State v. Banda

• Decision Date: 11 December 2006
• Docket Number: No. 26239.,26239.
• Citation: 639 S.E.2d 36
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Martha BANDA, Appellant.

639 S.E.2d 36

The STATE, Respondent, v. Martha BANDA, Appellant.

No. 26239.

Supreme Court of South Carolina.

Heard October 17, 2006.

Decided December 11, 2006.

COPYRIGHT MATERIAL OMITTED

Appellate Defender Robert M. Dudek, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia, and Solicitor Robert M. Ariail, of Greenville, for Respondent.

Chief Justice TOAL:

In this case, the trial court denied Appellant Martha Banda's pre-trial motions to suppress evidence and an incriminating statement she gave to police. The trial court subsequently convicted Banda for trafficking in ten grams or more of methamphetamine and sentenced her to four years imprisonment.

FACTUAL/PROCEDURAL BACKGROUND

In February 2003, Banda, a citizen of Zimbabwe,¹ was a passenger in a car stopped by the City of Greenville (Greenville) police for having stolen Georgia license tags. Earlier that evening, Greenville narcotics officers Detective Mark White (White) and Detective Melissa Lawson (Lawson) were staking out a house that a confidential informant had told them was the residence of a female drug target dealing methamphetamines, and for whom the officers had an arrest warrant. The confidential informant had arranged to purchase an "8-ball of meth" at the target's house. The informant further told police that the drugs came from a supplier in Georgia.

During the stakeout, the narcotics officers observed a car with Georgia license tags pull into the driveway of the target's residence and leave thirty to forty minutes later. Although White's testimony indicates that at this point, the officers were aware of the possibility that the deal between the confidential informant and the target had been called off, they followed the car assuming that the occupants might be going to meet with the informant anyway. As the officers continued to follow the vehicle, they realized there were two occupants: a male driver and a female passenger. White and Lawson testified that at this point, they assumed the female passenger to be their target. After learning from dispatch that the Georgia tags had been reported stolen, White and Lawson had another uniformed Greenville police officer assist them in stopping the car once it entered the city limits. Detective Conroy (Conroy), another narcotics officer assisting in the investigation of the target, also came to the scene.

Upon stopping the car, the officers requested that both the driver and passenger step out of the car. Conroy and the uniformed officer attended to the driver and subsequently handcuffed and arrested him for driving with a stolen license plate. Meanwhile, White and Lawson approached Banda on the passenger side. Although the officers immediately realized Banda was not their target when she stepped out of the car, they proceeded to question her at the scene anyway.

Detective White had his gun drawn and pointed at Banda as Lawson asked her if she had any weapons.² Banda responded she did not, but Lawson explained to Banda she was going to do a routine pat down for Lawson's own safety. During the pat down, Lawson felt an object in Banda's upper right hand coat pocket. When Lawson asked Banda what it was, Banda explained that it was her ace bandage. At the same time, Banda pulled a "loosely rolled up" bandage out of the pocket and handed it to Lawson. Lawson squeezed the bandage and felt plastic on the inside. She looked at Banda who "dropped her head" and told Lawson it was an ounce of "ice." Lawson read Banda her Miranda rights at the scene and after a further search of the vehicle, the officers took Banda back to the station where they read her Miranda rights for a second time. After waiving her Miranda rights, Banda gave the officers a written statement.

Banda made a pre-trial motion to suppress the drugs found by Lawson on the grounds that Lawson's stop and frisk was an unreasonable search and seizure. After an in camera suppression hearing in which the trial court heard testimony from Banda and Detectives White and Lawson, the court denied Banda's motion to suppress the drugs. The trial court found the police had probable cause to stop the car for the stolen tags; they had the authority to request Banda to get out of the car; and that Banda was properly frisked for weapons given the officers' reasonable suspicion of her involvement in the delivery of drugs.

