South Carolina Criminal Defense Blog

In State v. Jackson, decided October 5, 2011, the S.C. Court of Appeals reversed Jackson's conviction for possession with intent to distribute marijuana and held that the trial court should have granted a directed verdict, where Jackson was a passenger in a vehicle, the officer testified that he smelled marijuana in the car and that the passenger's and driver's answers to his questions were not "real accurate," they could not give the officer a location where they were coming from or traveling to, a drug dog alerted on the vehicle, and four bags of marijuana were found hidden in the plastic housing of the gear shifter under the center console. Jackson testified that the driver and Jackson's son were friends, and that the driver was giving Jackson a ride because Jackson did not have a driver's license.

Although the State contends the center console was centrally located and thus within Jackson's dominion and control, Officer Montjoy testified the marijuana was "[u]nder the center console where the gear shifter is, the plastic housing there." Jackson did not own or rent the car; Davy provided it and was driving it. Additionally, Jackson and Davy had only met once previously, at Jackson's grandchild's birthday party. Although Officer Montjoy testified he smelled marijuana as soon as he approached the vehicle, an officer testified likewise in Brown. However, in Brown when officers found a large opaque bag containing eight pounds of marijuana on the rear floorboard, an officer's testimony he smelled marijuana and testimony the passenger was nervous were not enough evidence for the State's case to survive the passenger's directed verdict motion. Further, in Blue the officer testified the passenger made a shoulder dip and the gun was found under his seat in the car. However, this was not sufficient to sustain the passenger's conviction. Here, the evidence against Jackson is even less than in either Brown or Blue. The drugs were more out of sight, and the State presented no evidence that Jackson was nervous or made any suspicious movements. Accordingly, the State failed to present sufficient circumstantial evidence of knowledge to submit the case to the jury. Thus, the trial court erred in denying Jackson's motion for a directed verdict.

The Court is referring to United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992) and State v. Brown, 267 S.C. 311, 315, 227 S.E.2d 674, 676 (1976). In Brown, the facts that Brown

was a passenger in a car on a deserted rural road about 1:00 A.M., that [the driver] had an undetermined sum of cash in a large roll, that Brown was nervous and had no identification, that there was a smell of marijuana in the car, and that there was a large opaque bag containing eight pounds of marijuana on the rear floorboard. [The driver] knew Brown's name as Chuck Brown and Brown told [the driver] to be quiet when [the driver] started to admit the crime,

were insufficient to withstand a motion for directed verdict.

In Blue , evidence was presented that

a police officer conducting nighttime surveillance of a house for possible illegal drug activity saw two men leave the house and enter a parked car on the street. The officer pulled the car over in a well-lit area to investigate a seatbelt violation. Id. While approaching the car, the officer saw the shoulder of the passenger "dip as if the passenger were reaching under the seat with his right hand." Id. After the driver and passenger exited the car, the officer searched the passenger for any weapons and "discovered a needle, a syringe, and a small amount of heroin, and therefore placed [the passenger] under arrest." Id. A consensual search of the car revealed a loaded gun under the passenger seat. Id. Both the driver and the passenger denied knowledge or ownership of the gun. Id. The car did not belong to the passenger, and no evidence was presented that the passenger had been in the carbefore.

The Fourth Circuit held in Blue that this was insufficient evidence to support the passenger's conviction for possession of the handgun.

Whether it is drugs, guns, or another type of contraband, there are two types of possession: actual possession and construction possession. Actual possession is when someone is found with the drugs on their person, in their hand, in their pocket, etc. Construction possession is when the drugs are not actually on the person, but they are found nearby - it usually arises in a house or in a car - when the drugs are not actually found on a person, the state must prove 1) dominion and control, or the right to exercise dominion and control, over the drugs (ownership, in a loose sense); and 2) knowledge that the drugs are there.

The Court of Appeals dodged the second issue raised on appeal in Jackson, which was whether the cop was full of s*** in proposing that his reasonable suspicion for the stop was that the driver was traveling 55 miles per hour, where the speed limit was 60 and the minimum was 45. The officer testified that the average speed of the other cars was 70 to 75 miles per hour, and that the other cars were lined up behind Jackson's vehicle to pass it.

The trial court found that

56-5-1560 of the South Carolina Code (2006) does not reference speed limits and states that no person should drive a vehicle at such a slow speed to impede the normal and reasonable flow of traffic. The trial court noted the testimony was that the vehicle was traveling in the center lane with a long line of traffic behind it and being passed on both sides. The trial court found the officer had probable cause to stop the car based on the statute.

