DID YOU KNOW A DELL COMPUTER CAN COST 24 YEARS? BEING UNSUCCESSFUL IN BURGLARY IRRELEVANT IF CRIMINAL INTENT PROVEN, SC COURT OF APPEALS RULES
Rickey Santoine Henley appealed his 1st degree burglary conviction on 4 grounds.
On February 15, 2012 a witness drove passed the home of Amanda and Jamie Moss when he noticed a gray car backed into the Moss’s carport with the back door open and a black male running from the home’s front door to a side door. The witness found it unusual and drove back to the Moss’s home where he observed that same man standing in the doorway. The man got in his car, pulled out of the Moss’s driveway, stopped in front of the witnesses. The witness was pulling a trailer with a lawmower. The man asked the witness if he needed any help with lawn care. The witness told him no and the man drove away. The witness called 911 and described the car, the description of the man, and gave dispatchers the man’s license plate number.
Detective’s went to the Moss’s home. The only thing missing from their home was a Dell laptop computer. Mrs. Moss testified a cigarette butt found near her steps did not belong to her or her husband. A search of the license plate revealed the 97 Bonneville was owned by Henley and his girlfriend. A deputy went to Henley’s home on February 22, 2012 where he saw the Bonneville with the same license plate. Henley admitted he’d been on the road the Moss’ live on and that he smoked Newport cigarettes. Henley was arrested for 1st degree burglary and larceny a day later.
First, Henley was found not guilty of larceny connected in a previous trial in which the burglary concerning this case was also tried. The jury was hung on the burglary 1st. The Judge granted a mistrial concerning the burglary 1st. A new trial was held and Henley was found guilty of the burglary 1st and sentenced to 24 years in prison which brings us to this blog about his appeal.
Because he was found not guilty of larceny and the jury was hung concerning the burglary charge Henley argued his burglary should have been dismissed because to not do so would be double jeopardy. Unfortunately for Henley, The Court of Appeals did not agree. The Court of Appeals ultimately reasoned that burglary merely requires that “the person enters a dwelling without consent and with the intent to commit a crime in the dwelling”. In the previous trial the jury only found that the State failed to prove beyond a reasonable doubt that Henley took the Dell computer, they were hung on the burglary.
Further reasoning, “there was no requirement that the State actually prove he successfully committed a separate crime within Victim’s home to prove the burglary charge.” In short, just because you’re not good a burglary or successful in your endeavor doesn’t preclude you form being tried on a burglary.
Second, Henley argued it was improper to exclude evidence of the prior larceny acquittal. The trial court did a weighted (401, 402, and 403) analysis and ultimately found that Henley’s acquittal on the larceny charge was irrelevant because it did not make the existence of any fact or consequence in the proceeding more or less probable with respect to the elements of first degree burglary. The Court of Appeals further articulated it’s ruling that it was true that the State must prove Henley entered the victim’s home without her consent AND with intent to commit a crime BUT there was no requirement the State prove that Henry was successful in committing that crime (here, taking a Dell computer). Further, the Court was concerned it would have invited this jury to speculate about what occurred at the first trial. Interestingly, The Court of Appeals opinion does not discuss what Henley’s intent was when he entered the home. If it wasn’t to steal the Dell laptop, what was it??
Third, the Court limited Henley’s attempt to get the admission of a witness’s prior trial testimony into evidence. At the first trial, Henley’s girlfriend testified but in preparation for this trial Henley could not find the girlfriend. Henley cited Rule 804(b)(1) arguing the previous testimony was admissible under a hearsay exception where the witness is unavailable. Henley represented to the Court he was unable to find the witness. The State wanted to try to find the witness as well and the trial court replied, “Okay. If you can find her, get her.” The State did make contact with her on the phone. The witnesses stated she was in Anderson County and that she did not receive a subpoena. The paramount question concerning the admissibility of the testimony from the prior trial was whether Henley was able to procure Gray’s attendance by process or other reasonable means. The trial court let some of the testimony in but excluded the rest.
The Court of Appeals stated because Rule 804(a)(5) requires the declarant’s unavailability despite “process or other reasonable means” the Court believes the witnesses testimony was inadmissible hearsay.
It is undisputed that the witness did not receive a subpoena (process). One can deduce that The Court of Appeals was not persuaded that Henley met the requirement to use other reasonable means to get the witness to Court. The only evidence Henley gave concerning his attempt to meet the requirement of other reasonable means was to offer his investigator as to all efforts that she made to try and locate the witness. In hindsight, appears it would have been wise to call the investigator so the trial court could weigh the specific lengths of which Henley’s investigator took to locate the witness and whether this met the other reasonable means standard.
