State v. Smith

• Decision Date: 10 September 1997
• Docket Number: No. 2776,2776
• Citation: 329 S.C. 550,495 S.E.2d 798
• Parties: The STATE, Respondent, v. Calvin Basil SMITH a/k/a Elwaldo R. James, Appellant. . Heard
• Court: South Carolina Court of Appeals

Page 798

495 S.E.2d 798

329 S.C. 550

The STATE, Respondent, v. Calvin Basil SMITH a/k/a Elwaldo R. James, Appellant.

No. 2776.

Court of Appeals of South Carolina.

Heard Sept. 10, 1997.

Decided Jan. 5, 1998.

Rehearing Denied Feb. 19, 1998.

Certiorari Granted Oct. 9, 1998.

Deputy Chief Attorney Joseph L. Savitz, III, of SC Office of Appellate Defense, Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General G. Robert DeLoach, III, Columbia; and Solicitor Thomas E. Pope, York, for respondent.

CONNOR, Judge:

A jury convicted Calvin Basil Smith of simple possession of crack cocaine and resisting arrest. Smith appeals the trial judge's denial of his motion to suppress evidence pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). We affirm.

FACTS

Lieutenant John Thickens, employed with the Rock Hill Police Department, testified at the suppression hearing, he stopped Smith for driving 45 miles per hour in a 35 mile per hour zone around midnight on January 2, 1993. James Gunning was Smith's passenger. Officer Clifton Russell with the Rock Hill Police Department responded as back up.

Thickens informed Smith he had been stopped for speeding and asked for his license and registration. Smith provided a two-week-old Florida license. Thickens found the car was registered in North Carolina.

When Russell arrived on the scene, he approached the driver's side of the vehicle. He "noticed the driver was acting [a] little bit edgy, looking around et cetera." He said Smith was "fidgeting and looking around on the inside like looking for a weapon." He stated he "thought for officer safety, better to bring him out of the vehicle to keep him away from any weapons opportunity." He asked Smith to step out and walk to the rear of the vehicle.

Russell asked Smith to place his hands on the trunk of the vehicle. Russell then asked him whether he had any weapons on him. When Smith did not respond, Russell conducted a patdown for weapons. ¹ Russell said he felt a bulge on the left side of Smith's jacket. He stated "it was obvious to me it was a baggy of some type" and based on his experience he knew "it was some type of narcotics." When he felt the baggy, Russell asked Smith, "What's this your reefer?" Smith replied, "Yeah, man, that's my reefer." Russell then informed Smith he was under arrest, and asked him to place his hands behind his back.

As Russell attempted to handcuff him, Smith pushed off the trunk, swung around, and hit him in the chest. Russell and Thickens eventually subdued Smith and handcuffed him.

When the officers searched Smith, they found a marijuana cigarette which also contained crack cocaine rolled up in it, and a bag containing 4.72 grams of crack cocaine.

After hearing this testimony and the arguments of counsel, the trial judge denied Smith's motion to suppress. He found there was a "reasonable articulated reason or suspicion" and probable cause to stop Smith's vehicle based on Smith's speeding. He further found the weapons patdown was proper under Terry. He concluded Russell lawfully seized the drugs in accordance with the "plain touch" doctrine and Smith's admission that he possessed illegal drugs.

DISCUSSION

I. SIMPLE POSSESSION OF CRACK COCAINE CONVICTION

Smith argues the trial judge erred in denying his motion to suppress evidence of the drugs. He asserts Russell had no reasonable suspicion he might be armed and dangerous. Additionally, he contends the search of his jacket exceeded the lawful bounds of a Terry search.

A. Standard of Review

In Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), the United States Supreme Court held an appellate court should conduct de novo reviews in making determinations of reasonable suspicion to make stops and probable cause to conduct warrantless searches. The Court stated:

[t]he principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause.

