by Alex KornfeldThe 4th Amendment, Flashy Cars, And ‘Responsible Party’ Undefined
The 4th Amendment; Vehicle Impound Searches And Why Justice Beatty’s Dissent Is Right. A cursory review of State v. Jonathan Xavier Miller.
In 2013, two Columbia Cops were investigating unrelated criminal activity when a local resident informed the cops that an older-model, silver and green Chevy with large rims was making a lot of stops “at a location known for drug activity.”
Why wouldn’t he take advice from Lil Dicky and Save That $ (I know this link is forced but so is this opinion.)
For whatever reason, Jonathan Xavier Miller, didn’t save that money. He got the big rims instead and he was approached by cops later that day when he pulled into a gas station parking lot. When Miller got out of the car he didn’t have a driver’s license with him but gave his name and DOB. DMV records showed that Miller’s license was expired SOOOOO the cops arrested Miller. The cops then searched him incident to his arrest and found an electronic scale in his pocket. The cops learned the vehicle owner was a Cassandra Jones. They then asked for consent to search, but Miller must be a fan of Jay-Z because he refused to allow the Cops to search his stuff. (Should I just write what Jay-Z really says?) While Miller was being arrested his girl came out of an apartment and told the cops that Miller was visiting her.
Columbia Police Department’s standard procedure permit its officers to tow vehicles when the driver is arrested away from his residence and there is no responsible party present at the scene. The policy requires cops to conduct an inventory search of the passenger compartment of a towed vehicle. Because Miller was arrested and the owner of the vehicle was not present, the cop called a tow truck to tow the car. Before the truck arrived, the cops did an inventory search and found about 5 grams of crack cocaine under the driver’s seat.
The issue before the South Carolina Supreme Court is whether it was reasonable under the Fourth Amendment for the cops to seize, search, and then tow the Chevy Miller drove while on private property away from his residence when the owner of the vehicle is not present.
The first thing the Court determined was whether the cop’s decision to seize Miller’s Chevy violated the Fourth Amendment. The Court reasoned that since the cops acted in accordance with the department policy that was passed under authority of a state statute that Miller’s 4th amendment rights were not violated. Of importance was the 3 requirements of the policy that must be met before the vehicle is towed: (1) the officer makes the arrest from the vehicle, (2) the arrest occurs away from the arrestee’s residence, and (3) the owner is not present at the scene and no other person is present who is authorized to take responsibility for the vehicle.
The Court then addressed whether it was reasonable to do an inventory search of the vehicle. The Courts have long held that if it is reasonable to seize a vehicle it is reasonable to do an inventory search so long as it is conducted according to standardized criteria AND performed in good faith. Here, the search was conducted according to the written policy and Miller did not allege bad faith.
The real issue that the Court fails to address is what does it take to be authorized to take responsibility for the vehicle???? No one has alleged that Miller’s girlfriend is not authorized to take responsibility for the vehicle and it is not alleged that he was in unlawful possession of the vehicle. This leaves one to conjecture: Would Miller have escaped a search incident to arrest if he had a letter from the owner in the vehicle giving him permission to be in possession of the vehicle? Would a recording of the owner authorizing him to be in the vehicle be suffice? What about a text? My argument is that the Courts have agreed that that no one was present who was authorized to take responsibility for the vehicle without first requiring the State to prove it beyond a reasonable doubt-WHICH THEY MUST and they failed to do.
Thankfully this was not lost on Justice Beatty. I urge you to read his dissent attached below but I have attached some of my favorite points.
“I respectfully dissent as I believe the circumstances did not reasonably justify the seizure, which precipitated the inventory search. Initially, other than a citizen’s “tip” about a vehicle making frequent stops in a location known for drug activity, the officers offered no objective justification for pursuing Miller’s vehicle, asking for his information, and consent to search the vehicle. Further, because the Columbia Police Department’s policy did not provide the requisite authority to seize Miller’s vehicle from the private driveway, the ultimate seizure was unlawful and, in turn, the resultant inventory search violated the Fourth Amendment.”
“Given this evidence, I would find the officers’ decision to tow Miller’s vehicle from a private driveway was improper as it was based solely on a suspicion of drug activity. See Florida v. Wells, 495 U.S. 1, 4 (1990) (recognizing that “an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence”); Bertine, 479 U.S. at 375 (“Nothing in Opperman or [Illinois v.] Layfayette, [462 U.S. 640 (1983)] prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” (emphasis added)); cf. S. Dakota v. Opperman, 428 U.S. 364, 376 (1976) (upholding inventory search where “there [was] no suggestion whatever that this standard procedure . . . was a pretext concealing an investigatory police motive”).”
