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2011-UP-507 - State v. Greene

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.

John Jabbar Greene, Appellant.


Appeal From Georgetown County
Jeffrey Young, Circuit Court Judge


Unpublished Opinion No. 2011-UP-507  
Heard November 1, 2011 – Filed November 15, 2011


AFFIRMED


Appellate Defender Kathrine H. Hudgins, of Columbia, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Christina Catoe, all of Columbia; and Solicitor J. Gregory Hembree, of Conway, for Respondent.

PER CURIAM: John Jabbar Greene was convicted of two counts of armed robbery, two counts of kidnapping, and one count of second-degree burglary and received concurrent sentences totaling thirty years' imprisonment.  Greene appeals, arguing the trial court erred in refusing to suppress (1) a statement he made to the sheriff's department after being advised of his Miranda[1] rights and invoking his right to remain silent and (2) DNA evidence collected in violation of his Fourth Amendment rights.  We affirm pursuant to Rule 220(b)(1), SCACR, and the following authorities: 

1. As to whether the trial court erred in refusing to suppress DNA evidence obtained pursuant to a "voluntary consent to search" form Greene signed: State v. Missouri, 361 S.C. 107, 111, 603 S.E.2d 594, 596 (2004) (requiring an appellate court reviewing a Fourth Amendment search and seizure case to affirm the trial court's ruling if it is supported by any evidence in the record and permitting reversal only in cases of clear error); State v. Weaver, 374 S.C. 313, 319-20, 649 S.E.2d 479, 482 (2007) (holding "[e]vidence seized in violation of the Fourth Amendment must be excluded from trial," noting "a warrantless search will withstand constitutional scrutiny where the search falls within one of several well-recognized exceptions to the warrant requirement," and observing the State must establish both "probable cause and the existence of circumstances constituting an exception to the general prohibition against warrantless searches"); State v. Dupree, 319 S.C. 454, 456-58, 462 S.E.2d 279, 281-82 (1995) (holding the Fourth Amendment protects against improper intrusions into the mouth, requiring probable cause and a clear indication evidence will be found prior to a warrantless search of a suspect's mouth, and identifying consent as an exception to the Fourth Amendment rule against warrantless searches). 

2.  As to whether the trial court erred in refusing to suppress Greene's statement concerning contact with the shotgun, despite Greene's invocation of his right to remain silent and Investigator Smith's testimony that he was "cool" with Greene: Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010) ("Even absent the accused's invocation of the right to remain silent, the accused's statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused in fact knowingly and voluntarily waived [Miranda] rights when making the statement." (internal quotation marks and citation omitted)); State v. Brown, 389 S.C. 84, 92, 697 S.E.2d 622, 627 (Ct. App. 2010) (quoting State v. Sims, 304 S.C. 409, 416-17, 405 S.E.2d 377, 381-82 (1991) (emphasis added by court) (internal quotation marks omitted) (holding custodial interrogation includes "express questioning, or its functional equivalent which includes words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response"); State v. Kennedy, 333 S.C. 426, 429, 510 S.E.2d 714, 715 (1998) (recognizing a waiver need not be express; an implicit waiver is sufficient); State v. Moses, 390 S.C. 502, 513, 702 S.E.2d 395, 401 (Ct. App. 2010) (requiring a court examining whether a Miranda waiver was made freely, knowingly, and voluntarily to determine "whether the defendant's will was overborne by the totality of the circumstances surrounding the confession"); State v. Hughes, 336 S.C. 585, 594, 521 S.E.2d 500, 505 (1999) ("Absent coercive police conduct causally related to a confession, there is no basis for finding a confession constitutionally involuntary."). 

AFFIRMED. 

FEW, C.J., KONDUROS, J., and CURETON, A.J., concur. 


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