps, his daughters-who participated in the picketing-and
the church (collectively Westboro) alleging, as relevant here, state tort claims of intentional
infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. A jury held Westboro
liable for millions of dollars in compensatory and punitive damages. Westboro challenged the
verdict as grossly excessive and sought judgment as a matter of law on the ground that the First
Amendment fully protected its speech. The District Court reduced the punitive damages award, but
left the verdict otherwise intact. The Fourth Circuit reversed, concluding that Westboro's statements
were entitled to First Amendment protection because those statements were on matters of public
concern, were not provably false, and were expressed solely through hyperbolic rhetoric.
Held: The First Amendment shields Westboro from tort liability for its picketing in this case.
(a)
The Free Speech Clause of the First Amendment can serve as a defense in state tort suits,
including suits for intentional infliction of emotional distress. Hustler Magazine, Inc. v.
Falwell, 485 U.S. 46, 50-51, 108 S.Ct. 876, 99 L.Ed.2d 41. Whether the First Amendment
prohibits holding Westboro liable for its speech in this case turns largely on whether that
speech is of public or private concern, as determined by all the circumstances of the case.
“[S]peech on public issues occupies the ‘ “highest rung of the hierarchy of First Amendment
values” ’ and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145, 103
S.Ct. 1684, 75 L.Ed.2d 708. Although the boundaries of what constitutes speech on matters
of public concern are not well defined, this Court has said that speech is of public concern
when it can “be fairly considered as relating to any matter of political, social, or other
concern to the community,” id., at 146, 103 S.Ct. 1684, or when it “is a subject of general
interest and of value and concern to the public,” San Diego v. Roe, 543 U.S. 77, 83-84, 125
S.Ct. 521, 160 L.Ed.2d 410. A statement's arguably “inappropriate or controversial character
... is irrelevant to the question whether it deals with a matter of public concern.” Rankin v.
McPherson, 483 U.S. 378, 387, 107 S.Ct. 2891, 97 L.Ed.2d 315.
To determine whether speech is of public or private concern, this Court must independently
examine the “ ‘content, form, and context,’ ” of the speech “ ‘as revealed by the whole
record.’ ” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761, 105 S.Ct.
2939, 86 L.Ed.2d 593. In considering content, form, and context, no factor is dispositive, and
it is necessary to evaluate all aspects of the speech.
The “content” of Westboro's signs plainly relates to public, rather than private, matters. The
placards highlighted issues of public import-the political and moral conduct of the United
States and its citizens, the fate of the Nation, homosexuality in the military, and scandals
involving the Catholic clergy-and Westboro conveyed its views on those issues in a manner
designed to reach as broad a public audience as possible. Even if a few of the signs were
viewed as containing messages related to a particular individual, that would not change the
fact that the dominant theme of Westboro's demonstration spoke to broader public issues.
The “context” of the speech-its connection with Matthew Snyder's funeral-cannot by itself
transform the nature of Westboro's speech. The signs reflected Westboro's condemnation of
much in modern society, and it cannot be argued that Westboro's use of speech on public
issues was in any way contrived to insulate a personal attack on Snyder from liability.
Westboro had been actively engaged in speaking on the subjects addressed in its picketing
35
long before it became aware of Matthew Snyder, and there can be no serious claim that the
picketing did not represent Westboro's honestly held beliefs on public issues. Westboro may
have chosen the picket location to increase publicity for its views, and its speech may have
been particularly hurtful to Snyder. That does not mean that its speech should be afforded
less than full First Amendment protection under the circumstances of this case.
That said, “ ‘[e]ven protected speech is not equally permissible in all places and at all times.’
” Frisby v. Schultz, 487 U.S. 474, 479, 108 S.Ct. 2495, 101 L.Ed.2d 420. Westboro's choice
of where and when to conduct its picketing is not beyond the Government's regulatory reachit is “subject to reasonable time, place, or manner restrictions.” *1212 Clark v. Community
for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221. The facts
here are quite different, however, both with respect to the activity being regulated and the
means of restricting those activities, from the few limited situations where the Court has
concluded that the location of targeted picketing can be properly regulated under provisions
deemed content neutral. Frisby, supra, at 477, 108 S.Ct. 2495; Madsen v. Women's Health
Center, Inc., 512 U.S. 753, 768, 114 S.Ct. 2516, 129 L.Ed.2d 593, distinguished. Maryland
now has a law restricting funeral picketing but that law was not in effect at the time of these
events, so this Court has no occasion to consider whether that law is a “reasonable time,
place, or manner restrictio[n]” under the standards announced by this Court. Clark, supra, at
293, 104 S.Ct. 3065.