“I believe the mere existence of a police department policy is insufficient to satisfy the State’s burden of proving the applicability of the inventory search exception to the Fourth Amendment. See Spencer, 948 N.E.2d at 203 (“[T]he existence of a police regulation cannot be used as a predicate to determine the lawfulness or reasonableness of an inventory search of a vehicle.”). “To hold otherwise would grant the police an unlimited ability to evade the requirements of the fourth amendment by promulgating regulations that authorize the use of inventory searches following every arrest.” Id. Unlike the majority, I do not believe the Columbia Police Department’s policy authorized the officers to seize Miller’s vehicle from a private driveway.”
And probably MOST persuasive:
“Finally, even accepting the majority’s conclusion that the Columbia Police Department’s policy authorized the officers to tow Miller’s vehicle from private property, I would find the officers failed to comply with the procedure outlined in Section 7.2. In relevant part, Section 7.2 states: “Department personnel may also tow the following vehicles: Any vehicle from which an officer makes an arrest and there is no responsible party to whom the arrestee can turn over the possession of the vehicle (§56-5-2520 S.C. Code).” (Emphasis added.) Contrary to the majority’s interpretation, this provision does not require the responsible party be “present” at the location of the vehicle about to be towed. Here, Officer McDonald admitted that he did not check to determine if there was a responsible party despite the requirement in the policy.”
State v. Jonathan Xavier Miller https://www.sccourts.org/opinions/HTMLFiles/SC/27798.pdf
by Alex KornfeldINTENT MUST BE SPECIFIC FOR ATTEMPT CRIMES AND INADMISSIBLE JAIL CALLS
SC SUPREME COURT CLARIFIES THAT STATE MUST PROVE SPECIFIC ATTEMPT IN ATTEMPT CRIMES.
THE COURT CAN’T ADMIT JAILCALLS OVER DEFENSE COUNSEL’S OBJECTION WITHOUT AT LEAST LISTENING TO THE CALLS FIRST
A cursory review of State v. Raheem D. King and why intent must be specific for attempt crimes.
King was found guilty of attempted murder, armed robbery, and possession of a firearm during the commission of a violent crime. He was sentenced to a collective 45 years in the pen. The Court of Appeals affirmed his conviction for armed robbery and possession of a firearm during the commission of a violent crime, but reversed and remanded King’s attempted murder conviction. The Supreme Court modified, but affirmed the Court of Appeals ruling.
In 2010 in North Charleston a cab driver was called at 4:06 a.m. to pick up a customer. The cab driver obliged, and the pickup location was well known by the cab driver as he had lived on the street for several years and so did his aunt. Upon arrival the cab driver actual saw a man leaving his currently abandoned aunt’s home. What a coincidence, right? The man got in the cab and the cab driver questioned him about why he was on his aunt’s property. An argument ensued. The man cocked a pistol, put a gun to the cab driver’s face, and demanded money. The cab driver gave the man some money and tried to flee from his car when he was shot in the elbow. The man gave chase and shot at the cab driver several times. Ultimately, through phone records and a photo lineup it was believed that Raheem D. King was the ‘man’.
King was arrested and jailed. He made 63 calls to the cellphone number that was used to call the cab on the night of the incident. In the first recorded phone call, King provided a person on the other end of the line with a pin to the cellphone. The State wanted to let the jury hear the 15-minute recording. Defense counsel objected but the Judge let the State publish it anyway. The Supreme Court ruled that allowing the jury to listen to the tap was improper because the Judge refused to listen to the tape prior to allowing the jury to listen to it. If a Judge doesn’t listen to the tape he can’t do the required analysis of whether the probative value is outweighed by any unfair prejudice. In this case, the prejudicial value was mountainous. The tape was riddled with profanity, racial slurs, and prior bad acts of King.
To save you the boredom of the entire analysis concerning attempt crimes I write that the Court clarified that an attempt crime must be one of specific intent. The Court looked to the legislature’s intent and reasoned that it was clear the legislature intended attempt crimes to be those of specific intent, not general.
