State v. Hardy

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.

Kevin Tijuan
Hardy, Appellant.

Appeal From Greenville County

G. Edward Welmaker, Circuit Court Judge

Unpublished Opinion No. 2012-UP-315

Heard April 10, 2012 – Filed May 23, 2012   

AFFIRMED

Appellate Defender Lanelle Cantey Durant, of Columbia, for
Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John
W. McIntosh, Senior Assistant Deputy Attorney General Salley W. Elliott,
Assistant Attorney General Mark R. Farthing, all of Columbia, for Respondent.

PER CURIAM:  Kevin
Tijuan Hardy was indicted for and convicted of trafficking in cocaine and crack
cocaine and sentenced to twenty-five years and seven years, respectively. 
Hardy appeals, asserting the trial court erred in (1) denying his motion to
suppress the drug evidence resulting from a traffic stop, and (2) allowing the
State to present a factor to support reasonable suspicion to search that was
discriminatory and violated the Equal Protection Clause.  We affirm.

1.  We find no error in
the trial court's denial of Hardy's motion to suppress the drug evidence based
on his assertion the search of his car exceeded the scope of the traffic stop. 
We find this case to be similar to that of State v. Provet, 391 S.C.
494, 706 S.E.2d 513 (Ct. App. 2011), and State v. Wallace, 392 S.C. 47, 707 S.E.2d 451 (Ct. App. 2011), and distinguishable from State v. Tindall, 388 S.C. 518, 698 S.E.2d 203 (2010).  Here, as in Provet, the traffic stop was not
prolonged for questioning by the officer after the purpose of the traffic stop
had been accomplished.  Rather, the officer's series of questions and
observations occurred prior to the conclusion of the traffic stop, as the
officer was still waiting to hear from dispatch regarding Hardy's license and
registration.  After the officer completed the warning citation, dispatch
reported back to him on the license and registration, and he explained the
warning citation to Hardy and handed him the ticket, immediately asking Hardy
for consent to search.  Here, as in Provet, the officer did not prolong
the stop several minutes to ask further questions after the purpose of the stop
was met.  Further, as in Provet and Wallace, the officer here developed his reasonable suspicion as a
result of additional factors that were not present in Tindall.  While
the factors noted by the officer here, standing alone, may be insufficient to
support reasonable suspicion, when considered together under the totality of
the circumstances, they were sufficient to provide reasonable suspicion for the
officer to detain Hardy while the drug detection canine walked around his
vehicle.  See Wallace, 392 S.C. at 55, 707 S.E.2d at 455 (holding
that while none of the fourteen factors relied upon by the State to support
reasonable suspicion independently amounted to reasonable suspicion of criminal
activity, "blending each of [the] 'tiles' into the 'entire mosaic' of the
totality of the circumstances," the officer had reasonable suspicion to
detain appellant while he walked the drug dog around the car).  Finally, as in Provet and Wallace, the officer here was a highly experienced officer, having
worked as a highway patrolman for a number of years, many of those years
assigned to the Aggressive Criminal Enforcement (ACE) unit, and having taught
criminal patrol and interdiction both at the state and national level.[1]  See Wallace, 392 S.C. at 52, 707 S.E.2d at 453 (noting that where
evidence showed officer involved was experienced, having worked in law enforcement
for over ten years prior to Wallace's arrest during which time he was
continually trained in drugs and drug interdiction, and officer's testimony
described in detail what happened, what he observed, and the conclusions he
drew from those facts in suppression hearing, considering such testimony and
the totality of the circumstances of the case, the evidence supported the trial
judge's ruling that the officer's suspicion was reasonable under the Fourth
Amendment); Provet, 391 S.C. at 506, 706 S.E.2d at 519-20 (observing
officer involved in that matter had four years of experience as a member of the
ACE unit and finding, based on the totality of circumstances and particularly
considering the officer's experience, there was evidence in the record to support
the trial court's ruling and the trial court did not abuse its discretion in finding
reasonable suspicion). 

2.  We further find no merit to
Hardy's contention the trial court erred in "allowing the State to
present, as one of the factors for reasonable suspicion to search, 'one black
male driving alone' which was discriminatory and violated the Equal Protection
Clause of the United States Constitution."  This issue is not preserved
for review.  Although Hardy's trial counsel questioned the officer concerning
consideration of a "black male driving alone" as a factor to support
reasonable suspicion, Hardy never argued to the trial court that the State had
presented such a factor or that it should not be allowed to present such a
factor, never argued to the trial court that such amounted to selective
enforcement, and never asserted that it was a violation of his right to equal
protection.  In fact, Hardy raised no objection or motion in regard to this
matter whatsoever.  See State v. Jennings, 394 S.C. 473, 481-82,
716 S.E.2d 91, 95 (2011) (holding the rule that for an issue to be properly
preserved it has to be raised to and ruled on by the trial court also applies
to constitutional arguments); State v. McKnight, 352 S.C. 635, 646, 576
S.E.2d 168, 174 (2003) (noting contention must be raised to and ruled upon by
trial court to be preserved for appellate review); State v. Haigler, 334
S.C. 623, 632, 515 S.E.2d 88, 92 (1999) (noting a constitutional argument is
not preserved for appeal where the appellant fails to argue the constitutional
basis for his request at trial).  Further, the officer specifically indicated that
he did not consider this fact as an indicator of criminal activity.  The
officer referenced Hardy's race when he was discussing the details of what he
observed after he stopped Hardy, and his subsequent testimony makes clear that
this was not included as one of the factors to support reasonable suspicion to
extend the stop. 

For
the foregoing reasons, Hardy's conviction is

AFFIRMED.

FEW,
C.J., and HUFF and SHORT, JJ., concur.

[1] At the time of this incident, the officer in question
had more than fifteen years of experience as a highway patrolman and a total of
eighteen years of experience in law enforcement.  After five years of service
with the Highway Patrol, he was assigned to the ACE unit and was a first-line
supervisor under the ACE team at the time of this matter.  He completed more
than 1,000 hours in advanced criminal patrol and interdiction technique in the
last ten years, was a certified instructor in criminal patrol and extending
traffic stops with the National Highway Traffic Safety Association, was a
certified instructor in advanced criminal patrol through the South Carolina
Criminal Justice Academy, and was a national instructor with the National
Criminal Enforcement Association.