Id. at 696, 116 S.Ct. at 1661-62. The Court instructed, "a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Id. at 699, 116 S.Ct. at 1663; see State v. Asbury, 328 S.C. 187, 193, 493 S.E.2d 349, 352 (1997) ("In criminal cases, appellate courts are bound by fact findings in response to preliminary motions where there has been conflicting testimony or where the findings are supported by the evidence and not clearly wrong or controlled by an error of law."). We conduct our analysis of Smith's arguments in light of this established standard of review. ²

B. Terry

Stop and Patdown

The police may briefly detain and question a person upon a reasonable suspicion, short of probable cause for arrest, that the person is involved in criminal activity. Terry, 392 U.S. 1, 88 S.Ct. 1868; State v. Robinson, 306 S.C. 399, 412 S.E.2d 411 (1991). "If the officer's suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances." State v. Culbreath, 300 S.C. 232, 236, 387 S.E.2d 255, 257 (1990), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

Generally, the decision to stop an automobile is reasonable where the police have probable cause to believe a traffic violation has occurred. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); see Knight v. State, 284 S.C. 138, 325 S.E.2d 535 (1985) (an officer may stop an automobile and briefly detain the occupants, even without probable cause to arrest, if he or she has a reasonable suspicion the occupants are involved in criminal activity).

Recognizing the risk involved when a police officer approaches a person seated in an automobile, the Supreme Court has held, "once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures." Pennsylvania v. Mimms, 434 U.S. 106, 111 n. 6, 98 S.Ct. 330, 333 n. 6, 54 L.Ed.2d 331 (1977). Applying its decision in Terry the Supreme Court in Mimms, also held subsequent to a valid Terry stop for a traffic violation, a police officer may search the individual for weapons where he or she has reason to believe the person is armed and dangerous. Mimms, 434 U.S. at 111-12, 98 S.Ct. at 334; see Terry, 392 U.S. at 27, 88 S.Ct. at 1883.

In assessing whether a suspect is armed and dangerous, "[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. at 27, 88 S.Ct. at 1883. Moreover, "in justifying the particular intrusion, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry, 392 U.S. at 21, 88 S.Ct. at 1880; State v. Fowler, 322 S.C. 263, 471 S.E.2d 706 (Ct.App.1996), cert. denied, (Dec. 19, 1996), and cert. denied, --- U.S. ----, 117 S.Ct. 1823, 137 L.Ed.2d 1030 (1997) (in order to support his or her decision to "frisk" a defendant subsequent to a valid Terry stop, an officer must be able to specify the particular facts on which he or she based his or her belief the suspect was armed and dangerous).

Because Thickens observed Smith speeding, he was justified in stopping Smith. Once Smith was lawfully detained for speeding, the officers could ask Smith to step out of the vehicle. We must now decide whether Russell was justified in conducting a patdown for weapons.

We find when the facts of this case are considered as a whole and from the point of view of a reasonably prudent officer, Russell had reasonable suspicion to perform the patdown for weapons. Russell arrived after Thickens had stopped Smith late at night on a deserted road for a traffic violation. When he arrived, Thickens was speaking with the passenger, Gunning. Russell testified when he approached the driver's side of the vehicle, he noticed "the driver was acting [a] little bit edgy, looking around et cetera, at which time I thought for officer safety, better to bring him out of the vehicle to keep him away from any weapons opportunity." When asked what was the purpose of the patdown, Russell responded, "for weapons." All of these facts taken together gave rise to a reasonable suspicion Smith might be armed and dangerous and justified Russell's patdown of Smith.

C. "Plain-Feel" Doctrine

Smith next argues even if the stop and decision to patdown for weapons was valid, the patdown itself exceeded the bounds established by Terry and Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

In Dickerson, a police officer stopped a suspect and conducted a patdown search. Although the search did not reveal any weapons, the officer conducting the search took an interest in a small lump in the suspect's nylon jacket. The officer later testified, "as I pat-searched the front of his body, I felt a lump, a small lump, in the front, pocket. I examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane." Id. at 369, 113 S.Ct. at 2133. The officer then reached into the suspect's pocket and retrieved a small plastic bag containing one-fifth of one gram of...