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State v. Counts

Supreme Court of South Carolina

July 8, 2015

The State, Respondent,
v.
Rushan Counts, Petitioner

Heard September 25, 2014.

Page 60

Appeal From Richland County. Alison Renee Lee, Circuit Court Judge. Appellate Case No. 2013-000086.

Dayne C. Phillips, of Lexington, and Carmen Vaughn Ganjehsani, of Columbia, for Petitioner.

Attorney General Alan McCrory Wilson, Assistant Attorney General Mark Reynolds Farthing and Assistant Attorney General Julie Kate Keeney, all of Columbia, for Respondent.

JUSTICE BEATTY. HEARN and KITTREDGE, JJ., concur. PLEICONES, J., concurring in a separate opinion in which TOAL, C.J. concurs.

OPINION

[413 S.C. 156] ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Page 61

BEATTY, JUSTICE:

Rushan Counts was convicted of possession with intent to distribute marijuana, third offense. On appeal, Counts contended the circuit court judge erred in denying his motion to suppress evidence that was found at his residence after he opened his door in response to police officers knocking on the door. Counts claimed the use of the " knock and talk" investigative technique at his home violated his rights under the constitutions of the United States[1] and South Carolina[2] as this procedure constituted an unreasonable search and seizure and violated his state right to privacy. The Court of Appeals summarily affirmed Counts' conviction and sentence. State v. Counts, Op. No. 2012-UP-585 (S.C. Ct.App. filed Oct. 31, 2012). This Court granted Counts' petition for a writ of certiorari to review the decision of the Court of Appeals. We affirm as modified.

[413 S.C. 157] I. Factual / Procedural History

Prior to trial, Counts moved to suppress the drugs and weapon recovered from his home on the ground that law enforcement's search of his home violated the Fourth Amendment of the United States Constitution and Article I, section 10 of the South Carolina Constitution . In his written motion, Counts claimed the search was unconstitutional because law enforcement did not have a warrant or probable cause. Counts maintained that, prior to searching his home, the officers failed to corroborate the anonymous tip that precipitated the actions of law enforcement. Additionally, Counts asserted the plain view doctrine did not apply as law enforcement's initial intrusion into his home was not lawful.

During the pre-trial suppression hearing, Investigator Damon Robinson of the Richland County Sheriff's Department testified that in June 2007 he received an anonymous tip alleging Counts was selling marijuana and crack cocaine out of his mother's house and

Page 62

an apartment in Allen Benedict Court in Columbia. The anonymous tipster provided Counts' name and aliases, the location of Counts' alleged drug deals, Counts' girlfriend's name, a vehicle license plate number for a white Chevy Malibu, the make and model of the car used by Counts' girlfriend, and Counts' phone number. Based on this information, Richland County deputies conducted surveillance on the home of Counts' mother and attempted two controlled drug buys from the apartment in Allen Benedict Court. The controlled buys were unsuccessful.

On April 2, 2008, Lieutenant Dave Navarro of the Richland County Sheriff's Department received a complaint from an anonymous tipster claiming Counts was selling drugs out of his residence. Lieutenant Navarro testified that the tipster provided Counts' name and phone number, the name and phone number of Counts' girlfriend, and identified Counts' vehicle. The tipster also informed Lieutenant Navarro that Counts used multiple identities because Counts knew someone at the Department of Motor Vehicles through whom he procured at least two false forms of identification. The tipster further stated Counts was selling drugs at a specific address and at his girlfriend's apartment in Allen Benedict Court. The tipster also claimed Counts' father was aware of the drug [413 S.C. 158] dealing and would cover for him. The tipster warned Lieutenant Navarro that Counts carried guns everywhere he went.

Lieutenant Navarro discussed this information with Investigator Robinson, who confirmed there were two similar tips about Counts. Lieutenant Navarro then attempted to corroborate the information provided to him from the tipster by reviewing Counts' " rap sheet," which revealed two prior charges of distribution and several other drug charges. He also confirmed that Counts had two identification cards on record. Based on this information, Lieutenant Navarro and other members of the Richland County Drug Suppression Team conducted surveillance of Counts' residence. Once they identified Counts driving into and entering the residence, Lieutenant Navarro decided to conduct a " knock and talk." According to Lieutenant Navarro, a " knock and talk" is a common investigative technique used by the sheriff's department during which officers approach a residence and explain an allegation to someone who has been accused of wrongdoing.

