State v. Freiburger

Decision Date02 November 2005
Docket NumberNo. 26042.,26042.
Citation620 S.E.2d 737
PartiesThe STATE, Respondent, v. Edward FREIBURGER, Appellant.
CourtSouth Carolina Supreme Court

John Dennis Delgado, John S. Nichols, of Bluestein & Nicholas, L.L.C., and Kathrine Haggard Hudgins, all of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Donald J. Zelenka, Assistant Attorney General Jeffrey A. Jacobs, and Solicitor Warren Blair Giese, all of Columbia, for Respondent.

Justice WALLER:

This matter was certified to this Court from the Court of Appeals pursuant to Rule 204, SCACR. Freiburger was convicted of the 1961 murder of a Columbia taxi-cab driver. He was sentenced to life imprisonment. We affirm.


The victim in this case, John Orner, was a taxi-cab driver who regularly serviced soldiers at Fort Jackson in Columbia. Orner received his last dispatch call at 11:15 p.m. on the evening of February 28, 1961 to go to the NCO club at the fort. When he did not return home from his shift the next morning, his family reported him missing. Orner's bloody cab was found around 7:30 a.m. on March 1, 1961, in the 1200 block of Assembly Street. Orner was not in the cab. His body was found on March 3, 1961, on the side of the road of Highway 601 in lower Richland County. He had died from a gunshot wound to the brain, consistent with having been shot in the head by a passenger sitting in the back seat of the cab. Forensics examinations revealed Orner had been killed by a gunshot wound from a .32 caliber bullet fired from a Harrington and Richardson (H & R) revolver.

Freiburger was a private in the army stationed at Fort Jackson in 1961. Pawn shop records revealed that on February 28, 1961, Freiburger purchased a .32 caliber H & R revolver, serial number 9948, from Capital Loan and Pawn Shop at 1214 Main Street. A month later, on March 29, 1961, Freiburger was stopped by a Tennessee Highway patrolman, Donald Meredith, at approximately 11:00 p.m. for hitchhiking in Newport, Tennessee. Meredith testified he stopped Freiburger because it was dangerous to be out walking or hitchhiking on the road as people had been struck by cars in the vicinity. Patrolman Meredith questioned Freiburger, then patted him down, discovering a .32 caliber loaded H & R revolver, serial number W9948. Meredith testified that, although Freiburger was not under arrest at the time of the pat down search, "he was going to be for hitchhiking, or I was going to take him back to the jail." Upon finding the weapon, Meredith arrested Freiburger for "carrying arms," and the gun was confiscated.

After Freiburger's arrest, Richland County authorities (investigating Orner's murder) requested and were given the H & R revolver seized by Patrolman Meredith. Testing on the weapon was inconclusive as to whether it was the weapon used in Orner's death. No charges were filed at that time. Forty years later, in August 2000, the Richland County Sheriff's Department reopened the Orner file. Re-testing of the gun and bullet fragments was initially inconclusive. However, SLED retained an independent expert, John Cayton, who concluded the weapon retrieved from Freiburger in 1961 was the murder weapon. Freiburger was arrested and charged with murder. The jury convicted him, and he was sentenced to life imprisonment.


1. Did the trial court properly admit the gun taken from Freiburger during the 1961 search in Tennessee?

2. Did the trial court err in denying Freiburger's motion to suppress the gun due to the State's failure to prove a sufficient chain of custody?

3. Did the trial court err in admitting certain pawnshop records under the Ancient Documents and Business Records as Evidence Act?

4. Did the trial court err in admitting evidence that Freiburger was at one time stationed at Fort Leavenworth, Kansas?

5. Did the court err in denying Freiburger's motion for a mistrial and/or for curative instructions as a result of the solicitor's improper comments during opening argument?

