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2011-UP-588 - State v. Nicholson

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.

Lorenzo R. Nicholson, Appellant.


Appeal From Greenville County
 John C. Few, Circuit Court Judge


Unpublished Opinion No. 2011-UP-588
Submitted December 1, 2011 – Filed December 21, 2011   


AFFIRMED


Appellate Defender Kathrine H. Hudgins, for Appellant.

Attorney General Alan Wilson, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, and Assistant Attorney General Mark R. Farthing, all of Columbia; and Solicitor W. Walter Wilkins, III, of Greenville, for Respondent.

PER CURIAM:  Lorenzo R. Nicholson appeals his convictions for trafficking cocaine and possession of a weapon during the commission of a violent crime.  He argues the trial court erred in denying his motion to suppress the cocaine and the weapon because the police found them at his house as a result of a search warrant for which the probable cause was obtained during an unconstitutional protective sweep.  We affirm.[1]

"In criminal cases, the appellate court sits to review errors of law only.  We are bound by the trial court's factual findings unless they are clearly erroneous."  State v. Butler, 353 S.C. 383, 388, 577 S.E.2d 498, 500 (Ct. App. 2003) (citation omitted).  On appeals from a motion to suppress based on Fourth Amendment grounds, the court applies a deferential standard of review and will reverse if there is clear error.  State v. Tindall, 388 S.C. 518, 522, 698 S.E.2d 203, 206 (2010).  However, this deference does not bar this court from conducting its own review of the record to determine whether the trial judge’s decision is supported by the evidence.  Id.  The arresting officers are permitted in the circumstances of an in-home arrest "to take reasonable steps to ensure their safety after, and while making, the arrest."  Maryland v. Buie, 494 U.S. 325, 333-34 (1990) (emphasis added). 

The Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts[,] [together with the rational inferences from those facts,]  that the area to be swept harbors an individual posing a danger to those on the arrest scene. 

Id. at 337. 

The record supports the trial court's finding that the protective sweep was reasonable.  Arresting officers attested they tried to arrest Nicholson for armed robbery, pursuant to a warrant, at the front door of his house.  The officers stated they entered Nicholson's house while trying to handcuff him because he was uncooperative and backed into his house.  The officers asserted Nicholson remained uncooperative after being handcuffed and, in addition, asked to read the arrest warrant, delaying the departure from the house.  Moreover, their statements indicated that his sister's arrival at the front door contributed to Nicholson's unsettling behavior.  The officers testified they were concerned dangerous persons were in the house, like a passenger from a car waiting in Nicholson's driveway with its engine running and the operator in the driver's seat, one of Nicholson's codefendants in the armed robbery who was out on bond, or others staying at the house.  They also considered a protective sweep was necessary for their safety considering the crime for which Nicholson was being arrested and his disappearance from view before opening the door.  Additionally, the officers' description of the protective sweep giving them probable cause for a search warrant indicated it was limited.  Therefore, the protective sweep did not violate Nicholson's Fourth Amendment rights, and the trial court properly denied Nicholson's motion to suppress the cocaine and the weapon.

AFFIRMED.

HUFF, PIEPER, and LOCKEMY, JJ., concur.


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