State v. Pradubsri, Opinion No. 5499.

• Citation: 803 S.E.2d 724,420 S.C. 629
• Decision Date: 19 July 2017
• Docket Number: Opinion No. 5499.
• Court: Court of Appeals of South Carolina
• Parties: The STATE, Respondent, v. Jo PRADUBSRI, Appellant.

420 S.C. 629

803 S.E.2d 724

The STATE, Respondent,

v.Jo PRADUBSRI, Appellant.

Opinion No. 5499.

Court of Appeals of South Carolina.

Heard November 9, 2016

Filed July 19, 2017

Rehearing Denied August 18, 2017

Appellate Defender John Harrison Strom, of Columbia, for Appellant.

Attorney General Alan McCrory Wilson and Assistant Attorney General William M. Blitch, Jr., both of Columbia; and Solicitor Samuel R. Hubbard, III, of Lexington, for Respondent.

MCDONALD, J.:

Jo Pradubsri appeals his convictions for trafficking in crack cocaine, possession with intent to distribute crack cocaine within the proximity of a school (the proximity charge), and unlawful carrying of a pistol. Pradubsri argues the circuit court erred when it (1) refused to reveal an informant's identity, (2) found reasonable suspicion existed to justify his traffic stop, (3) gave an erroneous jury instruction on reasonable doubt, (4) refused to grant a directed verdict on the proximity charge, and (5) allowed testimony from a former codefendant that Pradubsri manufactured crack cocaine in his residence and participated in a drug sale immediately before the traffic stop. We affirm.

Factual Background

Around 3:00 a.m. on November 9, 2008, Sergeant John Finch of the Lexington County Sheriff's Department stopped Pradubsri's vehicle on St. Andrews Road in Irmo based on an informant's tip that the vehicle would likely contain crack cocaine and weapons. Finch conducted the stop as Pradubsri's vehicle exited a Kroger parking lot less than half a mile from an elementary school. Pradubsri was driving with his then-girlfriend, Melissa Martin, sitting in the passenger's seat. When Finch approached the vehicle, he saw furtive or shuffling movements and observed a black 9mm semi-automatic pistol on Pradubsri's side of the car. As Finch removed Pradubsri and Martin from the car, another officer saw that Martin had a small baggie in her clinched fist, a baggie in her waistband, and an unnatural bulge in her pants. In total, police found four baggies of crack weighing approximately seventy-five grams on Martin. Police also found a smaller .25-caliber semi-automatic pistol in a purse under a seat.

Law and Analysis

I. Reasonable Suspicion

Pradubsri argues police lacked reasonable suspicion to justify the traffic stop because the informant's information was neither sufficiently particularized nor corroborated. We disagree.

Before trial,¹ the State proffered testimony about the informant, whom Sergeant Finch had arrested for drugs and prostitution in the past. Finch testified he had used the informant multiple times before Pradubsri's arrest, he always found her information to be reliable, and she had assisted with several cases involving individuals on the "Midland's Most Wanted" list.

In Pradubsri's case, the informant participated informally by making "ten to twenty" phone calls to police over a three-month period. Through these calls, she relayed information about Pradubsri's and Martin's vehicle, their travel plans, their nicknames, and the locations where they sold drugs. Specifically, the informant told police the pair mostly sold drugs in hotels and motels and "were moving up and down Bush River [Road] down to St. Andrews [Road] and then back into the Irmo area." The informant also reported where Pradubsri and Martin lived, how much cocaine they bought per week, and where it was cooked into crack.

According to the informant, if Pradubsri was driving at night with Martin as his passenger, the vehicle would likely contain crack and weapons. The informant also identified the weapons: Pradubsri carried a black 9mm Hi-Point semi-automatic pistol, and Martin had a small silver .25-caliber semi-automatic.

On the night of the traffic stop, Finch spotted the silver 2001 Chevy Monte Carlo with a dent on the front right panel on St. Andrew's Road. Pradubsri was driving and Martin was his passenger. Finch had previously dealt with both Pradubsri and Martin but testified he knew Martin "a little more extensively from the prostitution and drugs and on the street." After Finch and another deputy approached Pradubsri's vehicle, Finch saw the handle of a pistol protruding from the gap between the driver's seat and the car's center console.² At this point, Finch ordered Pradubsri and Miller to step out of the vehicle, and the deputies found the drugs and second weapon.

