State v. Burton

• Decision Date: 25 March 2002
• Docket Number: No. 3466.,3466.
• Citation: 349 S.C. 430,562 S.E.2d 668
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Kenneth Andrew BURTON, Appellant.

349 S.C. 430

562 S.E.2d 668

The STATE, Respondent, v. Kenneth Andrew BURTON, Appellant.

No. 3466.

Court of Appeals of South Carolina.

Heard March 5, 2002.

Decided March 25, 2002.

Rehearing Denied May 15, 2002.

Senior Assistant Appellate Defender Wanda H. Haile, of the 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 Robert E. Bogan, and Senior Assistant Attorney

General Charles H. Richardson, all of Columbia; and Solicitor W. Townes Jones, IV, of Greenwood, for respondent.

ANDERSON, J.

Kenneth Andrew Burton appeals his convictions for resisting arrest, pointing and presenting a firearm, and assault on a police officer while resisting arrest. Burton raises two issues on appeal.¹ We reverse, finding the trial court erred in denying Burton's motion for a directed verdict.

FACTS/PROCEDURAL BACKGROUND

Three Laurens city police officers and an officer from the Honea Path Police Department stopped at the Green Street Mini-Mart store in Laurens during a routine warrant team operation. They had several outstanding warrants and were attempting to find the named individuals to serve them. The officers parked their cars and began individually asking persons in the store's parking lot to produce picture identification. They did not have photographs of the individuals named in the warrants, so they relied on the cooperation of those they encountered to show their identification voluntarily.

Detective Tracey Burke, a five-year veteran of the Laurens Police Department, was in "plain-clothes" that day, but he wore a black bullet-proof vest with the word "POLICE" written on it in large, white letters. Detective Burke approached Burton, who was standing at a pay telephone booth with his right hand in his coat pocket and his left hand holding the telephone receiver to his right ear. As he approached, Detective Burke asked Burton for his identification. Burton did not comply or otherwise respond. Detective Burke repeated his request several times, but Burton remained silent. Burton's right hand remained in his pocket throughout the encounter. Detective Burke asked Burton to remove his hand from his pocket. Burton did not comply with this request either. Detective Burke repeated the request. Burton again failed to comply. Detective Burke moved behind Burton, reached around him, and thrust his hand into Burton's coat pocket. As soon as Burke touched Burton's hand inside the coat pocket, Burton jerked his right shoulder back against Burke and fought with him. Detective Burke grabbed Burton and the two fell to the ground in a struggle. As the two fought, Lieutenant David King of the Honea Path Police Department spotted the handle of a gun coming out of Burton's coat pocket. Lieutenant King yelled "gun" and the other officers raced to assist Detective Burke. Still on the ground, Burton raised up on his left side, pointed the gun at Detective Burke, and pulled the trigger several times. The gun, however, did not fire. A round had jammed in the chamber. The officers seized the gun, subdued Burton, and placed him in handcuffs.

Sergeant Levester Hill and Officer Gerald Deal of the Laurens Police Department arrived on the scene to assist in the matter. Burton continued to struggle and shout obscenities at the officers while awaiting transport to the police station. Because Burton would not wait calmly, Sergeant Hill and Officer Deal placed him on his stomach on the ground. Burton, who was bleeding at the mouth, then appeared ready to spit on Sergeant Hill. Sergeant Hill warned Burton not to spit on him. Burton then turned his head and spit in Officer Deal's direction. As Burton spat, Officer Deal backed away from Burton; nevertheless, Burton's bloody spittle landed on Officer Deal's boot. Officer Deal testified at trial that Burton's actions did not result in injury or make him fearful because the spittle did not make contact with his skin.

Burton was charged with and convicted of the federal offense of unlawful possession of a firearm by a felon in federal district court. The federal district court sentenced Burton to 115 months imprisonment.

