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2007-UP-304 - State v. Simpson

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.

Devario Simpson, Appellant.


Appeal From Greenville County
 G. Edward Welmaker, Circuit Court Judge


Unpublished Opinion No. 2007-UP-304
Submitted April 2, 2007 – Filed June 8, 2007   


AFFIRMED


Appellate Defender Aileen P. Clare, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley E. Elliott, Assistant Attorney General Deborah R.J. Shupe, all of Columbia; and Solicitor Robert M. Ariail, of Greenville, for Respondent.

PER CURIAM:  Devario Simpson (Simpson) appeals his convictions for trafficking cocaine and resisting arrest.  Simpson argues the evidence seized and admitted at trial was the result of an unlawful detention.  We affirm. 

FACTS

On the night of April 19, 2003, Deputy McBee of the Greenville County Sheriff’s Department initiated a traffic stop of a vehicle driven by Simpson.  According to McBee, Simpson’s car came to a four-way stop across the intersection from his patrol car.  Simpson signaled a right turn and attempted to yield the right-of-way to permit McBee to turn left and proceed before him.  McBee declined to turn left before Simpson and instead waved Simpson through the intersection.  Simpson then straightened his vehicle’s wheels and proceeded to go straight through the intersection rather than turning right.  McBee testified Simpson’s vehicle crossed the center line, before passing his patrol car.  McBee then turned and followed Simpson.  Simpson continued on the road at a speed exceeding thirty-five miles per hour, which McBee believed was over the speed limit for a residential road with no posted speed limit.  McBee initiated a traffic stop for crossing the center line and speeding.

Simpson immediately stopped and exited the car and looked around in a manner interpreted by Deputy McBee as an attempt to flee.  McBee quickly approached the car and pinned Simpson between the door and the body of the car.  McBee noticed Simpson had bulges in his pockets, so he searched Simpson for weapons.  McBee testified that as he attempted to pat down Simpson’s front pockets, Simpson contorted his body in an attempt to pull away, so McBee handcuffed Simpson and detained him for safety purposes.  Officer McBee was certain, after he completed the pat down, that the bulges in Simpson’s pants were not weapons.

At this time, Simpson’s passenger exited the car and attempted to intervene, so McBee called for backup.  Deputy Rudy arrived and took custody of Simpson while McBee tried to calm the passenger.  As McBee spoke to the passenger, he heard a scuffle and turned and saw Simpson push Rudy with his shoulder.  Rudy responded by placing Simpson under arrest for assaulting a police officer.  McBee joined Rudy and subdued Simpson.

Meanwhile, another officer responded to the scene with a drug dog.  The dog alerted to the odor of narcotics inside the car.  A search of the car produced 800 grams of cocaine, $11,000 in currency, and other drug paraphernalia.  The officers also searched Simpson’s person incident to his arrest for assaulting a police officer and seized over $6500 in cash from his front pants pockets and a hotel key card.  A search of Simpson’s hotel room pursuant to a search warrant yielded some additional drug paraphernalia. 

Simpson was tried by a jury and convicted of trafficking cocaine and resisting arrest and acquitted of assault and battery.  Simpson was sentenced to thirty years in prison for the trafficking charge and one year in prison for the resisting arrest charge.  This appeal follows. 

LAW/ANALYSIS

Simpson argues his restraint and detention at the traffic stop became unlawful when McBee determined he was not armed, and the subsequent searches of his person, the car, and the hotel room were not legally justified.  We disagree.

In criminal cases, the appellate court sits to review errors of law only, and the appellate courts are bound by the circuit court’s factual findings unless they are clearly erroneous.  State v. Wilson, 345 S.C. 1, 6, 545 S.E.2d 827, 829 (2001).  “This same standard of review applies to preliminary factual findings in determining the admissibility of certain evidence in criminal cases.”  Id.