The “special protection” afforded to what Westboro said, in the whole context of how and
where it chose to say it, cannot be overcome by a jury finding that the picketing was
“outrageous” for purposes of applying the state law tort of intentional infliction of emotional
distress. That would pose too great a danger that the jury would punish Westboro for its
views on matters of public concern. For all these reasons, the jury verdict imposing tort
liability on Westboro for intentional infliction of emotional distress must be set aside.
L.
(b)
Snyder also may not recover for the tort of intrusion upon seclusion. He argues that he was a
member of a captive audience at his son's funeral, but the captive audience doctrine-which
has been applied sparingly, see Rowan v. Post Office Dept., 397 U.S. 728, 736-738, 90 S.Ct.
1484, 25 L.Ed.2d 736; Frisby, supra, at 484-485, 108 S.Ct. 2495-should not be expanded to
the circumstances here. Westboro stayed well away from the memorial service, Snyder could
see no more than the tops of the picketers' signs, and there is no indication that the picketing
interfered with the funeral service itself.
(c)
Because the First Amendment bars Snyder from recovery for intentional infliction of
emotional distress or intrusion upon seclusion-the allegedly unlawful activity Westboro
conspired to accomplish-Snyder also cannot recover for civil conspiracy based on those
torts.
(d)
Westboro addressed matters of public import on public property, in a peaceful manner, in
full compliance with the guidance of local officials. It did not disrupt Mathew Snyder's
funeral, and its choice to picket at that time and place did not alter the nature of its speech.
Because this Nation has chosen to protect even hurtful speech on public issues to ensure that
public debate is not stifled, Westboro must be shielded from tort liability for its picketing in
this case.
PRIOR INCONSISTANT STATEMENTS
In The Interest of Richard D., A Juvenile, No. 4686 (Ct of Appeals) 2010
Minor appeals from the family court's denial of his directed verdict motion, arguing the State's case
was based on inadmissible evidence or evidence admitted for reasons other than to substantively
prove his guilt. We affirm. Minor was accused of robbing Wanda Izzard's home…. Izzard testified
that when she returned home she notice broken glass from one of her windows. Izzard indicated that
36
three shotguns... piggy banks… and a cigar box holding some two dollar bills and rare coins were
missing. Izzard …reported to the police information she had learned from her neighbors
…regarding who may have been involved in the robbery … told police they could obtain a copy of a
videotape from a local convenience store where money taken from her house may have been spent.
Detective Charles Lawrence testified he became involved with the investigation and an anonymous
informant from the neighborhood told him he had seen Minor and Eric, another boy implicated in
the crime, with the guns, and the guns were hidden in the woods. Detective Lawrence testified he
spoke with a cashier at a local convenience store and the cashier told him two boys had come in the
night of the robbery and spent some two dollar bills. . Detective Lawrence stated he then reviewed
surveillance video from that night and pulled still photographs showing Eric and Minor at the
store. Detective Lawrence testified he interviewed Eric at his school. … Eric indicated he was at
Izzard's home at around 8:30 p.m. the night of the robbery and served as lookout for Minor and
possibly another boy…who went inside and took three guns. Eric further stated he and Minor went
to the store and he spent one of the two dollar bills taken from Izzard's residence. The State called
Eric as a witness, who was antagonistic and contrary during his testimony. The State eventually
treated him as a hostile witness. Eric testified …when first interviewed by Detective Lawrence at
school, he drew a grid pattern on a piece of paper and Detective Lawrence threw the paper in the
trash… Detective Lawrence then put a piece of paper in front of him and told him to sign it. He
denied Minor was involved in the robbery. Eric also testified he had never told Detective Lawrence
Minor was involved. The State offered Eric's prior inconsistent statement to impeach his in-court
testimony. Over Minor's objection, the statement was admitted. Minor moved for directed verdict at
the close of the State's case, arguing the State's case hinged on evidence that could not be considered
