State v. Brannon, 3387.

• Decision Date: 10 September 2001
• Docket Number: No. 3387.,3387.
• Citation: 552 S.E.2d 773,347 S.C. 85
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Lazarus M. BRANNON and Joe Nathan Mayberry, Appellants.

347 S.C. 85

552 S.E.2d 773

The STATE, Respondent, v. Lazarus M. BRANNON and Joe Nathan Mayberry, Appellants.

No. 3387.

Court of Appeals of South Carolina.

Heard June 4, 2001.

Decided September 10, 2001.

Assistant Appellate Defender Robert M. Pachak, of SC Office of Appellate Defense, of Columbia, for appellants.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Robert E. Bogan, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Holman C. Gossett, of Spartanburg, for respondent.

HUFF, J.:

Lazarus M. Brannon and Joe Nathan Mayberry appeal from their convictions for trafficking in crack cocaine. Both were sentenced to twenty-five years imprisonment and a $50,000.00 fine. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On the evening of January 15, 1999, Agent Darrell Duncan of the Cherokee County Sheriff's Department received information from a confidential reliable informant that Brannon was driving to New Jersey to pick up a quantity of crack cocaine. Duncan testified he had received information from the informant before, all information he previously received from the informant had been reliable, and he had obtained a conviction for trafficking based on the informant's information. Duncan stated he could not recall whether the confidential informant told him he received this information from Brannon or from a woman named Cat, who was unknown to Duncan.

The following night, Agent Duncan received a telephone call from a woman who identified herself only as Cat. She informed Deputy Duncan that Brannon and "Joe Cool" would be driving back to Cherokee County at approximately 9:00 that night, on highway 1-85, with a quantity of cocaine in their car. Cat described the car to Deputy Duncan and gave him the tag number. She stated the cocaine was in the trunk of the car, hidden under the carpet, and she had observed them placing the drugs there. Duncan had never before received information from Cat, and he considered it to be an anonymous tip. Officer David Parker, assigned at that time to the Metro Narcotics Unit of the Gaffney Police Department, testified he knew the car in question from a previous narcotics investigation involving Brannon. Agent Duncan ran the tag number and found it was registered to Brannon.

Based on the information they received, Agent Duncan and Officer Parker estimated a time of arrival and set up surveillance in an unmarked vehicle on 1-85, just inside the South Carolina border. At approximately 8:00 a.m., they made visual contact with the vehicle in which Brannon and Mayberry were riding. Officer Parker, who was driving the unmarked car, testified the vehicle sped up upon passing their car, although he did not know how fast it was going. The officers began following the car, and the driver took the first exit in South Carolina. The driver then pulled into and parked at a Wendy's restaurant parking lot.

Brannon and Mayberry got out of the vehicle and began walking toward the Wendy's restaurant. The pair were acting nervous, jumping out of the vehicle quickly and walking away at a fast pace with their heads down. When the officers asked to talk to them, Brannon and Mayberry kept walking. Because of the pair's behavior, and the fact they had information Brannon and Mayberry would possibly try to run, the officers immediately intercepted them, placed them in handcuffs and read them their Miranda rights. A few other officers arrived on the scene. Officer Parker told Brannon and Mayberry he had information they had narcotics in the vehicle, and asked Brannon for his written consent to a vehicular search. Brannon acquiesced. A search of the trunk of the vehicle revealed two soap boxes containing over five ounces of crack cocaine under the carpet.

At trial, Brannon moved to suppress all evidence seized from the vehicle and all statements made during the detention on the ground his immediate detention and handcuffing resulted in an involuntary consent to search. Mayberry specifically declined to join in the motion. The trial court denied the motion to suppress, finding Brannon's consent to search the vehicle was voluntarily given.

ISSUE

The only issue raised on appeal is whether the trial court erred in refusing to suppress the crack cocaine and statements made by Brannon and Mayberry.

LAW/ANALYSIS

I. Mayberry's Appeal

As an initial matter, we note the issue challenged on appeal is not preserved for review in regard to Mayberry. Mayberry neither raised the issue at trial nor joined in Brannon's motion to suppress. See State v. Carriker, 269 S.C. 553, 555, 238 S.E.2d 678, 678 (1977)

(appellant may not bootstrap an issue for appeal by way of a co-defendant's objection). In fact, Mayberry conceded at trial he had no standing to contest the admission of the evidence on this basis. See State v. Benton, 338 S.C. 151, 156-57, 526 S.E.2d 228, 231 (2000) (an issue conceded in the trial court cannot be argued on appeal).

