State v. Khingratsaiphon, 25554.
| Decision Date | 12 November 2002 |
| Docket Number | No. 25554.,25554. |
| Citation | 572 S.E.2d 456,352 S.C. 62 |
| Parties | The STATE, Respondent, v. Ae KHINGRATSAIPHON, Petitioner. |
| Court | South Carolina Supreme Court |
Chief Attorney Daniel T. Stacey, 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 Donald J. Zelenka, Assistant Attorney General Tracey Colton Green, all of Columbia; and Solicitor Barbara R. Morgan, of Aiken, for respondent.
We granted a writ of certiorari to review the Court of Appeals' decision affirming petitioner's direct appeal.1 State v. Khingratsaiphon, Op. No.2001-UP-052 (S.C. Ct.App. Filed January 29, 2001). We affirm.
Petitioner argues the Court of Appeals erred by holding there was evidence which supported the trial judge's determination the arresting officer had authority to conduct a frisk. Specifically, he contends the trial judge incorrectly premised his ruling on a finding the arresting officer heard "gun" shouted prior to the frisk and, therefore, there was no evidence supporting the trial judge's ruling. We disagree. During the suppression hearing, the parties offered the following evidence. On June 23, 1997, between 9:00 a.m. and 10:30 a.m., an Aiken pawn shop was robbed and its owner was shot to death. South Carolina Law Enforcement Division (SLED) Agent Roger Sharpe testified, the morning following the crime, SLED agents conducted a roadblock next to the pawn shop. As a result of the roadblock, the agents determined a black Honda was parked in the pawn shop's lot on the morning of the crime. An Asian male was seen standing beside the vehicle.
During the roadblock, Mr. Wilson who worked across the street from the pawn shop, volunteered that his relative, Curtis Kesl from Charlotte, North Carolina, had been in Aiken on the morning of the crime. Wilson was uneasy about Kesl. He stated, in the past, Kesl had driven a Honda.
Agent Sharpe spoke with other members of Kesl's family. According to Sharpe, they were also uneasy about Kesl as Kesl had been in trouble before.
Kesl's cousin, Terry Wilson, testified, two weeks before the pawn shop crime, an Asian male accompanied Kesl to Aiken. The men stayed with Wilson over the weekend. Previously, Kesl made a collect telephone call to Wilson. Telephone records revealed Kesl had called Wilson from a Charlotte location.
Later on the morning of the roadblock, officers located an abandoned black Honda and determined it had been stolen from Charlotte on the morning of the shooting. Agent Sharpe relayed the above information to authorities in North Carolina and asked if Kesl could be located through that telephone number.
North Carolina authorities determined the Charlotte telephone number provided by Ms. Wilson was registered to Oua Vang at 305 Jones Street, Unit 3.
Charlotte-Mecklenburg Policeman G.C. Lyman testified on June 25, 1997, he was contacted by an agent with the State Bureau of Investigation in North Carolina and, among other information, was informed that an Asian had a possible connection to the shooting at the Aiken pawn shop. In addition, he knew Curtis Kesl, a white male, was possibly connected with the case.
On the same day, Lyman and two other officers proceeded to Vang's apartment. Three Asian males were standing outside. Each were wearing warm clothing in spite of the hot, humid weather. Lyman stated they wore baggy, solid blue clothing with long sleeves and bandanas around their necks, clothing which was consistent with gang attire. Lyman observed the name of a Hmong gang scrawled on a wall facing the apartment.
Lyman stated the officers asked who lived in the apartment; all three indicated they did not live there.2 According to Lyman, "somebody muttered something about somebody's relative, but it was not very clear and they were not very responsive." The officers then asked the three men for identification. Petitioner walked into the apartment, stating his identification was inside. Lyman testified that, had he had time to respond to petitioner, he would have requested petitioner not go inside; he was concerned both that his baggy clothing could be concealing a weapon and that there could be a weapon inside the apartment.
Lyman followed petitioner inside the apartment; he saw a white male and an Asian male in the living room/kitchen. He then followed petitioner up the stairs. Petitioner looked toward one bedroom then went into another bedroom, reached behind a curtain, and retrieved a wallet. Without opening the wallet, he stated it was not his and replaced it. At that point, petitioner started to open the closet. Because he did not want him to go into the closet for fear petitioner could obtain a weapon, Lyman testified he told petitioner he did not need identification and to return outside. Petitioner started down the stairs. At the same time, the Asian man who had been in the living room/kitchen was walking up the stairs. Lyman stated he told both men to go downstairs.
Lyman testified:
At that point, I heard a commotion, which I subsequently found out was Officer Simmons yelling "gun," but I didn't hear him clearly because of the distance involved. I felt the need for a frisk at that time because my safety was in jeopardy and quickly frisked him and immediately felt in the front a large handgun. Retrieved it, it was 45 caliber Llama automatic pistol,3 I stuck that in my back pocket.
Lyman arrested petitioner for carrying a concealed weapon and possession of a weapon by a minor.
After hearing argument, the trial judge stated as follows:
The pistol seized from petitioner during the frisk was admitted at trial. Petitioner's videotaped statement was also admitted.
On appeal, petitioner argued the police did not have reason to believe he was armed and dangerous and, therefore, the frisk was illegal. After reviewing the testimony from the suppression hearing, the Court of Appeals held "the record contains ample evidence supporting the trial judge's determination that the circumstances amounted to reasonable suspicion by the officer that [petitioner] was armed and dangerous." State v. Khingratsaiphon, supra. The Court of Appeals referred to the trial judge's language underlined above, noting the trial judge's decision was not premised on the belief Officer Lyman heard the exclamation "gun" before conducting the frisk, but rather simply that "gun" was shouted. Id. Ultimately, the Court of Appeals concluded the frisk was valid and the handgun and statement were properly admitted. Id.
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. Evidence seized in violation of the Fourth Amendment must be excluded from trial. See Mapp v. Ohio, ...
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