6. Did the court err in denying Freiburger's motion for a directed verdict?


Freiburger asserts the 1961 search and seizure of the H & R weapon was illegal, having exceeded the permissible scope of a Terry1 search. The State contends the search was a lawful "search incident to arrest," such that the seizure was permissible. We agree with the State that the 1961 search of Freiburger was a lawful search incident to arrest.

Evidence seized in violation of the Fourth Amendment must be excluded from trial. State v. Khingratsaiphon, 352 S.C. 62, 572 S.E.2d 456 (2002), citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Generally, a warrantless search is per se unreasonable and violates the Fourth Amendment prohibition against unreasonable searches and seizures. State v. Dupree, 319 S.C. 454, 462 S.E.2d 279 (1995). However, a warrantless search will withstand constitutional scrutiny where the search falls within one of several well recognized exceptions to the warrant requirement. Id. One such exception is in cases of a search incident to arrest. State v. Ferrell, 274 S.C. 401, 409, 266 S.E.2d 869, 873 (1980) (in the case of a lawful custodial arrest, the full search of a person does not require a search warrant and is considered reasonable under the Fourth Amendment). The burden of establishing probable cause and the existence of circumstances constituting an exception to the general prohibition against warrantless searches is upon the prosecution. Dupree, supra; State v. Bultron, 318 S.C. 323, 457 S.E.2d 616 (Ct.App.1995) (burden is upon State to justify warrantless search).

There are two historical rationales for the "search incident to arrest" exception to the warrant requirement: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial. Knowles v. Iowa, 525 U.S. 113, 116, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). A search may be conducted incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. State v. Brown, 289 S.C. 581, 347 S.E.2d 882 (1986). A warrantless search which precedes a formal arrest is valid if the arrest quickly follows. State v. Moultrie, 316 S.C. 547, 551, 451 S.E.2d 34, 37 (Ct.App.1994). See also Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980) (search may precede a formal arrest if the officer has probable cause to arrest at the time of the search and the fruits of the search were not necessary to support probable cause to arrest).

As noted above, there are situations in which a warrantless search which immediately precedes an arrest is held lawful, in cases where the police officer is held to have had probable cause from the outset. Moultrie, supra; Rawlings v. Kentucky. The rationale for such a warrantless search is that it is permissible incident to a lawful arrest because of legitimate concerns for the safety of the officer and to prevent the destruction of evidence by the arrestee. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (when an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape). See also United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

At the in camera hearing, Trooper Meredith testified that, although Freiburger had not been arrested at the time of the pat down search, he was going to be arrested for hitchhiking, or taken back to the jail. Trooper Meredith went on to testify that "we did a safety search before we put somebody in the car. You check them to see if they have any weapons."

Freiburger maintains that because he was not under arrest at the time of the search, and because he was ultimately arrested only for carrying arms, the search was illegal and the gun seized in 1961 should have been suppressed at trial. We disagree. As noted above, one of the rationales for the exception to the warrant requirement in the case of a search incident to arrest is the need to disarm the suspect in order to take him into custody. Here, Trooper Meredith's testimony that Freiburger was going to be arrested for hitchhiking and/or transported to the jail provides a sufficient basis upon which to conduct a limited pat-down search. It would simply be unreasonable to expect a police officer, out on a deserted road at 11:00 p.m., to transport a suspect to the jail without first conducting a pat down search for weapons.

Moreover, the fact that Freiburger was not ultimately arrested for hitchhiking is not dispositive. As recently stated by the United States Supreme Court, an officer's "subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause . . . . `the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.'" Devenpeck v. Alford, 543 U.S. 146, ___, 125 S.Ct. 588, 594, 160 L.Ed.2d 537, ___ (2004), citing Whren v. U.S., 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89. Accordingly, the mere fact that Trooper Meredith did not arrest Freiburger for hitchhiking but, instead, arrested him for carrying arms upon finding the weapon does not vitiate the reasonableness of the underlying search. We find the search conducted by Trooper Meredith was a legitimate search incident to arrest, necessary to ensure his safety in order to transport Freiburger to the jail....

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