State v. Moore

• Decision Date: 13 March 2008
• Docket Number: No. 4357.,4357.
• Citation: 377 S.C. 299,659 S.E.2d 256
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Gary Robert MOORE, Appellant.

659 S.E.2d 256

377 S.C. 299

The STATE, Respondent, v. Gary Robert MOORE, Appellant.

No. 4357.

Court of Appeals of South Carolina.

Submitted January 1, 2008.

Decided March 13, 2008.

Appellate Defender Aileen P. Clare, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, 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 John Gregory Hembree, of Conway, for Respondent.

PIEPER, J.

Appellant Gary Robert Moore (Moore) was convicted of felony driving under the influence and leaving the scene of an accident involving death. Moore asserts the trial court erred in refusing to suppress evidence removed from his brother's truck because the search exceeded the scope of consent. He also asserts the trial court erred in failing to declare a mistrial when the solicitor implied that Moore had an affirmative duty to modify his statement to police. We affirm.¹

STATEMENT OF FACTS

On the night of October 19, 2002, and into the early morning of October 20, 2002, a truck driving on Highway 17 in Horry County hit a pedestrian walking on the median and drove off. Police investigated this traffic fatality, received a witness report describing the vehicle involved, collected remaining parts of the car from the scene of the crime, and notified news media. Thereafter, an off duty officer reported a truck with a matching description and called in its tag number. Officers then used that tag number and went to the home of Moore and his brother. Both Moore and his brother were informed of the hit and run incident and were asked by the police to give consent to process the vehicle. Moore's brother notified the police that the he owned the truck but that Moore typically drove it. Both brothers consented verbally and in writing to allow processing of the truck by the South Carolina Highway Patrol. In an abundance of caution, a search warrant was obtained before taking parts off the vehicle. That warrant was challenged as defective at trial; however, the state indicated to the court that it was proceeding on its theory of consent and the efficacy of the search warrant was never addressed by the trial court. Moore concedes on appeal that the search warrant issue is not preserved for our review.²

When processing was completed on the vehicle, parts were missing and the battery had been removed and placed in the bed of the truck. The truck was inoperable at that point and had to be towed for return. Because of these actions, Moore asserts the officers exceeded the scope of any consent given. Moore's motion to suppress the evidence was denied by the trial court.

At trial, Moore also asserted that the solicitor improperly commented on his constitutional right to remain silent by suggesting the defendant had a duty to contact the police to correct a mistake in his statement to the police. The trial court denied the motion and gave a cautionary instruction to the jury.

From these rulings, the defendant now appeals.

STANDARD OF REVIEW

"In criminal cases, the appellate court sits to review errors of law only." State v. Wilson, 345 S.C. 1, 5, 545 S.E.2d 827, 829 (2001). The appellate court "is bound by the trial court's factual findings unless they are clearly erroneous." State v. Quattlebaum, 338 S.C. 441, 452, 527 S.E.2d 105, 111 (2000). The appellate court "does not reevaluate the facts based on its own view of the preponderance of the evidence but simply determines whether the trial judge's ruling is supported by any evidence." Wilson, 345 S.C. at 6, 545 S.E.2d at 829.

ANALYSIS

I

Did the trial court err by denying Moore's motion to suppress based on the allegation that investigating officers exceeded the scope of consent by removing parts of the truck and returning it in an inoperable condition?

"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) (citations omitted). "An abuse of discretion occurs when the trial court's ruling is based on an error of law." State v. McDonald, 343 S.C. 319, 325, 540 S.E.2d 464, 467 (2000) (quoting Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000)). In an appeal from a motion to suppress evidence based on Fourth Amendment grounds, our review is limited to determining whether any evidence supports the circuit court's decision. State v. Bowman, 366 S.C. 485, 501, 623 S.E.2d 378, 386 (2005).

As to his consent argument, Moore primarily relies on State v. Forrester, 343 S.C. 637, 541 S.E.2d 837 (2001). Forrester stands for the proposition that under the South Carolina Constitution, "suspects are free to limit the scope of the searches to which they consent." Id. at 648, 541 S.E.2d at 843. "When relying on the consent of a suspect, a police officer's search must not exceed the scope of the consent granted or the search becomes unreasonable." Id. "The scope of the consent is measured by a test of `objective' reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect?" State v. Mattison, 352 S.C. 577, 585-86, 575 S.E.2d 852, 856 (Ct.App.2003) (citation omitted). Admittedly, a cursory review suggests a search which partially dismantled the truck and left it inoperable arguably exceeded the scope of consent given. See State v. Garcia, 127 N.M. 695, 698, 986 P.2d 491, 494 (N.M.App.1999), cert. granted, 128 N.M. 150, 990 P.2d 824 (N.M. Aug. 11, 1999) (No. 25,837) (although an individual consenting to a vehicle search should expect the search to be thorough, he need not anticipate the search to include the destruction of his vehicle).

However, the case at hand is distinguishable from the authority upon which Moore relies. While Moore might have had some interest in the truck being searched pursuant to his status as a permissive user, even if the search of his brother's truck exceeded the scope of Moore's consent, it did not violate Moore's privacy interests. South Carolina cases such as Forrester, which address the scope of consent given to investigating officers, pertain to the expansion of an existing search to incorporate a compartment or container not covered by the consent given. In the case at hand, the issue is not whether the investigating officers intruded into a protected, private or hidden area, but rather, the issue is whether they exceeded the scope of consent by damaging or dismantling the truck they were searching. The damaging or dismantling of Moore's truck may give some right of recourse to Moore's brother, but affords no specific constitutional right to Moore himself based on the facts presented in this case.

Initially, we question whether Moore's constitutional rights were violated due to his lack of any reasonable expectation of privacy in the vehicle since consent to search was also given by his brother, the true owner of the vehicle in question. As previously mentioned, this case does not involve a violation of Moore's right to privacy. For Fourth Amendment purposes, "[a] `seizure' of property occurs when there is some meaningful interference with an individual's possessory interests in that property." U.S. v. Jacobsen, 466 U.S. 109, 113, 133, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984) (citing U.S. v. Place, 462 U.S. 696, 696, 103 S.Ct. 2637, 2638, 77 L.Ed.2d 110 (1983)). The only evidence presented was that Moore was a regular driver of the vehicle and thus, was a permissive user of the vehicle. Even if Moore were the only one to regularly drive the vehicle, since Moore's brother, the owner, also consented to the search and seizure of the vehicle, Moore cannot now claim that any alleged possessory interest in the vehicle was infringed or violated.

In the context of a passenger occupant, the United States Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387(1978), addressed whether evidence seized in an automobile in which defendants had been passengers should have been suppressed. The Court held that:

"Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections. There is no reason to think that a party whose rights have been infringed will not, if evidence is used against him, have ample motivation to move to suppress it. Even if such a person is not a defendant in the action, he may be able to recover damages for the violation of his Fourth Amendment rights, or seek redress under state law for invasion of privacy or trespass.

Rakas, 439 U.S. at 133-34, 99 S.Ct. at 425 (citations omitted). While there may be circumstances under which a non-owner driver can demonstrate the requisite expectation of privacy under Rakas to gain standing, no such circumstances have been presented in this case. Assuming, arguendo, that a person may have some expectation of privacy over that person's own vehicle parked in the backyard of his own residence, Moore's constitutional claim is nonetheless unavailing. While Moore has demonstrated he resided at the location, the record still does not suggest such a privacy interest in the vehicle itself to invoke further scrutiny by this court. He did not have sole custody of the vehicle nor was he stopped while he was using the vehicle. We see nothing more of record than his status as a permissive user. Any concern raised by virtue of the vehicle's location in...