State v. Bash

• Decision Date: 15 March 2017
• Docket Number: Opinion No. 27692,Appellate Case No. 2015-001582
• Citation: 797 S.E.2d 721,419 S.C. 263
• Parties: The STATE, Respondent, v. Walter M. BASH, Petitioner.
• Court: South Carolina Supreme Court

419 S.C. 263

797 S.E.2d 721

The STATE, Respondent,

v.Walter M. BASH, Petitioner.

Appellate Case No. 2015-001582

Opinion No. 27692

Supreme Court of South Carolina.

Heard September 7, 2016

Refiled March 15, 2017

Appellate Defender Susan Barber Hackett, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson and Assistant Attorney General Mark Reynolds Farthing, both of Columbia; and Solicitor Scarlett Anne Wilson, of Charleston; all for Respondent.

ORDER

After careful consideration of the petition for rehearing, we grant rehearing. We dispense with further briefing and substitute the attached opinion for the previous opinion. The attached opinion clarifies the circuit court did not rely on the officers' subjective intent to determine whether the officers conducted a search and that the officers' objective purpose is the proper concern, not their subjective intent.

/s/ Donald W. Beatty C.J.

/s/ John W. Kittredge J.

/s/ John Cannon Few J.

/s/ Costa M. Pleicones A.J.

/s/ DeAndrea Benjamin A.J.

JUSTICE FEW :

Walter Bash was indicted for trafficking in cocaine and cocaine base. The circuit court found officers conducted an illegal search, and suppressed the drugs. The State appealed. The court of appeals reversed the circuit court's suppression order and remanded for trial. We issued a writ of certiorari to review the court of appeals' decision. We now reverse the court of appeals and reinstate the circuit court's order suppressing the evidence.

I. Facts and Procedural History

The Berkeley County Sheriff's Office drug enforcement unit received an anonymous tip that "drug activity" was occurring at a home on Nelson Ferry Road near Moncks Corner. An unnamed officer in the drug enforcement unit relayed the tip to Sergeant Lee Holbrook, who was patrolling the area with Sergeant Kimberly Milks. Sergeant Holbrook testified, "We were in the Moncks Corner area ..., and one of the agents ... received ... a phone call stating that there was drug activity at a particular residence, and we ... drove over there and handled it."

He explained that as they located the house they noticed some men "behind the house in a grassy area." To get to the grassy area, Sergeant Holbrook turned his vehicle off Nelson Ferry Road onto a public dirt road called Shine Bash Lane that ran along the side of the property where the house was located. Sergeant Holbrook testified, "As we travelled down ... Shine Bash, there were several [men] standing ... by this little shed, and there was a pickup truck pulled in onto the grass area." The "small utility shed" was just outside a fence surrounding the home. Sergeant Milks testified "as we go down Shine Bash Lane, there's a tree that you can see through [into] the yard" where she saw a pickup truck and three men. The officers pulled off of Shine Bash Lane onto the property, approximately twenty feet from the grassy area where the men were standing.

The officers exited the car. Sergeant Milks testified there were two men by a grill and a third man at the back of the truck. Sergeant Holbrook testified one of the men "thr[ew] down ... what appeared to be cocaine," and "almost instantly" afterward, a fourth man opened the passenger door of the truck and ran into the nearby woods. Sergeant Milks and several other officers chased the man while Sergeant Holbrook detained the men remaining in the grassy area. This group included Bash, who got out of the driver's side of the truck. After detaining the men, Sergeant Holbrook looked through the window of Bash's truck to see "if there [were] other individuals in that truck hiding." He saw "in plain view what appeared to be cocaine weighing scales" and "cocaine base." Sergeant Holbrook arrested Bash. A grand jury subsequently indicted him for trafficking "four hundred grams or more" of cocaine in violation of subsection 44-53-370(e)(2)(e) of the South Carolina Code (Supp. 2016), and trafficking "ten grams or more, but less than twenty-eight grams" of cocaine base in violation of subsection 44-53-375(C)(1) of the South Carolina Code (Supp. 2016).

Prior to trial, Bash moved to suppress the drugs. He argued the police violated the Fourth Amendment of the United States Constitution by entering the curtilage of the home without a warrant to conduct a search. The circuit court granted Bash's motion. The court of appeals reversed the circuit court's decision to suppress the evidence. State v. Bash , 412 S.C. 420, 772 S.E.2d 537 (Ct. App. 2015). We granted Bash's petition for certiorari.

