State v. Forrester

• Citation: 541 S.E.2d 837,343 S.C. 637
• Decision Date: 12 February 2001
• Docket Number: No. 25247.,25247.
• Parties: The STATE, Respondent, v. Burnella FORRESTER, Petitioner.
• Court: United States State Supreme Court of South Carolina

343 S.C. 637

541 S.E.2d 837

The STATE, Respondent, v. Burnella FORRESTER, Petitioner.

No. 25247.

Supreme Court of South Carolina.

Heard March 21, 2000.

Decided February 12, 2001.

Rehearing Denied March 7, 2001.

Senior Assistant Appellate Defender Wanda H. Haile, of South Carolina Office of Appellate Defense, of Columbia, for petitioner.

Attorney General Charles M. Condon, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor E.L. Clements, III, of Florence, all for respondent.

TOAL, Chief Justice:

A jury convicted petitioner Burnella Forrester ("Forrester") of trafficking in crack cocaine. She appealed the trial court's admission into evidence of the crack cocaine seized from her purse. The Court of Appeals affirmed the conviction. We granted certiorari to review the decision of the Court of Appeals. We reverse.

FACTUAL/PROCEDURAL BACKGROUND

At the time of Forrester's arrest, Allen Rhodes was a member of the Florence County Police Department's drug and weapon interdiction team. Part of his job entailed supervising the local train station and intercepting suspicious characters as they entered the city. According to his testimony, on November 13, 1995, Officer Rhodes observed Forrester arriving at the Florence train station with her juvenile son. While she was using a pay phone, Forrester apparently noticed Rhodes observing her and appeared startled. With his suspicions aroused, Rhodes followed Forrester and her son to a local Burger King. While the Forresters ate, Rhodes approached them for questioning.

Officer Rhodes testified that he identified himself as a member of the drug and weapons interdiction team. He claimed that after identifying himself to Forrester, she agreed to let him search her luggage, and they left the Burger King to conduct the search. Rhodes testified that while he searched her luggage, Forrester clutched her pocketbook tightly. Because he was suspicious of her actions, Rhodes asked to search her purse. Forrester, without surrendering possession, held it open for him to see inside. Without requesting permission to search the purse, Officer Rhodes took the purse, felt it inside and out, tore out the bottom lining, and discovered the crack cocaine.¹

Forrester's version of the events is similar, but portrays Rhodes as even more aggressive in his confrontation with her. Forrester claimed she told Rhodes nothing was in her purse, and she held it open for him to see inside. At that point, she testified Rhodes "snatched" the bag from her shoulder and reached into it, tearing it open and finding the crack cocaine. Forrester's son verified her version of the events. The trial judge ruled Forrester voluntarily consented to the search of her pocketbook. In neither version of the events did Rhodes inform Forrester of her constitutional right to refuse to give consent to search her pocketbook.

At trial, Forrester argued that she had not given consent to search her bag, and thus, that the crack cocaine was discovered in violation of the express right to privacy provision found in S.C. Const. art. I, § 10. She contended our state constitution provides a higher level of protection from government searches than the Fourth Amendment. Forrester argued Officer Rhodes' failure to inform her of her right to refuse consent to a search the purse invalidated the search, and the crack cocaine should have been excluded from evidence at her trial for trafficking in cocaine. The trial judge ruled the crack admissible. The Court of Appeals affirmed the trial court's ruling. See State v. Forrester, 334 S.C. 567, 514 S.E.2d 332 (Ct.App.1999)

. Forrester has appealed and the main issue before the Court is:

Does the South Carolina Constitution's prohibition on "unreasonable invasions of privacy" require suspects to be affirmatively informed that they have the right to refuse consent to a search of their possessions?

LAW/ANALYSIS

I. Preservation

The State argues the issue of Forrester's consent to search was not preserved for review. We disagree.

