State v. Ferguson
| Decision Date | 01 June 2022 |
| Docket Number | Appellate Case No. 2018-002133,Opinion No. 5915 |
| Citation | 436 S.C. 596,874 S.E.2d 234 |
| Parties | The STATE, Appellant, v. Sylvester FERGUSON, III, Respondent. |
| Court | South Carolina Court of Appeals |
Attorney General Alan McCrory Wilson and Senior Assistant Attorney General Mark Reynolds Farthing, both of Columbia; and Solicitor David Matthew Stumbo, of Greenwood, all for Appellant.
Appellate Defender David Alexander, of Columbia, for Respondent.
In this criminal appeal, pursuant to Article I, Section 10 of the South Carolina Constitution, the trial court suppressed evidence of methamphetamine production that officers found inside an apartment occupied by Sylvester Ferguson. The State argues the trial court erred in (1) finding officers needed a reasonable suspicion of criminal activity before approaching the apartment to conduct a "knock and talk" and (2) ruling the officers did not have a reasonable suspicion to approach the apartment. We affirm.
On January 17, 2017, Laurens County Sheriff's Deputy Andrew Hall was conducting routine patrol in Joanna, South Carolina. While parked at a gas station, an unknown male approached Deputy Hall and told him that Ferguson was in the upper-left unit of an apartment building on Whitmire Highway "cooking dope." Deputy Hall was unfamiliar with the tipster, and he failed to collect his name or any means to contact him. He also failed to ask any questions to verify the tipster's statement. Although he had never personally arrested Ferguson, Deputy Hall was familiar with Ferguson from prior encounters at the Laurens County Detention Center. Deputy Hall immediately called Investigator Charles Nations,1 a member of the Laurens County Sheriff's Office narcotics unit, to relay the tip and to ask if Investigator Nations wanted to accompany him in conducting a knock and talk at the apartment. Deputy Hall explained that the town of Joanna is a high traffic drug area and that he wanted a narcotics investigator to assist in the investigation. Roughly twenty minutes after receiving the tip, Deputy Hall and Investigator Nations arrived at the apartment to conduct a knock and talk.
Investigator Nations testified that he and Deputy Hall had to "guesstimate" which apartment building the tipster referred to in his statement, but narrowed their search quickly as there was only one apartment building on Whitmire highway. As officers approached the upper-left unit, they noticed the front window was open and they heard the sound of the front door deadbolt cycling. Before the officers could knock, Henry Davis, Ferguson's cousin, opened the door to leave for work.2 Investigator Nations stated that despite the window being open and Davis opening the door, he did not smell ammonia or other pungent fumes associated with methamphetamine production. Davis spoke with the officers outside of the residence and confirmed that Ferguson was inside. As Davis went to retrieve Ferguson, Investigator Nations took a step into the apartment to maintain contact with Davis and Ferguson appeared out of a rear bedroom. The officers explained to Davis and Ferguson that they received a tip about drug manufacturing, but both men denied any knowledge of illegal activity in the apartment. Investigator Nations then asked if he could walk through the house. Ferguson hesitated and then acquiesced once Davis consented.
During the walkthrough, Investigator Nations found a bottle of lighter fluid and a clear wrapper that contained a yellow, paste-like substance in the bathroom. Another officer found a marijuana pipe with residue in it on a coffee table in the living room. Based on these discoveries, Investigator Nations applied for a search warrant, and it was issued roughly thirty minutes later. While waiting for the search warrant, officers noticed Ferguson fidgeting in his pockets and requested he stop. Ferguson continued and officers conducted a Terry3 frisk. Officers found a vial containing powder on Ferguson's person that they presumed was crack cocaine or methamphetamine. Upon executing the search warrant, officers found three different bottles used to create hydrogen chloride, a bottle of sulfuric acid, and other paraphernalia used to produce methamphetamine, most of which was found in a trash pile on the back porch. Officers arrested both Davis and Ferguson based on their findings.
At a pretrial suppression hearing, Ferguson argued all evidence produced from the initial walkthrough and pursuant to the search warrant was inadmissible at trial because the officers violated his right to privacy under the South Carolina Constitution. Specifically, Ferguson argued that under State v. Counts ,4 Deputy Hall and Investigator Nations needed a reasonable suspicion that he was manufacturing methamphetamine to approach the apartment and conduct a knock and talk. Further, he argued the tip was equivalent to an anonymous tip due to the lack of information it provided about the tipster.
