State v. Greene

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.

John Jabbar
Greene, Appellant.

Appeal From Georgetown County

Jeffrey Young, Circuit Court Judge

Unpublished Opinion No. 2011-UP-507  

Heard November 1, 2011 – Filed November
15, 2011

AFFIRMED

Appellate Defender Kathrine H. Hudgins, of
Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy
Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W.
Elliott, and Assistant Attorney General Christina Catoe, all of Columbia; and
Solicitor J. Gregory Hembree, of Conway, for Respondent.

PER CURIAM: John
Jabbar Greene was convicted of two counts of armed robbery, two counts of
kidnapping, and one count of second-degree burglary and received concurrent
sentences totaling thirty years' imprisonment.  Greene appeals, arguing the trial court erred in refusing to suppress
(1) a statement he made to the sheriff's department after being advised of his Miranda[1] rights and invoking his right to remain silent and (2) DNA evidence collected
in violation of his Fourth Amendment rights.  We affirm pursuant to Rule 220(b)(1), SCACR, and the
following authorities: 

1. As to whether the
trial court erred in refusing to suppress DNA evidence obtained pursuant to a
"voluntary consent to search" form Greene signed: State v. Missouri, 361 S.C. 107, 111, 603 S.E.2d 594, 596 (2004) (requiring an appellate
court reviewing a Fourth Amendment search and seizure case to affirm the trial
court's ruling if it is supported by any evidence in the record and permitting
reversal only in cases of clear error); State v. Weaver, 374 S.C. 313,
319-20, 649 S.E.2d 479, 482 (2007) (holding "[e]vidence seized in
violation of the Fourth Amendment must be excluded from trial," noting
"a warrantless search will withstand constitutional scrutiny where the
search falls within one of several well-recognized exceptions to the warrant
requirement," and observing the State must establish both "probable
cause and the existence of circumstances constituting an exception to the
general prohibition against warrantless searches"); State v. Dupree,
319 S.C. 454, 456-58, 462 S.E.2d 279, 281-82 (1995) (holding the Fourth
Amendment protects against improper intrusions into the mouth, requiring
probable cause and a clear indication evidence will be found prior to a
warrantless search of a suspect's mouth, and identifying consent as an exception
to the Fourth Amendment rule against warrantless searches). 

2.  As to whether the
trial court erred in refusing to suppress Greene's statement concerning contact
with the shotgun, despite Greene's invocation of his right to remain silent and
Investigator Smith's testimony that he was "cool" with Greene: Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) ("Even absent the
accused's invocation of the right to remain silent, the accused's statement
during a custodial interrogation is inadmissible at trial unless the
prosecution can establish that the accused in fact knowingly and voluntarily
waived [Miranda] rights when making the statement." (internal
quotation marks and citation omitted)); State v. Brown, 389 S.C. 84, 92,
697 S.E.2d 622, 627 (Ct. App. 2010) (quoting State v. Sims, 304 S.C.
409, 416-17, 405 S.E.2d 377, 381-82 (1991) (emphasis added by court) (internal
quotation marks omitted) (holding custodial interrogation includes "express
questioning, or its functional equivalent which includes words or actions on
the part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an
incriminating response"); State v. Kennedy, 333 S.C. 426, 429, 510
S.E.2d 714, 715 (1998) (recognizing a waiver need not be express; an implicit
waiver is sufficient); State v. Moses, 390 S.C. 502, 513, 702 S.E.2d 395,
401 (Ct. App. 2010) (requiring a court examining whether a Miranda waiver was made freely, knowingly, and voluntarily to determine "whether
the defendant's will was overborne by the totality of the circumstances
surrounding the confession"); State v. Hughes, 336 S.C. 585, 594,
521 S.E.2d 500, 505 (1999) ("Absent coercive police conduct causally
related to a confession, there is no basis for finding a confession
constitutionally involuntary."). 

AFFIRMED. 

FEW, C.J., KONDUROS, J.,
and CURETON, A.J., concur. 

[1] Miranda v. Arizona, 384 U.S. 436 (1966).