State v. Sisler

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, Appellant,

v.

Tami Baker Sisler, Respondent.

Appellate Case No. 2015-000604

Appeal From York County
J. Cordell Maddox, Jr., Circuit Court Judge

Unpublished Opinion No. 2017-UP-458
Heard September 20, 2017 – Filed December 6, 2017

AFFIRMED

Attorney General Alan McCrory Wilson and Assistant
Attorney General William M. Blitch, Jr., of Columbia;
and Solicitor Kevin Scott Brackett, of York, for
Appellant.

Edward L. Phipps, of Phipps Law Firm, LLC, of
Charleston, for Respondent.

PER CURIAM: The State of South Carolina appeals the circuit court's order
affirming the magistrate court's dismissal of Tami Baker Sisler's charges for
driving under the influence (DUI) and child endangerment. The State asserts that
if this court construes Sisler's second encounter with Deputy Christopher Haire, of
the York County Sheriff's Office, as a "traffic stop," it was a valid traffic stop
supported by probable cause. Thus, the State contends the magistrate court erred
in relying on Deputy Haire's subjective intent in finding the stop unconstitutional.
Alternatively, the State posits Deputy Haire did not unreasonably "seize" Sisler.
Therefore, the State contends that even if this court determines the traffic stop was
improper, there was still no Fourth Amendment violation. Finally, the State argues
this case presents this court with the opportunity to adopt the community caretaker
exception.1 We affirm.

At approximately 10:25 p.m. on August 17, 2013, Deputy Haire came upon Sisler's
vehicle lodged in the grass median and facing the wrong direction on South
Anderson Road/Highway 5 in. According to Sisler, who was traveling with her
two minor children, once she realized she was driving down the wrong side of the
four lane highway, she pulled into the median to avoid oncoming traffic and her
vehicle became stuck. Deputy Haire and an unnamed individual worked for
approximately eight minutes to free Sisler's vehicle. Deputy Haire then provided
Sisler with directions, specifying she needed to take the first right to get to Rock
Hill.2

When Sisler missed the turn, Deputy Haire, who was traveling behind her, flashed
his headlights and blue lights. Sisler then pulled over and as she exited her vehicle,
she grabbed the door for stability. Upon questioning by Deputy Haire, Sisler
admitted she had been drinking. Thereafter, Deputy Haire obtained Sisler's driver's
license, performed the horizontal gaze nystagmus test, and called Deputy David
Fowler to perform field sobriety tests. Deputy Fowler subsequently arrested Sisler
for DUI and child endangerment.

1
Because the "community caretaker" theory was neither raised to nor ruled on by
the magistrate court or the circuit court, we find it is not preserved for our review.
See State v. Freiburger, 366 S.C. 125, 134, 620 S.E.2d 737, 741 (2005) (explaining
that an argument advanced on appeal but not raised and ruled on below is not
preserved for review).
2
During the initial encounter with Sisler, another officer radioed Deputy Haire to
ask whether she was intoxicated; he responded she was not.
"The Fourth Amendment guarantees '[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.'"
Whren v. United States, 517 U.S. 806, 809 (1996) (quoting U.S. Const. amend.
IV); see also S.C. Const. art. I, § 10 (protecting "[t]he right of the people to be
secure in their persons, houses, papers, and effects against unreasonable searches
and seizures"). "This guarantee 'protects against unreasonable searches and
seizures, including seizures that only involve a brief detention.'" Robinson v. State,
407 S.C. 169, 181, 754 S.E.2d 862, 868 (2014) (quoting State v. Pichardo, 367
S.C. 84, 97, 623 S.E.2d 840, 847 (Ct. App. 2005)). "The touchstone of the Fourth
Amendment is reasonableness." Florida v. Jimeno, 500 U.S. 248, 250 (1991).