During King’s trial an Officer testified to hearsay in an effort to prove King fired more than one gunshot. The State argued the Officer merely testified to what ‘she learned as part of her investigation of the crime scene’ and that even if it was hearsay it was harmless beyond a reasonable doubt. The Court ruled it was hearsay and warned prosecutors against using ‘investigative information’ as it appears this is an attempt to circumvent the rules against hearsay.’
What is the likelihood that King would get a cab driver that knew he was in a house he had no business being in and then question him about it? The world is a strange place, my friends.
by Alex KornfeldCRACK, CONFESSION, AND A TV
A case review of State v. Derek Vander Collier’s case filed In The Court of Appeals on October 4, 2017.
YOU MAY BE HIGH ON CRACK, AND A COP MAY HAVE PROMISED YOU TELLING THE TRUTH WOULDN’T HURT YOUR SITUATION BUT YOUR STATEMENT WILL BE CONSIDERED VOLUNTARY AND IT WILL BE USED AGAINST YOU
On November 20th and 21st of 2013 the room doors at the Jamaican Motor Inn in Myrtle Beach were being repainted. I guess Justin Kirkman was a big wig in the subcontractor industry because he stayed on the fifth-floor penthouse and was in charge of checking the doors at thirty-minute intervals and closing them when the paint dried. On November 21, 2013 Kirkman was in the penthouse between the tough job of door checking when he noticed the light in one of the rooms was on even though he had turned it off. Kirkman went to the room and saw a man attempting to take a T.V. Kirkman said he confronted the man and the man pulled, what looked like, a handgun and fled the room. Kirkman said he saw the man face-to-face for 10 to 15 seconds. He followed the man to the parking lot and saw him drive away in a four-door sedan where he noticed a TV in the back seat of the sedan. He tried to get a license number but didn’t quite. (I know this is incorrect grammar but the line ‘didn’t quite’ is in a James McMurty song and this is on a blog so piss off!)
About a week after the incident Kirkman went to the police station to meet with an artist. (I guess the penthouse was nice. He didn’t have time to go down to the cop shop any sooner.) The artist created a computer sketch of the suspect based on Kirkman’s description. Later, Kirkman viewed a lineup and narrowed his selection down to two photos. (Talk about a beauty pageant you don’t wanna win. AmIright?) Out of the two, Kirkman could not make a final decision. (He loves me, he loves me not?)
A detective recognized Derek Collier on the street and tried to contact Collier because he was facing several burglary charges. Collier gave a false name but the police already knew who he was and arrested him.
First Interrogation: The detective then interrogated Collier about 5 to 10 minutes after Collier was arrested. Collier told the detective he smoked crack cocaine a short time earlier. However, the detective stated Collier ‘did not appear to be under the influence of any drugs’ and wanted to proceed with the interview. Collier admitted to burglarizing several hotels claiming he did so to help his financially strapped mother and further admitted that he had been to the Jamaican multiple times.
Second and Third Interrogation: Another detective interrogated Collier two more times on January 30 and 31 of 2014. In the 3rd interrogation Collier admitted Kirkman had encounter him at the Jamaican but denied pulling a gun on him.
Collier went to trial, was found guilty of 2nd degree burglary, and was sentenced to 13 years in prison.
The issues the Court of Appeals were concerned with were:
Did the trial court improperly limit Collier’s closing argument by prohibiting him from responding to the State’s alleged bolstering of its key witness?
Did the trial court err in allowing the jury to hear recordings of Collier’s first
and third police interviews?
Did the trial court err in allowing Kirkman’s in-court identification of
Collier?
The only issues that this article addresses are the interviews.
Collier argued the jury should not have heard the recording of the first interrogation because it took place just after Collier smoked crack cocaine. Collier argued the highly addictive and intoxicating effects of the drugs were likely to have induced him to do almost anything to avoid prison. See Tyrone Biggums. Collier argued the 3rd interrogation was requested by him because of concerns about the admission he made during the first interview and because law enforcement promised leniency during the interview that overbore his will. (Did someone say ‘Freeeedom’?) The trial court ruled the statements were made voluntarily and allowed the admission to be heard by the jury. The Court of Appeals reasoned that the detective testified Collier did not appear to be under the influence of drugs and that Collier refused to postpone the first interrogation. The Court found that Collier appears relaxed and forthcoming in the ‘interview’ and that it did not appear that the detective was overreaching. Collier argued the 3rd tape should have been suppressed because had he not made the 1st statement after just smoking crack cocaine he wouldn’t have made the 3rd, so the 3rd statement was also involuntary. The Court didn’t buy it, stating the first interview was voluntary so the 3rd interview was voluntary too.