II. Brannon's Appeal

On appeal, Brannon contends the trial judge erred in failing to suppress the evidence seized and subsequent statements made because "he was detained and handcuffed before ever giving `consent' to search." We disagree.¹

The admission of such evidence is within the sound discretion of the trial judge whose ruling will not be disturbed on appeal absent an abuse of discretion. State v. Dorce, 320 S.C. 480, 483, 465 S.E.2d 772, 773 (Ct.App.1995). In criminal cases, this court sits to review errors of law only, and we are bound by the trial court's factual findings unless they are clearly erroneous. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001). The appellate court does not re-evaluate the facts, but simply determines whether the trial judge's ruling is supported by any evidence. Id.

Whether a consent to search was voluntary or the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of the circumstances. The State bears the burden of establishing voluntariness of the consent. State v. Dorce, 320 S.C. at 482, 465 S.E.2d at 773; State v. Wallace, 269 S.C. 547, 550, 238 S.E.2d 675, 676 (1977) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The "totality of the circumstances" test applies whether the consent was given in a noncustodial or custodial situation. Wallace, 269 S.C. at 550,238 S.E.2d at 676. In a custodial situation, the custodial setting is a factor to be considered in determining whether consent was voluntarily given. Id. at 552, 238 S.E.2d at 677. Custody alone, however, is not enough in itself to demonstrate a coerced consent to search. See United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598 (1976)

(no involuntary consent shown where defendant was arrested and in custody, but consent was given while on a public street and not in confines of a police station, he was given his Miranda warnings, and he was cautioned the results of the search of his car could be used against him); see also Wallace, 269 S.C. at 552,

238 S.E.2d at 677 (custody itself is not enough to invalidate a consent search).

Considering the "totality of the circumstances" in this case, we find no abuse of discretion in the trial judge's finding that Brannon's consent was voluntarily given. While he was clearly in custody at the time consent was given, custody alone does not vitiate a consent for search. There is no evidence of any overt act or threat of force against Brannon, nor promises made or any other form of coercion. Further, it is undisputed Brannon was given his Miranda warnings prior to executing the written consent. We therefore find there was evidence to support the trial judge's ruling.

For the foregoing reasons, appellants' convictions are

AFFIRMED.

SHULER, J., concurs.

ANDERSON, J., concurring in result only in a separate opinion.

ANDERSON, J. (concurring in result only):

I respectfully concur in result only. I disagree with the reasoning and analysis of the majority. The reliance by the majority on the consent given by Brannon is unnecessary. I do not deal with the issue of consent because the principle of "probable cause" is dispositive. This case presents the quintessential "probable cause" conundrum.

I. WARRANTLESS SEARCH

Generally, a warrantless search is per se unreasonable and violates the Fourth Amendment prohibition against unreasonable searches and seizures. State v. Dupree, 319 S.C. 454, 462 S.E.2d 279 (1995). However, a warrantless search will withstand constitutional scrutiny where the search falls within one of several well recognized exceptions to the warrant requirement. Dupree, 319 S.C. at 456, 462 S.E.2d at 281; State v. Bailey, 276 S.C. 32, 274 S.E.2d 913 (1981). These exceptions include: (1) search incident to a lawful arrest; (2) "hot pursuit"; (3) stop and frisk; (4) automobile exception; (5) "plain view" doctrine; (6) consent; and (7) abandonment. Dupree, 319 S.C. at 456-57, 462 S.E.2d at 281. The burden of establishing probable cause and the existence of circumstances constituting an exception to the general prohibition against warrantless searches is upon the prosecution. State v. Bultron, 318 S.C. 323, 457 S.E.2d 616 (Ct.App.1995). See also Dupree, 319 S.C. at 456,

462 S.E.2d at 281 (burden is upon State to justify warrantless search).

II. AUTOMOBILE EXCEPTION TO WARRANT REQUIREMENT

A warrantless search of a vehicle may be made if (1) there is probable cause to believe the vehicle contains evidence of a crime; and (2) there are exigent circumstances arising out of the mobility of the vehicle and its consequently likely disappearance if the search is not executed immediately. This is commonly referred to as the Carroll Doctrine. See Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 283-84, 69 L.Ed. 543, 549 (1925)

(holding "the true rule is that if the search and seizure without a warrant...