State v. Vickery

• Decision Date: 20 September 2012
• Docket Number: No. 5025.,5025.
• Citation: 399 S.C. 507,732 S.E.2d 218
• Parties: The STATE, Appellant, v. Randy VICKERY, Respondent.
• Court: South Carolina Court of Appeals

399 S.C. 507

732 S.E.2d 218

The STATE, Appellant,

v.Randy VICKERY, Respondent.

No. 5025.

Court of Appeals of South Carolina.

Heard March 20, 2012.

Decided Aug. 22, 2012.

Rehearing Denied Sept. 20, 2012.

Assistant Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General William M. Blitch, Jr., of Columbia, for Appellant.

Chief Appellate Defender Robert M. Dudek, of Columbia, for Respondent.

KONDUROS, J.

In this criminal case, the State appeals the trial court's suppression of evidence arising out of a driver's license checkpoint because it alleges the checkpoint was constitutional. We reverse and remand.

FACTS/PROCEDURAL HISTORY

Sometime between 9 p.m. April 25, 2009, and 3 a.m. April 26, 2009, officers with the Greenwood Police Department conducted a license checkpoint at the intersection of New Market Street and Milwee Avenue in Greenwood, South Carolina. During that checkpoint, while detaining Randy Jason Vickery for suspicion of driving under the influence, officers spotted methamphetamines and drug paraphernalia in his vehicle and arrested him. That same night, the Greenwood Police Department conducted three other checkpoints in the same vicinity from 9 p.m. until 3 a.m. The four checkpoints produced a total of fifty-six violations, including forty-eight traffic cases and eight criminal cases.

Vickery was indicted for possession of methamphetamine with intent to distribute and possession of methamphetamine with intent to distribute within proximity of a school. At trial, Vickery made a motion to suppress the evidence discovered as a result of the stop, challenging the stop's constitutionality, arguing it violated the Fourth Amendment. The State presented the testimony of Officer Robbie Byrd. Officer Byrd testified he was employed by the Greenwood Police Department in the traffic unit. He stated that on the night of April 25, 2009, through the morning of April 26, he conducted traffic safety checkpoints. He testified that checkpoint locations were determined based on “traffic flow, speeding complaints, loud music complaints, anything such as that nature, primarily just involving traffic.” He indicated that the checkpoint locations were selected by Lieutenant Jennifer Bass, who was over the traffic unit, and Major James Marshall. He stated that they had contact with the citizens who were complaining about speeding and loud music coming from cars. Officer Byrd stated the primary purpose of the checkpoints was to check for traffic safety, such as child restraints, seatbelts, driver's licenses, vehicle tags, and the proper credentials. He testified the officers would stop each car that came through the checkpoint and check each driver's license. He further testified the four checkpoints that night resulted in forty-eight traffic cases and two drug cases. He testified the stops that produced no violations lasted no longer than a minute.

Following Officer Byrd's testimony, Vickery argued the State had not laid the proper foundation to establish the checkpoint's constitutionality under Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), and Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). He argued State v. Groome, 378 S.C. 615, 664 S.E.2d 460 (2008), was “adamant” the State must present empirical data gathered prior to the checkpoint to justify setting up the checkpoint. He maintained the State only provided empirical data on the “back side, what the results were, but they have produced nothing to indicate why the Greenwood Police Department wanted to set up a checkpoint here.” He asserted the State needed to provide informationas to how many tickets were written and people had been arrested on the road in the month or year prior to the checkpoint. He stated those who established the checkpoints needed to testify and supply the empirical data.

The State responded and agreed Sitz, while critical of the searching examination of effectiveness by trial courts, “retains the requirement that the State produce empirical data to support the roadblock.” It argued the report marked Court Exhibit Number 1 established how the checkpoint was effective and what the results were. Vickery argued that report “would probably be very good empirical data for the next checkpoint that they want to have at this location.” He asserted that the State was arguing that if it set up a checkpoint and arrested forty-eight people, then it was a good checkpoint. Vickery argued, “It's data on the front side [that case law requires], not on the back side.”

