The State v. Provet

• Decision Date: 23 March 2011
• Docket Number: No. 4787.,4787.
• Citation: 706 S.E.2d 513,391 S.C. 494
• Court: South Carolina Court of Appeals
• Parties: The STATE, Respondent,v.Karriem PROVET, Appellant.

391 S.C. 494

706 S.E.2d 513

The STATE, Respondent,

v.Karriem PROVET, Appellant.

No. 4787.

Court of Appeals of South Carolina.

Heard May 18, 2010.Decided Jan. 31, 2011.Rehearing Denied March 23, 2011.

Tricia A. Blanchette, of Columbia, for Appellant.Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Deborah R.J. Shupe, Office of the Attorney General, all of Columbia; Solicitor Robert Mills Ariail, of Greenville, for Respondent.WILLIAMS, J.

On appeal, Karriem Provet (Provet) argues the trial court erred in denying his motion to suppress the evidence resulting from a traffic stop because the police subjected him to an unreasonable search and seizure in violation of the Fourth Amendment. We affirm.

FACTS

On the night of May 1, 2002, Corporal John Owens (Owens) of the South Carolina Highway Patrol was patrolling on Interstate 85 in Greenville County, South Carolina, when he observed a 1997 Ford Expedition (the vehicle). The vehicle had a burned out tag light and was following another vehicle too closely. Subsequently, Owens commenced a traffic stop and asked Provet for his driver's license and vehicle registration. During the stop, Owens observed Provet's hands were noticeably shaking and his breathing was accelerated. Additionally, there were numerous air fresheners in the vehicle. Upon checking Provet's vehicle registration, Owens learned the vehicle was registered to a third-party. Owens then asked Provet to exit the vehicle and proceeded to perform a pat down search of Provet.

After Provet exited the vehicle, Owens asked Provet a series of questions. Owens inquired where Provet was coming from, and Provet responded he had been visiting his girlfriend at a nearby Holiday Inn. Owens testified he knew Provet was not coming from the Holiday Inn because he observed the traffic violation prior to where the Holiday Inn exit was located. Owens then asked Provet if he knew the location of the Holiday Inn exit. Provet did not know the location. Owens questioned Provet about the vehicle's third-party registration, his employment status, and the duration of his stay in Greenville. Provet informed Owens that the vehicle's owner was another girlfriend who lived in Charlotte, North Carolina. He stated that he recently graduated from a technical institution but was unemployed. Provet informed Owens he was in Greenville for two days but was not carrying any luggage. Based on Provet's responses, Owens believed Provet was deceptive, prompting Owens to call Trooper Eddie Aman (Aman), an officer assigned with the drug detection canine unit, to report to the scene.

After contacting Aman, Owens returned to Provet's vehicle to check the vehicle identification number. When looking through the front windshield, Owens observed several air fresheners, numerous fast food bags, a cell phone, and some receipts. Consistent with Provet's admission at the commencement of the stop, Owens stated he saw no luggage in the vehicle, only one bag on the rear seat. However, Owens later stated that there was a luggage bag on the rear seat. When subsequently asked to clarify his observations regarding the bag on the rear seat at trial, Owens stated that he did not recall whether the bag was a luggage bag. Despite this apparent inconsistency regarding the presence of luggage, Owens' experience and observations caused him to conclude Provet was involved in criminal activity.

Owens returned Provet's driver's license and vehicle registration and then issued a traffic warning citation. After explaining the warning citation, Owens immediately asked Provet whether he had anything illegal in the vehicle. Provet responded in the negative. Owens then asked to search the vehicle, and Provet consented to the search. As Aman was attempting to remove a fast food bag as a precautionary measure for the drug detection canine, Provet fled the scene, running across six lanes of traffic on Interstate 85. Provet was apprehended. The drug detection canine alerted to the cocaine in the fast food bag. Provet was indicted by a Greenville County grand jury for resisting arrest and trafficking cocaine more than 100 grams.¹

Before trial, Provet made a motion to suppress the cocaine because it was obtained through an illegal search. The trial court denied Provet's motion and concluded Owens had probable cause to conduct a traffic stop and reasonable suspicion of a serious crime. The trial court found Provet's consent was voluntarily given. A jury convicted Provet, and the trial court sentenced him to twenty-five years imprisonment. This appeal followed.

