South Carolina Criminal Defense Blog

In State v. Brown, decided June 14, the S.C. Court of Appeals overturned an Horry County conviction for trafficking cocaine on Fourth Amendment grounds, based on the rule in Arizona v. Gant, that the search incident to arrest exception to the warrant requirement:

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 (2009) (limiting New York v. Belton, 453 U.S. 454 (1981) and Thornton v. U.S., 541 U.S. 615 (2004)).

In this case, a Myrtle Beach police officer stopped a car when he saw the passenger holding what he believed to be a beer can - it was a beer can, and the officer took the passenger out of the car and cuffed him. The officer then went back and searched a duffle bag that was in the passenger floorboard, finding cocaine inside it.

In isolation, this is a straightforward application of Gant - the officer was not searching for evidence of the open container violation inside the duffle bag, and once the passenger was secured there was no danger that he would access any potential weapons inside the bag. What makes this case exceptional is the Court's analysis of the inevitable discovery rule and the inventory exception.

It turned out that the driver had a suspended driver's license, and he was arrested as well. It may follow that, if the car was on the side of the road (as opposed to in a driveway as in Gant), the car would be towed, once towed an inventory search would be conducted, and therefore the inevitable discovery rule would apply so that the drugs in Brown's case would not be excluded. But, the Court notes that the burden is on the State to prove by a preponderance of the evidence that an inventory search would have been conducted and the evidence would have inevitably been discovered - this can't just be presumed:

The State provided very scant testimony, at best, that the duffel bag or car would have been taken into police custody after Brown and the driver were arrested.[3] Although commonsense dictates the police would have done exactly this, we are confined by the law that the prosecution bears the burden to establish by a preponderance of the evidence that the evidence would inevitably have been discovered. Nix, 467 U.S. at 443-44. Additionally, police must follow standard procedures to conduct an inventory search and no such testimony was presented. Thus, we conclude the inevitable discovery doctrine does not apply and the trial court erred by failing to exclude the evidence. See State v. Grant, 174 S.C. 195, 177 S.E.2d 148, 149 (1934) ("The right of people to go about their business without being subjected to undue search and seizure . . . by the authorities of the law . . . . are essential to an orderly government."). Consequently, we reverse Brown's conviction and vacate his sentence.

South Carolina's first clear interpretation of Arizona v. Gant and all is well - we'll have to wait and see if the S.C. Supreme Court takes the case and what they do with it.

Via Injustice Newsfeed:

A Richland County Sheriff's deputy is suspended without pay after being charged with driving under the influence (DUI).

Another Richland County Sheriff's deputy causes a traffic accident while speeding (in a county vehicle and not responding to a call), sending an elderly woman and her teenage grandson to the hospital.

A Chesterfield County Deputy is suspended without pay for three days, but remains on the job after punching an inmate and breaking his nose. The inmate insulted the deputy's daughter.

Greenville County Sheriff's Office is being sued along with former deputy Brian Douglas Tollison (fired following the incident) and three other deputies, for allegedly using excessive force by repeatedly punching a teenager in the face during an arrest. Tollison has been charged criminally with assault and battery of a high and aggravated nature.

Two more Greenville police officers are sentenced to three years probation last month after pleading guilty to civil rights violations in federal court - one was charged with slamming a suspect onto his car so hard that it left a dent, and the other with poking a deaf, mute, homeless man and then pouring hand sanitizer on his head.

A Clinton, S.C. police officer is sentenced to 6 months of prison after pleading guilty to "misconduct in office." The misconduct involved forcing a woman to give him oral sex in exchange for not arresting her after finding drugs in her purse.

We need to keep talking about the war on drugs, the damage that it is doing, and why it has failed:

The failure of the war on drugs is a recurring topic on many criminal defense and political blogs, to the point where those of us who read blogs were probably bored with the news long ago. But the madness continues, the insane government spending, the mandatory minimum sentences that fill our prisons and destroy lives, the drug task forces who seem to become the most corrupt across the country, our nation's/ government's/ law enforcement's addiction to drugs is not slowing down one bit. Politicians are not going to change their "hard on crime" stance until the voting public is educated on the failure of the war on drugs, so we need to keep blogging and keep talking about it until change happens.

The Agitator, and The Nation, give us a transcript of President Nixon speaking with Art Linkletter, giving us a window into the origins of our nation's drug policies:

The transcripts show Linkletter telling Nixon, “There’s a great difference between alcohol and marijuana.”