Collier argued his cooperation with detectives was only a desperate attempt to appease the police in order to avoid incarceration. The Court stated that the detective only assured him that telling the truth would not hurt his situation.
The moral of the story is that it doesn’t matter if you’re high on crack cocaine and make a confession if you don’t appear to be under the influence and are ‘eager’. (Aren’t crackheads stereotypical ‘eager’?) and even if an officer tells you ‘telling the truth won’t hurt your situation’ your statement will be considered voluntary unless there is a ‘promise of leniency that is so connected with the inducement as to be a consequence of the promise’ (What’s that mean???? These words…”Because I don’t understand them, I’m gon’ take them as disrespect”)
Source: State v. Collier
by Alex KornfeldWARRANTLESS CELL PHONE SEARCHES AND WHY JUDGE KONDUROS IS RIGHT
WARRANTLESS CELL PHONE SEARCHES AND WHY JUDGE KONDUROS IS RIGHT
A review of STATE V. ROBERT LEE MOORE.
In the case of State v. Moore the South Carolina Court of Appeals ruled a limited warrantless search of Moore’s cellphone was not in violation of the law, therefore it was admissible. Moore was found guilty of attempted murder and sentenced to 30 years.
On a winter day in 2013, a victim was found shot in the head at a Taco Bell parking lot in Spartanburg. When officers arrived at the Taco Bell, the victim was draped over the driver’s side door of his vehicle. Three cell phones were found in the car. The phone at issue was found almost under the driver’s side seat according to officers. Money and drugs were also found in the car to round out the trio of clues.
The cops took pictures of the phones and took them to a detective to do a forensic examination on the phones to determine who owned each phone. To determine the ownership of the phone in question the detective took the SIM card from the phone and got the number of that particular phone. The detective told another cop of the phone number who ran it through a database. The database determined the phone belonged to Moore. Then, and only then, the cops applied for a search warrant to examine the stored data on the phone. After the search warrant was granted the detective did a full forensic examination of the phone in which stored contacts, images, call logs, and text messages were gathered.
Moore moved to suppress any and all information gathered from the search of his phone pursuant to Supreme Court case, Riley v. California, 134 S. Ct. 2473 (2014).
Moore correctly argued the search warrant affidavit submitted to support the phone warrant application was conclusory and did not support the finding of probable cause needed for issuance of a search warrant. Therefore, the evidence should be suppressed. The trial court denied Moore’s motion, ruling the phone was abandoned.
At trial, the State established the victim was at his mother’s home before the shooting and that five calls were made to the victim’s phone between 1:03 p.m. and 2:06 p.m. After the shooting, witnesses saw a white Chrysler 300 fleeing the scene. Surveillance footage from a nearby gas station showed Moore and his co-defendant exit a white Chrysler 300 and go into the gas station. At trial, there was testimony from witnesses, video surveillance, and testimony from the co-defendant that Moore got in the victim’s vehicle and pulled a gun on the victim. The co-defendant testified that a struggled occurred between Moore and the victim and the tried to open the car but the doors were locked. Then, Moore shot the victim.
On appeal, Moore argued the search of the phone violated the Fourth Amendment, and no exception to the warrant requirement applied. The Court held Moore’s Fourth Amendment right was not violated relying on persuasive rulings in other states. In this case, the Court reasoned the officer ‘removed the phone’s SIM card and processed it from the limited purposed of obtaining the telephone number. I recognize that even small manipulations of personal property have been held to be Fourth Amendment searches. However, under the facts of this case, law enforcement’s limited search of the SIM card to obtain the phone number did not constitute an unreasonable search under the Fourth Amendment because Moore had no reasonable expectation of privacy in the number itself.’ The Court went on to state the officers got a warrant before performing any further analysis to examine the phone’s content.
That’s basically it. The opinion is more detailed than that but that’s basically it concerning the phone search. Here’s why they got it wrong and why I predict, should this case go to the South Carolina Supreme Court Supreme Court, the search will be deemed a violation of the Fourth Amendment—it appears the Court incorrectly assumes that one can take a SIM card out of a phone without opening it or manipulating it. A cursory youtube search informs one that taking a SIM card out of a phone is a search that requires some difficulty. https://www.youtube.com/watch?v=DRKF_C-dA5o
This was appreciated by the United States Supreme Court as they ruled ‘Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple-get a warrant’. See Rliey v. California.