So, according to the trial judge, the driver was violating the law by not speeding, and therefore causing other speeding drivers to go around him. If you don't speed, you are violating the law and the officer can pull you over. If you do speed . . .

In State v. Burgess, decided August 17, 2011, the S.C. Court of Appeals affirmed Burgess' convictions for trafficking in crack cocaine, possession with intent to distribute (PWID) cocaine, PWID ecstasy and possession of marijuana, affirming the trial court's determination that the officer had reasonable suspicion to stop Burgess' vehicle:

We find the evidence in the record supports the trial court's determination that Lutz had reasonable suspicion to stop Burgess. At the time Lutz activated his blue lights, Lutz was aware the Hardee's parking lot was a known meeting location for drug sales and had personal knowledge of frequent complaints of drug activity in the parking lot. Lutz observed the Jeep parked at the back of the parking lot. Its occupants were not eating and appeared to be waiting for someone. Lutz observed Burgess enter the parking lot and park haphazardly. The passenger from the Jeep entered the rear passenger seat of Burgess's car with his hand extended while Burgess looked in his direction. The events in Burgess's car lasted fifteen seconds.

The Fourth Circuit Court of Appeals pointed out in U.S. v. Foster and U.S. v. Digiovanni that they are concerned "about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity." Compare the facts cited in Burgess to those in Foster:

As Detective Ragland, in plain clothes, walked towards his unmarked police vehicle, he noticed a young black male sitting in the driver’s seat of an SUV with his hands on the steering wheel. Detective Ragland saw the man’s mouth move, but could not make out what he was saying. He then witnessed a second black male sit up in the passenger seat from a crouching position. The detective recognized the second individual as David Foster, Defendant-Appellant. Detective Ragland knew Foster because he had previously dated Foster’s cousin, and he had arrested Foster in the past for driving with a revoked license. He was also aware that Foster had been arrested at one point for a marijuana-related crime.

I don't see how the facts that are cited in Burgess are any more inherently suspicious than those that were cited in Foster - in both cases, it is clearly conduct that is subject to multiple interpretations and both are examples of an officer using "whatever facts are present, no matter how innocent, as indicia of suspicious activity."

Foster was decided in March of 2011, and Digiovanni was decided in July of 2011 - both Burgess and Morris were decided by the S.C. Court of Appeals in August of 2011, and were briefed and argued well before the Fourth Circuit released the Foster and Digiovanni opinions. If the S.C. Supreme Court were to grant cert on either or both of these opinions, they would be more than justified in reversing in light of Foster, Digiovanni, and other recent decisions. "Anything goes" is not and should not be the state of the law when it comes to violations of the Fourth Amendment.

The one that said, "anything goes" is no longer the state of the law when it comes to roadside Fourth Amendment violations. Particularly when the officer's testimony is clearly b.s. and flies in the face of logic. In State v. Morris, decided August 17, the S.C. Court of Appeals affirmed the trial court's decision not to suppress drugs from a roadside stop, where the stated probable cause was that the officer smelled marijuana, although his drug dog did not smell marijuana, and that there were Philly blunts inside the car. Cigars and tobacco.

What is the problem? The officers walked a K-9 around the car twice, and it did not alert. Both driver and passenger were searched and no drugs were found. They asked to leave. One of the officers then says he could have sworn he smelled marijuana, so they searched the car but did not find drugs. They then searched the trunk, and found marijuana and ecstacy in the trunk of the car.

The Court of Appeals is supposed to give deference to the findings of the trial judge - if any evidence exists to support the trial judge's findings, the Court of Appeals should affirm. But implicit in accepting the officer's testimony that he smelled marijuana is the finding that the officer's nose is more perceptive than that of a trained K-9, which simply defies logic. Apart from the officer's assertion that he smelled marijuana where the trained K-9 did not, the only fact stated that would support probable cause is the presence of Philly blunts and tobacco in the car.

There is also the distinction between the smell of burning marijuana and packaged, raw marijuana, which was ignored in this case. The officer in this case stated that he smelled burnt marijuana, and yet what was found was packaged, raw marijuana. Which has a very different odor. And which even the trained drug dog could not smell in this instance.

There seems to be a clear trend on the part of our appellate courts, 4th Circuit and the S.C. Supreme Court, reflected in the recent Foster, Digiovanni, and Tindall decisions, to no longer blindly accept any statement of probable cause that an officer manufactures after the fact, a trend to no longer allow the ends to justify the means when it comes to invasion of the Fourth Amendment on the side of the roads.