to substantively establish Minor's guilt. The family court denied the motion, relying on Eric's
statement, his credibility on the witness stand, and the photographs from the convenience
store. Minor was convicted of all charges and this appeal followed. In State v. Copeland, the South
Carolina Supreme Court adopted the position that prior inconsistent statements, previously only used
for impeachment, could be considered as substantive evidence. Heretofore, South Carolina has
followed the traditional rule that testimony of inconsistent statements is admissible only to impeach
the credibility of the witness. Henceforth from today, we will allow testimony of prior inconsistent
statements to be used as substantive evidence when the declarant testifies at trial and is subject to
cross examination. Also informing our decision is State v. Stokes, (2009). In Stokes, the South
Carolina Supreme Court concluded the rule set forth in Copeland was not offended because at trial
the witness denied making the prior statement. The court concluded the opportunity to crossexamine the witness was the protection afforded by the Sixth Amendment and that opportunity was
provided to Stokes even though he elected not to cross-examine the witness as part of his trial
strategy. Eric's prior inconsistent statement could have been considered as substantive evidence by
the family court pursuant to the holdings in Copeland and Stokes. That statement coupled with an
evaluation of Eric's credibility at trial provided sufficient evidence to withstand Minor's directed
verdict motion.
M.
NON-TESTIMONIAL STATEMENTS (ONGOING EMERGENCY)
Michigan v. Bryant 131 S.Ct. 1143 (2011)
Around 3:25 a.m. on April 29, 2001, Detroit, Michigan police officers responded to a radio dispatch
indicating that a man had been shot. At the scene, they found the victim, Anthony Covington, lying
on the ground next to his car in a gas station parking lot. Covington had a gunshot wound to his
abdomen, appeared to be in great pain, and spoke with difficulty.
The police asked him “what had happened, who had shot him, and where the shooting had
occurred.” 483 Mich., at 143, 768 N.W.2d, at 71. Covington stated that “Rick” shot him at around 3
a.m. Id., at 136, and n. 1, 768 N.W.2d, at 67, and n. 1. He also indicated that he had a conversation
with Bryant, whom he recognized based on his voice, through the back door of Bryant's house.
37
Covington explained that when he turned to leave, he was shot through the door and then drove to
the gas station, where police found him.
Covington's conversation with the police ended within 5 to 10 minutes when emergency medical
services arrived. Covington was transported to a hospital and died within hours. The police left the
gas station after speaking with Covington, called for backup, and traveled to Bryant's house. They
did not find Bryant there but did find blood and a bullet on the back porch and an apparent bullet
hole in the back door. Police also found Covington's wallet and identification outside the house.
At respondent Richard Bryant's trial, the court admitted statements that the victim, Anthony
Covington, made to police officers who discovered him mortally wounded in a gas station parking
lot. A jury convicted Bryant of, inter alia, second-degree murder. 483 Mich. 132, 137, 768 N.W.2d
65, 67–68 (2009). On appeal, the Supreme Court of Michigan held that the Sixth Amendment's
Confrontation Clause, as explained in our decisions in Crawford v. Washington, 541 U.S. 36, 124
S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165
L.Ed.2d 224 (2006), rendered Covington's statements inadmissible testimonial hearsay, and the court
reversed Bryant's conviction. 483 Mich., at 157, 768 N.W.2d, at 79. We granted the State's petition
for a writ of certiorari to consider whether the Confrontation Clause barred the admission at trial of
Covington's statements to the police. We hold that the circumstances of the interaction between
Covington and the police objectively indicate that the “primary purpose of the interrogation” was “to
enable police assistance to meet an ongoing emergency.” Davis, 547 U.S., at 822, 126 S.Ct. 2266.
Therefore, Covington's identification and description of the shooter and the location of the shooting
were not testimonial statements, and their admission at Bryant's trial did not violate the
Confrontation Clause. We vacate the judgment of the Supreme Court of Michigan and remand.
N.
LEGISLATIVE UPDATE
1.