II. Fourth Amendment

The people's right under the Fourth Amendment to "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," U.S. CONST. amend. IV, "extends ... to ... the curtilage of the home," State v. Herring , 387 S.C. 201, 209, 692 S.E.2d 490, 494 (2009) (citing United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987) and Rogers v. Pendleton, 249 F.3d 279, 287 (4th Cir. 2001) ). "Warrantless searches and seizures are unreasonable absent a recognized exception to the warrant requirement." State v. Wright , 391 S.C. 436, 442, 706 S.E.2d 324, 327 (2011) (citing Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290, 298-99 (1978) ).

"On appeals from a motion to suppress based on Fourth Amendment grounds, ... this Court reviews questions of law de novo." State v. Adams , 409 S.C. 641, 647, 763 S.E.2d 341, 344 (2014). As to a circuit court's finding of fact, we must affirm "if there is any evidence to support it," and "may reverse only for clear error." State v. Brown , 401 S.C. 82, 87, 736 S.E.2d 263, 265 (2012).

III. Curtilage

The circuit court ruled the grassy area where Bash and the other men were standing when the officers approached them was part of the curtilage of the home.¹ The curtilage of a home is "the land immediately surrounding and associated with the home" and is "part of the home itself for Fourth Amendment purposes." Oliver v. United States , 466 U.S. 170, 180, 104 S.Ct. 1735, 1742, 80 L.Ed.2d 214, 225 (1984). As we have stated, curtilage can include "outbuildings, yard around dwelling, garden." State v. Wiggins , 330 S.C. 538, 548 n.15, 500 S.E.2d 489, 494 n.15 (1998) (discussing curtilage in the context of the duty to retreat under the law of self-defense (citing 40 Am. Jur. 2d Homicide § 168 (1968) )); see also79 C.J.S. Searches § 34 (2006) ("The curtilage is defined by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. It is the area to which extends the intimate activity associated with the sanctity of a person's home and the privacies of life. The primary focus is whether the area harbors those intimate activities associated with domestic life and the privacies of the home." (footnotes omitted)).

We find there is evidence in the record to support the circuit court's determination that the grassy area was within the curtilage of the home. First, both Sergeant Holbrook and Sergeant Milks described the grassy area as part of the "backyard" or "yard area." The grassy area included a grill, and Sergeant Milks testified that when she got out of the vehicle she "saw the two [men] over by the grill." The use of a grill is an activity closely associated with the use of a home.² The area also included a shed, and the area was located only a few feet from a fence surrounding the home. In the short distance between the fence and the grassy area, there was a clothes line.³ Additionally, Shine Bash Lane—though a public road—is a short dirt road that reaches only a few residences. It runs very close to the home and comes to a dead end on the property where the home sits. Large trees line the side of the road between Shine Bash Lane and the home. These trees continue past the shed and partially block sight from the road to the grassy area where the men were standing. Sergeant Milks testified she had to look through a tree to see into the yard from Shine Bash Lane.⁴ Finally, the circuit court had before it numerous photographs showing the house, the yard, and the extent to which the grassy area was connected to the home and concealed from public view.

The State points out the Supreme Court of the United States has identified four factors courts should consider in deciding whether an area is part of the curtilage of a home, citing Dunn , 480 U.S. at 301, 107 S.Ct. at 1139, 94 L.Ed.2d at 334-35. The Dunn court stated:

Drawing upon the Court's own cases and the cumulative experience of the lower courts that have grappled with the task of defining the extent of a home's curtilage, we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

Id. The State argues "the circuit court judge did not appear to have considered any of the factors." However, the record indicates the circuit court was aware of and did consider Dunn . Near the end of the hearing, the State cited Dunn and offered to provide a copy of it to the court. The circuit court immediately responded, "I have it."

In Dunn , the Supreme Court stated "these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration—whether the area in question is so intimately tied to the home itself that it should be placed under the home's ‘umbrella’ of Fourth Amendment protection." 480 U.S. at 301, 107 S.Ct. at 1140, 94 L.Ed.2d at 335 ; see also United States v. Jackson , 728 F.3d 367, 373-74 (4th Cir. 2013) (stating the Supreme Court "cautioned" for the limited use of the Dunn factors). While the circuit court should have made findings as to the Dunn factors,⁵ we find the court's analysis was...