State v. Brian N. White

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.

Brian Neil White, Appellant.

Appellate Case No. 2019-001971

Appeal From Richland County
DeAndrea G. Benjamin, Circuit Court Judge

Unpublished Opinion No. 2022-UP-451
Submitted November 1, 2022 – Filed December 14, 2022

AFFIRMED

Appellate Defender Susan Barber Hackett, of Columbia,
for Appellant.

Attorney General Alan McCrory Wilson and Assistant
Attorney General Jonathan Scott Matthews, both of
Columbia, for Respondent.

PER CURIAM: Brian Neil White appeals his conviction of murder and sentence
of thirty-eight years' imprisonment. On appeal, White argues the trial court erred
by admitting a recording of a phone call into evidence that violated the Fourth
Amendment to the United States Constitution and did not fall into the law
enforcement or consent exception to the Omnibus Crime Control and Safe Streets
Act (the Act).1 We affirm.

We hold the trial court did not err in finding the recording was admissible under
both the law enforcement and consent exceptions to the Act. See State v. Frasier,
Op. No. 28117 (S.C. Sup. Ct. filed Sept. 28, 2022) (Howard Adv. Sh. No. 35 at 12,
17) (explaining that appellate review of a motion to suppress based on Fourth
Amendment grounds in South Carolina is a two-step analysis where 1) the trial
court's factual findings are reviewed for any evidentiary support and 2) whether
reasonable suspicion exists is a question of law subject to de novo review); State v.
Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006) ("The trial [court's] factual
findings on whether evidence should be suppressed due to a Fourth Amendment
violation are reviewed for clear error."); State v. Butler, 353 S.C. 383, 388, 577
S.E.2d 498, 500 (Ct. App. 2003) (explaining that appellate review in Fourth
Amendment search and seizure cases is "limited to determining whether any
evidence supports the trial court's finding" (quoting State v. Green, 341 S.C. 214,
219 n.3, 532 S.E.2d 896, 898 n.3 (Ct. App. 2000))). First, the recordings were
admissible under the law enforcement exception because law enforcement
monitored White's calls as part of its normal procedure and standard practices. See
18 U.S.C. § 2511(1)(a), (prohibiting, in the absence of an exception, the
interception of "any wire, oral or electronic communication" without a court
order); 18 U.S.C. § 2510(5)(a)(ii) (defining the law enforcement exception as
interception by "an investigative or law enforcement officer in the ordinary course
of his duties"). Second, the recordings were admissible because White consented
to having his calls recorded. See 18 U.S.C. § 2511(2)(d) (defining the consent
exception as when "one of the parties to the communication has given prior
consent to such interception"); United States v. Hammond, 286 F.3d 189, 192 (4th
Cir. 2002) (joining the First, Second, Eighth, and Ninth Circuits in concluding the
consent exception applies to prisoners who are "required to permit monitoring as a
condition of using prison telephones").

AFFIRMED. 2

WILLIAMS, C.J., THOMAS, J., and LOCKEMY, A.J., concur.

1
18 U.S.C. §§ 2510-2523.
2
We decide this case without oral argument pursuant to Rule 215, SCACR.