A.  Traffic Stop

The decision to stop a vehicle is generally reasonable when the police have probable cause to believe a traffic violation has occurred.  Whren v. United States, 517 U.S. 806, 810 (1996).  Additionally, “[i]f the officer’s suspicions are confirmed or are further aroused, the stop may be prolonged and the scope enlarged as required by the circumstances.”  State v. Blassingame, 338 S.C. 240, 248, 525 S.E.2d 535, 539 (Ct. App. 1999).  Police may briefly detain and question a person upon a reasonable suspicion, short of probable cause for arrest, that the person is involved in criminal activity.  Terry v. Ohio, 392 U.S. 1, 22 (1968). 

In this case, Deputy McBee observed Simpson’s car traveling on the wrong side of the road for several feet as it went through an intersection.  When McBee turned his patrol car around, Simpson’s car sped up and exceeded the speed limit.  McBee had ample justification to stop Simpson’s car.  Then, Simpson immediately exited the car and looked around in a manner that was reasonably interpreted as a possible attempt to flee.  That behavior coupled with the bulges in Simpson’s pockets was sufficient to justify McBee in prolonging the stop.

B. Terry Frisk

A police officer may frisk a person when he has a reasonable suspicion that the individual is armed and dangerous, and the question is “whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”  Id. at 27.  The term reasonable suspicion requires that the officer articulate a particularized and objective basis for his belief, and in determining whether reasonable suspicion exists, the court must consider the totality of the circumstances.  Blassingame, at 248, 525 S.E.2d at 539.

The circuit court found that McBee articulated a particularized and objective basis for his belief that Simpson might be armed and dangerous.  Simpson exited the car and looked around frantically as soon as the car came to a stop.  McBee testified that it looked like Simpson was going to run away, so he quickly pinned Simpson against the car.  McBee testified that Simpson’s eyes were wide and bulging, he was sweating profusely on a cool night, he looked nervous, and he had two bulges in his pants pockets.  Based on those observations, McBee justifiably believed the bulges could have been weapons, and he feared for his safety. 

When McBee informed Simpson he was going to search him for weapons, Simpson became combative and twisted his body in an attempt to escape.  At this point, McBee handcuffed Simpson as an additional safety measure.  When McBee completed the pat down, he stopped searching Simpson because he was certain the bulges were not weapons.  Under the circumstances, these actions were also justified. 

C.  Search Incident to Arrest

Once a person is under lawful arrest, a contemporaneous search incident to arrest is proper.  Shipley v. California, 395 U.S. 818, 819 (1969).  The full search of a person under lawful arrest does not require a search warrant and is considered reasonable under the Fourth Amendment.  State v. Freiburger, 366 S.C. 125, 131, 620 S.E.2d 737, 740 (2005).  Furthermore, a trained narcotics dog’s sniff of a vehicle stopped in a public place does not constitute a search, and the dog’s positive alert for drugs gives probable cause for a subsequent search of the vehicle.  State v. Jeffus, 22 F.3d 554, 557 (4th Cir. 1994). 

Simpson’s passenger began to intervene in the situation by yelling and walking around the scene.  When Deputy Rudy arrived on the scene, he attempted to further secure Simpson while McBee attempted to calm Simpson’s passenger.  When Simpson pushed Deputy Rudy, he was immediately arrested for assaulting an officer.  Simpson was then lawfully searched incident to that arrest.  Independent of that arrest, the trained drug sniffing dog alerted on Simpson’s car, which provided the probable cause to search the car.  Under these circumstances, both the search of Simpson’s person and the search of Simpson’s car were justified.  The evidence obtained in these searches provided the probable cause to obtain the search warrant for the search of Simpson’s hotel room.  The search of the hotel room pursuant to a valid warrant was constitutionally valid as well.  Therefore, the evidenced seized during these searches was properly admitted into evidence at trial. 

CONCLUSION

The circuit court properly considered the totality of the circumstances surrounding Simpson’s initial traffic stop, Terry frisk, search incident to arrest, and search of the hotel room.  The record supports the circuit court’s rulings on the admissibility of the evidence.

Accordingly, the circuit court’s decision is

AFFIRMED.[1] 

HUFF, BEATTY, and WILLIAMS, JJ., concur.


[1] We decide this case without oral argument pursuant to Rule 215, SCACR.