State v. Nelson

• Decision Date: 09 August 1999
• Docket Number: No. 24984.,24984.
• Citation: 336 S.C. 186,519 S.E.2d 786
• Parties: The STATE, Respondent, v. Eric Peter NELSON, Appellant.
• Court: South Carolina Supreme Court

336 S.C. 186

519 S.E.2d 786

The STATE, Respondent, v. Eric Peter NELSON, Appellant.

No. 24984.

Supreme Court of South Carolina.

Heard May 11, 1999.

Decided August 9, 1999.

Rehearing Denied September 9, 1999.

James L. Hills, of Myrtle Beach; and Robert T. Bockman, of McNair Law Firm, PA, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, all of Columbia; and Solicitor Ralph J. Wilson, of Conway, for respondent.

PER CURIAM:

In this criminal matter, Eric Nelson ("Defendant") was convicted by a jury for driving under the influence. Defendant appeals his conviction.

FACTUAL/PROCEDURAL BACKGROUND

On April 17, 1996, Defendant was visiting a client in the Myrtle Beach area. Defendant testified that while he was speaking with his client outside of her house, his dog jumped out of the back window of his Jeep Cherokee. Defendant's dog was a full bred Weimaraner. A neighbor, Jeffrey Soles, testified that Defendant's dog began running loose in his yard and garden. Soles asked Defendant if he would remove the dog from his yard. Soles further testified: "I don't know if he cussed me but his reaction on his face seemed like he did cuss me and didn't do anything about the dog." Defendant claimed that he did not "cuss" Soles, but did yell at his dog. Soles called the police.

Defendant eventually captured his dog and left the area. Officer Mark Hadden soon thereafter arrived at the scene in response to Soles' call about Defendant's dog. After briefly speaking with Soles, the officer left in his patrol car to go find Defendant. At trial, the officer provided the following explanation for going after Defendant:

I wanted to have—generally in a situation like this I like to have both sides of the story and have both people in front of me present. I like to talk to `em and get both sides of the story. At that time I asked the complainant to stay there and I would go attempt to bring the driver of the white Jeep Cherokee back to this location where I could get both of their information, both sides of the story, so I fill out a report on the incident.

After leaving the neighbor, Officer Hadden pulled up behind Defendant's Jeep at a stop sign. The officer testified that, as he came up behind Defendant, his intention was not to make a traffic stop but just to get his attention. The officer stated he "hit his high beams several times." The officer stated that Defendant rolled through the stop sign without coming to a complete stop and then turned right at a high rate of speed. He testified that the speed limit was 25 m.p.h., and Defendant was probably doing 35 m.p.h. He heard Defendant's tires squeal as they came around the turn. The officer responded by putting on his blue lights to initiate a traffic stop.

Defendant initially refused to stop. The officer called into the station to report that Defendant was not stopping. The officer subsequently turned his siren on to get Defendant's attention. One of the officer's supervisors came over the radio and advised Officer Hadden to "back off" Defendant's vehicle. Defendant then made a left turn after traveling approximately one-tenth of a mile. The officer stated that Defendant was traveling at a high rate of speed as they approached the corner. Defendant finally came to a stop after making the turn. The officer testified "[Defendant] stopped in a manner that the vehicle slid approximately five feet, hard brakes coming out." The officer further stated Defendant stopped right in front of a group of kids who were playing in the street. The children scattered after seeing Defendant and the police car stop in front of them.

The officer approached Defendant and asked him to turn off the vehicle. Defendant was on his car phone at the time, and his dog was barking at the officer from the back seat of the vehicle. For his own safety, the officer asked Defendant to hang up the phone, turn off the car, and step to the rear of the vehicle. Defendant refused. The officer took the phone out of Defendant's hand and escorted him to the rear of the vehicle. Officer Hadden testified he smelled the odor of alcohol and asked Defendant to participate in a field sobriety test. Defendant refused. The officer testified that he placed Defendant under arrest due to Defendant's driving and the odor of alcohol.¹

Defendant was eventually taken down to the police station where he refused to take a breathalyzer test. The officer on duty testified that he smelled an odor of alcohol on Defendant. Defendant posted bond and requested a jury trial.

