State v. Kotowski, Appellate Case No. 2016-000842

CourtCourt of Appeals of South Carolina
Writing for the CourtKONDUROS, J.
Citation427 S.C. 119,828 S.E.2d 605
Parties The STATE, Respondent, v. Felix KOTOWSKI, Appellant.
Docket NumberOpinion No. 5650,Appellate Case No. 2016-000842
Decision Date15 May 2019

427 S.C. 119
828 S.E.2d 605

The STATE, Respondent,
v.
Felix KOTOWSKI, Appellant.

Appellate Case No. 2016-000842
Opinion No. 5650

Court of Appeals of South Carolina.

Heard October 9, 2018
Filed May 15, 2019
Rehearing Denied June 21, 2019


Appellate Defender Lara Mary Caudy, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Deputy Attorney General David A. Spencer, both of Columbia, and Solicitor David Michael Pascoe, Jr., of Orangeburg, all for Respondent.

KONDUROS, J.:

828 S.E.2d 608
427 S.C. 125

Felix Kotowski appeals his convictions for manufacturing methamphetamine and possession of less than one gram of methamphetamine, arguing the trial court erred in (1) denying his motion to suppress evidence seized during a "knock and talk," (2) denying his motion to suppress evidence seized during a protective sweep of a residence where Kotowski was an overnight guest, and (3) admitting National Precursor Log Exchange (NPLEx) records into evidence. We affirm.

FACTS/PROCEDURAL HISTORY

On June 13, 2014, Sergeant Frank Thompson from the Dorchester County Sheriff's Office received an anonymous tip about the possibility of a drug house at 111 Marsh Point Road. Sergeant Thompson immediately checked NPLEx, which is a system that provides data used by pharmacies and law enforcement to track sales of pseudoephedrine. Sergeant Thompson's search revealed several pseudoephedrine purchases by Michelle Vining, the homeowner, as well as some by Brian Edwards. Sergeant Thompson set up an alert to be notified for any subsequent pseudoephedrine purchases by these individuals.

Sergeant Thompson also began to conduct "spotty surveillance" of the residence, mainly consisting of drive-by viewings. From this surveillance, Sergeant Thompson confirmed Vining's vehicle was parked at the residence. On one occasion, Sergeant Thompson observed a vehicle belonging to William Cherry parked at the residence. Sergeant Thompson was familiar with Cherry because Cherry's father had been convicted of methamphetamine related offenses.

On October 29, 2014, Sergeant Thompson received three NPLEx notifications indicating Vining had attempted to purchase pseudoephedrine three separate times. Two of Vining's attempts were blocked because she would have exceeded the statutory threshold. Vining successfully purchased a smaller amount at a different store on her third attempt. Because of these three transactions, Sergeant Thompson decided to conduct a knock and talk at Vining's residence the following day.

Sergeant Thompson, along with Detectives Daniel Lundberg and Brandon Allen—all of the Dorchester County Metro Narcotics Unit—arrived at Vining's residence the following

427 S.C. 126

day wearing clothing indicating they were law enforcement. After knocking on the door, Sergeant Thompson saw someone looking through the blinds on the right side of the house. He requested the person come to the door to no response. After knocking a second time, Detective Lundberg observed an individual at a second story window on the right side. After a third knock, Sergeant Thompson spotted an individual at a second story window, this time on the left side. After the third knock, Kotowski opened the door, stepped outside, and closed the door behind him.

When Kotowski stepped outside, Sergeant Thompson was "immediately overwhelmed with the odor of ammonia" coming from Kotowski. When asked if he lived at the residence, Kotowski stated he did not and provided he was there with his girlfriend Lisa. Kotowski called for Lisa to come to the door and when she did not, went inside the house to retrieve her. Kotowski attempted to close the front door behind him when he re-entered the residence, but Sergeant Thompson held the door open with his foot.

When Lisa came to the door, Sergeant Thompson asked her if she knew the location of Michelle Vining, to which Lisa answered she did not. As the conversation progressed, Lisa admitted to being Michelle Vining. Sergeant Thompson explained the officers received a tip concerning methamphetamine manufacturing occurring at the residence. Sergeant Thompson asked her if she would consent to a search of the residence, and Vining declined. Sergeant Thompson then asked if anyone else lived at the residence. According to Sergeant Thompson, Vining "was pretty deceptive about her answer and kind of hem hawing."

828 S.E.2d 609

Believing something to be amiss, Sergeant Thompson ordered Detective Allen and Detective Lundberg to conduct a protective sweep of the residence while he contacted another officer to obtain a search warrant for the residence. During the protective sweep, Detective Lundberg and Detective Allen encountered a "heavy haze or a gaseous atmosphere" emanating from an upstairs bathroom and upon opening the door, were confronted by an overwhelming smell of ammonia. Based on evidence in plain sight during the protective sweep, a

427 S.C. 127

search warrant was issued, and Kotowski and Vining were arrested.

A grand jury indicted Kotowski on March 16, 2015, for manufacturing methamphetamine and possession of less than one gram of methamphetamine. Prior to trial, Kotowski moved to suppress the evidence seized in the house. The trial court denied Kotowski's motion. At the conclusion of trial, the jury found Kotowski guilty of both counts. The trial court sentenced Kotowski to concurrent terms of seven years' imprisonment for manufacturing and three years' imprisonment for possession of less than one gram of methamphetamine. This appeal followed.

STANDARD OF REVIEW

"In criminal cases, the appellate court sits to review errors of law only." State v. Baccus , 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). "The admission of evidence is within the discretion of the trial court and will not be reversed absent an abuse of discretion." State v. Gaster , 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002). "An abuse of discretion occurs when the trial court's ruling is based on an error of law or, when grounded in factual conclusions, is without evidentiary support." Clark v. Cantrell , 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000). "On appeal from a motion to suppress on Fourth Amendment grounds, this [c]ourt applies a deferential standard of review and will reverse only if there is clear error." State v. Counts , 413 S.C. 153, 160, 776 S.E.2d 59, 63 (2015) (quoting Robinson v. State , 407 S.C. 169, 180-81, 754 S.E.2d 862, 868 (2014) ).

LAW/ANALYSIS

I. Knock and Talk

Kotowski argues the trial court erred in denying his motion to suppress evidence found following the knock and talk and subsequent protective sweep of the house. He maintains the law enforcement officers did not have reasonable suspicion to conduct a knock and talk and therefore violated his right to privacy under Article I, Section 10 of the South Carolina Constitution. We disagree.

427 S.C. 128

The Fourth Amendment to the United States Constitution protects a person's right to be free from unreasonable searches and seizures. U.S. Const. amend. IV. "Generally, the Fourth Amendment requires the police to have a warrant in order to conduct a search." Counts , 413 S.C. at 163, 776 S.E.2d at 65 (quoting Robinson v. State , 407 S.C. 169, 185, 754 S.E.2d 862, 870 (2014) ). "In parallel with the protection of the Fourth Amendment, the South Carolina Constitution also provides a safeguard against unlawful searches and seizures." Id. at 164, 776 S.E.2d at 65 (quoting State v. Forrester , 343 S.C. 637, 643, 541 S.E.2d 837, 840 (2001) ). "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.’ " Id. (quoting Forrester , 343 S.C. at 643, 541 S.E.2d at 840 ). "Evidence seized in violation of the warrant requirement must be excluded from trial." Id. at 163, 776 S.E.2d at 65 (quoting Robinson , 407 S.C. at 185, 754 S.E.2d at 870 ). "However, a warrantless search may nonetheless be proper under the Fourth Amendment if it falls within one of the well-established exceptions to the warrant requirement." Id. (quoting Robinson , 407 S.C. at 185, 754 S.E.2d at 870 ).

The Counts court looked to other jurisdictions to determine what sort of procedure should be necessary to protect citizen's right to privacy. Specifically, the court analyzed "whether law enforcement needs to: (1) have probable cause or reasonable suspicion to approach the private residence; or (2) inform the citizen of his or her right to refuse consent to search."

828 S.E.2d 610

Id. at 171, 776 S.E.2d at 69. The court concluded, "rather than enunciating an unyielding rule or eliminating the ‘knock and talk’ technique in its entirety, we hold that law enforcement must have reasonable suspicion of illegal activity at a targeted residence prior to approaching the residence and...

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4 practice notes
  • State v. Boston, Appellate Case No. 2018-000504
    • United States
    • Court of Appeals of South Carolina
    • March 10, 2021
    ...and conduct the "knock and talk." Id.This court recently addressed the legality of a knock and talk in State v. Kotowski , 427 S.C. 119, 828 S.E.2d 605 (Ct. App. 2019), aff'd in part, vacated in part on other grounds , 430 S.C. 318, 844 S.E.2d 650 (2020) (per curiam). In Kotowski ......
  • Hamrick v. State, Appellate Case No. 2015-002164
    • United States
    • United States State Supreme Court of South Carolina
    • May 15, 2019
    ...or consent exceptions to the warrant requirement applied on the facts of this case, because even if we found no exception applied, we 828 S.E.2d 605 would find the good-faith exception to the exclusionary rule forecloses suppression.III. ConclusionWe REVERSE Hamrick's conviction for felony ......
  • State v. Grier, Appellate Case No. 2016-001045
    • United States
    • Court of Appeals of South Carolina
    • May 15, 2019
    ...alternate ground on appeal."); Staubes , 339 S.C. at 412, 529 S.E.2d at 546 ("It is well-settled that an issue cannot be raised 427 S.C. 119 for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review.").Gr......
  • State v. Kotowski, Appellate Case No. 2019-001206
    • United States
    • United States State Supreme Court of South Carolina
    • June 3, 2020
    ...of Orangeburg, for Respondent.PER CURIAM:We granted a writ of certiorari to review the court of appeals' decision in State v. Kotowski , 427 S.C. 119, 828 S.E.2d 605 (Ct. App. 2019). Having carefully reviewed the matter, we affirm the court of appeals in part and vacate in part. We adopt th......
4 cases
  • State v. Boston, Appellate Case No. 2018-000504
    • United States
    • Court of Appeals of South Carolina
    • March 10, 2021
    ...and conduct the "knock and talk." Id.This court recently addressed the legality of a knock and talk in State v. Kotowski , 427 S.C. 119, 828 S.E.2d 605 (Ct. App. 2019), aff'd in part, vacated in part on other grounds , 430 S.C. 318, 844 S.E.2d 650 (2020) (per curiam). In Kotowski ......
  • Hamrick v. State, Appellate Case No. 2015-002164
    • United States
    • United States State Supreme Court of South Carolina
    • May 15, 2019
    ...or consent exceptions to the warrant requirement applied on the facts of this case, because even if we found no exception applied, we 828 S.E.2d 605 would find the good-faith exception to the exclusionary rule forecloses suppression.III. ConclusionWe REVERSE Hamrick's conviction for felony ......
  • State v. Grier, Appellate Case No. 2016-001045
    • United States
    • Court of Appeals of South Carolina
    • May 15, 2019
    ...alternate ground on appeal."); Staubes , 339 S.C. at 412, 529 S.E.2d at 546 ("It is well-settled that an issue cannot be raised 427 S.C. 119 for the first time on appeal, but must have been raised to and ruled upon by the trial court to be preserved for appellate review.").Gr......
  • State v. Kotowski, Appellate Case No. 2019-001206
    • United States
    • United States State Supreme Court of South Carolina
    • June 3, 2020
    ...of Orangeburg, for Respondent.PER CURIAM:We granted a writ of certiorari to review the court of appeals' decision in State v. Kotowski , 427 S.C. 119, 828 S.E.2d 605 (Ct. App. 2019). Having carefully reviewed the matter, we affirm the court of appeals in part and vacate in part. We adopt th......

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