State v. Nicholson

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.

Lorenzo R. Nicholson, Appellant.

Appeal From Greenville County

 John C. Few, Circuit Court Judge

Unpublished Opinion No. 2011-UP-588

Submitted December 1, 2011 – Filed
December 21, 2011   

AFFIRMED

Appellate Defender Kathrine H. Hudgins, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John
W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant
Attorney General Mark R. Farthing, all of Columbia; and Solicitor W. Walter
Wilkins, III, of Greenville, for Respondent.

PER CURIAM:  Lorenzo
R. Nicholson appeals his convictions for trafficking cocaine and possession of
a weapon during the commission of a violent crime.  He argues the trial court
erred in denying his motion to suppress the cocaine and the weapon because the
police found them at his house as a result of a search warrant for which the
probable cause was obtained during an unconstitutional protective sweep.  We affirm.[1]

"In criminal cases, the
appellate court sits to review errors of law only.  We are bound by the trial
court's factual findings unless they are clearly erroneous."  State v.
Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct. App. 2003) (citation
omitted).  On appeals from a motion to suppress based on Fourth Amendment
grounds, the court applies a deferential standard of review and will reverse if
there is clear error.  State v. Tindall, 388 S.C. 518, 522, 698 S.E.2d
203, 206 (2010).  However, this deference does not bar this court from
conducting its own review of the record to determine whether the trial judge’s
decision is supported by the evidence.  Id.  The arresting officers are
permitted in the circumstances of an in-home arrest "to take reasonable
steps to ensure their safety after, and while making, the
arrest."  Maryland v. Buie, 494 U.S. 325, 333-34 (1990) (emphasis
added). 

The
Fourth Amendment permits a properly limited protective sweep in conjunction
with an in-home arrest when the searching officer possesses a reasonable belief
based on specific and articulable facts[,] [together with the rational
inferences from those facts,]  that the area to be swept harbors an individual
posing a danger to those on the arrest scene. 

Id. at 337. 

The record supports the trial
court's finding that the protective sweep was reasonable.  Arresting officers attested they tried to arrest Nicholson for armed
robbery, pursuant to a warrant, at the front door of his house.  The officers
stated they entered Nicholson's house
while trying to handcuff him because he was uncooperative and backed into his
house.  The officers asserted Nicholson remained uncooperative after being
handcuffed and, in addition, asked to read the arrest warrant, delaying the
departure from the house.  Moreover, their statements indicated that his sister's
arrival at the front door contributed to Nicholson's unsettling behavior.  The officers testified they were concerned dangerous
persons were in the house, like a passenger from a car waiting in Nicholson's
driveway with its engine running and the operator in the driver's seat, one of
Nicholson's codefendants in the armed robbery who was out on bond, or others
staying at the house.  They also considered a protective sweep was necessary
for their safety considering the crime for which Nicholson was being arrested
and his disappearance from view before opening the door.  Additionally, the
officers' description of the protective sweep giving them probable cause for a
search warrant indicated it was limited.  Therefore, the protective sweep did
not violate Nicholson's Fourth Amendment rights, and the trial court properly
denied Nicholson's motion to suppress the cocaine and the weapon.

AFFIRMED.

HUFF, PIEPER,
and LOCKEMY, JJ., concur.

[1] We decide this case without oral argument pursuant to
Rule 215, SCACR.