State v. Dash

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

The State,       
Respondent,

v.

Frankie Lee Dash,       
Appellant.

Appeal From Orangeburg County

James C. Williams, Jr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-438

Submitted April 18, 2003 – Filed June
25, 2003

AFFIRMED

Senior Assistant Appellate Defender Wanda H. Haile, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster; Chief Deputy Attorney General John W.
McIntosh; Assistant Deputy Attorney General Charles H. Richardson; Assistant
Attorney General David A. Spencer, all of Columbia;  and Solicitor Walter M.
Bailey, Jr., of Summerville, for Respondent.

PER CURIAM: Frankie Lee Dash (Dash) appeals from his conviction for
armed robbery.  Dash contends the trial court erred by denying his motion to
suppress evidence seized pursuant to his arrest by the police.

FACTS

William Herndon, an elderly store clerk, saw three black men
enter Cherry’s Package store.  One of the men, who was exceedingly tall, asked
for a bottle of vodka located high on a shelf.  When Herndon turned to retrieve
the bottle, another of the men, later identified by Herndon as Dash, pulled
a gun on him and forced him into the storeroom.  Dash sarcastically told Herndon
that “everyone needs money at Christmas time” and proceeded to rob him of $175.00
in valid U.S. currency and a single fake one million dollar bill from Herndon’s
wallet.  Dash threatened to blow Herndon’s brains out as Herndon begged for
his life.  The other men stole two guns and the money from the till.  After
the robbers fled, Herndon telephoned the police.

Overwrought by events, Herndon gave a general description to the
police that the gunman who robbed him was a black male approximately 5’6” tall. 
Although he was unable to recall a more complete description, he assured the
policeman he would be able to recognize the gunman by sight.

Only minutes later, Officer Delvin Williams noticed Dash two blocks
from the store.  Dash met the description given by Herndon.  Officer Williams
approached Dash and explained to him that an armed robbery had just occurred
and that he fit the description of the perpetrator.  Accordingly, the Officer
asked Dash to accompany him back to the store to determine whether or not Herndon
could identify him.  The Officer reminded Dash that he was not under arrest.

Suddenly, Dash became agitated.  Officer Williams testified Dash
refused to make eye contact and attempted to get around him.  Dash moved in
a threatening poster, coming uncomfortably close to the Officer.  The Officer
responded by pushing Dash back.  Then Dash made a dash, running swiftly away. 
As he attempted to flee, the Officer caught hold of his jacket and a gun fell
out of one of the pockets onto the pavement.  When the Policeman caught him
about a block away the two fought until Dash was placed in handcuffs.  On the
way back to the patrol car, Officer Williams discovered the gun lying on the
ground.  Dash was arrested and charged with simple assault.

Herndon was able to make a positive identification of Dash as the
gunman only fifteen minutes after Dash left the store.  After a search of his
person, the Police discovered the wad of cash and the fake one million dollar
bill taken from Herndon.  The gun Dash dropped belonged to the storeowner, David
Cherry, and was one of the guns stolen from the store.

Prior to trial, Dash made a motion to suppress the gun and money
recovered during his arrest arguing it was discovered pursuant to an illegal
seizure.  An in camera hearing followed and the court denied the motion
to suppress. Dash was convicted of armed robbery and sentenced to twenty-two
years.

DISCUSSION

Dash contends the trial
court erred in denying his motion to suppress the evidence of the gun, cash
and the fake million dollar bill seized following his arrest arguing they were
obtained by an illegal seizure in violation of the Fourth and Fourteenth Amendments
of the United States Constitution and Article 1 § 10 of the South Carolina Constitution. 
We disagree.

Dash makes much of the
fact the Officer initially told him he was not under arrest.  This fact, alone,
does not end our inquiry.  An individual approached by a police officer has
the right to ignore the Officer and go about his business, where the officer
is without probable cause to believe that the individual has been engaged or
will engage in criminal activity.  Florida v. Royer, 460 U.S. 491, 498
(1983).  Mere refusal to cooperate does not furnish the Officer with the objective
justification to detain or seize the individual.  Illinois v. Wardlow,
528 U.S. 119, 125 (2000).  However flight amounts to more than a refusal to
cooperate.  “Flight, by its very nature, is not ‘going about one’s business’;
in fact, its just the opposite.” Id. 

Reasonableness of a warrantless
seizure depends on the balance between public interest and the individual’s
right to be free from arbitrary interference from law enforcement. State
v. Woodruff, 344 S.C. 537, 551, 544 S.E.2d 290, 297 (Ct. App. 2001).  The
balancing test requires a review of the circumstances including but not limited
to: (1) the seriousness of the offense; (2) the degree of the likelihood the
person detained may have witnessed or have been involved in the offense; (3)
the proximity in time and space from the scene of the crime; (4) the urgency
of the occasion; (5) the nature of the detention and its extent; (6) the means
and procedures employed by the officer; and (7) the presence of any circumstances
suggesting harassment or a deliberate effort to avoid the necessity of securing
a warrant.  Id.  See also State v. Rodriquez, 323
S.C. 484, 476 S.E.2d 161 (1997); United States v. Brignoni-Ponce, 422
U.S. 873, 878, 95 S.Ct. 2574, 2578-79 (1975). 

The offense of armed
robbery is a very serious crime.  Dash was within a few blocks of the store
moments after the robbery occurred and fit the description provided by Herndon. 
The crime was freshly committed and the police had to act quickly to prevent
the robbers from getting away.  Officer Williams was very frank with Dash about
the circumstances that encouraged him to make an inquiry and his questions were
direct and to the point.  There was nothing in the record to suggest the Officer
was harassing Dash or even being impolite. 

Once Officer Williams
asked Dash to return to the store with him, Dash may have simply declined and
gone about his business.  However, he chose to become nervous and evasive, moving
threateningly close to the Officer before taking flight.  Dash’s conduct would
certainly have aroused reasonable suspicion sufficient to justify further investigation
and inquiry.  Dash’s behavior could have given the impression he was a threat
to the Officer’s safety, justifying a search for weapons.  See Terry
v. Ohio, 392 U.S. 1 (1968).  Dash’s sudden flight created a reasonable suspicion
of his involvement in the robbery.  See Wardlow, 528 U.S. at 125. 
Accordingly, Officer Williams was justified in grabbing Dash’s jacket to keep
Dash from running away.  When the gun fell out of Dash’s pocket, the Officer
certainly had probable cause to believe Dash may have been involved in the robbery
and had good cause to detain him further.  The gun was in plain view on the
pavement and was properly seized.  Dash’s assault on Officer Williams supported
his subsequent arrest. 

Under the totality of
the circumstances, Dash was legally detained for Herndon’s identification of
him and all evidence was legally seized incident to the arrest.  Since the detention
was proper and the evidence was lawfully seized, we cannot say the trial court
erred in denying the motion to suppress.

Accordingly, Dash’s conviction
is

AFFIRMED.

CURETON, ANDERSON and HUFF, JJ., concur.