By letter dated August 2, 1996, the Myrtle Beach Municipal Court instructed Defendant to appear either personally or through counsel on August 21, 1996.² The notice further informed Defendant that any defendants with bonds posted, failing to appear, shall forfeit the bond and be tried in their absence. Defendant nor his attorney appeared at court on August 21. Defendant's bond was subsequently forfeited, and he was convicted without a jury for DUI.

On August 28, 1996, Defendant made a motion before the municipal court to have his conviction reopened. Defendant explained in the motion that the failure of his attorneys to appear on August 21, 1996, was "due to confusion." The municipal court granted the motion, reversed the conviction, and remanded for trial. Prior to the second proceeding, Defendant moved for a directed verdict, arguing the second trial subjected him to Double Jeopardy. Further, following the testimony of Officer Hadden, Defendant made a motion to dismiss, arguing the officer did not have probable cause or reasonable suspicion to initiate the traffic stop. The court denied the motion, and Defendant was ultimately convicted of DUI.

At trial, Defendant disputed much of Officer Hadden's testimony. Defendant claimed he did come to a complete stop at the stop sign. However, Defendant admitted having one beer at a Holiday Inn before visiting his client on April 17. Defendant further claimed that at no point was he going at a high rate of speed. Defendant stated that he did not know the police officer was following him until the officer turned on his blue lights and siren. Defendant denied stopping near any children on the road.

On January 26, 1997, Defendant appealed his conviction to circuit court. By order dated April 8, 1998, the circuit court affirmed Defendant's conviction. Defendant appeals to this Court, raising the following issues:

(1) Did the circuit court err in failing to vacate Defendant's conviction due to the fact that the arresting officer had no probable cause or reasonable suspicion to stop Defendant's vehicle?

(2) Did the circuit court err in failing to vacate Defendant's conviction pursuant to the Double Jeopardy and Due Process clauses of the United States and South Carolina Constitutions?

LAW/ANALYSIS

A. TRAFFIC STOP

Defendant argues that Officer Hadden lacked probable cause or reasonable suspicion to stop Defendant's vehicle. We disagree.

In resolving this issue, the facts must be considered in two parts. The first part includes those facts leading up to Defendant's first traffic violation, i.e., running the stop sign. The second part includes those facts ending with Defendant's arrest for DUI. Defendant argues that under the first set of facts, there was no lawful justification for making a traffic stop. This being the case, Defendant contends that any evidence gathered after that point was tainted and not admissible at trial. Defendant in effect argues the "fruit of the poisonous tree" doctrine.³

A traffic stop is a limited seizure more like an investigative detention than a custodial arrest. See Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)

. Thus, in analyzing such investigative detentions, courts employ the standard articulated by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under this standard, "a policeman who lacks probable cause but whose observations lead him reasonably to suspect that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to investigate the circumstances that provoke that suspicion." Berkemer, 468 U.S. at 439,

104 S.Ct. at 3150,

82 L.Ed.2d 317. In the instant case, Officer Hadden arrived on the scene shortly after Defendant had left with his dog. In fact, Officer Hadden passed Defendant's Jeep on the street while traveling to the complainant's residence. After briefly speaking with the complainant, Officer Hadden then left to go talk with Defendant. Assuming Defendant's conduct in letting his dog run loose could have violated some law, we believe Officer Hadden would be justified in making the stop. See McFadden v. United States, 814 F.2d 144 (3rd Cir.1987) (officer had reasonable suspicion to make traffic stop where officer arrived moments after defendant had left the hospital where defendant had allegedly trespassed). However, in their brief, the State fails to cite to any specific law or ordinance that Defendant may have violated.⁴ It was not until oral argument that the State argued Defendant's conduct in allowing his dog to run loose violated certain county ordinances. It is axiomatic that oral argument may not be used as a vehicle to argue issues not argued in the appellate brief. See Bochette v. Bochette, 300 S.C. 109, 386 S.E.2d 475 (Ct.App.1989).

However, even assuming Officer Hadden's initial attempt to stop Defendant would have violated the Fourth Amendment, Officer Hadden was nonetheless justified in making the stop after Defendant committed the subsequent traffic infractions. An automobile stop is subject to the constitutional imperative that it not be "unreasonable" under the circumstances. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). As a general matter, the decision to stop an automobile...