State v. Brockman

Citation528 S.E.2d 661,339 S.C. 57
Decision Date22 February 2000
Docket NumberNo. 25069.,25069.
PartiesThe STATE, Petitioner, v. William T. BROCKMAN, Respondent.
CourtUnited States State Supreme Court of South Carolina

Attorney General Charles M. Condon, Chief Deputy, Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for petitioner.

J. Falkner Wilkes, of Meglic & Wilkes, of Greenville, for respondent.

TOAL, Justice:

In this criminal matter, we granted certiorari to review the Court of Appeals' decision in State v. Brockman, 329 S.C. 115, 494 S.E.2d 440 (Ct.App.1997). We reverse.


On December 17, 1995, Officers Fitzgerald and Crawford responded to a domestic disturbance call at the house of Sharon Peak in Greenville County. While in the house, the officers uncovered cocaine in the compartment of a moped belonging to William T. Brockman ("Defendant"). Defendant was arrested and charged with trafficking in cocaine, trafficking in crack cocaine, and two counts of possession with intent to distribute a controlled substance within proximity of a school, playground, or park. Prior to trial, defense counsel moved to suppress evidence seized by the officers without a search warrant. The trial judge conducted an in camera hearing on the motion.

At the hearing, the officers testified that when they arrived at Mrs. Peak's house, she was at home with her daughter. Mrs. Peak told the police that Defendant was her son and she had kicked him out of the house, but he kept coming back in an attempt to get his moped. Mrs. Peak and Defendant had had a violent altercation before the police arrived. The officers testified that Mrs. Peak and her daughter told them that the moped contained narcotics, and they wanted the moped out of the residence. The officers informed Mrs. Peak they could not remove the moped from the residence.

The officers eventually asked Mrs. Peak where the moped was located. She indicated it was in her basement. The officers testified Mrs. Peak invited them down into the basement to look at the moped. Once in the basement, Mrs. Peak began to pull the moped out from a laundry room. Officer Fitzgerald, noticing she was having difficulty moving the moped, assisted her in pulling it out into the light. Mrs. Peak then repeated her request that the officers take the moped and "get out." The officers again responded that they could not take the moped. Mrs. Peak then asked: "What if I go into the moped?" Officer Crawford testified that he told her: "Well that's your business. I'm not here to influence you in any way. If that's what you want to do then that's what you want to do." Mrs. Peak and her daughter attempted to go through the moped's compartments, finding them locked. Mrs. Peak obtained a screwdriver and began prying open the compartments. She opened up a storage compartment underneath the seat of the moped where she found a zip lock bag containing cocaine. The daughter threw the bag into the laundry room.1 Mrs. Peak and her daughter also uncovered a pistol in the compartment. The officers immediately secured the gun and unloaded it for their safety.

Mrs. Peak's in camera testimony differed somewhat from the officers' testimony. Mrs. Peak claimed she never told the officers that she thought the moped contained drugs. She further claimed it was at the officers' insistence that they go down to the basement to look at the moped. She stated the officers were examining the moped "very closely" while she and her daughter were prying open the compartments.

The trial judge ruled the evidence was admissible. He found the officers were credible and that Mrs. Peak's testimony did not impugn their credibility. The judge further ruled that the search was not a governmental search, stating: "I'm taking into consideration the citizen's motivation for the search or seizure and in this case it was to secure the safety of her premises and to prevent any further contact between she and her son.... I don't think that [the officers'] advice or encouragement went to the extent that it constituted a Fourth Amendment seizure or search so I would leave it as a private search." At the end of trial, the trial judge further ruled that even if it were a government search, Defendant did not have a legitimate expectation of privacy and thus, the Fourth Amendment was not implicated.