This was a terrible decision, without support in reality. I hope that the S.C. Supreme Court grants cert and takes the opportunity to affirm that "anything goes" is not the state of the law when it comes to roadside stops.

In U.S. v. Digiovanni, decided July 25, 2011, the 4th Circuit Court of Appeals affirmed a district court's suppression of drugs based on an unreasonable detention during a traffic stop, holding that the detention exceeded the scope of the traffic stop and that the consent to search was not voluntary.

1) was the traffic stop justified - in this case, the Court found that it was a valid stop for following too closely; and 2) were the officer's subsequent actions reasonably related in scope to the circumstances that justified the stop. In the context of a traffic stop, the officer can detain the driver long enough to request a driver’s license and vehicle registration, run a computer check, and issue a ticket. If the officer wants to hold the driver longer, there needs to be a reasonable suspicion of criminal activity or valid consent.

An officer can ask questions that are unrelated to the purpose of writing a ticket for a traffic violation, but not when the unrelated questioning impermissibly extends the duration of the traffic stop, or "where the police officer 'definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation' or where the unrelated questions 'constituted the bulk of the interaction' between the police officer and the defendant."

In this case, the officer launched into questions unrelated to the traffic stop that were extensive and time-consuming, concerning the defendant's travel plans and the presence of drugs, and it was clear that the officer was conducting a drug investigation and not a traffic-violation investigation. The officer did not even begin the license check until ten minutes into the encounter (the entire length of detention was 15 minutes).

There was no reasonable suspicion to justify the prolonged detention. The officer's reasonable suspicion included:

(1) the car was rented; (2) the car was coming from a known drug source state (Florida); (3) the car was traveling on I-95, a known drug corridor; (4) the car was clean; (5) two shirts were hanging in the rear passenger compartment; (6) there was a hygiene bag on the back seat; (7) Digiovanni’s hands were trembling when he handed over his driver’s license and the rental contract; (6) during the travel history questions, instead of answering the question, "[s]o you’re coming from Florida?," with a "yes," Digiovanni replied, "I have property in Florida"; (8) Digiovanni’s travel itinerary; and (9) Digiovanni’s "oh boy" comment.

The court points out that, as they expressed recently in U.S. v. Foster, they are concerned "about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity," and that the officer's stated reasons for reasonable suspicion are not inherently suspicious at all. (I would point out that the reason the Government tends to put forward whatever facts are present, no matter how innocent, as evidence of reasonable suspicion is because they are used to Courts accepting whatever explanation they give, no matter how absurd.)

The Court also holds that the government did not meet it's burden of proving by a preponderance of the evidence that the consent to search given by the defendant was voluntary. The officer's false implication that the defendant was bound by consent he had given earlier in the encounter, the officer telling the defendant to "hold on a second" after telling him he was free to go, the extensive questioning concerning drugs during an illegal seizure, the close proximity of the officer, and the officer's authoritative demeanor support the district court's finding that the consent was not voluntary.

Bloggers and commenters have been crying that the Fourth Amendment Sky is falling since Kentucky v. King was decided on May 16, 2011. A series of commenters and bloggers have wailed about how the Supreme Court ruled that the smell of pot now allows police to kick your door in, which is something that this case absolutely did not hold. For example:

- On Monday, the U.S. Supreme Court ruled that cops can sniff out marijuana just as well as trained drug dogs

- Supreme Court eviscerates Fourth Amendment over marijuana smell.

- Supreme Court carpet bombs Fourth Amendment

- Supreme Court looks at smell based home searches for pot

All of them are wrong, and I'm guessing none have actually read the opinion. The sky is not falling. Kentucky v. King simply and only held that where the police violate or threaten to violate the Fourth Amendment prior to the existence of exigent circumstances, a warrantless search violates the Fourth Amendment. Please, if you don't believe it, read to the end. Read the opinion to the end, and/ or this blog post.

The rule is that police cannot enter a home without a search warrant. One of many exceptions to the rule is that if "exigent circumstances" exist, the police may enter a home without a warrant. For example, to prevent injury to someone, to render aid to an injured person, to follow a suspect while in "hot pursuit," or to prevent the occupants from destroying evidence. But then, there is the "police-created exigent circumstances" exception to the "exigent circumstances" exception to the search warrant requirement. If police create the exigent circumstances themselves, then the exigent circumstances exception to the search warrant requirement does not apply. That's what the issue is in Kentucky v. King.

