Heard June 19, 2014.
Appeal From York County. Lee S. Alford, Circuit Court Judge. Appellate Case No. 2012-212042.
Appellate Defender David Alexander, of Columbia, for Petitioner.
Attorney General Alan McCrory Wilson, Senior Assistant Deputy Attorney General Salley W. Elliott, both of Columbia, and Solicitor Kevin Scott Brackett, of York, for Respondent.
CHIEF JUSTICE TOAL. HEARN, J. concurs. PLEICONES, BEATTY and KITTREDGE, JJ., concurring in result only.
[410 S.C. 523] ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
TOAL, CHIEF JUSTICE:
Jomar Robinson (Petitioner) appeals the court of appeals' decision affirming his convictions for possession of crack cocaine with intent to distribute (PWID), PWID within one-half mile of a public park, unlawful carrying of a pistol, possession of marijuana, and resisting arrest. See State v. Robinson, 396 S.C. 577, 722 S.E.2d 820 (Ct. App. 2012). We affirm as modified.
On Thursday, March 20, 2008, the York Police Department received several anonymous complaints that people were selling drugs and carrying weapons outside of the Hall Street Apartments in York, South Carolina. Starting at 10:00 p.m., Sergeant Rayford Ervin, a police officer working with the York County Drug Enforcement Unit, stood in a wooded area across the street from the apartment complex and used a pair of binoculars to conduct covert surveillance.
Over the next half hour, five cars stopped in front of Apartment 122, where five men stood on the porch of that unit. Each time a car stopped, the same man wearing a black jacket and blue jeans walked from the porch to the car, spoke briefly with the car's occupants, conducted a " hand to hand transaction," and then rejoined the other four men on the porch. As a veteran narcotics officer, Ervin found " that type of activity  consistent with drug sales," particularly because Thursdays tend to " have more drug dealing activity going on." He therefore called for backup.
At 10:30 p.m., Lieutenant James Ligon and Officer Brian Schettler parked in front of Apartment 122 with the illuminated [410 S.C. 524] headlights pointed towards the porch. Ligon and Schettler identified themselves as police officers
and walked onto the porch of Apartment 122. At that point, the five men standing on the porch were standing in two groups, with two men wearing black jackets and jeans--Laquaris Patton and Petitioner--on the left side of the porch, and the other three men (none of whom were wearing jackets) on the right side. Because of Ervin's description of the potential drug dealer's clothing, the officers were primarily interested in Patton and Petitioner. Ligon asked both men for identification, which they readily provided.
While Ligon inspected the two drivers' licenses, both officers began to smell a strong odor of green marijuana emanating from Petitioner's side of the porch. Further, Ligon noticed the butt of a gun protruding from the pocket of Petitioner's jacket. As a result, Ligon informed Patton and Petitioner that the officers were going to conduct a Terry  frisk for drugs and weapons.
At that point, Petitioner began to back away from the officers, and, in fear for his safety, Ligon lunged for and seized the gun, immediately before Petitioner also reached for it. A struggle ensued, during which Petitioner's jacket fell to the ground. Petitioner fled the scene, abandoning his jacket. Ligon pursued Petitioner, and after another brief scuffle, subdued and arrested Petitioner. After Ligon brought Petitioner back to Apartment 122, Schettler searched Petitioner's discarded jacket and found a semiautomatic pistol, a bag containing 3.2 grams of marijuana, a bag containing 0.84 grams of loose crack cocaine rocks, and a bag containing 2.97 grams of crack cocaine rocks packaged in eleven individually wrapped bags.
Prior to his trial, Petitioner made a motion to suppress the gun and drugs, claiming that the police conducted a warrantless search and seizure of him on the curtilage of Apartment 122, and that the gun and drugs were obtained after the [410 S.C. 525] officers illegally entered on the property. The trial court denied the motion to suppress, finding that Petitioner did not have a reasonable expectation of privacy on the porch of Apartment 122, and that the officers, possessing a reasonable suspicion to investigate, entered the property merely to talk to the men on the porch and request their identifications.
At trial, after Ligon testified on behalf of the State, but before the State had formally introduced the gun or drugs into evidence, defense counsel introduced the bag of marijuana during cross-examination of Ligon in an attempt to discredit the officer. Later in the trial, Petitioner objected ...