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2004-UP-201 - State v. Brown

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Theodore L. Brown, III,        Appellant.


Appeal From Clarendon County
Howard P. King, Circuit Court Judge


Unpublished Opinion No. 2004-UP-201
Heard March 11, 2004 – Filed March 24, 2004


AFFIRMED


Steven Smith McKenzie, of Manning, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor Cecil Kelley Jackson, of Sumter, for Respondent.

PER CURIAM:  Theodore L. Brown, III was convicted of possession of marijuana with intent to distribute after police discovered the drugs during a traffic stop.  Brown appeals, contending the drugs were found after the completion of the original stop and thus pursuant to an illegal detention under State v. Williams, 351 S.C. 591, 571 S.E.2d 703 (Ct. App. 2002), cert. denied (June 27, 2003).  We affirm. 

BACKGROUND

Lance Corporal Richard Ray of the South Carolina Highway Patrol stopped a van traveling south on Interstate 95 for weaving.  As Officer Ray approached the van, he noticed Brown asleep or reclining in the rear of the vehicle.  After exiting the van at Ray’s request, the van’s driver, Milton Butler, explained he had been driving for twenty hours and was tired.  The officer issued the driver a warning citation for weaving. 

As Butler turned to leave, the officer asked if he could ask a few more questions.  He asked if there was anything illegal in the vehicle, and Brown said no.  Ray continued to ask the driver questions, telling him that “he was not being accused of having any illegal items, but if he did have anything illegal, such as alcohol or any marijuana, less than an ounce, he could be given a ticket and released if he was honest.” 

After some discussion, Butler admitted there were drugs in the van.  Ray then read Butler his Miranda [1] rights and Butler stated there was maybe a quarter of an ounce of marijuana in the van.  Ray then called Lance Corporal King to the scene.  Butler again admitted there was marijuana in the van.  Another officer arrived and Brown was asked to exit the vehicle. 

When King arrived, he circled the vehicle with a drug dog several times.  He then entered the van with the dog and discovered 1.57 pounds of marijuana under bedding in the rear of the van. 

Brown was found guilty of possession of marijuana with intent to distribute following a jury trial. 

DISCUSSION

Brown argues he and the driver were unlawfully detained when the officer continued to ask questions after issuing the warning citation.  Thus he argues the marijuana was discovered during an unlawful seizure of his person and the court should have suppressed it.  This issue is not preserved.

Although Brown moved to suppress the drugs prior to the swearing of the jury, a motion the court denied after a hearing, he failed to contemporaneously object when the marijuana or drug analysis were admitted into evidence.  Because this evidence was admitted during the testimony of the State’s second and third witnesses, his failure to renew his motion precludes appellate review of the court’s ruling.  State v. King, 349 S.C. 142, 149-50, 561 S.E.2d 640, 643-44 (Ct. App. 2002) (holding an in limine motion to suppress drugs must be renewed at the time the drugs are admitted into evidence where the court’s ruling was not obtained immediately prior to the admission); see also State v. Forrester, 343 S.C. 637, 642, 541 S.E.2d 837, 840 (2001) (holding ordinarily an evidentiary ruling in limine is not final and an objection contemporaneous with the evidence’s admission is required to preserve the issue for appeal).

AFFIRMED.

HUFF and STILWELL, JJ., and CURETON, A.J., concur.


[1]         Miranda v. Arizona, 384 U.S. 436 (1966).