Heard March 18, 2014.
[Copyrighted Material Omitted]
Appeal From Greenville County. Appellate Case No. 2012-210306. The Honorable D. Garrison Hill, Circuit Court Judge.
Appellate Defender Carmen Vaughn Ganjehsani, of Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant Attorney General William M. Blitch, Jr., both of Columbia, for Respondent.
JUSTICE BEATTY. TOAL, C.J., HEARN, J., and Acting Justice James E. Moore, concur. PLEICONES, J., concurring in part and dissenting in part in a separate opinion.
[409 S.C. 99] BEATTY,
Erick Hewins appeals his conviction for possession of crack cocaine. Hewins contends the circuit court judge erred in ruling he was collaterally estopped from challenging the search of his vehicle, which precipitated the drug charge, because Hewins waived any challenge when he was convicted in municipal court of an open container violation resulting from the same search. We hold the conviction in municipal court had no preclusive effect on Hewins's ability to litigate his motion to suppress in circuit court. Moreover, we find the drug evidence should have been suppressed because it was discovered during an unlawful search. Accordingly, we reverse Hewins's conviction.
I. Factual / Procedural History
On September 15, 2009 at approximately 11:45 p.m., Officer Charles Cothran of the Greenville Police Department was patrolling the area of Main Street and Stone Avenue when he observed a gold Cadillac make a left turn using a " non-turning lane." As a result of the improper turn, Officer Cothran signaled for the vehicle to stop and Hewins pulled over into a nearby parking lot. Officer Cothran testified that earlier in the evening he had seen Hewins driving this vehicle on two occasions in a " high drug area."
Officer Cothran approached the vehicle and requested that Hewins provide his driver's license, proof of insurance, and vehicle registration. According to Officer Cothran, Hewins was " extremely nervous," spoke with a " quivering" voice, and was rapidly breathing. Due to Hewins's behavior, Officer Cothran requested a backup unit. Because Hewins was unable to locate his proof of insurance or vehicle registration, Officer Cothran returned to his patrol car and searched the computer database for this information and confirmed the vehicle was registered to Hewins.
As Officer Cothran was writing a warning citation, Officer Michael Loftis, a K-9 officer, arrived at the location. After Officer Cothran completed writing the warning citation, he returned to give it to Hewins. When he approached the vehicle, he noticed that Hewins remained nervous and " had not calmed down" despite the fact that he was not being given [409 S.C. 100] a traffic ticket. Based on this behavior, Officer Cothran asked Hewins to exit the vehicle for safety reasons. He then conducted a pat down of Hewins and questioned him as to whether he had any guns, drugs, or explosives. Officer Cothran stated Hewins quickly responded that he did not have drugs and continued to exhibit nervous behaviors. Officer Cothran indicated this response made him suspicious. As a result, he asked Hewins for consent to search the vehicle. When Hewins refused, Officer Loftis proceeded to walk his drug-detection dog around the vehicle. After Officer Loftis secured the dog, he informed Officer Cothran that the dog had " alerted" to the driver's side door. In turn, Officer Cothran conducted a search of the vehicle. The search of the center armrest console revealed a mini-bottle of vodka that had been opened and a Tylenol bottle containing two, small " rock-like white pebbles." A field test of the substance indicated the presence of cocaine. Officer Cothran arrested Hewins for possession of crack cocaine 
and issued him a ticket for the open container violation.
On October 8, 2009, Hewins appeared in municipal court and was convicted of the open container charge. The municipal court sentenced Hewins to time served and ordered the payment of a fine in the amount of $262.50. Based on his misunderstanding that Hewins had been convicted of possession [409 S.C. 101] of crack cocaine in municipal court, Officer Cothran authorized the destruction of the drug evidence.
On May 4, 2010, a Greenville County grand jury indicted Hewins for possession of crack cocaine. Just prior to the start of the trial, Hewins moved to suppress the drug evidence on the ground the search was unlawful. Although counsel for Hewins admitted the initial traffic stop was valid, he asserted the purpose of the stop was concluded after Officer Cothran issued a warning citation for the traffic offense. Counsel maintained that once the traffic stop was concluded any further detention or search was unlawful.