The question is whether police created the exigent circumstances themselves by knocking on the door and announcing "police!" The Kentucky Supreme Court said that they did and therefore the warrantless entry was unconstitutional, because the officers "demanded" entry - an act that at best would result in a coerced consent to enter the apartment. If there is no warrant and there are no real exigent circumstances to enter the apartment, the only thing the police can legally do is knock and "request" entry to the apartment - they have no authority to "demand' entry.

Officers watched a controlled deal/ drug buy take place in a parking lot, followed the dealer into an apartment complex, and were confronted with two doors, one to the left and one to the right. The dealer had gone into the apartment on the right, but the officers smelled pot smoke coming from the apartment on the left, so they went to that door instead. They beat on the door "as loud as [they] could," and yelled "police, police, police." After beating on the door and yelling, they heard people moving inside and so, believing that the people inside were destroying evidence, they kicked the door in. After kicking the door in, they found three people inside, one of whom was smoking marijuana.

The Kentucky Supreme Court assumed for the sake of argument that exigent circumstances existed, bypassing the question of whether the sound of someone moving inside = evidence being destroyed. The Kentucky Supreme Court held that, assuming there were exigent circumstances, the police created those circumstances themselves - it was reasonably foreseeable that if the police knocked on the door and yelled "police" that the people inside would destroy evidence. The U.S. Supreme Court disagreed.

Therefore, the answer to the question before us is that the exigent circumstances rule justifies a warrantless search when the conduct of the police preceding the exigency is reasonable in the same sense. Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.

Basically, officers have not created exigent circumstances if they acted in a lawful manner. It is an objective test, and not a subjective test - bad faith intent to get around the warrant requirement on the part of the officers is not required.

The Court rejects tests formulated by lower courts that turn on whether it was reasonably foreseeable that exigent circumstances would be created - for example, it does not matter if the police know that by knocking on a door and yelling "police," people are likely to begin destroying evidence. If the police are not acting unlawfully, and if there are exigent circumstances, they may enter the home.

The Court rejects a requirement that police stop and go get a warrant once probable cause is established - police can knock, talk to the occupants, and request consent to search instead. If exigent circumstances develop, police may enter. The Court also rejects any requirement that police conduct be in conformity with best practices or department policies.

The Court further rejects the idea that police create an exigency when they “engage in conduct that would cause a reasonable person to believe that entry is imminent and inevitable.” Police can knock and/or yell as loud as they want. Alito explains, in typical sheltered-rich-kid Alito fashion, that:

unless police officers identify themselves loudly enough, occupants may not know who is at their doorstep. Officers are permitted—indeed, encouraged—to identify themselves to citizens, and “in many circumstances this is cause for assurance, not discomfort.” United States v. Drayton, 536 U. S. 194, 204 (2002). Citizens who are startled by an unexpected knock on the door or by the sight of unknown persons in plain clothes on their doorstep may be relieved to learn that these persons are police officers.

The Court does not decide whether the facts of this case (the sound of people moving inside) constituted exigent circumstances, and points out that the Kentucky Supreme Court did not sound convinced. The Kentucky Supreme Court is to decide this issue on remand.

The Court does not hold that police "demanding" entry to the home is not police-created exigent circumstances. In fact, it probably is. The Court ignores the finding of the trial court that police "demanded" entry, and holds only that where police knock and announce their presence, this is not a police-created exigency. The State Court is to decide the issue of whether the police "demanded" entry, on remand.

The Court does not hold in this case that police may enter a home without a warrant when they smell marijuana. The fact that officers stated they smelled marijuana is recited in the facts of the case, but it does not play into the Court's analysis anywhere. It's simply not a part of the Court's decision at all.

The Court's holding in this case is that, where an exigency exists (without finding that an exigency did or did not exist in this case), if the police did not violate or threaten to violate the Fourth Amendment prior the exigency, the exigency justifies a warrantless entry and search. A more direct way of putting this is to say, where the police violate or threaten to violate the Fourth Amendment prior to the existence of exigent circumstances, a warrantless search violates the Fourth Amendment.

Since I am late in reading this case, here's some other commentary worth reading:

Scott Greenfield also realizes that the case is not about the smell of marijuana:

The Supremes have spoken, and when the decision is penned by Justice Sam Alito, it's not a great sign. But Kentucky v. King could have been worse. It also could have been better. Some of the commentary, taken from writings about the decision rather than the decision itself, have demonstrated a rank misapprehension of what the decision says.

