State v. Pichardo

• Decision Date: 31 October 2005
• Docket Number: No. 4036.,4036.
• Citation: 623 S.E.2d 840
• Court: South Carolina Supreme Court
• Parties: The STATE, Appellant, v. Victor PICHARDO and Lorenzo Victoria Reyes, Respondents.

623 S.E.2d 840

The STATE, Appellant, v. Victor PICHARDO and Lorenzo Victoria Reyes, Respondents.

No. 4036.

Court of Appeals of South Carolina.

Heard October 12, 2005.

Decided October 31, 2005.

Rehearing Denied January 19, 2006.

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Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Randolph Murdaugh, III, of Hampton, for Appellant.

Acting Chief Attorney Joseph L. Savitz, III, of Columbia, for Respondent Victor Pichardo.

James G. Longtin, of Walterboro, for Respondent Lorenzo Victoria Reyes.

ANDERSON, J.:

Victor Pichardo and Lorenzo Victoria Reyes were indicted for trafficking in heroin. Prior to trial, Pichardo and Reyes made separate and identical motions to suppress drug evidence discovered in the search of Reyes' automobile. The circuit judge granted the motions. The State appeals the order suppressing the drug evidence. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

On September 18, 2002, Pichardo and Reyes were traveling north on I-95 in a vehicle owned by Reyes. Pichardo was driving the vehicle and Reyes was in the front passenger seat. Colleton County Sheriff's Deputy Christopher Stevers stopped the vehicle "[f]or failure to maintain a lane." Pichardo told Stevers that Reyes owned the vehicle and that he was driving because Reyes was sleepy.

Deputy Stevers called Deputy William G. Polk for backup. Stevers asked Polk if he could speak Spanish to assist the interrogation.

Deputy Stevers requested Pichardo's license. Pichardo stated he left his license at home. Pichardo informed Stevers that he and Reyes were traveling from Miami to New York City. Stevers advised Pichardo that he was going to give him "a warning ticket for no license." Stevers asked Pichardo to exit the vehicle and stand behind the trunk so he could give him the warning ticket.

Deputy Stevers then approached Reyes and asked for his license and the vehicle registration, which Reyes handed to Stevers. Deputy Stevers "noticed a lot of nervousness about Mr. Reyes while he was sitting in the front seat of the car." Stevers asked Reyes to exit the vehicle and stand behind the trunk with Pichardo. Stevers instructed Reyes that he would have to drive since Pichardo did not have his driver's license with him.

Reyes related to Stevers that he and Pichardo had been in Miami and were driving to New York, where they live. Reyes walked to the rear of the car to exchange positions with Pichardo as driver. At that time, Deputy Stevers: (1) told the men to have a good day and be careful; (2) shook Pichardo's hand; (3) returned their paperwork; and (4) turned away from the men. Stevers then turned back around and "asked [Pichardo and Reyes] if [he] could ask them a question and they both turned to [him]." Stevers "explained to them the situation that we have on I-95, especially since 9-11, with persons running illegal contraband up and down the highway and weapons and so forth . . . and then asked both of them for consent to search the vehicle." Stevers declared Pichardo and Reyes "both nodded in the affirmative." Pichardo claimed he "told [Stevers], I got no problem with that but this is not my car."

After Deputy Polk arrived, he initiated a pat-down of Pichardo and Reyes for safety purposes. Deputy Polk asked Pichardo and Reyes if they had a "pistola." Polk stated: "That's what I normally do when I have Spanish persons."

During the search of the vehicle, Stevers discovered "a kilo" of heroin hidden inside the right rear passenger door.

At the suppression hearing, Pichardo testified that Reyes "don't speak English at all." Pichardo professed that, when he and Reyes are together, Pichardo "talk[s] most of the time for him because he don't understand [English]." Pichardo, who speaks English, said Reyes does not use English except for an occasional request for a cigarette or "a couple of words" like "yes or no but understanding any conversation at all is difficult." Pichardo was not asked to translate anything for Reyes when the stop occurred. According to Pichardo, when Reyes joined him at the rear of the vehicle, Reyes asked Pichardo "what the officer was asking." Pichardo told Reyes that Deputy Stevers "was trying to argue permission to search the car." Pichardo informed Reyes he told the deputy that he did not object to the search but that the car belonged to Reyes. Pichardo claimed Stevers did not ask Reyes for consent to search. Pichardo declared Stevers "went straight to the car."

Sharon Folk, an interpreter and expert in Spanish language and Spanish culture and a professor at the University of South Carolina, Salkehatchie campus, opined that Reyes spoke little or no English, did not "understand" English and had a very limited education.