In opposition, the State argued Ferguson did not have standing to assert a privacy interest in the apartment and that no knock and talk occurred because Davis opened the door before the officers could make it to the door. Further, the State contended the "fresh" tip from a face-to-face encounter was sufficient to establish reasonable suspicion when coupled with the officers’ prior knowledge of Ferguson's connection to drug production and the apartment being in a high traffic drug area.5
The trial court ruled that Counts required the court to suppress the evidence. It determined the engagement by officers of the occupants of a residence triggers the need for reasonable suspicion, which the officers did not have in this case. In so holding, the trial court reasoned (1) the tipster was unknown and provided officers with no indicia of reliability or credibility, and Deputy Hall did not know at what point the tipster observed, if at all, Ferguson manufacturing methamphetamine; (2) the evidence collected at the apartment did not establish an active methamphetamine lab, which was the substance of the tip; and (3) the officers failed to take any measure to independently corroborate the tip. At the conclusion of the hearing, the State dismissed the case. This appeal followed.
Did the trial court err in suppressing all evidence seized from the apartment under Article 1, Section 10 of the South Carolina Constitution ?
The admission of evidence is within the sound discretion of the trial court and will not be overturned absent an abuse of discretion. State v. Wright , 391 S.C. 436, 442, 706 S.E.2d 324, 326 (2011). The trial court abuses its discretion when the ruling is based on an error of law or when the ruling is grounded in factual conclusions that lack evidentiary support. Id. "[A]ppellate court[s] will reverse only when there is clear error." Id. (quoting State v. Missouri , 361 S.C. 107, 111, 603 S.E.2d 594, 596 (2004) (citation omitted)).
The State asserts the trial court erred in suppressing the evidence under Article 1, Section 10 ’s prohibition against unreasonable invasions of privacy. We disagree. The South Carolina Constitution grants citizens an express right to privacy. S.C. Const. art. I, § 10.6 "But, other than the use of the word ‘unreasonable’ to modify this right, there are no parameters concerning the right or a definition of what constitutes ‘unreasonable invasions of privacy.’ " Counts , 413 S.C. at 167, 776 S.E.2d at 67. "As a result ... ‘the drafters were depending upon the state judiciary to construct a precise meaning of this phrase.’ " Id. (quoting Jaclyn L. McAndrew, Who Has More Privacy?: State v. Brown and Its Effect on South Carolina Criminal Defendants , 62 S.C. L. Rev. 671, 694 (2011) ).
"[T]he privacy interests in one's home are the most sacrosanct, [and] there must be some threshold evidentiary basis for law enforcement to approach a private residence." Id. at 172, 776 S.E.2d at 69 (emphasis added). "[Officers] must have reasonable suspicion of illegal activity at a targeted residence prior to approaching the residence and knocking on the door." Id. at 172, 776 S.E.2d at 70 (emphasis added). "In establishing this threshold requirement, our supreme court reaffirmed that the South Carolina Constitution's privacy protection against unreasonable searches and seizures ‘favors an interpretation offering a higher level of privacy protection than the Fourth Amendment.’ " State v. Boston , 433 S.C. 177, 183, 857 S.E.2d 27, 30 (Ct. App. 2021) (quoting Counts , 413 S.C. at 168, 776 S.E.2d at 68 ), cert. granted , S.C. Sup. Ct. Order Dated Jan. 13, 2022.
"Reasonable suspicion consists of ‘a particularized and objective basis’ that would lead one to suspect another of criminal activity." State v. Kotowski , 427 S.C. 119, 128, 828 S.E.2d 605, 610 (Ct. App. 2019) (quoting State v. Lesley , 326 S.C. 641, 644, 486 S.E.2d 276, 277 (Ct. App. 1997) ), aff'd in part, vacated in part on other grounds , 430 S.C. 318, 844 S.E.2d 650 (2020). It is more than a hunch but amounts to less than what is required for probable cause. Boston , 433 S.C. at 185, 857 S.E.2d at 31. In evaluating the existence of reasonable suspicion, courts may consider an officer's experience and intuition. Id. "Nevertheless, ‘a wealth of experience will [not] overcome a complete absence of articulable facts.’ " Id. (quoting Kotowski , 427 S.C. at 129, 828 S.E.2d at 610 ). "Furthermore, an officer's impression that an individual is engaged in criminal activity, without confirmation, does not amount to reasonable suspicion." Id. (quoting Kotowski , 427 S.C. at 129, 828 S.E.2d at 610 ).
Counts and Boston are both instructive. In Counts , an officer received an anonymous tip alleging the defendant was selling marijuana and crack cocaine out of his mother's house and a separate apartment.
413 S.C. at 157, 776 S.E.2d at 61–62. The tipster provided the...
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