State v. Johnson

The State appeals from the trial court’s suppression of evidence against
Terrence Damon Johnson (“Johnson”)

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Appellant,

v.

Terrence Damon Johnson,       
Respondent.

Appeal From Charleston County

A.   Victor Rawl, Circuit Court Judge

Unpublished Opinion No. 2003-UP-757

Heard December 9, 2003 – Filed December
23, 2003

AFFIRMED IN PART, REMANDED IN PART

Attorney General Henry Dargan McMaster, Chief Deputy Attorney
General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson,
Senior Assistant Attorney General Mark Rapoport, of Columbia; and Solicitor
Ralph E. Hoisington, of Charleston, for Appellant.

Anthony B. O’Neill, of
Charleston, for Respondent.

PER CURIAM:  The
State appeals the trial court’s suppression of evidence against Terrence Damon
Johnson.  We affirm in part and remand in part.

FACTS

The Charleston City Police Department, as part
of its attempt to reduce drug-related violence in the city, formed “criminal
and narcotics patrol” units.  On November 21, 2000, Officers Keith Wilson
and Jeffrey Booker, while on special detail with such a unit, observed Johnson’s
burgundy Jaguar coming from a high-crime area in the Ardmore subdivision known
as “the hole.” When the car failed to stop at a stop sign and use a proper turn
signal, Wilson and Booker initiated a traffic stop.  According to Wilson,
when he made the stop, Johnson was “moving around the center console the entire
time” and acting visibly nervous.

Wilson and Booker approached the automobile and
requested Johnson’s license and registration.  Johnson provided them.  Based
on Wilson’s prior experience, Johnson’s actions, and the area in which the stop
took place, he then asked Johnson to exit the vehicle.  After Johnson
complied, Wilson patted him down, advising Johnson the frisk was “for your safety
as well as ours.”  During the pat-down, Wilson felt a large bulge in
Johnson’s coat pocket, which Johnson told him was “a grand.”

Wilson then requested permission to search the
car and Johnson replied that he “didn’t care.”  Booker opened the console,
in which he discovered a purple Crown Royal bag with two cookies of crack cocaine
and money inside.  Johnson attempted to withdraw his consent, but
Wilson and Booker placed him under arrest.  Five other officers from
the unit who had arrived at the scene searched the trunk of the car.  There,
they discovered a red “strawberry girl” plastic lunch container that contained
crack cocaine and powder cocaine.

Some time later, at the police station, the police
issued two traffic tickets to Johnson—one for disregarding a stop sign and the
other for failing to use a proper turn signal.  In February 2001, the
grand jury indicted Johnson for possession of crack cocaine with intent to distribute
within proximity of a school and for trafficking cocaine.  The following
month, the grand jury indicted him for trafficking crack cocaine and for possession
of cocaine with intent to distribute within proximity of a school.

Prior to trial on the drug charges, Johnson moved
to suppress the evidence found in his car.  Johnson argued he did not voluntarily
consent to the search of his vehicle and without such consent the search was
without probable cause or justification.  As a result, Johnson argued all evidence
should be suppressed as “fruits of the poisonous tree.”  The trial court agreed
and suppressed the evidence.  The State appeals.

LAW/ANALYSIS

1.  The trial court found the State failed to provide
any articulable reasonable suspicion that Johnson committed a serious crime
in order to expand the investigatory nature of the detention beyond a traffic
stop.  We agree with Johnson that this finding is supported by the evidence
and must therefore be affirmed. [1]

As the trial court remarked, “[t]he only
articulable suspicion that gives  rise to something other than a traffic stop
as enunciated by Officer Wilson is movement toward the console, high crime area. 
That’s it.”  We cannot fault the trial court for holding that these factors
did not warrant detaining Johnson for purposes beyond the traffic stop.  Regarding
Johnson’s suspicious movements in the car after being stopped, the trial court
noted, “If the man had his wallet in his center console, it’s perfectly reasonable
and not an articulable suspicion that he may have been trying to get his driver’s
license and vehicle registration out of the center console or over the visor
. . . .”  As to the fact that the events leading to Johnson’s arrest took place
in a high crime area, we likewise find no abuse of discretion in the trial court’s
reasoning that “[y]ou don’t normally run around giving traffic tickets at 9:30
or ten o’clock at night in Ardmore subdivision.” [2]

2.  The fact that Johnson’s detention
exceeded the purpose of a routine traffic stop, however, does not necessarily
invalidate his consent to the search of his car or otherwise render it involuntary.
[3]   Moreover, we agree with the State’s contention that the trial
court’s ruling cannot be read to address the issue of whether, notwithstanding
the finding that the detention was improper,  Johnson’s consent to the search
of his car could nevertheless be considered voluntary.

As our supreme court has suggested, the presence
of “attenuating circumstances that remove the taint of the unlawful stop from
the consent to search” [4] could serve as a basis for admitting evidence obtained
during a search performed under such circumstances.  In any event, although
the State has the burden to show voluntariness, “[w]hether a consent to search
was voluntary or the product of duress or coercion, express or implied, is a
question of fact to be determined from the ‘totality of the circumstances.’” [5]   In the present case, we note the solicitor argued
that the officer had reasonable suspicion to question Johnson for consent
and was making a “fast call.”

We hold that the determination as to whether these
factors were sufficient to override any alleged impropriety surrounding Johnson’s
detention is best left to the trial court.
[6]   We therefore remand this case to the trial court for a ruling
on whether, considering the “totality of the circumstances” test, the State
has met its burden to show that Johnson’s consent to the search of his car was
voluntary. The trial court shall use only the present record to make this finding.

AFFIRMED IN PART, REMANDED IN PART.

GOOLSBY and ANDERSON, JJ., and CURETON, A.J.,
concur.      

[1]   See State v. Brockman, 339 S.C. 57, 66, 528
S.E.2d 661, 666 (2000) (holding that in an appeal from a motion to suppress
on Fourth Amendment grounds, the appellate court would apply a deferential
standard of review and “affirm if there is any evidence to support the ruling”).

[2]    Cf. Sikes v. State, 323 S.C. 28, 31, 448 S.E.2d
560, 562 (1994) (holding the petitioner had received ineffective assistance
of counsel because counsel had failed to move to suppress evidence on Fourth
Amendment grounds and noting “[p]etitioner was merely a passenger in a car
with paper dealer tags that had the misfortune of being in a ‘high crime area’”).

[3]   See State v. Robinson, 306 S.C. 399, 402, 412
S.E.2d 411, 414 (1991) (“A consent to search procured during an unlawful stop
is invalid unless such consent is both voluntary and not an exploitation
of the unlawful stop.”); State v. Mattison, 352 S.C. 577, 584, 575
S.E.2d 852, 855 (Ct. App. 2003) (“In a custodial situation, the custodial
setting is a factor to be considered in determining whether consent was voluntarily
given.  Custody alone, however, is not enough in itself to demonstrate a coerced
consent to search.”) (citations omitted).

[4]   Robinson, 306 S.C. at 402, 412 S.E.2d at 414.

[5]   State v. Wallace, 269 S.C.
547, 550, 238 S.E.2d 675, 676 (1977).

[6] See Brockman, 339 S.C. at 66, 528 S.E.2d at 666
(citing the rule that “voluntariness of consent to search [is] solely a question
of fact”); cf. Mattison, 352 S.C. at 584-85, 575 S.E.2d at 856
(“The issue of voluntary consent, when contested by contradicting testimony,
is an issue of credibility to be determined by the trial judge.).