Reyes testified, through an interpreter, that he speaks "very little" English. He explained he could not understand any of the questions Stevers asked him. He stated that, on the day he was stopped on the interstate, no one asked him for permission to search his vehicle. Reyes declared he "didn't know that they were going to look in the car." When asked if he gave the police permission to search his car, Reyes replied: "No, because I didn't understand what they were saying." Reyes is originally from the Dominican Republic and has maintained a permanent residence in the United States for only three years.

Reyes presented affidavits from several inmates that were in the Colleton County jail with him. These affidavits attested to Reyes' reliance on Spanish for communication.

Deputy Stevers testified regarding his conversation with Reyes. When Stevers asked Reyes for the vehicle registration, Reyes handed it to him. While sitting in the vehicle, Reyes related that he and Pichardo had been visiting family in Miami and were driving to New York City. Stevers stated that, when he asked if he could search the vehicle, Reyes "nodded in the affirmative and said yes or something to that effect." Stevers opined that Reyes "understood what [he] was asking for."

At the hearing, the Solicitor stipulated Deputy Stevers did not tell Pichardo and Reyes they were free to leave. The Solicitor declared: "Your Honor, now that I've reviewed my report here, I had another case that Stevers was involved in, and I believe your recollection is correct here that he told him to have a good day. He did not say you're free to go." Stevers testified: "I told [Pichardo] to have a good day, they were free to go."

A stipulation is an agreement, admission or concession made in judicial proceedings by the parties thereto or their attorneys. Porter v. South Carolina Pub. Serv. Comm'n, 333 S.C. 12, 507 S.E.2d 328 (1998); Kirkland v. Allcraft Steel Co., 329 S.C. 389, 496 S.E.2d 624 (1998); South Carolina Dep't of Transp. v. Richardson, 335 S.C. 278, 516 S.E.2d 3 (Ct.App.1999). Stipulations are binding upon those who make them. Id.; see also Webster v. Holly Hill Lumber Co., 268 S.C. 416, 234 S.E.2d 232 (1977) (stating a stipulation is an agreement, an understanding, that is to be construed like a contract, to effect the intent of the parties); State v. Anderson, 318 S.C. 395, 399-400, 458 S.E.2d 56, 58 (Ct.App.1995) ("Generally, a stipulation is an agreement between the parties to which there must be mutual assent."); Black's Law Dictionary 1415 (6th ed.1990) (defining a stipulation as a "[v]oluntary agreement between opposing counsel concerning disposition of some relevant point so as to obviate need for proof or to narrow range of litigable issues."). The court must accept stipulations as binding upon the parties.

After hearing oral arguments and reviewing briefs and video evidence, the circuit judge found "the stop was legal and the defendant[s] properly detained." The judge concluded the search was "an exploitation of the original stop." He ruled "there was no reasonable suspicion to further detain or question [Pichardo and Reyes] after Pichardo was given the warning ticket." The judge determined: "I find that [voluntary consent] has not been shown here even by a preponderance of the evidence. As such, I cannot infer voluntary consent and must find that no such voluntary consent was given and that the search is invalid." Finally, the judge held the search was improper because it was "not based upon probable cause or suspicion and was still with the scope of the traffic stop and exploitive of that stop . . .; and that no voluntary consent by Reyes, the foreign speaking owner of the vehicle was ever obtained." The judge suppressed all evidence obtained in the search of Reyes' automobile.

STANDARD OF REVIEW

The appellate standard of review in Fourth Amendment search and seizure cases is limited to determining whether any evidence supports the trial court's finding. State v. Brockman, 339 S.C. 57, 528 S.E.2d 661 (2000); State v. Jones, 364 S.C. 51, 610 S.E.2d 846 (Ct.App.2005); State v. Green, 341 S.C. 214, 532 S.E.2d 896 (Ct.App.2000). The appellate court may only reverse where there is clear error. Id.; see also State v. Wilson, 345 S.C. 1, 545 S.E.2d 827 (2001) (holding in a criminal case the appellate court is bound by the trial court's preliminary factual findings in determining the admissibility of certain evidence unless the findings are clearly erroneous, and its review extends only to determining whether the trial judge abused his discretion).

The "clear error" standard means that an appellate court will not reverse a trial court's finding of fact simply because it would have decided the case differently. Easley v. Cromartie, 532 U.S. 234, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001). Rather, the appellate court must ask whether, on the entire evidence, it is left with the definite and firm conviction that a mistake has been committed. Id.

An appellate court must affirm the trial...