Nixon replies: “What is it?” The president wants to know!

“When people smoke marijuana,” Linkletter explains, “they smoke it to get high. In every case, when most people drink, they drink to be sociable.”

“That’s right, that’s right,” Nixon says. “A person does not drink to get drunk. . . . A person drinks to have fun.”

Then Nixon turns to the global history of drinking and using drugs. “I have seen the countries of Asia and the Middle East, portions of Latin America, and I have seen what drugs have done to those countries,” he says. ”Everybody knows what it’s done to the Chinese, the Indians are hopeless anyway, the Burmese. . . . they’ve all gone down.”

Nixon continues, “Why the hell are those Communists so hard on drugs? Well why they’re so hard on drugs is because, uh, they love to booze. I mean, the Russians, they drink pretty good. . . . but they don’t allow any drugs.”

“And look at the north countries,” Nixon continued. “The Swedes drink too much, the Finns drink too much, the British have always been heavy boozers and all the rest, but uh, and the Irish of course the most, uh, but uh, on the other hand, they survive as strong races.”

Linkletter says “That’s right.”

Nixon comes to his main point about the “drug societies:” they “inevitably come apart.”

Linkletter adds, “They lose motivation. No discipline.”

Nixon gets the last word: “At least with liquor, I don’t lose motivation.”

And Popehat has the latest in the endless series of botched drug raids + target practice on the family pet - officers execute a search warrant on suspect's grandmother's house although her grandson has not lived there for 12 years, shoot her dog after promising not to harm it if she put it in the bathroom, and then claim fortune cookie wrappers are drug baggies:

According to a comment on last year's post about the prosecutor, police, and judge who are being prosecuted in Detroit for conspiracy to commit perjury, the Michigan Supreme Court has agreed to hear Aceval's appeal and the prosecution against the officials is going forward:

This is a 6-16-10 update to the 3-24-09 and 2-12-10 posting on your site regarding the Michigan criminal cases of People v Aceval, a drug trial completely tainted by a judge-prosecutor-police perjury conspiracy, and of People v Mary Waterstone, Karen Plants, et al, the prosecution filed 3-25-09 by the Michigan Attorney General’s Office against the involved public officials, the People v Aceval judge [Wayne County, Michigan, Circuit Judge Mary Waterstone], prosecutor [Wayne County Prosecutor’s Office Drug Unit Chief, Karen Plants] and two City of Inkster, Michigan police officers.

Lightning strikes, hallaleujah! The Michigan Supreme Court has granted reconsideration of the 9-25-10 3-3 denial of the Application For Leave To Appeal and the case will be fully considered on oral argument within the next 60 days or so.

The high court also denied Judge Waterstone's appeal of the right of the Michigan Attorney General's Office to prosecute her, and the judge, prosecutor and police officers will proceed to preliminary examination in the near future.

Thanks to socially-conscious sites such as yours that kept public scrutiny on the case, and made the prosecution of these public officials, and the continuing fight to set aside the corruptly-obtained conviction that resulted from their actions, so visible!

There are more details at David Moffitt's website, and there is a Michigan State Bar Association Litigation Section Journal article that discusses the case (towards the end of the last article).

More on courts attempting to chill effective advocacy: In Minnesota, District Judge Gregory Galler has ordered defense attorney David McCormick to give a written apology to a police officer for suggesting that the officer was less than truthful during cross-examination in a DUI trial.

Galler ordered McCormick to write an apology to the officer for "impugning the officer's integrity," according to court documents.

McCormick refused, missing Galler's original deadline, which passed Tuesday. On Wednesday, Galler indefinitely extended the deadline and notified McCormick through his lawyer, John Brink, whom McCormick hired in case the judge held him in contempt of court.

McCormick said he's preparing to file a motion seeking to have a new hearing on his client's drunken driving case, with a new judge. McCormick claims Galler was "biased in favor of the police witness" and must recuse himself.

Reached in his Stillwater chambers, Galler confirmed that he "might have" ordered the apology and asked, "How has that become a story?" When told the demand seemed unusual, Galler said, "Not really." He declined to comment further.