The issue was limited: What police conduct constitutes the unlawful creation of exigent circumstances such that the police cannot lawfully enter a residence without a warrant.

Brian Tannebaum notes the ridiculousness of the Court's distinguishing between knocking/announcing and "demanding" entry:

Respondent argues that the officers "demanded" entry to the apartment, but he has not pointed to any evidence in the record that supports this assertion.

The only evidence being the banging on the door. Why would anyone think that people with guns banging on a door were demanding entrance?

The criminal defense bar knows where this case goes. We'll be hearing new and different things in drug cases. The "noises" of drugs being destroyed will become a staple of the direct examination in response to the 16th "what happened next."

The opinion never discussed what the "noises" of marijuana being destroyed sounds like.

I trust it will be defined by the totality of the circumstances.

Orin Kerr at Volokh Conspiracy also points out the Court's passing over of the lower court's finding that the police "demanded" entry, and points out that this case is to be decided on remand, not by the U.S. Supreme Court's opinion.

Josh Blackman has an excellent article asking why something like the potential for destruction of evidence, as opposed to an exigent circumstance where someone is actually in danger, should justify doing away with the Fourth Amendment warrant requirement:

Now, the obvious answer is that it makes it more difficult for the state to prosecute the crime, and put the bad guy behind bars. But, so what? What “right” does the government have to evidence. I suppose destruction of evidence could be a crime, but my question, more broadly, is why a constitutional right is limited in these cases.

The government has no right to prosecute someone. The state does not have rights, it has power. Only people have rights. That power is constrained by the rights guaranteed by the Constitution. Exceptions to those powers based on those rights are just that, exceptions.

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.

On July 21st, 2006, attorney Greg Schubert was walking on a sidewalk in the City of Springfield, Massachusetts, when officer J.B. Stern jumped from his police car with drawn gun pointed at Schubert's face. Schubert was lawfully carrying a pistol under his suit jacket (and wearing a suit and carrying a briefcase) and the officer saw the pistol. Although Schubert produced his concealed weapon permit, the officer detained Schubert anyway - making him stand in the road in front of the police car and then placing him in the backseat of the police car - while the officer tried to verify that Schubert's permit was valid. Ultimately the officer released Schubert but kept his pistol and his permit.

Schubert brought a 1983 action against the city and the officer for violation of his Fourth and Fourteenth Amendment rights (for detaining him unlawfully). The Massachusetts District Court granted summary judgment to the City and the officer (held that as a matter of law Schubert could not sue over what happened to him), and on December 23rd the First Circuit upheld the District Court's grant of summary judgment.

The First Circuit held that, as a matter of law, it is acceptable for an officer to point a gun at an attorney's face for carrying a concealed weapon, to detain him after he showed his identification and concealed carry permit to the officer, and to take the attorney's gun and permit.

Balko had a link to a critical article at the Examiner, and I was fairly incensed until I read the entire opinion. My final response is rather watered down after finding that the lawyer sued based on his detention but never pleaded a violation of his Second Amendment right to bear arms.

A 1983 claim must plead a violation of a constitutional right - in this case the lawyer pled a violation of his Fourth Amendment right to be free from unreasonable detention but did not mention the violation of his Second Amendment right to bear arms. I still disagree with the Court - once the lawyer showed the officer his permit that should have been it. The detention past that point was unlawful and the failure to return the pistol and license was theft.

Pointing a gun at the lawyer's face was extreme under the circumstances, but as the Court says the officer has a right to take measures to protect himself and the officer is in the best position to decide what is necessary. It makes the cop an asshole in this case, but I don't see where it is actionable, at least up to the point where the officer realized that Schubert had a permit.

Given the Court's language and the tone of the opinion, I think if Schubert had pled a violation of the Second Amendment the Court still would have granted summary judgment, but Schubert would have had a stronger position and better chance at taking the appeal further.

The general rule in 1983 actions, or any lawsuit against the government, is that the government wins. If the court can find any reason to shut down the lawsuit it will (imagine that - the government ruling in favor of the government). Although the First Circuit used the failure to plead the Second Amendment as an excuse to dodge the issues in the case, the opinion is a lesson on pleading police abuse cases - most 1983 actions are based on one of the first ten amendments (the Bill of Rights), and it will most likely be 1,2,4,5,6, or 8. Before filing your complaint, it is easy enough to count them on your fingers and make sure you did not miss something. If there is a gun involved in your case, there is a clue.