Section 50-26-10. This chapter may be cited as 'Chandler's Law'.
Section 50-26-20. For the purposes of this chapter, 'all-terrain vehicle' or 'ATV' means a
motorized vehicle designed primarily for off-road travel on low-pressure tires which has
three or more wheels and handle bars for steering, but does not include lawn tractors,
battery-powered children's toys, or a vehicle that is required to be licensed or titled for
highway use. The term 'ATV' includes Type I-single passenger all-terrain vehicles and Type
II-tandem passenger all-terrain vehicles.
Section 50-26-30.
(A)
It is unlawful for a parent or legal guardian of a person less than six years of age to
knowingly permit that person to operate an ATV.
(B)
It is unlawful for a parent or legal guardian of a person without a motor vehicle
driver's license and less than sixteen years of age to knowingly allow that person to
carry a passenger while operating an ATV.
(C)
As used in this section 'ANSI/SVIA' means American National Standards
Institute/Specialty Vehicle Institute of America, and 'FMVSS' means Federal Motor
Vehicle Safety Standard.
(D)
It is unlawful to remove from an ATV the manufacturer Age Restriction Warning
Label required by ANSI/SVIA.
(E)
It is unlawful for a parent or legal guardian of a person less than sixteen years of age
to knowingly allow that person to operate an ATV in violation of the Age Restriction
Warning Label affixed by the manufacturer as required by standard ANSI/SVIA 12007.
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(F)
Effective July 1, 2011, every person fifteen years old and younger who operates an
all-terrain vehicle must possess a safety certificate indicating successful completion
of 'hands-on' all-terrain vehicle safety course approved by the All-Terrain Vehicle
Safety Institute.
(G)
A person fifteen years of age or younger also may not operate, ride, or otherwise be
propelled on an all-terrain vehicle within this State unless the person wears a safety
helmet meeting standard FMVSS #218 and eye protection.
(H)
A law enforcement officer enforcing the provisions of this section in regard to
private lands must have probable cause, based on a plain view observation or
incident to an investigation resulting from an all-terrain vehicle accident, to believe a
violation of this section occurred before he may enter upon private land to charge a
violation of this section.
Section 50-26-40.
(A)
The restrictions in this section apply to operation of all-terrain vehicles on those
lands open to the public and are in addition to the requirements of Section 50-26-30.
(B)
It is unlawful to operate an all-terrain vehicle except in compliance with the local
regulations and restrictions for all-terrain vehicle operation.
(C)
A person sixteen years of age or younger who operates an all-terrain vehicle must be
accompanied by an adult.
(D)
It is unlawful to operate an all-terrain vehicle between one-half hour after sunset to
one-half hour before sunrise unless it is operated with headlights turned on.
(E)
It is unlawful to cross any watercourse on an all-terrain vehicle except at a
designated ford, crossing, bridge, or if the watercourse is bisected by a trail.
(F)
An all-terrain vehicle must have an effective muffler system in good working
condition, a USDA Forest Service approved spark arrester in good working
condition, and a brake system in good operating condition.
(G)
It is unlawful to operate an all-terrain vehicle while under the influence of alcohol or
any controlled substance.
(H)
It is unlawful to operate an all-terrain vehicle in a reckless manner.
(I)
Nothing contained in this chapter prevents the operation of an all-terrain vehicle on a
beach, or between the breakers and the shoreline of the beach, if the all-terrain
vehicle is operated in a manner approved by the entity that owns or controls the area.
Section 50-26-50. All-terrain vehicles are exempt from ad valorem personal property taxes
beginning with calendar year 2011.
Section 50-26-60. A person violating this chapter, unless otherwise specified, is guilty of a
misdemeanor and, upon conviction, must be fined not less than fifty dollars nor more than
two hundred dollars.
Section 50-26-70. This chapter does not apply to:
(1)
an owner, operator, lessor, or renter of a farm or ranch, or that person's employees,
immediate family, or household members, when operating an all-terrain vehicle
while engaged in farming, wildlife habitat management, or ranching operations;
(2)
a person using an all-terrain vehicle for hunting or trapping purposes if the person
otherwise is lawfully engaged in those activities; or
39
(3)
2.
a minor younger than sixteen years of age, but not younger than six years of age who
is operating an all-terrain vehicle under the direct visual supervision of his parent or
an individual with legal custody of the minor on private property."