In reading the opinion, it appears Henley was offering the testimony of the investigator in the most gracious of ways but at that time the State did not have an objection. To make matters worse for Henley, the State found her via a phone call in what appears to be a very short amount of time.
Fourth and finally, Henley argued the trial court improperly denied his motion to exclude evidence of DNA testing conducted on the cigarette butt found at the crime scene because the State could not present a complete chain of custody and the cigarette butt was not available for comparison to the crime scene photograph at trial. Further, the State’s negligence in destroying the cigarette butt constituted bad faith.
The Court of Appeals disagreed. Henley had to prove that either the state destroyed evidence in bad faith, OR that the state destroyed evidence that possessed an exculpatory value that IS apparent before the evidence was destroyed and the defendant cannot obtain other evidence of comparable value by other means. “Bad faith cannot be inferred simply because the evidence was lost.” The Court was also unconcerned with whether the cigarette butt was available for comparison reasoning it would not have contributed anything of value. The Court seemed to reason this was favorable to Henley because it allowed him to argue that the evidence was lost and to criticize the State’s investigation as a whole.
So, Dell Laptops can cost 24 years. Are they even making those things anymore?
Violating a Rental Car Agreement Doesn’t Give Police A Right To Violate One’s Constitutional Rights
In September of 2014 a lady rented a car in New Jersey while Terrence Byrd waited outside. The signed rental car agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. The lady gave the keys to Byrd once she left the Budget car-rental facility. Byrd stored personal belongings in the trunk and left alone for Pittsburgh. Byrd was stopped for a traffic infraction. Get this; according to the Supreme Court Order the Penn State Trooper that pulled Byrd over was “suspicious of Byrd because he was driving with his hands at the “10 and 2” position on the steering wheel, sitting far back from the steering wheel, and driving a rental car.” Put another way, he said that Byrd looked suspicious without articulating that Byrd violated any laws. Penn State Troopers learned that Byrd was not listed as an authorized driver AND that he had prior drug and weapons convictions. Byrd told the Troopers he had a blunt in the car and offered to get it for the Troopers which the Troopers agreed to. The Troopers told Byrd they didn’t need his consent to search the car and the trunk. The Troopers searched the trunk and discovered body armor and 49 bricks of heroin in the trunk. The case was turned over to the Feds and they charged him with distribution and possession of heroin with intent to distribute and possession of body armor by a prohibited person.
Byrd’s motion to suppress the evidence under the theory of fruit of the poisonous tree was denied. The Court reasoned that because Byrd was NOT listed on the rental agreement, he lacked a reasonable expectation of privacy in the car. On May 14, 2018 the United States Supreme Court reversed the lower courts and found that Byrd did in fact have a reasonable expectation of privacy.
The Court specifically held, “The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.” This is good sound reasoning. Otherwise, one could effectively contract another’s (in this case, Byrd’s) constitutional rights away by violating the terms of an agreement. Put another way, just because a civil contract is violated doesn’t mean you have sacrificed or waived your constitutional rights!
The Court took a practical approach and added, “As anyone who has rented a car knows, car-rental agreements are filled with long lists of restriction.” Put another way, we know you don’t read the 28 page contract.
The Supreme Court sent the case back to the lower court to consider whether Byrd had an expectation of privacy even though he used the lady to get the car because he could not rent the car himself OR whether the Troopers had probable cause to search the car because they believed it contained evidence of a crime.
“Few protections are as essential to individual liberty as the right to be free from unreasonable searches and seizures.”.
GREENVILLE CONSTRUCTIVE POSSESSION CRIMINAL DEFENSE LAWYER
Constructive Possession is defined as having dominion and control over something such as drugs or contraband. To prove possession under the theory of constructive possession the State must prove beyond a reasonable doubt that “one had it and knew they had it.” See Quotes of Jake Erwin, Esq.
Constructive possession requires evidence that the defendant had dominion and control over either the drugs or the premises upon which the drugs are found. See State v. Heath, 370 S.C. 326, 635 S.E.2d 18 (2006).
Constructive possession is the adversary to mere presence. The difference between constructive possession and mere presence is the difference between being guilty or not guilty. Mere presence is not enough to find one guilty beyond a reasonable doubt, but one can infer proof of possession as well as knowledge or intend for that presence. State v. Bultron, 318 S.C. 323, 457 S.E.2d, 616 (Ct. App. 1995)
In short, whether one is in constructive possession or not is highly fact specific and if charged with possession under a theory of constructive possession one would be wise to discuss all the relevant facts with their lawyer.
Alex Kornfeld is a criminal defense lawyer in Greenville, South Carolina. You can scheduled a consultation with him by calling 864-335-9990.
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.
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
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
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.
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.
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
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).