State v. Blassingame

• Decision Date: 06 December 1999
• Docket Number: No. 3085.,3085.
• Parties: The STATE, Respondent, v. Algin BLASSINGAME, Appellant.
• Court: South Carolina Court of Appeals

338 S.C. 240

525 S.E.2d 535

The STATE, Respondent, v. Algin BLASSINGAME, Appellant.

No. 3085.

Court of Appeals of South Carolina.

Heard November 2, 1999.

Decided December 6, 1999.

Assistant Appellate Defender Melissa J. Reed Kimbrough, of South Carolina Office of Appellate Defense, of Columbia, for appellant.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for respondent.

ANDERSON, Judge:

Algin Blassingame was convicted of kidnapping, carjacking, and armed robbery. He was sentenced, respectively, to thirty years, fifteen years concurrent, and ten years consecutive. On appeal, Blassingame argues the trial court erred in admitting into evidence a knife and the victim's pre-trial identification of him. We affirm.

FACTS/PROCEDURAL BACKGROUND

John Scarborough and employees of his janitorial business were cleaning buildings on the night of June 3, 1997. As Scarborough drove from one job site to another late that evening, a man jumped in the passenger side of his truck at a traffic light. The man pulled out a distinctive utility knife, held it to Scarborough's face, and ordered him to drive. Scarborough drove down a series of roads as directed, eventually pulling into an alley. Holding the knife under Scarborough's nose, the man told Scarborough, "Okay, I want everything you've got." Scarborough began emptying his pockets. The man pressed the knife so hard against Scarborough's skin at this time that it cut him. When the man saw Scarborough's ATM card, he announced: "We're going to the bank." The man demanded Scarborough's wedding ring and ordered him to take off his pants and shoes. After checking to make sure the pockets were empty, the man threw the clothes out the window.

Scarborough began driving again, as demanded. During the drive, the man repeatedly told Scarborough to drive faster and that if he did not have at least $200 in the bank the man would kill him. When Scarborough said he had no money in the account, the man struck him in the head three or four times. When they arrived at the ATM, the man told Scarborough if he had less than $200 in the bank the man would sexually mutilate him before cutting his throat and leaving him to die. Scarborough again told the man he had no money in the account. The man responded by moving the knife away from Scarborough's face, grabbing his arm and declaring, "I'm going to f * *k you." With the knife away from his face, Scarborough opened the door, jumped out of the truck, and ran. Scarborough ran approximately 150 yards to a pay phone and dialed 911. While on the phone with the dispatcher, Scarborough watched the man drive away in his truck.

When the police arrived, Scarborough provided a description of his truck, the perpetrator, and the knife. He described the perpetrator as a stocky black man approximately his own height, weighing about 210 pounds, with a beard and mustache. The man was wearing blue jeans, a white t-shirt, a baseball cap, and a windbreaker. The knife he had used was a fluorescent yellow utility knife with a retractable blade. The blade was scored so that a used, dull tip could be broken away to reveal a new, sharp tip. This information was radioed to dispatch which issued a "be on the lookout" alert. Shortly thereafter, an officer spotted a black man driving at a high rate of speed in a truck which appeared to be Scarborough's. Initially, the officer lost sight of the vehicle but found it, parked and abandoned, less than one minute later. The officer positively identified the vehicle by "running the tag."

Shortly after the victim's vehicle was discovered, Officer Roy Lee Godwin arrived and began searching the area on foot, looking for a suspect. In a nearby alley, Godwin encountered Blassingame walking in the opposite direction. As he and Blassingame approached one another, Godwin noticed Blassingame was a black male, approximately five feet ten inches tall, weighing about 210-220 pounds, with a beard and a mustache. He also noticed Blassingame was wearing a white t-shirt and blue jeans. The officer stopped walking and began a conversation with Blassingame. He told Blassingame police were in the area looking for a carjacking suspect. While he was talking to Blassingame, Godwin began mentally comparing the description of the carjacker to Blassingame's appearance. Noticing how well Blassingame fit the description, the officer decided to ask the man some questions about himself. When asked, Blassingame told Godwin he was coming from his sister's apartment, but he could not provide an address. This raised Officer Godwin's suspicion. He decided to pat Blassingame down because of his questionable story, his size, and because he matched the description of the "armed and dangerous suspect." Officer Godwin stated: "I advised [Blassingame] that we were looking for a carjacker who I knew was armed and dangerous and I told him I was going to pat him down for my safety and protection." Inside Blassingame's right front pocket, the officer found a fluorescent yellow utility knife matching the description of the carjacker's weapon.

