State v. Lopez

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Daniel Lopez, Appellant.

Appellate Case No. 2013-000903

Appeal From Greenville County
Letitia H. Verdin, Circuit Court Judge

Unpublished Opinion No. 2015-UP-216
Heard March 3, 2015 – Filed April 29, 2015

AFFIRMED

Appellate Defender Lara Mary Caudy, of Columbia, for
Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Christina Catoe Bigelow, of Columbia;
and Solicitor William Walter Wilkins, III, of Greenville,
for Respondent.

PER CURIAM: Daniel Lopez appeals his convictions for trafficking cocaine and
possession of a firearm with an obliterated serial number, arguing the trial court
erred in: (1) declining to suppress cocaine and a gun discovered during a traffic
stop; and (2) refusing to grant a continuance and trying him in absentia. We
affirm.

I. FOURTH AMENDMENT

Lopez argues the trial court erred in failing to suppress the cocaine and gun
because the evidence was obtained as the fruits of an illegal search and seizure in
violation of the Fourth Amendment. We disagree.

"South Carolina appellate courts review Fourth Amendment determinations under
a clear error standard." State v. Provet, 405 S.C. 101, 107, 747 S.E.2d 453, 456
(2013). "When reviewing a Fourth Amendment search and seizure case, an
appellate court must affirm if there is any evidence to support the ruling." State v.
Wright, 391 S.C. 436, 442, 706 S.E.2d 324, 326 (2011).

The trial court did not abuse its discretion in declining to suppress the drugs and
gun because Officer Chris Hines had a reasonable suspicion of a serious crime at
the time he issued the citation. State v. Morris, Op. No. 27488 (S.C. Sup. Ct. filed
Jan. 28, 2015) (Shearouse Adv. Sh. No. 4 at 45). Initially, we note, as many cases
have found to be a critical factor, Officer Hines had several years of experience
and over 1,000 hours of training in drug interdiction and investigation at the time
he conducted the traffic stop. Moreover, aside from Hines' experience, Lopez
demonstrated what has been categorized in our case law as the classic signs of drug
trafficking. Lopez abruptly exited the highway as Hines approached him to
commence the stop. Although all of Lopez's documentation was valid and in his
name, Lopez provided four different addresses to Officer Hines, which "raised a
red flag" based on Officer Hines' training. Additionally, Lopez was traveling on I-
85, a "main pipeline" for drug trafficking, and three of the four addresses he
provided surrounded Atlanta, a drug corridor or "hub city" for drugs.

During the stop, Lopez was excessively nervous, with an inability to calm down,
even after being told he was only receiving a warning. Lopez was unable to
maintain direct eye contact and engaged in "nervous chatter," stumbling over his
words. In addition, Officer Hines testified he became suspicious because Hines
believed Lopez attempted to befriend him by implying he worked for law
enforcement. Lopez had a Gwinnett County police department patch taped to the
dashboard by the vehicle identification number, which Hines "thought was kind of
odd considering most law enforcement agencies don't employ bouncers per se as a
[j]ob title, which is what he was claiming to be for the county."

Further, Lopez provided several inconsistencies in his story, and his claims
regarding his travel plans appeared to contradict Officer Hines' direct observations.
For example, Lopez stated he was going to eat at McDonald's, but there was a
McDonald's at the exit where Officer Hines first noticed Lopez. Lopez stated he
was headed to Georgia; however, he was traveling in the opposite direction toward
North Carolina. Although Officer Hines observed Lopez using a pay phone prior
to stopping him, there were two cell phones in Lopez's car, one of which was
turned on. Moreover, Lopez could not articulate his exact destination or the
location from which he was returning.

Viewing the totality of the circumstances, we find Officer Hines had an objectively
reasonable and articulable suspicion of illegal activity at the time he issued the
traffic citation. Accordingly, the trial court correctly denied Lopez's motion to
suppress the drugs and gun. Id.; see also State v. Wallace, 392 S.C. 47, 55, 707
S.E.2d 451, 455 (Ct. App. 2011) ("While none of these items independently
amounts to a reasonable suspicion of criminal activity, blending each of these 'tiles'
into the 'entire mosaic' of the totality of the circumstances, we believe Crompton
had reasonable suspicion to detain Wallace while he walked the drug dog around
the car. Thus, the trial [court] ruled correctly to deny the motion to suppress the
cocaine.").

II. CONFRONTATION CLAUSE

Lopez argues the trial court violated his rights under the Confrontation Clause by
refusing to grant a continuance and trying him in absentia. We disagree.

Pursuant to Rule 16, SCRCrimP, certain requirements must be met before a
defendant may be tried in his absence. The trial court must determine the
defendant voluntarily waived his right to be present at trial. State v. Patterson, 367
S.C. 219, 229, 625 S.E.2d 239, 244 (Ct. App. 2006). Additionally, the trial court
must make findings of fact on the record that the defendant: (1) received notice of
his right to be present; and (2) was warned the trial would proceed in his absence
should he fail to appear. Id.

"Notice of the term of court for which the trial is set constitutes sufficient notice to
enable a criminal defendant to make an effective waiver of his right to be present."
City of Aiken v. David Michael Koontz, 368 S.C. 542, 547, 629 S.E.2d 686, 689
(Ct. App. 2006). "However, if the record does not reveal that the defendant was
afforded notice of his trial, the resulting conviction in absentia cannot stand." State
v. Fairey, 374 S.C. 92, 100, 646 S.E.2d 445, 448-49 (Ct. App. 2007). "A bond
form that provides notice that a defendant can be tried in absentia may serve as the
requisite notice." Id. at 101, 646 S.E.2d at 449.

The State provided Lopez with adequate notice of his trial as the bond cards
indicate the term of court for which the trial was set. Additionally, the State
notified Lopez that trial may proceed in his absence. Similarly to the defendants in
Fairey and Koontz, Lopez signed a bond sheet, wherein under the heading,
"Acknowledgement By Defendant," it indicated Lopez understood a trial would
proceed in his absence if he failed to appear. Further, the bond cards mailed to
Lopez also state failure to appear may result in the trial being conducted in Lopez's
absence. Despite his contentions, Lopez has pointed to no case law requiring the
State to subpoena a defendant, only that the State is required to notify the
defendant he may be tried in his absence, which the State did here.

Moreover, the fact that the State sent the bond cards to several different addresses
is of no consequence as the bond sheet clearly requires Lopez to notify the court
"promptly if he changes his address from the one contained in" the order. The
State sent one of the bond cards to the address Lopez listed on his signed bond
sheet, which was the last permanent address Lopez provided. See id. (finding the
defendant received notice where the State mailed the notice to the last official,
permanent address Fairey provided to the court and the State and Fairey failed to
keep the court or the State informed of his change in address). Therefore, the trial
court correctly proceeded with a trial in Lopez's absence after making appropriate
factual findings on the issue of whether Lopez had notice of the trial and whether
he was warned the trial would proceed in his absence. See Ellis v. State, 267 S.C.
257, 261, 227 S.E.2d 304, 306 (1976) ("The deliberate absence of a defendant who
knows that he stands accused in a criminal case and that his trial will begin during
a specific period of time indicates nothing less than an intention to obstruct the
orderly processes of justice.").

AFFIRMED.

SHORT and LOCKEMY, JJ., and CURETON, A.J., concur.