The first thing, for those not familiar with the obligations of defense counsel, is that it is the defense lawyer's job to question the integrity of witnesses during cross examination. My experience, contrary to what the public wants to believe, is that police officers will lie on the stand. If I am calling him or her a liar in front of the jury, odds are I may be right. But what if the officer is being completely truthful? Consider the words of Justice White in U.S. v. Wade (1967):

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Until this week, when the S.C. Supreme Court held that the City of Myrtle Beach's anti-motorcycle ordinances were unenforceable, there were signs at the city limits that read "Helmet Required" - I noticed today the signs are still up, but they've been replaced:

"Defense lawyers," more often than not, go far out of their way to protect themselves and their reputation when they are called as witnesses in post conviction relief hearings, and are quite content to help keep their former client in prison. Some common testimony that I hear:

"He told me that he was guilty." (why the hell would you testify to this?)

"I gave him a fair trial, that is what my job is and nothing more." (you are wrong)

"I can't remember what my advice to him was, but I always tell my clients [it is their choice to testify or not; it is their choice whether they plead guilty or not; etc.]." (if you don't remember, you don't remember, don't ad-lib to make sure your former client loses his hearing)

I have had some PCR hearings where the attorney-witness is open and truthful, and it is refreshing. The problem is that the most common claim made in a PCR petition is ineffective assistance of counsel - we are claiming that the defense lawyer's performance was so bad that it fell below the minimum standards required by the Constitution. No one wants to look bad. But - your duty to your client does not end after they have been convicted. If you screwed up, admit it - it's not about how you look, it's about your client sitting in prison because you f***ed up their case.

You still have a duty of loyalty and of confidentiality to that client - confidentiality is waived in the context of PCR only to the extent necessary to (truthfully) respond to the allegations of ineffective assistance. In most circumstances, testifying that "my client told me he was guilty" goes far beyond what is necessary to respond to the allegations. What you are saying is: "he was guilty, he told me he was guilty, so what's the big deal?"

I handled a recent PCR hearing based on an attorney's incorrect advice regarding immigration consequences (the client, a legal resident, was deported after his attorney advised him to plead guilty to an aggravated felony). Prior to the hearing, the attorney told me that he advised the client that he would not be deported unless he received a year in prison (wrong); later he told the state's attorney that he advised the client that he would probably not be deported unless he got time in prison (wrong).

At the hearing, the attorney would not give a straight answer, instead rambling about how guilty the client was, how the client admitted his guilt to him, how strong the evidence was against his client, everything under the sun except answering the very direct question, "did you advise him that he would not be deported." There is no shame in not understanding immigration consequences to a guilty plea. There is no possibility that you are going to be sued for your mistake. You are not going to be disciplined. But you are determined to not look bad - in the process of trying to make yourself look good you are causing your client to remain separated from his family, a country and thousands of miles apart.

And you did not save face, by the way. You came across on the stand as someone who does not care for your clients, someone who is dishonest, and someone who does not investigate before advising your clients to plead guilty.

PCR proceedings are not a personal attack on the defense lawyer. They are a necessary part of the process that ensures we are afforded a fair trial that at least meets the minimum standards required by the Constitution.

Earlier this week, the South Carolina Supreme Court released its decision on Myrtle Beach's motorcycle ordinances - the laws are invalid because they are pre-empted by state law.

n S.C. Code Ann. § 56-5-30 (2009) the General Assembly authorized local authorities to act in the field of traffic regulation if the ordinance does not conflict with the provisions of the Uniform Traffic Act. Even assuming, as the City contends, that the Helmet Ordinance does not conflict with the Uniform Traffic Act, we find that the ordinance may not stand as the need for uniformity is plainly evident in the regulation of motorcycle helmets and eyewear. Were local authorities allowed to enforce individual helmet ordinances, riders would need to familiarize themselves with the various ordinances in advance of a trip, so as to ensure compliance. Riders opting not to wear helmets or eyewear in other areas of the state would be obliged to carry the equipment with them if they intended to pass through a city with a helmet ordinance. Moreover, local authorities might enact ordinances imposing additional and even conflicting equipment requirements. Such burdens would unduly limit a citizen's freedom of movement throughout the State. Consequently, the Helmet Ordinance must fail under the doctrine of implied preemption.

Myrtle Beach City Council's attempt to harass bikers and kick them out of town = fail. How about we refund the money for all of the tickets that have been paid, now? And reimburse motorcyclists for the time that they spent on the side of the road getting hassled by the police during bike week? Because you knew, from the beginning, that these ordinances were unconstitutional?