Banda then made a second pre-trial motion to suppress her written statement made to the police after her arrest. Banda argued she had not been informed of her right to contact Zimbabwe's consular official as required by international treaty. The State did not deny this allegation.

The trial court found that even assuming the Greenville officers had violated the treaty, this violation did not provide adequate legal grounds to consider applying the exclusionary rule to Banda's statement. For this reason, the trial court refused to grant Banda a suppression hearing on the admissibility of her statement and denied her motion to suppress the statement. The trial court subsequently sentenced Banda to four years imprisonment.

This case was certified to this Court from the court of appeals pursuant to Rule 204(b), SCACR. Banda raises the following issues for review:

I. Did the trial court err in refusing to suppress the drugs found on Banda during a frisk for weapons pursuant to an automobile stop for a traffic violation?

II. Did the trial court err in refusing to grant a suppression hearing for Banda's written statement to police when police failed to notify the foreign consulate of Banda's arrest prior to interrogating her?

STANDARD OF REVIEW

In criminal cases, an appellate court sits to review errors of law only. Therefore, an appellate court is bound by the trial court's factual findings unless they are clearly erroneous. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). The same standard of review applies to preliminary factual findings in determining the admissibility of certain evidence in criminal cases. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001). Our review in Fourth Amendment search and seizure cases is limited to determining whether any evidence supports the trial court's finding. State v. Butler, 353 S.C. 383, 389, 577 S.E.2d 498, 500 (2003).

LAW/ANALYSIS

I. Suppression of Drugs

Banda argues that the trial court erred in refusing to suppress the drugs found in her coat during the automobile stop. We disagree.

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const., amend. IV. Temporary detention of individuals by the police during an automobile stop constitutes a "seizure" of an individual within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Therefore, an automobile stop implicates the Fourth Amendment prohibition against unreasonable searches and seizures, imposing a standard of "reasonableness" upon the exercise of discretion by state law enforcement officials. See id. at 654, 99 S.Ct. 1391. The decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 809-810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Notwithstanding multiple exceptions, evidence obtained by searches and seizures in violation of the Constitution is inadmissible in a state court. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

In this case, it is undisputed that Greenville police acted lawfully in stopping the car in which Banda was a passenger. The car displayed a stolen license tag, and the stop occurred within the Greenville city limits, which was within Greenville police jurisdiction.³ Additionally, both parties acknowledge that the Greenville police were entitled to order Banda out of the car. See Maryland v. Wilson, 519 U.S. 408, 415, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (holding that a police officer may order both the driver and passenger out of the vehicle pursuant to a valid automobile stop without violating the Fourth Amendment prohibition against unreasonable seizures). However, Banda argues that Detective Lawson did not have reasonable suspicion to search her for weapons. For this reason, Banda contends the drugs recovered during the pat down should be suppressed.

Balancing the potential intrusion on an individual's Fourth Amendment rights with the need for law enforcement officers to protect themselves and other prospective victims of violence, the United States Supreme Court held in Terry v. Ohio that a police officer must have a reasonable suspicion that a person is armed and dangerous before conducting a pat down or frisk of that person. 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). "Reasonable suspicion" of weapons requires that a reasonably prudent person under the circumstances be warranted in the belief that his safety or that of others is in danger. Id. at 27, 88 S.Ct. 1868; Butler, 353 S.C. at 390, 577 S.E.2d at 501. The Supreme Court extended the Terry doctrine to frisks pursuant to valid automobile stops for traffic violations in Pennsylvania v. Mimms, 434 U.S. 106, 111-112, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977).

We hold that under the circumstances of this case, Lawson had reasonable suspicion to frisk Banda for weapons pursuant to a valid automobile stop. This Court has recognized that because of the "indisputable nexus between drugs and guns," where an officer has reasonable suspicion that drugs are present in a vehicle⁴ lawfully stopped, there is an appropriate level of suspicion of criminal activity and apprehension of danger to justify a frisk of both the driver and the passenger...