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24989 - State v. Cannon

Shearouse Adv. Sh. No. 27
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Petitioner,

v.

Taurus M. Cannon, Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From York County

Daniel F. Pieper, Circuit Court Judge

Opinion No. 24989

Heard June 8, 1999 - Filed August 16, 1999

REVERSED

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Salley W. Elliott, and

Senior Assistant Attorney General Charles H.

Richardson, all of Columbia; and Solicitor Thomas E.

Pope, of York, for petitioner.

Robert M. Dudek of the South Carolina Office of

Appellate Defense, of Columbia, for respondent.

Assistant Solicitor Amie L. Clifford, of North

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STATE v. CANNON





Charleston, for amicus curiae Solicitors' Association

of South Carolina, Inc., and South Carolina Sheriffs'

Association.





BURNETT, A.J.: After he was arrested on charges of criminal

domestic violence, the police searched Respondent Taurus M. Cannon and

found crack cocaine in his pocket. Respondent was convicted of possession of

crack cocaine with intent to distribute and sentenced to six years'

imprisonment.1 Concluding the crack cocaine was inadmissible, the Court of

Appeals reversed respondent's conviction and sentence. State v. Cannon,

329 S.C. 1632 495 S.E.2d 218 (Ct. App. 1997). This Court granted the State's

petition for a writ of certiorari to review the Court of Appeals' decision. The

Solicitors' Association of South Carolina, Inc., and South Carolina Sheriffs'

Association filed a joint amicus curiae brief.





FACTS





Prior to trial, respondent moved to suppress the admission of the

crack cocaine. The following testimony was offered at the suppression

hearing.





Officer Neeley of the City of York Police Department testified, in

response to a criminal domestic violence complaint, he went to the home of

Betty Cannon, respondent's mother. Mrs. Cannon invited Officer Neeley

into her home. She told Officer Neeley respondent, who also resided in the

home, had a knife. Officer Neeley spoke with respondent. Respondent

stated he was playing a video game when his mother became upset, came at

him with a vacuum cleaner, and he grabbed a knife. Officer Neeley arrested

respondent for criminal domestic violence and placed him in handcuffs.

After escorting respondent outside, Officer Neeley conducted a "search

incident to arrest" and located a pill bottle in respondent's pocket. The bottle

held plastic bags containing crack cocaine. Officer Neeley testified if he had

not been invited into the home, he would not have entered because he "didn't




1Although the Court of Appeals stated respondent was also convicted of

possession of crack cocaine within the proximity of a school, the solicitor

withdrew this charge at trial.

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STATE v. CANNON





hear screams or anything like that."





Respondent argued S.C. Code Ann.§ 16-25-70(H)(Supp. 1998)

prohibits the admission of evidence of crimes, other than criminal domestic

violence, seized through a warrantless search conducted as a result of a

criminal domestic violence complaint. The solicitor argued the crack cocaine

was admissible because respondent's mother had invited the officer into her

home and the search was incident to respondent's arrest. Finding the police

entered respondent's home with the consent of his mother, not based on the

statutory authority of § 16-25-70, the trial judge denied respondent's motion

to suppress. The Court of Appeals reversed. §





ISSUE



Did the Court of Appeals err by holding S.C. Code Ann. § 16-25

70(H) prohibits the admission of evidence of crimes, other than

criminal domestic violence, seized as a result of a valid

warrantless search after an arrest for criminal domestic

violence?





DISCUSSION



In 1984., the General Assembly enacted the Criminal Domestic

Violence Act (the Act). 1984 S.C. Acts 484, §1. it defined the statutory

offense of criminal domestic violence2 and set forth the penalties for a

conviction. In addition, the Act provided the circumstances under which a

law enforcement officer may effect an arrest for criminal domestic violence

either with or without a warrant, specifically permitted a warrantless arrest

even if the violence did not take place in the presence of an officer, and

permitted an officer to enter a person's home without a warrant to effect the


2 "It is unlawful to: (1) cause physical harm or injury to a person's own

household member, (2) offer or attempt to cause physical harm or injury to a

person's own household member with apparent present ability under

circumstances reasonably creating fear of imminent peril." § 16-25-20.

p.9


STATE v. CANNON





arrest.3 It further provided "[n]o evidence other than evidence of violations

of this article found as a result of a warrantless search shall be admissible in

any court of law." The Act stated nothing in the article would limit the

power of the police to make "other lawful arrests."





Although the substance of the original Act remains, § 16-25-70

has been expanded and designated into subsections. Currently, § 16-25

70(C) provides, in part:

in effecting a warrantless arrest under this section, a law

enforcement officer may enter the residence of the person to be

arrested in order to effect the arrest where the officer has

probable cause to believe that the action is reasonably necessary

to prevent physical harm or danger to a family or household

member.



Section 16-25-70(H) provides:

No evidence other than evidence of violations of this article found

as a result of a warrantless search is admissible in a court of law.



Section 16-25-80, in part, provides:

Nothing in this article affects or limits . . . the powers of the

police to make other lawful arrests.





The cardinal rule of statutory construction is that the Court

ascertain and effectuate the actual intent of the legislature. Mid-State Auto

Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 476 S.E.2d 690 (1996). In

ascertaining the intent of the legislature, a court should not focus on any

single section or provision but should consider the language of the statute as

a whole. Id.


3 Unless it constitutes the offense of criminal domestic violence of a

high and aggravated nature, criminal domestic violence is a misdemeanor.

§§ 16-25-30 to -65.

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STATE v, CANNON





We conclude § 16-25-70(C) is inapplicable in this case. Officer

Neeley did not enter respondent's home under the authority of § 16-25-70(C),

but rather upon the invitation of respondent's mother. Frazier v. Cupp, 394

U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969)(any person with an equal

right to use or occupy property may consent to its search). After determining

respondent had committed criminal domestic violence, Officer Neeley

arrested respondent. Once Officer Neeley lawfully arrested respondent on

charges of criminal domestic violence, he was entitled to search respondent

incident to the arrest. U.S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38

L.Ed.2d 427 (1973)(police officer may search arrestee and the area within his

immediate control for weapons and destructible evidence without first

obtaining a search warrant). Accordingly, since the officer did not enter

respondent's home under the authority of § 16-25-70(C), § 16-25-70(H) does

not apply and the evidence seized as a result of the valid search incident to

arrest was properly admitted in respondent's trial for possession of crack

cocaine with intent to distribute.4 Our decision is supported by the language

of § 16-25-80 which specifically provides nothing in the Act "affects or limits.

. . the powers of the police to make other lawful arrests."





REVERSED.



FINNEY, C.J., TOAL, MOORE, and WALLER, JJ., concur


4We are concerned about the effect of § 16-25-70(H). The plain

meaning of the statute precludes the admission of evidence of crimes, other

than criminal domestic violence, seized as a result of a warrantless search

conducted pursuant to § 16-25-70(C). In the case before us today, if the

officer had entered respondent's home under the authority of § 16-25-70(C),

the crack cocaine found in respondent's pocket would have arguably been

inadmissible pursuant to § 16-25-70(H). Similarly, as noted by the amicus

curiae, if the police make a warrantless entry into a home under the

authority of § 16-25-70(C) and observe in plain view a weapon which is

recognized as the weapon in an unrelated murder, the weapon could be

inadmissible under § 16-25-70(H) since murder is not a violation of the Act.

p.11