Before adjourning for lunch, the trial court stated it was going to take the matter under advisement and would leave the record open if the State wished to see if the file contained any additional empirical data. Following the break, the State called Major Urban Mitchell to testify. He stated he was in charge of the administration division of the Greenwood Police Department. He stated that the position involved records, training, evidence, and crime scenes and included gathering statistics. The State introduced, for the purposes of the hearing, several traffic enforcement activity reports that included the intersection of New Market and Milwee or an intersection located two blocks away. Major Mitchell testified that the police department had determined that conducting traffic safety checkpoints was an effective way to manage traffic problems. On cross-examination, Major Mitchell could not say how many of the fifty-six violations on April 26 occurred at the intersection of New Market and Milwee but admitted fifty-six tickets at the police headquarters could be obtained to show which of the incidents occurred at that intersection.

The trial court found the State presented

insufficient empirical data justifying the authorization and implementation of the roadblock in question.... Except for the traffic testimony offered by Major Mitchell, no testimonywas offered by the State about the number of tickets, wrecks, and/or citizen complaints related to traffic concerns at the intersection of New Market Street and Milwee Avenue prior to the roadblock in question. Testimony by the State's witnesses indicates that the Greenwood Police Department relied on general knowledge of the neighborhood to justify the roadblock in question.

The trial court further found:

[T]he Traffic Enforcement Activity Reports contain some empirical data regarding the intersection of New Market Street and Milwee Avenue, but the data presented is insufficient to constitutionally justify the roadblock on April 25, 2009, at which [Vickery] was stopped and arrested. The record is absent of any specific evidence for the Court to determine the number of cases which resulted from the roadblock in question. Furthermore, the evidence in the record is insufficient for the Court to determine the effectiveness of the roadblock in question. No testimony was presented about how many vehicles passed through the roadblock in question.

The court determined the roadblock “did not violate [Vickery's] Fourth Amendment rights because its primary purpose was traffic safety enforcement.” However, the court found the roadblock did violate his Fourth Amendment rights because

the State provided insufficient empirical data to support the effectiveness of the roadblock in question. Without sufficient empirical data to justify the implementation of the roadblock and without sufficient data derived from conducting this roadblock, the Court is unable to do the necessary comparison analysis to determine the effectiveness of this roadblock as required under Brown v. Texas, 443 U.S. 47 [99 S.Ct. 2637, 61 L.Ed.2d 357] (1979).

Accordingly, the trial court granted Vickery's motion to suppress and suppressed all drugs and drug paraphernalia located in Vickery's vehicle and on his person, as well as all statements made, observations of his behavior, and recordings. This appeal followed.

STANDARD OF REVIEW

“In criminal cases, the appellate court sits to review errors of law only.” State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006). Thus, an appellate court is bound by the trial court's factual findings unless they are clearly erroneous. Id. The South Carolina Supreme Court has articulated the standard of review to apply to Fourth Amendment search and seizure cases. State v. Brockman, 339 S.C. 57, 66, 528 S.E.2d 661, 666 (2000). The court has specifically rejected the de novo standard the United States Supreme Court set forth in Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), for reviewing determinations of reasonable suspicion and probable cause in the context of warrantless searches and seizures. State v. Williams, 351 S.C. 591, 597, 571 S.E.2d 703, 706 (Ct.App.2002). The Brockman court determined the trial court's ruling would be reviewed like any other factual finding: reversed if there is clear error and affirmed if any evidence supports the ruling. 339 S.C. at 66, 528 S.E.2d at 666.

On appeals from a motion to suppress based on Fourth Amendment grounds, this Court applies a deferential standard of review and will reverse if there is clear error. However, this deference does not bar this Court from conducting its own review of the record to determine whether the trial judge's decision is supported by the evidence.

State v. Tindall, 388 S.C. 518, 521, 698 S.E.2d 203, 205 (2010) (citation omitted). Under the clear error standard, “an appellate court will not reverse a trial court's finding of fact simply because it would have decided the case differently.” State v. Pichardo, 367 S.C. 84, 96, 623 S.E.2d 840, 846 (Ct.App.2005). Rather, the appellate court must determine whether, based on the evidence, it is left with the definite and firm conviction the trial court committed a mistake. Id. Accordingly, we will apply an any evidence standard...