"Temporary detention of individuals during the stop of an automobile by the
police, even if only for a brief period and for a limited purpose, constitutes a
'seizure' of 'persons' within the meaning of this provision." Whren, 517 U.S. at
809–10. "An automobile stop is thus subject to the constitutional imperative that it
not be 'unreasonable' under the circumstances." Id. at 810. "Accordingly, a police
officer may stop a vehicle when the officer has probable cause to believe a traffic
violation has occurred, or when the officer has reasonable suspicion the occupants
are involved in criminal activity." State v. Burgess, 394 S.C. 407, 412, 714 S.E.2d
917, 919 (Ct. App. 2011) (citations omitted). "Reasonable suspicion is something
more than an 'inchoate and unparticularized suspicion' or hunch." Robinson, 407
S.C. at 182, 754 S.E.2d at 868 (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).
"Instead, looking at the totality of the circumstances, reasonable suspicion requires
there be an objective, specific basis for suspecting the person stopped of criminal
activity." Id. "Moreover, a police officer's 'subjective intentions play no role in
ordinary, probable-cause Fourth Amendment analysis.'" State v. Vinson, 400 S.C.
347, 352, 734 S.E.2d 182, 184 (Ct. App. 2012) (quoting State v. Corley, 383 S.C.
232, 241, 679 S.E.2d 187, 192 (Ct. App. 2009)).

In granting Sisler's motion to dismiss, the magistrate court found Deputy Haire
lacked either probable cause to believe Sisler committed a traffic violation or the
reasonable suspicion necessary to validate the traffic stop. The circuit court
affirmed the dismissal.

Our review of the record and the dashboard camera (dash cam) recording reveals
Deputy Haire initiated his blue lights and stopped Sisler when she missed the turn
to Rock Hill. While maintaining he neither activated his blue lights before Sisler
pulled over nor initiated a traffic stop, Deputy Haire insisted numerous times the
only reason he signaled Sisler was because she missed the turn he instructed her to
take during their initial encounter. Thereafter, Deputy Haire admitted he "stopped"
Sisler for missing the turn but continued to argue he did not initiate a traffic stop.
Deputy Haire then again revised his testimony, stating that although Sisler did
commit a traffic violation by crossing the centerline, he "may not have initiat[ed] a
stop for that; because, she pulled over on her own when she passed the point of
where she was supposed to turn." He later testified, "It's not a traffic stop, but I
witnessed her on the roadway." After the dash cam recording was published at the
suppression motion hearing before the magistrate court, Deputy Haire admitted he
flashed his blue lights but testified he did not activate them and leave them on until
Sisler began to pull over on the side of the road. Nevertheless, he continued to
maintain the encounter was not a traffic stop.

We find no clear error in the circuit court's determination that Deputy Haire
"seized" Sisler within the meaning of the Fourth Amendment when he flashed and
then activated his blue lights as he pulled over behind Sisler's vehicle. See State v.
Morris, 411 S.C. 571, 578, 769 S.E.2d 854, 857 (2015) ("The appellate court will
reverse only when there is clear error." (quoting State v. Missouri, 361 S.C. 107,
111, 603 S.E.2d 594, 596 (2004))). Sisler testified she pulled over because Deputy
Haire activated his blue lights when she missed the turn he instructed her to take.
At that point, a reasonable person in Sisler's position would not have felt free to
leave. See United States v. Mendenhall, 446 U.S. 544, 554 (1980) (concluding "a
person has been 'seized' within the meaning of the Fourth Amendment only if, in
view of all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave"). Because section 56-5-750(A)
of the South Carolina Code (2006) requires drivers to stop when signaled by law
enforcement, we agree that Deputy Haire seized Sisler when he flashed his blue
lights and further activated them as he pulled over behind her.3 Despite his
conflicting testimony, Deputy Haire eventually admitted drivers are legally
required to pull over when they observe blue lights. Yet, he lacked the requisite
probable cause or reasonable suspicion to initiate a stop at that time. See Burgess,
394 S.C. at 412, 714 S.E.2d at 919 (explaining an officer may stop a vehicle when
he has either probable cause to believe a traffic violation has occurred or
reasonable suspicion to believe the occupants are involved in criminal activity).
Because missing a turn is not a violation of any South Carolina statute, we find no
error in the circuit court's finding that the stop was unlawful.