Judge Konduros of the South Carolina Court of Appeals respectfully dissented. (Thank you Judge!) She correctly stated, ‘The minute Officer McGraw removed the SIM card, he had access to digital information in which our courts have recognized an expectation of privacy.’ Further, she states the Officer got more than the cell phone number. He got thirty-four contacts and three text messages.
‘THE FACT THAT TECHNOLOGY NOW ALLOWS AN INDIVIDUAL TO CARRY SUCH INFORMATION IN HIS HAND DOES NOT MAKE THE INFORMATION ANY LESS WORTHY OF THE PROTECTION FOR WHICH THE FOUNDERS FOUGHT.’-Justice Roberts
by Alex KornfeldIT DEPENDS ON WHAT THE DEFINITION OF ‘KNOWINGLY’ IS
In the Case of State v. Miles The South Carolina Court of Appeals clarifies the definition on ‘knowingly’ in a rather entertaining opinion written by Greenville native, Judge Hill.
Lance L. Miles was convicted for trafficking illegal drugs. Miles was sentenced to 25 years and was ordered to pay a $100,000 fine. In Miles’ appeal he argued that the trial court improperly instructed the jury that the State did not have to prove Miles specifically knew which drugs he was in possession of; he also argued statements were admitted in Court that were in violation of Miranda. This article will focus on the Court’s clarification of the word ‘knowingly’.
The Lexington County Sheriff’s Office were scanning parcels at a FedEx office. Apparently, the Sheriff’s became suspicious of a package and arranged for a controlled delivery of the package. The Sheriff’s observed the delivery person ring the doorbell and leave the package by the front door. Moments later a cop saw Miles exit another apartment. The cop then saw a female emerge from the delivery address. The cop stated she looked at the package, got on her phone, hung up and went back inside. Miles then picked up the box and started back to his apartment. Miles noticed the cops closing in on him and he tried to ditch the box. The cops caught up to Miles and cuffed him.
One of the cops immediately asked Miles about what was in the package. Miles stated he did not know what was inside the package. The cop then asked if drugs were in the package to which Miles responded that drugs were probably in the package but he was unsure of what kind of drugs. Then the cop read Miles his Miranda rights and asked Miles whether there were drugs in the box again. Miles responded as he had prior to Miranda. The cop obtained a search warrant and got Miles’ consent to search the package. The cop found 300 pills that contained a total of 9 grams of oxycodone. The cop asked Miles to write down everything he knew about the drugs. The cop then read Miles his Miranda rights again! Miles wrote a statement that he had been paid $100 to pick up the package from someone named “Mark” that had called him to pick it up, and the owner of the package was a “Stacks” from Tennessee.
At trial, Miles’ argued the case should be dismissed because the State could not prove Miles knew the box contained oxycodone. Miles’ argued that the term “knowingly” applied to each element of the trafficking offense reasoning that the State had to prove that Miles knowingly intended to sell, manufacture, cultivate, or possess illegal drugs AND that Miles had precise knowledge of the type of drugs he had in this case. The Court of Appeals sited precedent which stated that criminal laws that open with ‘knowingly’ don’t necessarily require that each element of the law be proven by that level of intent. The Court reasoned that the Legislature did not intend to require the State to prove a defendant knew the specific type of illegal drug he was trafficking. The Court stated, ‘were we to adopt Miles’ version of subsection (e), the State would have to convince the jury beyond a reasonable doubt the defendant not only knew the drugs were oxycodone, but also knew that oxycodone is a “morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin.’ The Court reasoned, “We doubt the Legislature, in passing the drug trafficking law, meant to create a scenario where a defendant is culpable only if armed with a proficiency in chemistry on par with a pharmacist or Walter White.”
Lawyers are often ridiculed as being too persnickety about the precise definition of words but an advocate must focus on words as in this case the interpretation of words was the difference between a dismissal and a mandatory 25 year prison sentence.
As one of my wisest law professors, Gerald Moran, once said, ‘law school has no meaning, we just play with words’.
Source: State v. Miles
Alex Kornfeld is a Criminal Defense Attorney in Greenville, South Carolina. If you have been arrested or are under suspicion of a crime, it may be in your best interest to consult with an attorney. You may reach Alex by phone at 864-335-9990.
by Alex KornfeldSOUTH CAROLINA WILL TRY YOU IN YOUR ABSENCE
A REVIEW OF STATE V. STANLEY LAMAR WRAPP
What if I don’t show up? They can’t try me in my absence, can they? Maybe they’ll just forget about it? These are just some of the thoughts a defendant may have. The pressure of a criminal trial is immense. Your very freedom is at stake but not showing up for trial is not a good idea.