Pradubsri moved to suppress the evidence seized during the traffic stop, arguing police did not have reasonable suspicion of criminal activity necessary to justify the stop. The trial court found the stop proper based upon the reliable information provided by the informant that Pradubsri and Martin were in engaged in criminal activity.

"Our review in Fourth Amendment search and seizure cases is limited to determining whether any evidence supports the trial court's finding." State v. Willard , 374 S.C. 129, 133, 647 S.E.2d 252, 255 (Ct. App. 2007). "A traffic stop is not unreasonable if conducted with probable cause to believe a traffic violation has occurred, or when the officer has a reasonable suspicion the occupants are involved in criminal activity." State v. Vinson , 400 S.C. 347, 352, 734 S.E.2d 182, 184 (Ct. App. 2012). " ‘Reasonable suspicion’ requires a ‘particularized and objective basis that would lead one to suspect another of criminal activity.’ " State v. Khingratsaiphon , 352 S.C. 62, 69, 572 S.E.2d 456, 459 (2002) (quoting United States v. Cortez , 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ). "In determining whether reasonable suspicion exists, the court must consider the totality of the circumstances." Willard , 374 S.C. at 134, 647 S.E.2d at 255. "Reasonable suspicion is more than a general hunch but less than what is required for probable cause." Id. "Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability." Alabama v. White , 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

In White , police received an anonymous telephone tip that Vanessa White would leave a certain apartment complex at a specific time in a brown Plymouth station wagon with a broken taillight. 496 U.S. at 327, 110 S.Ct. 2412. The tipster further stated White would travel to a particular motel and would have about an ounce of cocaine in a brown attaché case. Id. Police discovered White's vehicle at the apartment complex, followed it as it drove the most direct route to the motel, and initiated a stop shortly before it reached the motel. Id. A consensual search revealed marijuana in a brown attaché case and cocaine in White's purse. Id. The United States Supreme Court held that at the time of the stop "the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that [White] was engaged in criminal activity." Id. at 331, 110 S.Ct. 2412. While acknowledging that not every detail mentioned by the tipster was verified, the Supreme Court placed particular importance on the tipster's ability to predict White's future behavior "because it demonstrated inside information—a special familiarity with [White's] affairs." Id. at 331–32, 110 S.Ct. 2412. Ultimately, the Supreme Court concluded "[w]hen significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop." Id. at 332, 110 S.Ct. 2412.

However, in State v. Green , this court held an anonymous caller who gave police a tip that Green was carrying a large sum of money and narcotics along with Green's name, a description of his car, and the location he would be departing did not "supply sufficient indicia of reliability to establish reasonable suspicion to justify an investigatory stop." 341 S.C. 214, 218, 532 S.E.2d 896, 897 (Ct. App. 2000). This court noted the caller's information was readily observable and provided no predictive information, especially when the location from which the defendant departed had only two possible exits and the officer had no reason, aside from the tip, to suspect criminal activity. Id. at 218, 532 S.E.2d at 897–98. Significantly, this court stated, "Since the telephone call was anonymous, the caller did not place his credibility at risk and could lie with impunity. Therefore, [the court] cannot judge the credibility of the caller, and the risk of fabrication becomes unacceptable." Id. at 218, 532 S.E.2d at 898.

Conversely, in State v. Rogers , an officer received information from a known informant concerning the location of a planned robbery, the individuals involved, and the vehicle they would be driving.

368 S.C. 529, 532, 629 S.E.2d 679, 681 (Ct. App. 2006). The officer later received a dispatch about the robbery and found and stopped the car described by the informant. Id. at 531–32, 629 S.E.2d at 681. On appeal from the denial of Rogers's motion to suppress, this court found Green "clearly distinguishable" because it involved an investigatory stop based on an anonymous tip, as opposed to information from a known and reliable informant whom police had used in the past. Id. at 535, 629 S.E.2d at 682. Specifically, the court stated the officer "received the information from a known, accountable informant whose reputation could be assessed and who explained how he knew about the planned robbery, thereby supplying a basis, outside of his already proven reliability, for [the officer] to believe the confidential informant had inside information on the matter." Id.

More recently, in State v. Pope , an informant facing a drug charge arranged a drug sale with the defendant in exchange for a bond reduction. 410 S.C. 214, 219–20, 763 S.E.2d 814, 817 (Ct. App. 2014). The informant described the make, model, and color of Pope's vehicle, as well as the highway and direction in which Pope would be traveling with more than one person. Id. at 220, 763 S.E.2d at 817. The informant also called Pope while he was in...