State v. Robinson

Decision Date12 November 2014
Docket NumberNo. 27463.,27463.
Citation410 S.C. 519,765 S.E.2d 564
CourtSouth Carolina Supreme Court
PartiesThe STATE, Respondent, v. Jomar Antavis ROBINSON, Petitioner. Appellate Case No. 2012–212042.

Appellate Defender David Alexander, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General Salley W. Elliott, both of Columbia, and Solicitor Kevin Scott Brackett, of York, for Respondent.


Chief Justice TOAL.

Jomar Robinson (Petitioner) appeals the court of appeals' decision affirming his convictions for possession of crack cocaine with intent to distribute (PWID), PWID within one-half mile of a public park, unlawful carrying of a pistol, possession of marijuana, and resisting arrest. See State v. Robinson, 396 S.C. 577, 722 S.E.2d 820 (Ct.App.2012). We affirm as modified.

facts/Procedural Background

On Thursday, March 20, 2008, the York Police Department received several anonymous complaints that people were selling drugs and carrying weapons outside of the Hall Street Apartments in York, South Carolina. Starting at 10:00 p.m., Sergeant Rayford Ervin, a police officer working with the York County Drug Enforcement Unit, stood in a wooded area across the street from the apartment complex and used a pair of binoculars to conduct covert surveillance.

Over the next half hour, five cars stopped in front of Apartment 122, where five men stood on the porch of that unit. Each time a car stopped, the same man wearing a black jacket and blue jeans walked from the porch to the car, spoke briefly with the car's occupants, conducted a “hand to hand transaction,” and then rejoined the other four men on the porch. As a veteran narcotics officer, Ervin found “that type of activity [ ] consistent with drug sales,” particularly because Thursdays tend to “have more drug dealing activity going on.” He therefore called for backup.

At 10:30 p.m., Lieutenant James Ligon and Officer Brian Schettler parked in front of Apartment 122 with the illuminated headlights pointed towards the porch. Ligon and Schettler identified themselves as police officers and walked onto the porch of Apartment 122. At that point, the five men standing on the porch were standing in two groups, with two men wearing black jackets and jeans—Laquaris Patton and Petitioner—on the left side of the porch, and the other three men (none of whom were wearing jackets) on the right side.1 Because of Ervin's description of the potential drug dealer's clothing, the officers were primarily interested in Patton and Petitioner. Ligon asked both men for identification, which they readily provided.

While Ligon inspected the two drivers' licenses, both officers began to smell a strong odor of green marijuana emanating from Petitioner's side of the porch. Further, Ligon noticed the butt of a gun protruding from the pocket of Petitioner's jacket. As a result, Ligon informed Patton and Petitioner that the officers were going to conduct a Terry2 frisk for drugs and weapons.

At that point, Petitioner began to back away from the officers, and, in fear for his safety, Ligon lunged for and seized the gun, immediately before Petitioner also reached for it. A struggle ensued, during which Petitioner's jacket fell to the ground. Petitioner fled the scene, abandoning his jacket. Ligon pursued Petitioner, and after another brief scuffle, subdued and arrested Petitioner. After Ligon brought Petitioner back to Apartment 122, Schettler searched Petitioner's discarded jacket and found a semiautomatic pistol, a bag containing 3.2 grams of marijuana, a bag containing 0.84 grams of loose crack cocaine rocks, and a bag containing 2.97 grams of crack cocaine rocks packaged in eleven individually wrapped bags.

Prior to his trial, Petitioner made a motion to suppress the gun and drugs, claiming that the police conducted a warrantless search and seizure of him on the curtilage of Apartment 122, and that the gun and drugs were obtained after the officers illegally entered on the property. The trial court denied the motion to suppress, finding that Petitioner did not have a reasonable expectation of privacy on the porch of Apartment 122, and that the officers, possessing a reasonable suspicion to investigate, entered the property merely to talk to the men on the porch and request their identifications.

At trial, after Ligon testified on behalf of the State, but before the State had formally introduced the gun or drugs into evidence, defense counsel introduced the bag of marijuana during cross-examination of Ligon in an attempt to discredit the officer.3 Later in the trial, Petitioner objected to the State introducing the gun and the bags of crack cocaine into evidence.