In this case review, Stanley Lamar Wrapp appeals his convictions for possession with intent to distribute cocaine base and driving under suspension. Wrapp argued he did not have proper notice of his trial date. The Court agreed with Wrapp so the case will be remanded for a new trial. It will not be dismissed and I can bet Wrapp’s counsel would have preferred if Wrapp appeared for trial.
The appeals Court ruled that in order to try a defendant! in his absence the Judge must rule that the Defendant received notice of his right to be present AND that the Defendant was warned he would be tried in his absence should he fail to attend.
In this case, the Court found there was no finding from the Court that Wrapp was informed that he could be tried in his absence.
!In a non-capital case.
Sources: http://www.sccourts.org/opinions/HTMLFiles/COA/5510.pdf
by Alex KornfeldStand Your Ground Comes Down To Witness Credibility
In The Case of State v. Preston Ryan Oates
On July 26, 2017, The South Carolina Court of Appeals affirmed the Circuit Courts ruling denying Oates motion for immunity from prosecution pursuant to the Protection of Persons and Property Act as well as Oates’ challenge alleging the Circuit Court was incorrect in refusing to grant a directed verdict of acquittal on the grounds that the State failed to disprove self-defense.
On Christmas Eve of 2010 the deceased was visiting his brother and his family. The deceased parked his vehicle on the street in the neighborhood. Parking on the street was prohibited by the HOA. Oates was a tow truck driver hired by the HOA to tow vehicles parked on the streets. Oates put a boot on the deceased vehicle and was beginning to hook the vehicle up to the tow truck. A neighbor informed the deceased that his vehicle was in the process of being towed. The deceased, the deceased’s brother, and the neighbor asked Oates not to tow the vehicle. Oates felt intimidated and got back into his truck and locked it. Oates testified that the deceased told the neighbor to ‘go get my shotgun’. Deceased’s brother told Oates to ‘take that[boot] off his vehicle’. Oates said he responded, “Okay, let me call my office and see what they [want to] do and we’ll get a handle…It’s not a problem, we can work this out.” Oates testified he heard a round being chambered. Deceased allegedly said, ‘You’re going to take this off right now and I’m leaving”. Oates allegedly stated that was fine. The deceased brother stated the deceased pulled a gun out of his pants, ratcheted the gun, and said, “Nobody’s going to take my car.” This made Oates nervous. Oates began fumbling his keys when the deceased’s brother grabbed them. Oates stated the deceased inquired whether he had any paper work on the vehicle because he did not want law enforcement to ‘come look’ for him. Oates showed the deceased a ledger to assure him he had no paperwork on the minivan. Oates also pulled out his gun from the glove box at this time. Oates testified that a concerned lady that lived nearby offered to call 911 but that Oates stated, ‘Don’t worry about it, everything’s fine, go back inside, he’s got a gun, so everything’s okay here’ hoping to alert the lady without alerting the other men. The deceased then demanded that Oates take the book off the vehicle.
At this time a struggle ensued. This case came down to the credibility of the witnesses. Ultimately, Oates lost the battle of credibility and was found guilty of voluntary manslaughter and sentenced to 26 years.
Procedurally, Oates requested immunity from prosecution because he argued there was evidence the deceased was trying to remove him from his vehicle. To be granted immunity Oates would have had to show that he had a reasonable fear of imminent peril of death or great bodily injury to himself while using deadly force when the deceased unlawfully and forcibly entered the vehicle he occupied or that the deceased attempted to remove Oates from his vehicle.
The Circuit Court denied Oates’ request for immunity reasoning that the facts did not show that the deceased was unlawfully or forcibly entering, or had entered Oates’ vehicle at a time when Oates’ had a reasonable fear of imminent peril of death or great bodily injury. The Circuit Court found the deceased was walking away from Oates’ truck at the time Oates’ got out and shot the deceased. Further the Circuit Court held that Oates’ ‘use of deadly force against the victim was not necessary to prevent his own death or great bodily injury or the commission of a violent crime.” Further reasoning, ‘assuming that there was an “attack” previously, there was no such event at the time of the shooting.’