Titling of All-Terrain Vehicles
Section 56-19-1010. An owner of an ATV may make application to the Department of
Motor Vehicles for a title for the vehicle accompanied by the required fee and upon the
appropriate form prescribed and furnished by the department. The application must be
accompanied by a manufacturer's certificate of origin or previous title properly assigned to
the applicant.
Section 56-19-1020. When a person who is not a licensed ATV dealer receives by purchase,
gift, trade, or by another means a vehicle that was titled in this State, the person who receives
the vehicle may make application to the department for a title. The application must be
accompanied by the required documents and fee for title. The department shall issue a
certificate of title once it has received a properly completed application. An owner of an
ATV, before the effective date of this article, who cannot provide proof of ownership, may
request an affidavit from the sheriff in the county in which he resides. The affidavit shall
state that the sheriff finds the person making application for the title is the legal owner of the
ATV. Before issuing the affidavit, the sheriff must verify through the National Crime
Information Center that the ATV is not stolen. The department shall issue a title application
to the owner upon presentation of the affidavit, application, and fee.
Section 56-19-1030. The title fee for an ATV is contained in Section 56-19-420(A). For
purposes of this article, an all-terrain vehicle (ATV) is defined as provided in Section 50-2620."
This act takes effect July 1, 2011.
3.
South Carolina Reduction of Recidivism Act of 2010 (Ben Aplin)
Juveniles and adults who are on parole or probation must consent to be searched “without a
search warrant, with or without cause” as a condition of release or probation.
Immediately before each search or seizure conducted pursuant to this section, the law
enforcement officer seeking to conduct the search or seizure must verify with the
Department of Probation, Parole and Pardon Services or by any other means available to the
officer that the individual upon whom the search or seizure will be conducted is currently on
parole or probation or that the individual is currently subject to the provisions of his
conditional release. A law enforcement officer conducting a search or seizure without a
warrant pursuant to this section shall report to the law enforcement agency that employs him
all of these searches or seizures, which shall include the name, address, age, gender, and race
or ethnicity of the person that is the subject of the search or seizure. The law enforcement
agency shall submit this information at the end of each month to the Department of
Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of
searches or seizures without a search warrant must be reported by the Department of
Probation, Parole and Pardon Services to the State Law Enforcement Division for
investigation. If the law enforcement officer fails to report each search or seizure pursuant to
this subsection, he is subject to discipline pursuant to the employing agency's policies and
procedures.
In any instance in which a law enforcement officer has failed to make the reports necessary
to the State Law Enforcement Division for warrantless searches, then in the absence of a
written policy by the employing agency enforcing the reporting requirements, the otherwise
applicable state-imposed, one-day suspension without pay applies.
40
4.
Section 56-5-2941. Penalties; installation of ignition interlock device.
(A)
Except as otherwise provided in this section, in addition to the penalties required and
authorized to be imposed against a person violating the provisions of Section
56-5-2930, 56-5-2933, or 56-5-2945, or violating the provisions of another law of
any other state that prohibits a person from driving a motor vehicle while under the
influence of alcohol or other drugs, the Department of Motor Vehicles must require
the person, if he is a subsequent offender and a resident of this State, to have
installed on any motor vehicle the person drives an ignition interlock device designed
to prevent driving of the motor vehicle if the person has consumed alcoholic
beverages. The Department of Motor Vehicles may waive the requirements of this
section if it finds that the offender has a medical condition that makes him incapable
of properly operating the installed device.
The length of time that an interlock device is required to be affixed to a motor
vehicle following the completion of a period of license suspension imposed on the
offender is two years for a second offense, three years for a third offense, and the
remainder of the offender’s life for a fourth or subsequent offense. Notwithstanding
the pleadings, for purposes of a second or a subsequent offense, the specified length
of time that an interlock device is required to be affixed to a motor vehicle is based
on the Department of Motor Vehicle’s records for offenses pursuant to Section
56-5-2930, 56-5-2933, or 56-5-2945.
