State v. Butler

Decision Date24 February 2003
Docket NumberNo. 3601.,3601.
Citation353 S.C. 383,577 S.E.2d 498
PartiesThe STATE, Respondent, v. Charles BUTLER, Appellant.
CourtSouth Carolina Court of Appeals

Assistant Appellant Defender Robert M. Dudek and Assistant Appellate Defender Tara S. Taggart, both of Columbia, for appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson and Senior Assistant Attorney General Norman M. Rapoport, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for respondent.

PER CURIAM:

Charles Butler was indicted for trafficking in cocaine and unlawful possession of a pistol. A jury convicted him of both charges and the trial court sentenced him to ten years imprisonment for trafficking in cocaine and three years imprisonment for unlawful possession of a pistol. Butler appeals arguing the trial court erred in denying his motion to suppress the evidence obtained as a result of an unlawful search. We reverse and remand.

FACTUAL/PROCEDURAL BACKGROUND

Officer Todd Cook testified that on the evening of February 23, 2000, he stopped a van because the vehicle had no taillights. The driver exited the van and he and Officer Cook walked to the rear of the vehicle. Cook stated that, as he was writing out a warning ticket to the driver for defective rear lights, he could smell an odor of alcohol coming from the driver. He asked the driver whether there was anything inside the van he needed to know about, such as "illegal contraband" (sic) or any alcohol. Cook stated that he had a suspicion that there was some alcohol in the van because he could smell it on the driver and stated, "for my safety and his safety I just wanted to check, make sure nothing illegal— anything else was going on with the traffic stop." Additionally, Officer Cook testified "when he [the driver] was walking towards me from the van, I smelled alcohol." He could not tell if the alcohol was coming from the driver or inside the van, but he suspected there was alcohol in the van. Cook proceeded to the passenger side of the van to get "the passenger out." Butler was the passenger he removed from the van. Officer Cook also indicated there were additional passengers in the back seat of the van.

Butler objected to admissibility of the evidence Officer Cook obtained as a result of the stop and subsequent search of Butler. The trial court excused the jury and conducted an in camera hearing.

During the in camera hearing, Officer Cook testified as follows during direct examination:

Q: Trooper, why did you get the individuals that were inside the van out?
A: For my protection and their protection.
Q: What were you going to do when you got them out?
A: Do a routine pat down.
Q: A pat down?
A: Yes.
Q: Terry frisk, okay. Did you check the passenger? Did you attempt to check the passenger for weapons or a weapon?
A: Yes sir, I did.
Q: What happened after you attempted to check for weapons?
A: The passenger, Mr. Butler fled on foot.
Q: What was the result of your check of him or your pat down of him?
A: Just his outer clothes.
* * *
Q: What did you do and what did you find? Did you feel anything?
A: Yes, sir. During my pat down I patted down the pocket and outside the pocket, and I felt what felt like to be a pistol. And at that time, he took off running.
* * *
Q: [Y]ou got the individuals out for a pat down because there were other ones there?
A: Yeah.
Q: Okay.
A: I had suspicion that there was alcohol in the van from the traffic stop.

During cross-examination of Officer Cook, he testified as follows:

Q: [W]as [Butler] doing anything wrong, that you could see, in the van ... when he was sitting there?
A: Well, I was in the process of investigating.
Q: But was he doing anything wrong to cause you to investigate him, sit down in the front seat?
A: I mean—
Q: What was he doing but sitting there?
A: Well, you know, I smelled alcohol. I thought it was coming from inside the van, and that's what—if that's what you're asking me.
Q: What was this man doing?
A: I was investigating further.

When asked on re-direct why he removed Butler from the van, Officer Cook indicated that the driver had given him an incorrect name for the passenger, and that there were "a lot of suspicions going on." Officer Cook stated that he could not see what Butler was doing inside the van and when asked why that was a danger he stated: "Because the driver, when I asked the driver about the alcohol, if there's anything in the van, he stated to me no, there was not, and he gave me the passenger—or a different name than what the passenger's real name was." He further stated that in order to ascertain whether anybody in the van had a weapon or was a threat to him he had to "[g]et each one of them out and talk to them and pat them down."

Butler argued Officer Cook did not have reasonable suspicion to conduct a search of Butler, and moved to suppress any evidence which resulted from the search. The trial court determined that Officer Cook "was entitled to at least ask the passengers to vacate the van and do a pat down search before" using his flashlight to look in the van because he had a "reasonable suspicion of criminal activity, i.e., the smell of alcohol." The trial court further stated he didn't think Officer Cook was afraid of Butler, but believed Cook conducted the pat down search as part of his continuing investigation for open containers in the van. The court therefore ruled the officer had a reasonable suspicion of criminal activity based on the smell of alcohol coming from the van, and the officer was therefore entitled to conduct a search for an open container and remove the passengers from the vehicle.

Officer Cook testified in the presence of the jury, that when he searched Butler and found the gun, Butler ran away into some woods. Officer Cook shortly thereafter apprehended Butler and seized a large bag of cocaine and $863.00 from Butler's pants' pocket, as well as the pistol from his jacket pocket.

The jury found Butler guilty of trafficking in cocaine and unlawful possession of a pistol. Butler appeals.

STANDARD OF REVIEW

"In criminal cases, the appellate court sits to review errors of law only. We are bound by the trial court's factual findings unless they are clearly erroneous. This same standard of review applies to preliminary factual findings in determining the admissibility of certain evidence in criminal cases." State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001) (citations omitted). "Our review in Fourth amendment search and seizure cases is limited to determining whether any evidence supports the trial court's finding." State v. Green, 341 S.C. 214, 219 n. 3, 532 S.E.2d 896, 898 n. 3 (Ct.App.2000) (relying on State v. Brockman, 339 S.C. 57, 528 S.E.2d 661 (2000)).

LAW/ANALYSIS

Butler argues the trial court erred in finding there was reasonable suspicion to justify a warrantless search under Terry v. Ohio,1 and in failing to suppress the evidence obtained as a result of the search of Butler. We agree.

The Fourth 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. amend. IV. "The Fourth Amendment does not proscribe all contact between police and citizens, but is designed `to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.'" INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984) (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 3081, 49 L.Ed.2d 1116 (1976)). The stopping of a vehicle and the detention of its occupants constitutes a seizure and implicates the Fourth Amendment's prohibition against unreasonable searches and seizures. Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). "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." State v. Woodruff, 344 S.C. 537, 546, 544 S.E.2d 290, 295 (Ct.App. 2001). In determining whether reasonable suspicion exists, the circumstances must be considered as a whole, and if the officer's suspicions are confirmed or further aroused, the stop may be prolonged and the scope enlarged. Id. The scope and the duration of the seizure must be strictly tied to and justified by the circumstances which rendered its initiation proper. Sikes v. State, 323 S.C. 28, 30, 448 S.E.2d 560, 562 (1994).

Observing that traffic stops may be dangerous encounters for police officers, the United States Supreme Court has held that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver and passengers to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable seizures. Maryland v. Wilson, 519 U.S. 408, 412-15, 117 S.Ct. 882, 885-86, 137 L.Ed.2d 41 (1997). Under the mandates of Terry, however, a police officer must have a reasonable suspicion that an individual is armed and dangerous before conducting a pat down or frisk of the person. Terry, 392 U.S. at 27, 88 S.Ct. at 1883. The question is whether "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id. See also Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 2136, 124 L.Ed.2d 334 (1993)

(when an officer is justified in believing the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or others, the officer may conduct a pat-down search to determine whether the person is in fact carrying a weapon; purpose of...

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