The Court clarified issues concerning the burden of proof concerning self-defense ruling that the State is not required to disprove the elements of self-defense beyond a reasonable doubt at an immunity hearing but would have the burden if self-defense is properly submitted to the jury.
This appears to be a case that was decided almost entirely on the testimony of the eye witnesses and the forensic pathologist. In analyzing whether one has a self-defense claim testimony and timing are all too important.
Alex Kornfeld is a Criminal Defense Attorney in Greenville, SC. If you have been arrested or are under suspicion of a crime, it may be in your best interest to consult with an attorney. You may reach Alex by phone at 864-335-9990.
Source: State v. Preston Ryan Oates
by Alex KornfeldCONSENSUAL ENCOUNTER DEPENDS ON WHETHER ONE IS FREE TO LEAVE?
SOUTH CAROLINA BY WAY OF THE CHINESE BUS LINES. AM I FREE TO LEAVE?
The Court of Appeals Rules in the case of State v. Eric Terrell Spears (S.C. App., 2017).
It matters whether a reasonable person believes they are free to leave in determining whether police are in a consensual encounter with suspects.
In this particular case, Mr. Spears was sentenced to 30 years from trafficking cocaine between ten and twenty-eight grams. DEA agents working with a sheriff’s office received a tip that one or two black males were traveling from NYC to South Carolina on the ‘Chinese bus lines.’ It was believed that the buses departed from Chinatown and oftentimes drug dealers used the buses. On March 29, 2012 two of the Chinese bus lines were scheduled to arrive in South Carolina. Three law enforcement officers were dispatched to one of the bus stops. Spears and a woman were getting off the bus. They retrieved four large bags and appeared to be nervous, they kept looking at the agents, and were talking amongst themselves.
Spears and the woman left the bust stop on foot. The agents followed them. Spears looked back. Williams (the woman) looked back. It appeared to law enforcement that the woman handed something to Spears. Law enforcement briskly caught up to the couple, identified themselves, and asked to speak with Spears and the woman. One of the law enforcement officers told Spears and the woman that in the past there had been wanted subjects, drugs, counterfeit merchandise on the line and asked them for an id.
An officer asked Spears if he had any illegal weapons. It was reported that Spears hesitated before saying “no”. An officer then asked about illegal items and Spears began to put his hands underneath his shirt and push the shirt away from his waistband and body. Spears did this two more times after being asked not to do it and an Officers told Spears he was going to search him for weapons. During the search, an officer felt an object consistent with the feel of crack cocaine. The officer removed the object.
Spears lawyer motioned to suppress the drugs based on the Fourth Amendment. The trial court implicitly ruled the encounter was consensual and denied Spears’ motion because Spears willingly stopped and talked with agents and the agents did not tell Spears he was not free to leave.
The Court of Appeals ruled the trial court erred by denying Spears’ motion reasoning that a person has been seized when a reasonable person would have believed that he was not free to leave. A crucial question the Court considered was whether a person ‘would have felt free to decline the officers’ requests or otherwise terminate the encounter’. The Court ruled that under the totality of the circumstances a reasonable person would not believe he would be free to leave. Spears and Williams were approached by law enforcement officers, some of which had visible weapons. The officers followed Spears and the woman but waited to engage them until after they were alone, and the officers did not inform Spears he was free to go. The Court held that the officers lacked the reasonable suspicion necessary to stop him. Here, the Court ruled the information the officers acquired amounted to a hunch, which is not enough to rise to a level of reasonable suspicion.
Alex Kornfeld is a Criminal Defense Attorney in Greenville, SC. If you, or someone you know has been arrested, or is under suspicion of a crime, it may be in your best interest to consult with an attorney first. You may reach Alex by phone at 864-335-9990.
Source: State v. Eric Terrell Spears (S.C. App., 2017).
by Alex KornfeldGREENVILLE AND PICKENS IMPLEMENT NEW SUBSTANCE ABUSE DIVERSIONARY PROGRAM-DRUG CHARGES CAN BE DISMISSED
The Thirteenth Circuit Solicitor’s Office has implemented a pilot program for people charged with non-violent drug offenses. The program is at the discretion of the Solicitor and participation is voluntary.
If admitted to the program one must complete a twelve-week drug rehabilitation program. If one successfully completes the program the drug charges will be dismissed.
