State v. Butler, No. 3601.

CourtCourt of Appeals of South Carolina
Writing for the CourtPER CURIAM
Citation353 S.C. 383,577 S.E.2d 498
Decision Date24 February 2003
Docket NumberNo. 3601.
PartiesThe STATE, Respondent, v. Charles BUTLER, Appellant.

353 S.C. 383
577 S.E.2d 498

The STATE, Respondent,
v.
Charles BUTLER, Appellant

No. 3601.

Court of Appeals of South Carolina.

Heard December 11, 2002.

Decided February 24, 2003.


353 S.C. 385
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

353 S.C. 386
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.
353 S.C. 387
* * *
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

353 S.C. 388
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)).

353 S.C. 389
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...

To continue reading

Request your trial
42 practice notes
  • State v. Walker, No. 4049.
    • United States
    • United States State Supreme Court of South Carolina
    • November 28, 2005
    ...of law only. State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001); State v. Cutter, 261 S.C. 140, 199 S.E.2d 61 (1973); State v. Butler, 353 S.C. 383, 577 S.E.2d 498 (Ct.App.2003). On appeal, we are limited to determining whether the trial judge abused his discretion. State v. Reed, 332 S.C. ......
  • State v. Bell, No. 2008-UP-249 (S.C. App. 5/7/2008), No. 2008-UP-249.
    • United States
    • Court of Appeals of South Carolina
    • May 7, 2008
    ...expert's fingerprint report? STANDARD OF REVIEW In criminal cases, the appellate court sits to review errors of law only. State v. Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct. App. 2003). We are bound by the trial court's factual findings unless they are clearly erroneous. Id. at 388......
  • State v. Bell, 2008-UP-249
    • United States
    • Court of Appeals of South Carolina
    • May 7, 2008
    ...expert's fingerprint report? STANDARD OF REVIEW In criminal cases, the appellate court sits to review errors of law only. State v. Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct. App. 2003). We are bound by the trial court's factual findings unless they are clearly erroneous. Id. at 388......
  • State v. Halcomb, No. 4516.
    • United States
    • Court of Appeals of South Carolina
    • March 11, 2009
    ...the appellate court sits to review errors of law only. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001); State v. Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct.App.2003). The appellate court is limited to determining whether the trial court abused its discretion. State v. R......
  • Request a trial to view additional results
42 cases
  • State v. Walker, No. 4049.
    • United States
    • United States State Supreme Court of South Carolina
    • November 28, 2005
    ...of law only. State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001); State v. Cutter, 261 S.C. 140, 199 S.E.2d 61 (1973); State v. Butler, 353 S.C. 383, 577 S.E.2d 498 (Ct.App.2003). On appeal, we are limited to determining whether the trial judge abused his discretion. State v. Reed, 332 S.C. ......
  • State v. Bell, No. 2008-UP-249 (S.C. App. 5/7/2008), No. 2008-UP-249.
    • United States
    • Court of Appeals of South Carolina
    • May 7, 2008
    ...expert's fingerprint report? STANDARD OF REVIEW In criminal cases, the appellate court sits to review errors of law only. State v. Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct. App. 2003). We are bound by the trial court's factual findings unless they are clearly erroneous. Id. at 388......
  • State v. Bell, 2008-UP-249
    • United States
    • Court of Appeals of South Carolina
    • May 7, 2008
    ...expert's fingerprint report? STANDARD OF REVIEW In criminal cases, the appellate court sits to review errors of law only. State v. Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct. App. 2003). We are bound by the trial court's factual findings unless they are clearly erroneous. Id. at 388......
  • State v. Halcomb, No. 4516.
    • United States
    • Court of Appeals of South Carolina
    • March 11, 2009
    ...the appellate court sits to review errors of law only. State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001); State v. Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct.App.2003). The appellate court is limited to determining whether the trial court abused its discretion. State v. R......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT