State v. Moore

• Decision Date: 19 February 2020
• Docket Number: Opinion No. 27948,Appellate Case No. 2017-002479
• Citation: 429 S.C. 465,839 S.E.2d 882
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Robert Lee MOORE, Petitioner.

429 S.C. 465

839 S.E.2d 882

The STATE, Respondent,

v.Robert Lee MOORE, Petitioner.

Appellate Case No. 2017-002479

Opinion No. 27948

Supreme Court of South Carolina.

Heard June 11, 2019

Filed February 19, 2020

Chief Appellate Defender Robert M. Dudek, of Columbia, for Petitioner.

Attorney General Alan Wilson and Assistant Attorney General William M. Blitch Jr., both of Columbia, and Seventh Judicial Circuit Solicitor Barry J. Barnette, of Spartanburg, all for Respondent.

JUSTICE KITTREDGE :

Following a jury trial, Petitioner Robert Moore was sentenced to thirty years' imprisonment for the attempted murder of Travis Hall. Hall was shot in the head and left for dead in a vehicle in a Taco Bell parking lot following a drug deal gone wrong. In the immediate aftermath of the shooting, law enforcement officers found three cell phones, including one later identified as Petitioner's "flip phone,"¹ in the area of the driver's floorboard after emergency medical personnel removed Hall from the vehicle.² Without obtaining a warrant, the officers removed the cell phones' subscriber identity module (SIM) cards to determine ownership. The officers then obtained a warrant to search the contents of Petitioner's flip phone. Petitioner's subsequent motion to suppress all evidence acquired from the flip phone was denied, as the trial court found Petitioner had abandoned his phone. A divided court of appeals' panel affirmed Petitioner's conviction on the basis of inevitable discovery. State v. Moore , 421 S.C. 167, 805 S.E.2d 585 (Ct. App. 2017). We granted a writ of certiorari to review the decision of the court of appeals and now affirm as modified.

I.

On February 25, 2013, Spartanburg County Sheriff's Office deputies were dispatched to a "shots fired" call at a Taco Bell. The first officer to arrive on the scene found Hall shot in the head, hanging out of his vehicle while partially restrained by the seatbelt. Despite the severity of his injuries, Hall survived. Witnesses told law enforcement that a white Chrysler 300 with "some rather large [and distinctive] rims" fled the scene immediately after the shooting.

Deputies at the crime scene recovered three cell phones from Hall's vehicle. The phones were immediately given to an investigator, who removed the SIM cards to obtain the phone number associated with each phone. A Spartanburg County Sheriff's Office database identified one phone number as belonging to Petitioner, who had given law enforcement that number three months prior in connection with obtaining a surety bond. An investigator with the Sheriff's Office then listed (1) the flip phone's phone number obtained from the SIM card; (2) Petitioner's name; and (3) the circumstances under which the phone was found, ultimately securing a search warrant to examine the contents of the flip phone. The search revealed that five calls were made from Petitioner's phone to the victim's phone in the hour prior to the shooting.

Meanwhile, in a separate portion of the investigation unrelated to the flip phone or search warrant, law enforcement officers identified the getaway vehicle and its two occupants—Petitioner and his co-defendant Tevin Thomas—via eyewitness testimony and video recording. Thomas was subsequently apprehended, initially denying he was present at the scene of the crime. However, after an officer confronted him with the video recording of Thomas and Petitioner at a nearby gas station—driving, within minutes of the shooting, the distinctive getaway car described by witnesses at the crime scene—Thomas made a second statement naming and implicating Petitioner in the shooting. Petitioner was arrested and charged with attempted murder.

Pursuant to the Fourth Amendment to the United States Constitution and Riley v. California ,³ Petitioner made a pre-trial motion to suppress any evidence seized from the warrantless examination of his phone's SIM card. Finding Petitioner had abandoned his cell phone, the trial court denied the motion. On appeal, a majority of the court of appeals' panel affirmed on the ground of inevitable discovery. A dissenting member of the panel voted to reverse the trial court, relying on Riley and contending that the warrantless examination of the SIM card constituted a Fourth Amendment violation. We granted a writ of certiorari to review the divided court of appeals' decision.

II.

On appeals involving a motion to suppress based on Fourth Amendment grounds, appellate courts apply a deferential standard of review and will reverse only in cases of clear error. State v. Cardwell , 425 S.C. 595, 599–600, 824 S.E.2d 451, 453 (2019). The "clear error" standard means appellate courts may not reverse the trial court's findings of fact merely because they would have decided the case differently. State v. Moore , 415 S.C. 245, 251, 781 S.E.2d 897, 900 (2016) (citation omitted). Rather, in reviewing Fourth Amendment cases, appellate courts must affirm the trial court's ruling if there is any evidence to support it. Robinson v. State , 407 S.C. 169, 181, 754 S.E.2d 862, 868 (2014).

III.

The State primarily contends that the limited warrantless search of Petitioner's cell phone was entirely reasonable under the circumstances. We agree. The Fourth Amendment provides, "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 (emphasis added). It has long been recognized that the touchstone of the Fourth Amendment is reasonableness. Riley , 573 U.S. at 381–82, 134 S.Ct. 2473 (quoting Brigham City v. Stuart , 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) ); Florida v. Jimeno , 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (citing Katz v. United States , 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ).

The trial court denied the motion to suppress on the basis of abandonment. Arguably, some evidence supports the trial court's finding that Petitioner abandoned his flip phone. Cf. State v. Brown , 423 S.C. 519, 525, 815 S.E.2d 761, 764–65 (2018) (finding a defendant abandoned his cell phone at the scene of the crime and explaining the defendant made no attempt to call or send text messages to the phone to see if someone would answer; the defendant did not attempt to contact the service provider for information on the whereabouts of the phone; and the defendant did not go back to the scene of the crime to look for the phone or call the police to see if they had it); Robinson , 407 S.C. at 181, 754 S.E.2d at 868 (setting forth the deferential "any evidence" standard of review). Yet we acknowledge a close question is presented on the issue of abandonment. We elect to resolve this appeal on other grounds.⁴

The Fourth Amendment, as interpreted, requires that the actions of law enforcement be viewed through a lens of reasonableness. The reasonableness inquiry is fact specific and context dependent. Here, law enforcement limited the warrantless portion of their search of the three phones to the SIM cards alone in an effort to establish ownership, which—as will be explained in more detail below—is a search wholly distinct from examining the contents of the phones. Moreover, at the time of the warrantless portion of the search to discover the identities of the cell phones' owners, law enforcement officers were responding to an active crime scene, not knowing the identity and whereabouts of the shooter. The public safety concerns are self-evident. Under the circumstances presented, we hold the limited search of the SIM cards to identify the phone numbers was reasonable and in no manner constituted an unreasonable search or seizure.

A.

A SIM card is a small device which contains a customer's basic information, along with encryption data to allow a device

to access a particular carrier's mobile network. Thus, in many ways, a SIM card is simply a key to a specific mobile network. However, a SIM card is not part of a phone. This is evidenced by the facts that (1) not all phones have SIM cards; (2) SIM cards may be transferred from one phone to another; and (3) a single phone can utilize a series of SIM cards to easily change the phone's number and subscriber information. See, e.g. , United States v. Flores-Lopez , 670 F.3d 803, 810 (7th Cir. 2012) (explaining people may purchase multiple prepaid SIM cards, "each of which assigns a different phone number to the cell phone in which the card is inserted," making it easy for a single phone to be associated with multiple phone numbers), abrogated on other grounds by Riley , 573 U.S. at 400, 134 S.Ct. 2473 ; In re Apple iPhone Antitr. Litig. , 874 F. Supp. 2d 889, 892 n.5 (N.D. Cal. 2012) ("A SIM card is a removable card that allows phones to be activated, interchanged, swapped out and upgraded. The SIM card is tied to the phone's network, rather than to the physical phone device itself." (internal citations omitted)).

Given its purpose of identifying a phone to a particular mobile network, a SIM card contains limited storage capacity. It therefore never contains the vast majority of the information available on an unlocked cell phone. See Sigram Schindler Beteiligungsgesellschaft mbH v. Cisco Systems, Inc. , 726 F. Supp. 2d 396, 413 n.27 (D. Del. 2010) ("Generally, a SIM card is a smart card that encrypts voice and data transmissions and stores data about a user for identification purposes ." (emphasis added)); see also United States v. Wicks , 73 M.J. 93, 97 (C.A.A.F. 2014) (explaining that a witness initially attempted to turn over only the SIM card of a suspect's cell phone, but "the SIM card did not contain any [useful] information," so the witness eventually turned over the suspect's entire cell phone, which did contain the incriminating information for which law enforcement was looking).⁵ According to one witness at trial, the SIM card on this particular type of older model flip phone "primarily contains the assigned cell phone number,"...