Prior to opening statements, Forrester argued to suppress the discovered cocaine on the grounds that she had not given consent for Officer Rhodes to take her purse and search it. One aspect of her argument was that the explicit right to privacy provision in S.C. Const. art. I, § 10 grants protection above and beyond the Fourth Amendment. She argued our state constitution required the officer to inform her of the right to refuse consent, and that Officer Rhodes exceeded his authority in the search of her purse. The trial court disagreed. The trial court refused to rule the right to privacy provision required Officer Rhodes to inform Forrester of her right to refuse consent. The case then proceeded directly to trial.

In most cases, "[m]aking a motion in limine to exclude evidence at the beginning of trial does not preserve an issue for review because a motion in limine is not a final determination. The moving party, therefore, must make a contemporaneous objection when the evidence is introduced." See State v. Simpson, 325 S.C. 37, 479 S.E.2d 57 (1996)

. However, where a judge makes a ruling on the admission of evidence on the record immediately prior to the introduction of the evidence in question, the aggrieved party does not need to renew the objection. The issue is preserved:

Because no evidence was presented between the ruling and [the] testimony, there was no basis for the trial court to change its ruling. Thus, ... [the] motion was not a motion in limine. The trial court's ruling in this instance was in no way preliminary, but to the contrary, was a final ruling. Accordingly, [the defendant] was not required to renew her objection to the admission of the testimony in order to preserve the issue for appeal.

State v. Mueller, 319 S.C. 266, 268-69, 460 S.E.2d 409, 410 (Ct.App.1995). Here, the witness introducing the cocaine for the state was the initial witness in the trial. No evidence was taken between the trial court's ruling on the admission of the cocaine and its introduction. Since no opportunity existed for the court to change its ruling, Forrester did not need to object a second time to the introduction of the cocaine for the issue to be properly preserved for review. Samples v. Mitchell, 329 S.C. 105, 495 S.E.2d 213 (Ct.App.1997); see also Toal, Vafai, & Muckenfuss, Appellate Practice in South Carolina 76 (1999).

II. The Right to Privacy and Consensual Searches

A. Relationship Between the Federal and State Constitutions

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ...

U.S. Const. amend. IV. Beginning in the early twentieth century, the United States Supreme Court declared that evidence seized in violation of the Fourth Amendment must be excluded in federal criminal proceedings. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Later, the Court applied the Fourth Amendment and its exclusionary rule to the individual states as well. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961)

; Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949). Therefore, all citizens enjoy this federal constitutional protection in every criminal proceeding.

In parallel with the protection of the Fourth Amendment, the South Carolina Constitution also provides a safeguard against unlawful searches and seizures. See S.C. Const. art. I. § 10. The relationship between the two constitutions is significant because "[s]tate courts may afford more expansive rights under state constitutional provisions than the rights which are conferred by the Federal Constitution." State v. Easier, 327 S.C. 121, 131 n. 13, 489 S.E.2d 617, 625 n. 13 (1997); see also State v. Austin, 306 S.C. 9, 409 S.E.2d 811 (Ct.App.1991)

. Therefore, state courts can develop state law to provide their citizens with a second layer of constitutional rights. Id. This relationship is often described as a recognition that the federal Constitution sets the floor for individual rights while the state constitution establishes the ceiling. See Segura v. Texas, 826 S.W.2d 178, 182 (Tex.App.1992). Thus, this Court can interpret the state protection against unreasonable searches and seizures in such a way as to provide greater protection than the federal Constitution.

Especially important in this analysis is South Carolina's explicit constitutional right to privacy.² In addition to language which mirrors the Fourth Amendment, S.C. Const. art. 1 § 10 contains an express protection of the right to privacy:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, ...

(emphasis added). Initially, even in the absence of a specific right to privacy provision, this Court could interpret our state constitution as providing more protection than the federal counterpart. However, by articulating a specific prohibition against "unreasonable invasions of privacy," the people of South Carolina have indicated that searches and seizures that do not offend the federal Constitution may still offend the South Carolina Constitution resulting in the exclusion of the discovered evidence.

Ten states have express right to privacy provisions in their constitutions.³ South Carolina and five other states have their right to privacy provision included in the section prohibiting unreasonable search and seizures.⁴ South Carolina and the other states with a right to privacy provision imbedded in the search and seizure provision of their constitutions have held such a provision creates a distinct privacy right that applies both...