In response, the solicitor asserted Hewins was collaterally estopped from challenging the propriety of the search because he had been convicted in municipal court for an offense that emanated from the same search. The solicitor explained that the failure to challenge the search in municipal court constituted a waiver by Hewins as to any further issue regarding the search. In support of this position, the solicitor relied on the holding in State v. Snowdon, 371 S.C. 331, 638 S.E.2d 91 (Ct. App. 2006), cert. dismissed as improvidently granted, 381 S.C. 171, 672 S.E.2d 108 (2009).
In Snowdon, the defendant was arrested for breach of the peace. Id. at 332, 638 S.E.2d at 92. During a search incident to the arrest, an officer discovered a small amount of marijuana in the defendant's wallet. Id. The defendant was charged with breach of the peace and possession of marijuana. Id. After he pled guilty to breach of the peace in magistrate's court, the defendant sought to suppress the introduction of the marijuana during his circuit court trial. Id. at 333, 638 S.E.2d at 92. The circuit court determined that the defendant's guilty plea in magistrate's court precluded him from contesting the legality of his arrest and, a fortiori, the search incident thereto. Id. The defendant was convicted of possession of marijuana and sentenced to one year in prison. Id.
On appeal, the Court of Appeals affirmed. Id. at 334, 638 S.E.2d at 93. In so ruling, the court found the defendant, by having pled guilty to the breach of the peace charge, waived any objection he may have had to assert constitutionally based violations attendant to his initial arrest and the legal consequences flowing therefrom. Id. at 333, 638 S.E.2d at 93. [409 S.C. 102] Additionally, the court found the defendant was collaterally estopped from relitigating the issue of the validity of his arrest. Id. at 334, 638 S.E.2d at 93. Because the defendant had pled guilty to breach of the peace, the court found the issue of whether there was probable cause to arrest him for that offense was necessarily determined in the magistrate court proceeding. Id. Thus, the court concluded the doctrine of collateral estoppel prevented the defendant from raising that issue again at his trial for possession of marijuana. Id.
Counsel for Hewins disputed the applicability of Snowdon, arguing that Hewins did not enter a guilty plea in municipal court. To counter this assertion, the solicitor presented testimony from the records custodian for the City of Greenville Municipal Court. Although the Uniform Traffic Ticket indicated Hewins appeared for a trial, the custodian testified her computer records reflected that Hewins pled guilty.
Counsel for Hewins then resumed his argument and reiterated that Snowdon was not applicable. Counsel explained that, unlike the related offenses in Snowdon, the magistrate court conviction for an open container violation was " a completely separate case" from the possession of crack cocaine offense. Specifically, counsel pointed out that Hewins was not contesting a search incident to an arrest but, rather, a search following the issuance of a warning citation. Finally, counsel claimed there was no evidence that Hewins was represented by counsel during the municipal court proceeding.
At the conclusion of the hearing, the judge granted the State's motion based on Snowdon. Ultimately, the jury convicted Hewins of possession of less than one gram of crack cocaine. The trial judge sentenced Hewins to one year in prison. After Hewins appealed to the Court of Appeals, this Court certified the appeal pursuant to Rule 204(b) of the South Carolina Appellate Court Rules.
II. Standard of Review
" In criminal cases, the appellate court sits to review errors of law only." State v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001) (citations omitted). " We are bound by the trial court's factual findings unless they are clearly erroneous." Id. " This same standard of review applies [409 S.C. 103] to preliminary factual findings in determining the admissibility of certain evidence in criminal cases." Id. The admission or exclusion of evidence is left to the sound discretion of the trial court, and the court's decision will not be reversed absent an abuse of discretion. State v. Pagan, 369 S.C. 201, 208, 631 S.E.2d 262, 265 (2006). An abuse of discretion occurs when the decision of the trial court is based upon an error of law or upon factual findings that are without evidentiary support. Id.