(B)
If a person who is a subsequent offender and a resident of this State is convicted of
violating the provisions of a law of any other state that prohibits a person from
driving a motor vehicle while under the influence of alcohol or other drugs, and, as a
result of the conviction, the person is subject to an ignition interlock device
requirement in the other state, the person is subject to the requirements of this section
for the length of time that would have been required for an offense committed in
South Carolina, or for the length of time that is required by the other state, whichever
is longer.
(C)
If a person from another state becomes a resident of South Carolina while subject to
an ignition interlock device requirement in another state, the person may only obtain
a South Carolina driver’s license if the person enrolls in the South Carolina ignition
interlock device program pursuant to this section. The person is subject to the
requirements of this section for the length of time that would have been required for
an offense committed in South Carolina, or for the length of time that is required by
the other state, whichever is longer.
(D)
The offender shall be subject to an Interlock Device Point System managed by the
Department of Probation, Parole and Pardon Services. An offender receiving a total
of two points will have their length of time that the interlock device is required
extended by two months. An offender receiving a total of three points will have their
length of time that the interlock device is required extended by four months and must
submit to a substance abuse assessment pursuant to Section 56-5-2990 and
successfully complete the plan of education and treatment, or both, as recommended
by the certified substance abuse program. Should the individual not complete the
recommended plan, or not make progress toward completing the plan, the
Department of Motor Vehicles must suspend the individual’s driver’s license until
the plan is completed or progress is being made toward completing the plan. An
offender receiving a total of four points shall have their license suspended for a
period of one year and submit to a substance abuse assessment pursuant to Section
56-5-2990 and successfully complete the plan of education and treatment, or both, as
41
recommended by the certified substance abuse program. Completion of the plan is
mandatory as a condition of reinstatement of the person’s driving privileges. The
Department of Alcohol and Other Drug Abuse Services is responsible for notifying
the Department of Motor Vehicles of an individual’s completion and compliance
with education and treatment programs.
(E)
The cost of the interlock device must be borne by the offender. However, if the
offender believes he is indigent and cannot afford the cost of the ignition interlock
device, the offender may submit an affidavit of indigency to the Department of
Probation, Parole and Pardon Services for a determination of indigency as it pertains
to the cost of the ignition interlock device. The affidavit of indigency form must be
made publicly accessible on the Department of Probation, Parole and Pardon
Services’ Internet web site. If the Department of Probation, Parole and Pardon
Services determines that the offender is indigent as it pertains to the ignition
interlock device, it may authorize an interlock device to be affixed to the motor
vehicle and the cost of the installation and use of the ignition interlock device to be
paid for by the Interlock Device Fund managed by the Department of Probation,
Parole and Pardon Services. For purposes of this section, a person is indigent if the
person is financially unable to afford the cost of the ignition interlock device. In
making a determination whether a person is indigent, all factors concerning the
person’s financial conditions should be considered including, but not limited to,
income, debts, assets, number of dependants claimed for tax purposes, living
expenses, and family situation. A presumption that the person is indigent is created if
the person’s net family income is less than or equal to the poverty guidelines
established and revised annually by the United States Department of Health and
Human Services published in the Federal Register. “Net income” means gross
income minus deductions required by law. The determination of indigency is subject
to periodic review at the discretion of the Department of Probation, Parole and
Pardon Services.
(F)
The ignition interlock service provider must collect and remit monthly to the
Interlock Device Fund a fee as determined by the Department of Probation, Parole
and Pardon Services not to exceed three hundred sixty dollars per year for each year
the person is required to drive a vehicle with an ignition interlock device. Any
ignition service provider failing to properly remit funds to the Interlock Device Fund
may be decertified as an ignition interlock service provider by the Department of
Probation, Parole and Pardon Services. If a service provider is decertified for failing
to remit funds to the Interlock Device Fund, the cost for removal and replacement of
an ignition interlock device must be borne by the service provider.
