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
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).