3
Section 56-5-750(A) states in pertinent part, "In the absence of mitigating
circumstances, it is unlawful for a motor vehicle driver, while driving on a road,
street, or highway of the State, to fail to stop when signaled by a law enforcement
vehicle by means of a siren or flashing light."
After Deputy Haire testified he stopped Sisler for missing the turn and not for
crossing the centerline, the State continued to argue that whatever his reason for
the stop, it was lawful because he observed Sisler crossing the centerline.
However, the magistrate and circuit courts ultimately found the dash cam
recording to be inconclusive regarding the alleged traffic violation. For example,
in its return, the magistrate court explained,

Even though the State argues that Sisler crossed the line,
Sisler argued no. Granted, it appeared she crossed over,
[but] it was not conclusive. Also [Deputy] Haire's
testimony wavered back and forth whether this was a
traffic stop or checking on Sisler. This all occurred
within one mile of the first incident and the second
incident with Sisler.

The circuit court noted that even after seeing the inconclusive video,

Deputy Haire continued to deny that it was the reason he
"pulled" her. [The assistant solicitor] asked Deputy Haire if he
had noticed [Sisler] driving left of center prior to flashing his
blue lights, to which Deputy Haire responded, "Yeah, I mean, I
had seen that during the driving part of it. But, I mean, I'm not
going to argue that that's why I pulled her. I blinked my lights
for the turn. I didn’t pull her over on a traffic stop."

The State cannot create new reasoning to justify a traffic stop
when said reasoning did not exist at the time of the stop. The
State has continued to go back and forth, changing their
position/reasoning in this case to try to justify the unlawful
stop. There are/were no specific and/or articulable facts of
unlawful conduct.

(citation omitted).

We recognize that it would be error to inject an officer's subjective intent into the
analysis of a traffic stop. See, e.g., State v. Bash, 419 S.C. 263, 276, 797 S.E.2d
721, 728 (2017) (explaining that a court must focus on "the objective purpose of
the officers' actions" in considering a Fourth Amendment search or seizure). Here,
however, like the magistrate and circuit courts, our review of the dash cam
recording provides no conclusive objective basis for this traffic stop. See Morris,
411 S.C. at 578, 769 S.E.2d at 858 ("When reviewing a Fourth Amendment search
and seizure case, an appellate court must affirm if there is any evidence to support
the ruling." (quoting State v. Wright, 391 S.C. 436, 442, 706 S.E.2d 324, 326
(2011))). It is likewise unclear to this court whether Deputy Haire actually
observed Sisler crossing the centerline on the night of the incident. Contra Vinson,
400 S.C. at 353–54, 734 S.E.2d at 185 (affirming the circuit court's ruling that an
officer was justified in stopping a driver for a perceived violation of section 56-5-
1900 of the South Carolina Code (2006) when the officer testified the driver drifted
between the double yellow lines and he suspected the driver was under the
influence of alcohol). Significantly, Deputy Haire never informed Deputy Fowler
that he observed Sisler crossing the centerline. In fact, Deputy Fowler's arrest
report stated, "She was swerving in her lane and then abruptly pulled over."
(emphasis added). Considering the totality of the circumstances, we find no clear
error in the circuit court's affirmance of the magistrate court's determination that
Deputy Haire lacked the requisite probable cause to initiate the traffic stop. See
State v. George, 323 S.C. 496, 509, 476 S.E.2d 903, 911 (1996) ("Whether
probable cause exists depends upon the totality of the circumstances surrounding
the information at the officer[']s disposal.").

We further agree Deputy Haire lacked the requisite reasonable suspicion to believe
Sisler was involved in criminal activity prior to initiating the traffic stop. See
Robinson, 407 S.C. at 182, 754 S.E.2d at 868 ("Instead, looking at the totality of
the circumstances, reasonable suspicion requires there be an objective, specific
basis for suspecting the person stopped of criminal activity."). Upon his initial
encounter with Sisler, Deputy Haire radioed that she was not intoxicated; he
testified she did not smell of alcohol and was not acting erratically; and after
interacting with her for approximately twenty minutes, he sent her on her way.
Deputy Haire admitted that his suspicion that Sisler was under the influence did
not develop until the second interaction when she exited her car and grabbed the
door for stability. Accordingly, we find no clear error in the circuit court's
affirmance of the magistrate court's determination that Deputy Haire lacked the
requisite reasonable suspicion for a traffic stop.

Conclusion

For the foregoing reasons, the circuit court's order affirming the magistrate court's
dismissal of Tami Baker Sisler's charges for DUI and child endangerment is

AFFIRMED.
WILLIAMS, THOMAS, and MCDONALD, JJ., concur.