State v. Brockman

• Decision Date: 08 October 1997
• Docket Number: No. 2752,2752
• Citation: 329 S.C. 115,494 S.E.2d 440
• Parties: STATE of South Carolina, Respondent, v. William T. BROCKMAN, Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 440

494 S.E.2d 440

329 S.C. 115

STATE of South Carolina, Respondent, v. William T. BROCKMAN, Appellant.

No. 2752.

Court of Appeals of South Carolina.

Heard Oct. 8, 1997.

Decided Nov. 17, 1997.

Rehearing Denied Jan. 22, 1998.

Certiorari Granted Dec. 3, 1998.

Jeffrey Falkner Wilkes, Greenville, for appellant.

Attorney General Charles M. Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Norman Mark Rapoport, Columbia; and Solicitor Joseph J. Watson, Greenville, for respondent.

CURETON, Judge:

William T. Brockman (Brockman) appeals from his convictions for a number of drug offenses. ¹ At trial, the state introduced into evidence crack and powder cocaine which Brockman's mother and sister found when they pried open the compartment of Brockman's moped in the presence of Greenville County Sheriff's Deputies. Brockman contends his mother did not have authority to consent to a search of the moped's compartments, and argues the discovery of the drugs cannot be justified as the result of a purely private search. We hold the evidence was improperly admitted.

I. FACTS

Before trial but after jury selection, the trial court held a hearing on Brockman's motion to suppress introduction of the drugs found within the moped.

Deputy Fitzgerald testified that he and Deputy Crawford were dispatched to a residence on a domestic disturbance call, where they found Brockman's mother, Sharon Peak (Peak), as well as his sister, Audra Brockman (Audra). Fitzgerald stated Peak told the officers that while she refused to allow Brockman to live in the house because he had verbally abused and threatened her, Brockman had repeatedly returned to her house demanding his moped. ² Fitzgerald recalled that Peak then asked them to remove the moped from her property because she believed Brockman kept drugs there, but they told her they could not take the moped. Since the conversation between the women and the deputies continued to focus on the moped, Fitzgerald eventually asked to see it. Peak led the deputies down to a small laundry room, where, at Peak's request, Fitzgerald helped her pull the moped out of the dark laundry area and into the basement. According to Fitzgerald, Peak again stated the moped contained "dope" and demanded they take it, but Fitzgerald told her: "We can't do that. We don't have any reason to." Peak and Audra then pried open the moped's locked seat compartment, which contained crack, powder cocaine, and cash, as well as a small automatic pistol. The moped's keys were found in Brockman's possession after he was arrested.

Fitzgerald testified neither he nor Crawford encouraged Peak to pry open the moped. However, Fitzgerald admitted that while he knew he did not have probable cause to search the moped, he was aware Peak and Audra were searching the moped for narcotics as he watched. He also admitted Peak and Audra were breaking and entering into moped as he and his partner watched, but he stated "[the women] didn't have any intent to commit a crime."

Deputy Crawford essentially told the same story as Fitzgerald. Crawford added that Peak and Audra were not "real clear" as to why they believed drugs were in the moped. He stated that after he told Peak that the deputies could not take Brockman's moped, Peak asked if she could "go into" the moped. Crawford testified he then told Peak: "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." Crawford noted that once Audra pulled the plastic bag out of the moped, she threw it back into the laundry room. After the deputies asked Peak to retrieve the bag from the laundry room, Crawford noticed her "fumbling around" with the bag while her back was facing them. Peak then handed the deputies the bag with the cocaine, but Crawford subsequently discovered a large amount of cash that Peak had evidently removed from the plastic bag and hidden in a clothes hamper.

Crawford also stated the deputies did not direct the search in any way, and he testified, "I made it clear to [Peak] that we couldn't do anything with the moped, that if she wanted to invite us down there into the living area that we'd be glad to go but we were there only as observers." However, Crawford said they "absolutely" went to the basement to see if Peak was right about the presence of drugs in the moped.