Lieutenant Navarro, who was accompanied by Deputy Brian Elliott, knocked on Counts' door. When Counts asked the officers to identify themselves, Deputy Elliott responded that they were with the Richland County Sheriff's Department. Upon Counts' request, Deputy Elliott displayed his badge through the peephole in the door. Counts then opened the door. Both officers testified they immediately smelled " the strong odor of marijuana." Deputy Elliott testified that from outside the doorway he saw a " rolled blunt" on the coffee table in the living room. Deputy Elliott immediately said, " 600," indicating to Lieutenant Navarro that drugs were present. Both officers described Counts' posture as " bladed," which suggested that Counts had a gun. Lieutenant Navarro then observed a silver automatic gun in Counts' hand, to which he responded " 59, 59," meaning Counts was armed. Once the officers drew their guns and approached Counts, Counts dropped his gun and was immediately detained by the officers.

Both officers testified they performed a protective sweep of the residence during which they discovered in plain view a bag of marijuana and a scale in the kitchen. A search of Counts' person revealed another bag of marijuana. Once the house was cleared, the officers contacted Investigator Robinson, who [413 S.C. 159] obtained a search warrant for Counts' residence the same afternoon. The search revealed approximately 800 grams of marijuana, $3,637 in cash, two cell phones, a digital scale, two false identification cards with Counts' picture, and three pieces of mail addressed to Counts.

After hearing arguments, the trial judge denied the motion to suppress. In prefacing her ruling, the judge made the following findings of fact: (1) on April 2, 2008 the officers received an anonymous tip, which indicated that Counts was selling narcotics and identified Counts' name, vehicle, phone number, and his girlfriend's name; (2) the

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sheriff department's investigation revealed that Counts drove multiple vehicles, was known to carry weapons, and used multiple aliases; (3) during the course of surveillance of Counts' residence, the officers did not witness Counts engaging in activity to suggest that he was selling drugs; (4) after the officers observed Counts enter the residence, they approached, knocked on the door, and identified themselves as law enforcement officers; (5) when Counts opened the door both officers detected a " strong odor of marijuana emanating from inside" the residence; (6) the officers described Counts as standing at the door with his " body bladed" in an attempt to conceal a weapon; and (7) the officers observed Counts with a gun and, in turn, drew their guns and ordered Counts to drop the gun. The judge, however, questioned whether the officers saw the " blunt" on the living room table before they entered the residence as the written incident report indicated that Deputy Elliott did not see the " blunt" until after Counts was detained.

Although the trial judge found the officers did not have probable cause at the time they went to Counts' residence to either arrest Counts or search his residence, the judge ruled that law enforcement did not " need a warrant to do what any private citizen may legitimately do, approach a home to speak to the inhabitants." Additionally, the judge found that Counts could have refused to answer his door, stated that he did not wish to speak with law enforcement, or ordered the officers to leave his residence. The judge ultimately found that once Counts opened the door and the officers saw him with a gun an exigent circumstance was presented as there was a risk of danger to the officers. The judge also noted the officers were aware that Counts was a convicted felon who was known to [413 S.C. 160] have guns. Based on this sequence of events, the judge ruled the officers had probable cause to detain Counts and then conduct the protective sweep. Finally, the judge found that once the officers observed drugs in plain view they took the necessary steps to procure the search warrant. Thus, the judge declined to suppress the evidence as there was a " reasonable search" that was " done pursuant to the constitutional protections afforded by the Fourth Amendment." Ultimately, the jury convicted Counts of possession with intent to distribute marijuana.

On appeal, the Court of Appeals summarily affirmed in an opinion pursuant to Rule 220(b) of the South Carolina Appellate Court Rules. State v. Counts, Op. No. 2012-UP-585 (S.C. Ct.App. filed Oct. 31, 2012). The court found the trial judge did not abuse her discretion in denying Counts' motion to suppress. Id. In support of this decision, the court cited state and federal precedent that permits law enforcement, who are not armed with a warrant, to knock on a person's door and ask to speak to the occupant of the residence as they do no more than what a private citizen might do. Id. The Court of Appeals did not rule on Counts' argument that law enforcement's " knock and talk" violated Article I, section 10 of the South Carolina Constitution. Id.

In his petition for rehearing, Counts challenged the court's ruling, but also pointed out that the court failed to address his argument regarding the heightened privacy protection afforded by the South Carolina Constitution. Following the denial of his petition for rehearing, this Court granted Counts' petition for a writ of certiorari to review the decision of the Court of Appeals.

II. Standard of Review

" On appeal from a motion to suppress on Fourth Amendment grounds, this Court applies a deferential standard of review and will reverse only if there is clear error." Robinson v. State, 407 S.C. 169, 180-81, 754 S.E.2d 862, 868 (2014), cert. denied, 134 S.Ct. 2888, 189 L.Ed.2d 845 (2014); see State v. Tindall, 388 S.C. 518, 520, 698 S.E.2d 203, 205 (2010) (recognizing that in criminal cases an appellate court sits to review ...


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