If you have been charged with a drug offense give Alex a call at 864-335-9990.
http://www.sccourts.org/courtOrders/displayOrder.cfm?orderNo=2017-04-18-02
by Alex KornfeldCOPS CAN’T PROLONG A TRAFFIC STOP JUST TO WAIT FOR DRUG SNIFFING DOG
The United States Supreme Court made it clear that once a traffic stop has been completed, without further reasonable suspicion, an extended stop is an unreasonable seizure, therefore illegal. On the other hand, the Court also made it clear that if a dog sniffs a car while being issued a ticket and that sniff doesn’t add anytime to the stop then the sniff is NOT an illegal seizure. Timing is everything.
In the present case, Denny Rodriguez was stopped by an officer for driving his Mercury Mountaineer on a highway shoulder and then jerking it back on the road, which is against the law in Nebraska. The officer checked Rodriguez’s license and his passengers, then issued a warning for the traffic offense. The officer gave Rodriguez his license, registration, and written warning back. Then the officer asked Rodriguez if he could walk his dog around his vehicle. Rodriguez refused and the officer detained him until backup arrived. The officer then had his dog walk around the vehicle and the dog alerted to the presence of drugs in the vehicle. The officer searched the vehicle and found methamphetamine. Between seven and eight minutes went by from the time the officer issued the warning and when the dog alerted. Again, timing is everything.
So how much time does an officer have to complete a traffic stop without violating the Constitution? A reasonable amount of time, which is not defined but the Court gives us clues to what it means. A reasonable traffic stop will allow an officer the time to check the driver’s license, determine whether there are outstanding warrants, inspect the vehicle registration, and proof of insurance. The Court held, “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.”
What does all this mean? You may remember I shared a brilliant law review article that was published in 2012 that does a line by line analysis of Jay-Z’s 99 Problems, Verse 2. You know the line in 99 Problems, “We’ll see how smart you are when the K-9’s come”, right?! The Supreme Court tells us without reasonable suspicion waiting for the K-9’s to come is an illegal seizure.
If you read that article you will see that Caleb Mason correctly predicted what the Supreme Court would do three years before Rodriguez v. United States was published. Mason states,
We’ll see how smart you are when the K-9s come . . . A sniff by a drug-sniffing dog is not a “search,” for purposes of the Fourth Amendment. Dog sniffs are “sui generis,” the Court has held—they’re unique in that they don’t reveal any information about the contents of the object sniffed except the presence of contraband, as to which you have no privacy right. Thus, if the police have a dog ready to sniff your car when they pull you over for a traffic violation, you have no basis for objecting to the sniff. And, of course, if the dog does alert to the car, that is probable cause, so the police can then search the whole car. That’s what the officer wanted to do with Jay-Z, but the K-9 unit wasn’t there when he was pulled over, and was late arriving. And this brings us to the final legal issue implicated by the song: excessive prolongation of a traffic stop. A traffic stop is a legitimate seizure of the person, for purposes of investigating the violation of the traffic law and writing up the citation. But it cannot be prolonged for longer than reasonably necessary to complete that legitimate activity. If in fact the patrol car’s computer is slow, so you have to sit there for ten minutes while the cop runs your license, that’s one thing. But increasingly, given dashboard cameras and records of department computer activity, that sort of “delay” is getting harder to fudge. And the Fourth Amendment rule is very clear: if the police detain you after they’ve finished processing the ticket—or if they simply dawdle over the ticket processing for an unreasonable length of time—in order to get a K-9 team there, then the eventual dog sniff will be the fruit of an illegal detention, and any evidence found will be suppressed. The officer in Jay-Z’s case apparently knew this, and so released Jay-Z after the stop when the K-9 unit he’d called was late in arriving. Of course, if, during the traffic stop, you provide the officer with reasonable suspicion that you’re smuggling, then the traffic stop becomes a Terry stop for the purpose of investigating the suspected smuggling. And then it can be extended—not indefinitely, but for a few minutes, anyway, depending on the circuit. Courts will uphold reasonable suspicion for all the usual reasons—but there still has to be something beyond the traffic stop itself. This is a crucial distinction that all cops and perps need to be aware of, and be prepared to litigate.
I know most of you haven’t past the bar but now you know a little bit. Thanks for reading along.
i. Rodriguez v. United States, 575 U.S. _ (2015)
ii. It’s against the law in South Carolina too!
iii. Jay-Z’s 99 PROBLEMS, VERSE 2: A CLOSE READING WITH FOURTH AMENDMENT GUIDANCE FOR COPS AND PERPS
iv. Caleb Mason is the author of the article referenced in footnote iii.