(G)
The offender must have the interlock device inspected every sixty days to verify that
the device is affixed to the motor vehicle and properly operating, and to allow for the
preparation of an interlock device inspection report by the service provider indicating
the offender’s alcohol content at each attempt to start and running re-test during each
sixty-day period. Only a service provider authorized by the Department of
Probation, Parole and Pardon Services to perform inspections on interlock devices
may conduct inspections. The service provider immediately must report any devices
that fail inspection to the Department of Probation, Parole and Pardon Services. The
report must contain the name of the offender, identify the vehicle upon which the
failed device is installed and the reason for the failed inspection, and indicate the
offender’s alcohol content at each attempt to start and running re-test during each
sixty-day period. Failure of the offender to have the interlock device inspected every
sixty days will result in one interlock device point. Upon review of the interlock
42
device inspection report, if the report reflects that the offender attempted to start the
motor vehicle with an alcohol concentration of two one-hundredths of one percent or
more, the offender is assessed one-half interlock device point. Upon review of the
interlock device inspection report, if the report reflects that the offender violated a
running re-test by having an alcohol concentration between two one-hundredths of
one percent and less than four one-hundredths of one percent, the offender is
assessed one-half interlock device point. Upon review of the interlock device
inspection report, if the report reflects that the offender violated a running re-test by
having an alcohol concentration between four one-hundredths of one percent and less
than fifteen one-hundredths of one percent, the offender is assessed one interlock
device point. Upon review of the interlock device inspection report, if the report
reflects that the offender violated a running re-test by having an alcohol
concentration above fifteen one-hundredths of one percent, the offender is assessed
two interlock device points. An individual may appeal any interlock device points
received to an administrative hearing officer with the Department of Probation,
Parole and Pardon Services through a process established by the Department of
Probation, Parole and Pardon Services. The administrative hearing officer’s decision
on appeal shall be final and no appeal from such decision shall be allowed.
(H)
Ten years from the date of the person’s last conviction and every five years thereafter
a fourth or subsequent offender whose license has been reinstated pursuant to Section
56-1-385 may apply to the Department of Probation, Parole and Pardon Services for
removal of the ignition interlock device and the removal of the restriction from his
driver’s license. The Department of Probation, Parole and Pardon Services may, for
good cause shown, remove the device and remove the restriction from the offender’s
license.
(I)
Except as otherwise provided in this section, it is unlawful for a person issued a
driver’s license with an ignition interlock restriction to drive a motor vehicle that is
not equipped with a properly operating, certified ignition interlock device. A person
who violates this section must be punished in the manner provided by law.
(J)
An offender that is required in the course and scope of his employment to drive a
motor vehicle owned by the offender’s employer may drive his employer’s motor
vehicle without installation of an ignition interlock device, provided that the
offender’s use of the employer’s motor vehicle is solely for the employer’s business
purposes. This subsection does not apply to an offender who is self-employed or to
an offender who is employed by a business owned in whole or in part by the offender
or a member of the offender’s household or immediate family unless during the
defense of a criminal charge, the court finds that the vehicle’s ownership by the
business serves a legitimate business purpose and that titling and registration of the
vehicle by the business was not done to circumvent the intent of this section.
(K)
It is unlawful for a person to tamper with or disable, or attempt to tamper with or
disable, an ignition interlock device installed on a motor vehicle pursuant to this
section. A person who violates this subsection is guilty of a misdemeanor and, upon
conviction, must be fined not more than five hundred dollars or imprisoned not more
than thirty days, or both.
(L)
It is unlawful for a person to knowingly rent, lease, or otherwise provide an offender
with a motor vehicle without a properly operating, certified ignition interlock device.
A person who violates this subsection is guilty of a misdemeanor and, upon
conviction, must be fined not more than five hundred dollars or imprisoned not more
than thirty days, or both.
43
5.
(M)
It is unlawful for an offender to solicit or request another person, or for a person to
solicit or request another person on behalf of an offender, to engage an ignition
interlock device to start a motor vehicle with a device installed pursuant to this
section. A person who violates this subsection is guilty of a misdemeanor and, upon
conviction, must be fined not more than five hundred dollars or imprisoned not more
than thirty days, or both.
(N)
It is unlawful for another person to engage an ignition interlock device to start a
motor vehicle with a device installed pursuant to this section. A person who violates
this subsection is guilty of a misdemeanor and, upon conviction, must be fined not
more than five hundred dollars or imprisoned not more than thirty days, or both.