Burton was indicted in state court by the Laurens County Grand Jury for assaulting Detective Burke while resisting arrest (Count I); assault with a deadly weapon with the intent to kill Detective Burke (Count II); assaulting Officer Deal while resisting arrest (Count III); and assault with the intent to kill Officer Deal (Count IV). At trial, Burton proceeded pro se and moved for a directed verdict on all four counts. The trial judge directed a verdict for Burton on Count IV, finding there was no evidence to support the charge. The trial judge denied Burton's directed verdict motions as to the remaining charges. The judge, however, agreed to charge the jury with the lesser offense of resisting arrest on Counts I and III and pointing and presenting a firearm for Count II.

Burton was convicted of resisting Detective Burke's arrest, pointing and presenting a firearm, and assault on Officer Deal while resisting arrest. The trial court sentenced Burton to a total of eight years imprisonment to be served concurrently with his federal imprisonment.²

ISSUE

Did the trial court err in denying Burton's motions for directed verdict because law enforcement did not have "reasonable suspicion" to frisk?

LAW/ANALYSIS

Burton argues the trial court should have directed a verdict on all of the charges against him because they were the product of an improper Terry³ stop. We agree.

Detective Burke testified at trial he approached Burton because he noticed Burton speaking on the pay phone and wanted to ask Burton for identification. Detective Burke was not aware whether Burton's name was on the outstanding warrant list. Burke became suspicious of Burton because Burton did not respond to the officer's questions or comply with the request to remove his hand from his coat pocket. Burke testified he reached into Burton's pocket because Burton would not respond to the questions and was fearful that Burton could have had a beer, drugs, or a weapon in his pocket. When questioned at trial regarding why he believed Burton's pocket contained beer, drugs, or a gun, Burke stated:

Yes sir. Because prior to us going to Green Street Mini Mart, we ran up on a lot of individuals and we would ask for I.D. and each one of those individuals cooperated with us. I mean, they told us who they was. If they had an I.D. card on them, they handed us an I.D. card. We looked at it, identified them, and they went on their way. We had no problem with anybody else until we ran up on you and at that point with a hand stuck inside of your coat and no response from you, then yes, we was kind of fearful for our safety and everybody else's, too.

The Fourth Amendment of the United States Constitution—applicable to the states through the Fourteenth Amendment—guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amends. IV & XIV; State v. Woodruff, 344 S.C. 537, 544 S.E.2d 290 (Ct.App.2001), cert. denied; see also Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891) ("No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.").

"[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen...." Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991) (citation omitted); see also Immigration & Naturalization Serv. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) (recognizing that law enforcement officers may question citizens without implicating Fourth Amendment protections); Terry v. Ohio, 392 U.S. 1, 34, 88 S.Ct. 1868, 1886, 20 L.Ed.2d 889 (1968) (White, J., concurring) ("There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets. Absent special circumstances, the person approached may not be detained or frisked but may refuse to cooperate and go on his way."); State v. Foster, 269 S.C. 373, 379, 237 S.E.2d 589, 591-92 (1977) (quoting Terry, recognizing that a law enforcement officer's addressing questions to citizen on the street does not bring the Fourth Amendment into play); State v. Rodriquez, 323 S.C. 484, 491, 476 S.E.2d 161, 165 (Ct.App.1996) ("In determining whether an encounter between a law enforcement official and a citizen constitutes a seizure, and thereby implicates Fourth Amendment protection, the correct inquiry is whether, considering all of the circumstances surrounding the encounter, a reasonable person would have believed he was not free to leave. So long as the person approached and questioned remains free to disregard the officer's questions and walk away, no intrusion upon the person's liberty or privacy has taken place and, therefore, no constitutional justification for the encounter is necessary.") (citations omitted).

The authority of a police officer to initiate such "police-citizen encounters" is the same as, but no greater than, the authority of an ordinary citizen to approach another on the street and ask questions. Terry v. Ohio, 392 U.S. 1, 32, 88 S.Ct. 1868, 1885, 20 L.Ed.2d 889 (1968) (Harlan, J., concurring). Notwithstanding a law enforcement officer's position of authority, a citizen approached in this manner has the right to "ignore his interrogator and walk away." Id. at 32-33, 88 S.Ct. at 1885-86.

An individual's refusal to...