Ultimately, the jury convicted Petitioner of PWID, PWID within one-half mile of a public park, unlawful carrying of a pistol, possession of marijuana, and resisting arrest. The trial court sentenced Petitioner to life without the possibility of parole. See S.C.Code Ann. § 17–25–45 (2014).

Petitioner appealed, arguing that the trial court erred in refusing to suppress the gun and drugs. The court of appeals affirmed the trial court's decision. See Robinson, 396 S.C. at 577, 722 S.E.2d at 820. Specifically, the court of appeals summarily dismissed Petitioner's contention that the trial court should have suppressed the marijuana, finding that because Petitioner introduced the marijuana during his cross-examination of Ligon, he waived his objection to the marijuana. Id. at 583, 722 S.E.2d at 823. Further, the court of appeals found that (1) Petitioner was not a resident or overnight guest of Apartment 122, and thus did not have a reasonable expectation of privacy on the porch of the apartment; and (2) the police had reasonable suspicion to enter the porch without a warrant and conduct a Terry frisk. Id. at 583–86, 722 S.E.2d at 823–24.4

This appeal followed.

Whether Petitioner established that his Fourth Amendment rights were violated by the officers' entry onto the porch of Apartment 122?
Standard of Review

In criminal cases, appellate courts sit to review errors of law only, and are therefore bound by the trial court's factual findings unless clearly erroneous. State v. Tindall, 388 S.C. 518, 520, 698 S.E.2d 203, 205 (2010) ; State v. Wilson, 345 S.C. 1, 5–6, 545 S.E.2d 827, 829 (2001). Because the admission of evidence is within the sound discretion of the trial court, appellate courts should not reverse the decision of the trial court absent an abuse of discretion. State v. Wright, 391 S.C. 436, 442, 706 S.E.2d 324, 326 (2011) (defining an abuse of discretion as a decision ‘based on an error of law, or, when grounded in factual conclusions, [a decision] without evidentiary support’ (quoting Clark v. Cantrell, 339 S.C. 369, 389, 529 S.E.2d 528, 539 (2000) )).


The Fourth Amendment to the United States Constitution protects the people's right to be free from unreasonable searches and seizures. U.S. Const. amend. IV ; cf. S.C. Const. art. I, § 10. At its core, the Fourth Amendment “stands [for] the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). Accordingly, warrantless searches and seizures inside a man's home are presumptively unreasonable absent a recognized exception to the warrant requirement. United States v. Karo, 468 U.S. 705, 714–15, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) ; Wright, 391 S.C. at 442, 706 S.E.2d at 327.5 Likewise, the Fourth Amendment extends the same protection to a home's curtilage, including a porch. Florida v. Jardines, –––U.S. ––––, 133 S.Ct. 1409, 1414–15, 185 L.Ed.2d 495 (characterizing the front porch as a “classic exemplar” of the curtilage); accord State v. Herring, 387 S.C. 201, 209, 692 S.E.2d 490, 494 (2009).

However, “the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). For this reason, mere visual observations from public thoroughfares do not constitute a search, United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 953, 181 L.Ed.2d 911 (2012), and police officers need not “shield their eyes” when passing by a home, California v. Ciraolo, 476 U.S. 207, 213, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). Rather, the Fourth Amendment is not triggered unless a person has an actual and reasonable expectation of privacy, Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring), or unless the government commits a common-law trespass for the purpose of obtaining information, Jones, 132 S.Ct. at 949.

Moreover, Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.’ Rakas v. Illinois, 439 U.S. 128, 133–34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) ); accord State v. Hiott, 276 S.C. 72, 78, 276 S.E.2d 163, 166 (1981). Thus, while the Fourth Amendment protects people, and not places, “the extent to which the Fourth Amendment protects people may depend upon where those people are.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). “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.” Rakas, 439 U.S. at 134, 99 S.Ct. 421 ; Alderman, 394 U.S. at 171–72, 89 S.Ct. 961.

This is not to say that a person cannot have a “legally sufficient interest” in a place other than his own home. Rakas, 439 U.S. at 142–43, 99 S.Ct. 421. Rather, to claim the protection of the Fourth Amendment, a defendant must demonstrate that he had an actual and reasonable expectation of privacy in the...

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