State v. Rodriquez

• Decision Date: 02 April 1996
• Docket Number: No. 2552,2552
• Citation: 476 S.E.2d 161,323 S.C. 484
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent, v. Kenneth RODRIQUEZ, a/k/a Michael Frasier, Appellant. . Heard

Page 161

476 S.E.2d 161

323 S.C. 484

The STATE, Respondent, v. Kenneth RODRIQUEZ, a/k/a Michael Frasier, Appellant.

No. 2552.

Court of Appeals of South Carolina.

Heard April 2, 1996.

Filed Aug. 12, 1996.

Rehearing Denied Oct. 16, 1996.

Certiorari Granted July 23, 1997.

Robert L. Gailliard, Charleston, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorneys General Rakale B. Smith and Caroline Callison Tiffin, Columbia; and Solicitor David P. Schwacke, North Charleston, for respondent.

CURETON, Judge.

Kenneth Rodriquez, also known as Michael Frasier (Rodriquez), was convicted of trafficking in cocaine, possession of cocaine with intent to distribute within proximity of a school, possession of crack cocaine with intent to distribute within proximity of a school, simple possession of marijuana, and unlawful carrying of a pistol. He appeals from the trial court's denial of his pretrial motion to suppress introduction of the contraband into evidence on the ground it was acquired through an unconstitutional search and seizure. We reverse.

I. FACTS

Incident to his participation in a drug interdiction program, Detective Melvin Cumbee, of the North Charleston Police Department narcotics unit, inspected the train manifest at the Charleston Amtrak station on March 23, 1993. Cumbee noticed the name "Kenneth Rodriquez" on the manifest and requested Rodriquez's itinerary. According to Cumbee, the name "Rodriquez" was significant to him because several months earlier the police had arrested a drug courier with a different first name but whose last name was Rodriquez. The courier stated his brother also transported drugs using the name Rodriquez. ¹ Upon inspecting the itinerary, Cumbee noted Kenneth Rodriquez was returning to Charleston from New York on March 24, he had paid cash for the trip, and his turn-around time in New York City was short. Cumbee also phoned the call-back number listed on the manifest, but the person who answered stated he did not know Kenneth Rodriquez. In addition, Cumbee spoke with a confidential informant who gave him "a very vague" description of Rodriquez and told him he believed Rodriquez made frequent train trips to New York, usually paid cash, and the same individual usually brought him to the train station and picked him up upon his return. The confidential informant did not give Cumbee any information indicating Rodriquez went to New York to buy drugs or that he would be carrying drugs upon arriving back in Charleston. Cumbee relayed the information he gathered from the train manifest, itinerary and confidential informant to other members of the narcotics unit.

Detective James Denney, also of the North Charleston Police Department, testified he received information from Cumbee concerning Kenneth Rodriquez and, as a result, went to the Amtrak station on March 24 with Detective James Roberts to meet the train upon which Rodriquez was to return. Both detectives were working undercover and arrived at the station approximately forty-five minutes before Rodriquez's train was scheduled to arrive. Denney then spoke with an attendant at the station and learned the train was running approximately one hour behind schedule. According to Denney, he and Roberts waited at the station for the train to arrive. ² While waiting for the train, Denney spoke with the confidential information and received a "full description" of the subject.

When the train arrived, Denney saw Rodriquez disembark and meet another man. Rodriquez was carrying four bags, two of which he handed to the other individual. Denney and Roberts followed the men out of the front doors of the train station and approached them in the parking lot. Denney testified he never blocked the subjects' path but approached them from the side and identified himself as a police officer. He advised Rodriquez he had received information Rodriquez might be carrying contraband and asked if he could pat him down for weapons. ³ Rodriquez refused the request. At the same time, Roberts was talking to the other individual. According to Denney, he asked Rodriquez a second time if he could pat him down and was refused. He also asked Rodriquez if he could look through his luggage and, again, Rodriquez refused. Rodriquez asked Denney why he was being detained and, according to Denney, was told he was not being detained and was free to leave at any time. Denney stated Rodriquez appeared very nervous, particularly during the initial stages of the encounter. After about five minutes, Denney and Roberts switched places so that Roberts could speak with Rodriquez and Denney could speak with the other individual. Denney stated Rodriquez voluntarily remained with him and Roberts for approximately thirty minutes although he repeatedly asked why he was being held and was repeatedly advised he was not being detained and was free to go. However, on cross examination, Denney admitted that after Rodriquez refused to consent to a search, he told Rodriquez that it would only take a short time for the detectives to search his bags and "if nothing was found, [he] would be clear to go." ⁴

