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2004-UP-428 - State v. Gilbert

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.

Charles Gilbert, Jr., Appellant.


Appeal From Lexington County
 Marc H. Westbrook, Circuit Court Judge


Unpublished Opinion No.  2004-UP-428
Heard June 8, 2004 – Filed July 9, 2004


AFFIRMED


Acting Deputy Chief Attorney Wanda P. Hagler, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General W. Rutledge Martin, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for Respondent.

PER CURIAM:  Charles Gilbert, Jr. appeals his conviction for trafficking cocaine, arguing the trial court erred in: (1) admitting evidence discovered during the search of his vehicle because the arresting officer did not have probable cause to make the traffic stop; (2) admitting evidence discovered during the search of his vehicle because the traffic stop was the result of impermissible racial profiling; (3) finding the State’s strike of a black, female juror was proper; (4) refusing to admit into evidence a copy of section 56-5-4450 of the South Carolina Code and refusing to charge the jury on that statute; and (5) refusing to charge the jury with the law concerning the requirement that police have probable cause or reasonable suspicion to stop a vehicle.  We affirm pursuant to Rule 220(b), SCACR, and the authorities that follow.

Probable Cause for Traffic Stop: Whren v. United States, 517 U.S. 806, 810 (1996) (explaining that the decision to stop an automobile is reasonable when police have probable cause to believe a traffic violation has occurred); S.C. Code Ann. § 56-5-4840 (Supp. 2003) (prohibiting the use of any device that alters the original design or performance of headlights).

Racial Profiling: Whren, 517 U.S. at 813 (holding that when there are adequate grounds to perform a traffic stop, the officer’s subjective motivations for making the stop do not cause evidence obtained during the stop to become inadmissible); State v. 192 Coin-Operated Video Game Machs., 338 S.C. 176, 200, 525 S.E.2d 872, 885 (2000) (requiring defendants attempting to establish a case for selective prosecution to show: (1) they were singled out for prosecution when others similarly situated were not, and (2) the government’s discriminatory selection was based upon an impermissible ground, such as the defendants’ race, religion, or the exercise of their first amendment right to free speech).

Peremptory Strikes: Purkett v. Elem, 514 U.S. 765 (1995) (requiring the proponent of a peremptory strike to offer a race-neutral explanation for using the strike once the other party challenges the strike); State v. Adams, 322 S.C. 114, 470 S.E.2d 366 (1996) (explaining that the opponent of a peremptory strike carries the ultimate burden of persuading the trial court that the other party exercised strikes in a discriminatory manner).

Admitting Statutes into Evidence and Refusing To Charge the Jury on Statutes and Probable Cause: Rule 104(a), SCRE (providing judges, not juries, determine questions concerning the admissibility of evidence).

AFFIRMED.

HEARN, C.J., STILWELL, J. and CURETON, A.J., concur.