STANDARD OF REVIEW

In Fourth Amendment cases, the trial court's factual rulings are reviewed under the “clear error” standard. State v. Brockman, 339 S.C. 57, 66, 528 S.E.2d 661, 666 (2000). Under the “clear error” standard, an appellate court will not reverse a trial court's findings 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). Therefore, we will affirm if there is any evidence to support the trial court's rulings. State v. Khingratsaiphon, 352 S.C. 62, 70, 572 S.E.2d 456, 460 (2002).

LAW/ANALYSIS

A. Detention

Provet does not appeal the trial court's ruling that Owens had probable cause to conduct a traffic stop of the vehicle based on his observation that Provet was following another vehicle too closely and had a burned out tag light. However, Provet contends his detention was unlawfully prolonged because Owens' questioning of Provet was unrelated to the traffic stop. We disagree.

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” U.S. Const. amend. IV. The Fourth Amendment protects against unreasonable searches and seizures, including seizures that involve only a brief detention. Pichardo, 367 S.C. at 97, 623 S.E.2d at 847 (citing United States v. Mendenhall, 446 U.S. 544, 551, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). The temporary detention during an automobile stop, even if only for a brief and limited purpose, constitutes a seizure under the Fourth Amendment. Pichardo, 367 S.C. at 97, 623 S.E.2d at 847 (citing Whren v. United States, 517 U.S. 806, 809–10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996)). Generally, the decision to conduct a traffic stop is reasonable when the police have probable cause to believe a traffic violation has occurred. Whren, 517 U.S. at 810, 116 S.Ct. 1769.

During the traffic stop, Owens asked Provet where he was coming from, where the Holiday Inn was located, his employment status, and the duration of his stay in Greenville. In addition, he inquired about the vehicle's third-party registration. We conclude Owens' questions were tangentially related to the traffic stop. See State v. Rivera, 384 S.C. 356, 359, 682 S.E.2d 307, 309 (Ct.App.2009) (concluding officer's questions concerning where the defendants were coming from, how long they had been there, where they were going, and the purpose of their trip were tangentially related to the purpose of the traffic stop). Moreover, even if Owens' questioning of Provet was unrelated to the purpose of the traffic stop, Provet's argument is not persuasive because the Fourth Amendment does not per se prohibit questions unrelated to the purpose of the traffic stop unless the unrelated questions unreasonably extend the traffic stop's duration. In this case, we conclude Owens did not unreasonably extend the traffic stop, because the entire traffic stop amounted to less than eleven minutes. Furthermore, Owens' series of questions and observations occurred prior to the conclusion of the traffic stop because Owens was waiting to hear from dispatch regarding Provet's license and registration, and a warning citation had yet to be issued. As a result, we conclude the traffic stop was not unreasonably extended. See Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 788, 172 L.Ed.2d 694 (2009) (“An officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.”); see also United States v. Jeffus, 22 F.3d 554, 557 (4th Cir.1994) (approving fifteen minute traffic stop).

B. Reasonable Suspicion

Provet argues Owens did not have reasonable suspicion of a serious crime. We disagree.

Lengthening the detention for further questioning beyond that related to the initial stop is acceptable in two situations: (1) the officer has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring; or (2) the initial detention has become a consensual encounter. Pichardo, 367 S.C. at 99, 623 S.E.2d at 848 (citing United States v. Hunnicutt, 135 F.3d 1345, 1349 (10th Cir.1998)). Reasonable suspicion requires a particularized and objective basis that would lead one to suspect another of criminal activity. State v. Woodruff, 344 S.C. 537, 546, 544 S.E.2d 290, 295 (Ct.App.2001) (citing United States v. Cortez, 449 U.S. 411, 417–18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). In determining whether reasonable suspicion exists, the trial court must consider the totality of the circumstances. State v. Willard, 374 S.C. 129, 134, 647 S.E.2d 252, 255 (Ct.App.2007). Generally stated, reasonable suspicion is a standard that requires more than a “hunch” but less than probable cause. Id. Reasonable suspicion “is not readily, or even usefully, reduced to a neat set of legal rules, but, rather, entails common sense, nontechnical conceptions that deal with factual and practical considerations of everyday life on which reasonable and prudent persons, not legal technicians, act.” United States v. Foreman, 369 F.3d 776, 781 (4th Cir.2004). Therefore, courts...