(O)
Only ignition interlock devices certified by the Department of Probation, Parole and
Pardon Services may be used to fulfill the requirements of this section.
(1)
The Department of Probation, Parole and Pardon Services must certify
whether a device meets the accuracy requirements and specifications
provided in guidelines or regulations adopted by the National Highway
Traffic Safety Administration, as amended from time to time. All devices
certified to be used in South Carolina must be set to prohibit the starting of a
motor vehicle when an alcohol concentration of two one-hundredths of one
percent or more is measured and all running re-tests must record violations of
an alcohol concentration of two one-hundredths of one percent or more.
(2)
The Department of Probation, Parole and Pardon Services shall maintain a
current list of certified devices and their manufacturers. The list must be
updated at least quarterly. If a particular certified device fails to continue to
meet federal requirements, the device must be decertified, may not be used
until it is compliant with federal requirements, and must be replaced with a
device that meets federal requirements. The cost for removal and replacement
must be borne by the manufacturer of the noncertified device.
(3)
Only ignition interlock installers certified by the Department of Probation,
Parole and Pardon Services may install and service ignition interlock devices
required pursuant to this section. The Department of Probation, Parole and
Pardon Services shall maintain a current list of vendors that are certified to
install the devices.
(P)
In addition to availability under the Freedom of Information Act, any Department of
Probation, Parole and Pardon Services policy concerning ignition interlock devices
must be made publicly accessible on the Department of Probation, Parole and Pardon
Service’s Internet web site.
(Q)
The Department of Probation, Parole and Pardon Services shall develop policies
including, but not limited to, the certification, use, maintenance, and operation of
ignition interlock devices and the Interlock Device Fund.
Assault and Battery (Section 16-3-600)
First degree assault and battery; person substituted for adult in certain elements
Section 1. Section 16-3-600(C) of the 1976 Code, as added by Act 273 of 2010, is amended
to read:
(C)
(1)
A person commits the offense of assault and battery in the first degree if the
person unlawfully:
(a)
injures another person, and the act:
44
(b)
(i)
involves nonconsensual touching of the private parts of a
person, either under or above clothing, with lewd and
lascivious intent; or
(ii)
occurred during the commission of a robbery, burglary,
kidnapping, or theft; or
offers or attempts to injure another person with the present ability to
do so, and the act:
(i)
is accomplished by means likely to produce death or great
bodily injury; or
(ii)
occurred during the commission of a robbery, burglary,
kidnapping, or theft.
(2)
A person who violates this subsection is guilty of a felony, and, upon
conviction, must be imprisoned for not more than ten years.
(3)
Assault and battery in the first degree is a lesser-included offense of assault
and battery of a high and aggravated nature, as defined in subsection (B)(1),
and attempted murder, as defined in Section 16-3-29.
Second degree assault and battery; person substituted for adult in certain elements
Section 2. Section 16-3-600(D) of the 1976 Code, as added by Act 273 of 2010, is amended
to read:
(D)
(1)
A person commits the offense of assault and battery in the second degree if
the person unlawfully injures another person, or offers or attempts to injure
another person with the present ability to do so, and:
(a)
moderate bodily injury to another person results or moderate bodily
injury to another person could have resulted; or
(b)
the act involves the nonconsensual touching of the private parts of a
person, either under or above clothing.
(2)
A person who violates this subsection is guilty of a misdemeanor, and, upon
conviction, must be fined not more than two thousand five hundred dollars,
or imprisoned for not more than three years, or both.
(3)
Assault and battery in the second degree is a lesser-included offense of
assault and battery in the first degree, as defined in subsection (C)(1), assault
and battery of a high and aggravated nature, as defined in subsection (B)(1),
and attempted murder, as defined in Section 16-3-29.
Effective date is June 7, 2011
III.
SUMMARY
45
BIBLIOGRAPHY
CLASS TITLE:
Legal Update 2011-2012
LESSON PLAN #:
I0221
1.
Selected case law from the United States Supreme Court.
2.
Selected case law from the South Carolina Court of Appeals.
3.
Selected case law from the South Carolina Supreme Court.
4.
The South Carolina Code of Laws.
5.
Selected case law from the Fourth Circuit United States Court of Appeals.
46
STATUS (New/Revised):
New