The Court of Appeals reversed the trial court, finding Mrs. Peak had no authority to give third-party consent, and her search amounted to an illegal government search for purposes of the Fourth Amendment. See State v. Brockman, 329 S.C. 115, 494 S.E.2d 440 (Ct. App.1997). We granted the State's petition for a writ of certiorari to consider the following issues:

(1) Did the Court of Appeals properly declare that the Fourth Amendment issues presented in this case should be reviewed de novo pursuant to Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)?
(2) Did the Court of Appeals correctly rule that Defendant had a legitimate expectation of privacy in the moped kept at his mother's residence?
(3) Did the Court of Appeals correctly rule that the private search constituted government action for purposes of the Fourth Amendment?

In this certiorari petition, the State presents an important procedural issue regarding the appellate standard of review in Fourth Amendment search and seizure cases. The State also presents two substantive issues which can be summarized in one general question: Did the search of Defendant's moped violate the Fourth Amendment. In addressing this general question, we will consider the State's arguments in the following manner. The first substantive issue we will address is whether Mrs. Peak and her daughter were acting as instruments or agents of the police in searching Defendant's moped. If we determine they were not, the Fourth Amendment would not be implicated, and the evidence would be admissible. See State v. Cohen, 305 S.C. 432, 409 S.E.2d 383 (1991) (holding that the Fourth Amendment does not bar a search and seizure, even an arbitrary one, effected by a private party on his own initiative). However, if we find the Peaks were acting as agents of the police, the next issue is whether Defendant had a legitimate expectation of privacy in the compartments of his moped located at his mother's house. If not, the Fourth Amendment would again not be implicated. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980) (a legitimate expectation of privacy is necessary to trigger Fourth Amendment protections). On the other hand, if Defendant did have a legitimate expectation of privacy in his moped, the search would violate the Fourth Amendment because the police failed to secure a search warrant. See State v. Bultron, 318 S.C. 323, 457 S.E.2d 616 (Ct.App.1995) (a warrantless search is per se unreasonable and thus violative of the Fourth Amendment unless the search falls within one of the exceptions to the exclusionary rule).

However, before reaching these substantive issues, we first consider the State's contention that the Court of Appeals applied an erroneous standard of review. The Court of Appeals stated it would defer to the trial court's factual findings and review them only for clear error and lack of evidentiary support, but its review would be de novo on the mixed questions of law and fact pursuant to Ornelas v. United States.2 Ascertaining the proper standard of review for Fourth Amendment issues is a puzzling endeavor for appellate courts and the attorneys who appear before them. Thus, instead of providing a routine invocation of the standard of review, we will attempt to give a concrete explanation of how exactly this Court will review the issues in this case. In doing so, we will first discuss Ornelas. Then, we will turn to the private search issue in this case and discuss our standard of review.

In Ornelas, police officers detained two men in a parking lot and searched their car. The police discovered and seized cocaine from the car. A federal magistrate judge concluded the circumstances gave the officers reasonable suspicion to conduct an investigatory stop, but not probable cause to conduct a warrantless search of the car. The district court adopted the magistrate's recommendation with respect to reasonable suspicion, but not its reasoning as to probable cause. In reviewing the district court's determinations, the Seventh Circuit Court of Appeals applied a clearly erroneous standard of review, affirming the reasonable suspicion analysis but reversing the probable cause determination. However, other circuits had in the past applied de novo review to such determinations. The United States Supreme Court granted certiorari to resolve the conflict among the circuits over the applicable standard of review.

The Court in Ornelas noted that the determination of reasonable suspicion and probable cause was a two-step process. First, a court must determine the events which occurred leading up to the stop or search. Second, the court must decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The Court in Ornelas stated that the first part of the analysis involved only a determination of historical facts, but the second was a mixed question of law and fact. See Ornelas, 517 U.S. at 696-97, 116 S.Ct. at 1662, 134 L.Ed.2d at 919.

The Ornelas Court articulated four reasons for applying de novo review to ultimate determinations of reasonable suspicion and probable cause for warrantless searches and seizures. First, sweeping deference would result in varying results among trial courts. Second, independent review was necessary to maintain control of, and to clarify the legal principles. Third, de novo review...

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