Peak also testified at the suppression hearing, but her story differed slightly from the deputies. She testified she was not worried about drugs being within the moped, but she was concerned about removing the moped from her house so Brockman would stop coming to the house to get it. While she confirmed that the policemen did tell her they could not remove the moped, she stated that one of the officers asked to see the moped while remarking "[Brockman] must want [the moped] for something." In contrast to Fitzgerald's testimony, Peak testified, "... [Audra and I] tried to pull [the moped] out [of the laundry room] because [the deputies] wanted to--they said they couldn't see it, to pull it in the light, and that's what we did." As to the discovery of the drugs, Peak further testified:

DEFENSE ATTORNEY: And what did y'all try to do with the butter knife?

PEAK: We tried to open the key lock thing and we couldn't get it so [the deputy] asked me what was in this compartment and, you know--

DEFENSE ATTORNEY: Which compartment would that be?

PEAK: It's the seat, it was, you know, inside of the seat because we couldn't get anything else open.

DEFENSE ATTORNEY: Okay.

PEAK: And so [the deputy] asked us to pull that part and I did and when I pulled it open ... I grabbed what was in it and I threw it in the wash room and [the deputies] got the gun.

Finally, Peak testified that she was merely looking for the key so that she could move the heavy moped.

After argument, the trial court denied the motion to suppress, reasoning that Peak was not acting as an agent of the state, that she was merely attempting to remove the moped to protect her premises and prevent further contact with Brockman, and that parents have the right to control the conduct of children who live in their home. The court found the deputies' testimony credible and specifically stated: "I don't think that [Peak's] testimony in any way impugns [the deputies'] credibility."

At trial, Brockman again objected to the admission of the evidence. The trial court also denied Brockman's subsequent motions for a directed verdict and new trial.

II. STANDARD OF REVIEW

Whether evidence should be suppressed due to a Fourth Amendment violation is a question for the trial court. State v. Easterling, 257 S.C. 239, 185 S.E.2d 366 (1971). We defer to the trial court's factual findings and review them only for clear error and lack of evidentiary support, but our review is de novo on the mixed questions of law and fact under a Fourth Amendment analysis. Cf. Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996).

III. THIRD PARTY CONSENT TO SEARCH AND SEIZURE

Brockman first contends that the trial judge erred in ruling that the search was justified because Peak had control over the locked compartments of Brockman's moped as a parent and homeowner. We agree.

We initially assume for the purposes of this issue that the search of the moped was not a private search outside of the constraints of the Fourth Amendment. Thus, we analyze the issue as one of third party consent. Third party consent may validly be given by one who has common authority over or some other sufficient relationship to the premises or effects searched. State v. Moultrie, 271 S.C. 526, 248 S.E.2d 486 (1978) (citing United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). Common authority does not require common ownership, but merely " 'mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable' for the searching officers to believe that the person granting consent had the authority to do so." Moultrie, 271 S.C. at 528, 248 S.E.2d at 487 (quoting Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 n. 7). See also Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (suppression not warranted if officers had an erroneous but reasonable belief of authority to consent). The prosecution has the burden of satisfying the test. Matlock, 415 U.S. at 171-72, 94 S.Ct. at 993-94.

A. Parental Consent

In applying the principles discussed above, a number of cases from other jurisdictions have held that parents of adult children generally do not have authority to consent to the search of their child's locked bedroom, closet, or compartment to which they do not otherwise have access, even if the locked room or compartment is within the parents' house and the child lives there gratuitously. See, e.g. United States v. Block, 590 F.2d 535 (4th Cir.1978) (mother's consent insufficient for search of locked footlocker located in mother's home, where mother told police the footlocker belonged to son and she did not have a key); United States v. Butler, 495 F.Supp. 679 (E.D.Ark.1980) (father could not consent to search of bureau drawer and locked suitcase discovered in defendant's room); State v. Harris, 642 A.2d 1242 (Del.Super.Ct.1993) (defendant's mother could consent to search of defendant's locked bedroom as she had a key, but could not consent to search of locked toolbox as she did not have a key); People v. Bliey, 232 Ill.App.3d 606, 173 Ill.Dec. 856, 597 N.E.2d 830 (1992) (mother could consent to search of defendant's basement room despite his objection, as basement door was not locked and defendant did not instruct mother to keep people out of the bedroom); Perry v. State, 538 N.E.2d 950 (Ind.1989) (consent by mother was valid as evidence showed she frequently cleaned son's unlocked room and thus had equal access); Becknell...