Roberts testified he and Denney identified Rodriquez from the description given them by the confidential informant and followed Rodriquez and the man who met him as they left the train station. According to Roberts, he and Denney approached the subjects from behind and identified themselves as police officers. Roberts stated he heard Rodriquez refuse Denney's request for a pat down and to search his bags. Roberts also stated Rodriquez asked Denney three times why he was being detained and each time Denney informed him he was free to leave. Roberts testified he talked to Rodriquez for approximately thirty minutes after he and Denney traded places. According to Roberts, Rodriquez asked him five times why they were holding him. He stated he told Rodriquez he was not being detained and he "could leave at any time, but then I would again state, 'No, but I would like for you to cooperate with me before you leave--if you would, let me check your person and your baggage. You know, you are talking five minutes and you would be gone.' "

At some point while Roberts was talking to Rodriquez, Denney contacted Cumbee and a canine drug detection unit. Shortly thereafter, Detective Kenneth Hagge, along with several other officers, arrived and told Rodriquez he was going to conduct a pat down search. Rodriquez lifted his hands in a gesture to indicate "why" and Hagge saw a pistol in his waistband. Hagge then arrested Rodriquez and seized the pistol. Upon searching Rodriquez's bags, police officers found quantities of various drugs and drug paraphernalia.

At a pretrial suppression hearing, Rodriquez argued the contraband was the fruit of an unconstitutional search and seizure and was therefore inadmissible. The trial court denied the motion to suppress, finding Rodriquez's encounter with the police officers never amounted to a "seizure" requiring justification under the Fourth Amendment. Specifically, the trial court found "[c]learly there was a qualification insofar as, 'All you need to do is cooperate and you will be out of here,' but there was never a suggestion that 'If you don't cooperate, you can't be out of here.' " The trial court also found that although "thirty minutes is a period of time that raises a flag to some extent ... considering the totality of the circumstances, I would find it does not violate the Fourth Amendment rights of this individual.... [Rodriquez] had his freedom; he was offered it."

II. DISCUSSION

Rodriquez essentially argues he was detained by the police at the Amtrak station and that the detention amounted to a seizure of his person. He further asserts the seizure was unreasonable in scope and duration and was therefore tantamount to a de facto arrest which was in turn violative of his Fourth Amendment rights. Ordinarily, an appellate analysis of this issue would include a de novo review of all of the circumstances in order to determine whether, if an arrest did in fact occur, the arrest was supported by probable cause. See Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (holding that appellate courts should conduct de novo reviews of trial court determinations of reasonable suspicion to make stops and probable cause to conduct warrantless searches). Here, however, it is undisputed the police did not have probable cause to arrest Rodriquez until Detective Hagge saw the pistol in his waistband, after the allegedly unconstitutional seizure had already occurred. Therefore, our inquiry on appeal is limited to 1) whether the police "seized" Rodriquez within the meaning of the Fourth Amendment; and 2) if a seizure did in fact occur, whether the seizure was reasonable in scope and duration.

A. Detention

The Fourth Amendment provides that "[t]he 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.

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). Generally, police seizures are per se unreasonable within the meaning of the Fourth Amendment unless such seizures are accomplished pursuant to judicial warrants issued upon probable cause. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

However, it has long been recognized that "[n]ot all personal encounters between policemen and citizens involve 'seizures' of persons thereby bringing the Fourth Amendment into play." State v....