After finding the knife, Officer Godwin handcuffed Blassingame and took him to the scene where the truck was found so he could be identified or ruled out as a suspect. When an officer arrived at the scene with Scarborough, Blassingame was in the back seat of a patrol car. Scarborough first identified Blassingame while the car he was arriving in was in motion and while Blassingame was in the patrol car. When Scarborough got out of the car, he identified Blassingame immediately, "with vigor and without hesitation."

Scarborough made a list of things missing from his truck, including approximately twenty dollars, his checkbook, a cellular phone, and the vacuum cleaner he used in his business. Although police found none of Scarborough's belongings on Blassingame's person, a vacuum cleaner matching the description of Scarborough's vacuum was discovered the next day on the premises of Blassingame's home.

ISSUES

I. Did the trial court err in admitting the knife into evidence?

II. Did the trial court err in admitting the pre-trial identification into evidence?

LAW/ANALYSIS

I. Motion to Suppress Knife

Blassingame argues the trial court erred in "denying defense counsel's motion to suppress evidence obtained after [Blassingame] was unlawfully stopped and frisked in violation of his rights under the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution." We disagree.

At trial, Blassingame moved to suppress the knife Officer Godwin found on his person as poisonous fruit of an improper stop and frisk. The trial court ruled the knife admissible, concluding Officer Godwin "had a reasonable suspicion that the defendant was involved in criminal activity." Upon review, we conclude the knife was properly admitted.

The United States Supreme Court recently addressed the standard of review in cases involving questions of an officer's reasonable suspicion to make a stop or probable cause to conduct a warrantless search. After conducting a review of prior case law, the Court, in Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911, 920 (1996), held "determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal." The Ornelas Court elucidated the analysis to be applied: "Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663, 134 L.Ed.2d at 920.

In State v. Rodriquez, 323 S.C. 484, 476 S.E.2d 161 (Ct.App. 1996),¹ this Court, citing Ornelas, noted appellate courts should conduct de novo reviews of trial court determinations of reasonable suspicion to make stops and probable cause to conduct warrantless searches. See also State v. Smith, 329 S.C. 550 n. 2, 495 S.E.2d 798 n. 2 (Ct.App.1998),

cert. granted, (Oct. 9, 1998), and cert. dismissed, 335 S.C. 550, 518 S.E.2d 821 (1999) (citing the Ornelas standard of review, but applying both the Ornelas standard and the traditional standard of review; noting our Supreme Court's grant of certiorari in Rodriquez); State v. Brockman, 329 S.C. 115, 494 S.E.2d 440 (Ct.App.1997),

cert. granted, (Dec. 3, 1998) (applying the Ornelas standard of review). We adopt and apply the Ornelas standard as we conduct our de novo review of the trial court's determinations of reasonable suspicion to make the stop and probable cause to conduct the warrantless search.

A police officer may stop and briefly detain and question a person for investigative purposes, without treading upon his Fourth Amendment rights, when the officer has a reasonable suspicion supported by articulable facts, short of probable cause for arrest, that the person is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Robinson, 306 S.C. 399, 412 S.E.2d 411 (1991); State v. Foster, 269 S.C. 373, 237 S.E.2d 589 (1977); State v. Fowler, 322 S.C. 263, 471 S.E.2d 706 (Ct.App.1996). The term "reasonable suspicion" requires a particularized and objective basis that would lead one to suspect another of criminal activity. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); State v. Lesley, 326 S.C. 641, 486 S.E.2d 276 (Ct.App.1997). In determining whether reasonable suspicion exists, the whole picture must be considered. United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Lesley, supra.

"If the officer's suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the...