September 7, 2016
OF CERTIORARI TO THE COURT OF APPEALS
from Berkeley County Stephanie P. McDonald, Circuit Court
Attorney General Alan McCrory Wilson and Assistant Attorney
General Mark Reynolds Farthing, both of Columbia; and
Solicitor Scarlett Anne Wilson, of Charleston; all for
careful consideration of the petition for rehearing, we grant
rehearing. We dispense with further briefing and substitute
the attached opinion for the previous opinion. The attached
opinion clarifies the circuit court did not rely on the
officers' subjective intent to determine whether the
officers conducted a search and that the officers'
objective purpose is the proper concern, not their subjective
W. Beatty, John W. Kittredge, John Cannon Few, Costa M
Pleicones, DeAndrea Benjamin.
Bash was indicted for trafficking in cocaine and cocaine
base. The circuit court found officers conducted an illegal
search, and suppressed the drugs. The State appealed. The
court of appeals reversed the circuit court's suppression
order and remanded for trial. We issued a writ of certiorari
to review the court of appeals' decision. We now reverse
the court of appeals and reinstate the circuit court's
order suppressing the evidence.
Facts and Procedural History
Berkeley County Sheriff's Office drug enforcement unit
received an anonymous tip that "drug activity" was
occurring at a home on Nelson Ferry Road near Moncks Corner.
An unnamed officer in the drug enforcement unit relayed the
tip to Sergeant Lee Holbrook, who was patrolling the area
with Sergeant Kimberly Milks. Sergeant Holbrook testified,
"We were in the Moncks Corner area . . ., and one of the
agents . . . received . . . a phone call stating that there
was drug activity at a particular residence, and we . . .
drove over there and handled it."
explained that as they located the house they noticed some
men "behind the house in a grassy area." To get to
the grassy area, Sergeant Holbrook turned his vehicle off
Nelson Ferry Road onto a public dirt road called Shine Bash
Lane that ran along the side of the property where the house
was located. Sergeant Holbrook testified, "As we
travelled down . . . Shine Bash, there were several [men]
standing . . . by this little shed, and there was a pickup
truck pulled in onto the grass area." The "small
utility shed" was just outside a fence surrounding the
home. Sergeant Milks testified "as we go down Shine Bash
Lane, there's a tree that you can see through [into] the
yard" where she saw a pickup truck and three men. The
officers pulled off of Shine Bash Lane onto the property,
approximately twenty feet from the grassy area where the men
officers exited the car. Sergeant Milks testified there were
two men by a grill and a third man at the back of the truck.
Sergeant Holbrook testified one of the men "thr[ew] down
. . . what appeared to be cocaine, " and "almost
instantly" afterward, a fourth man opened the passenger
door of the truck and ran into the nearby woods. Sergeant
Milks and several other officers chased the man while
Sergeant Holbrook detained the men remaining in the grassy
area. This group included Bash, who got out of the
driver's side of the truck. After detaining the men,
Sergeant Holbrook looked through the window of Bash's
truck to see "if there [were] other individuals in that
truck hiding." He saw "in plain view what appeared
to be cocaine weighing scales" and "cocaine
base." Sergeant Holbrook arrested Bash. A grand jury
subsequently indicted him for trafficking "four hundred
grams or more" of cocaine in violation of subsection
44-53-370(e)(2)(e) of the South Carolina Code (Supp. 2016),
and trafficking "ten grams or more, but less than
twenty-eight grams" of cocaine base in violation of
subsection 44-53-375(C)(1) of the South Carolina Code (Supp.
to trial, Bash moved to suppress the drugs. He argued the
police violated the Fourth Amendment of the United States
Constitution by entering the curtilage of the home without a
warrant to conduct a search. The circuit court granted
Bash's motion. The court of appeals reversed the circuit
court's decision to suppress the evidence. State v.
Bash, 412 S.C. 420, 772 S.E.2d 537 (Ct. App. 2015). We
granted Bash's petition for certiorari.
people's right under the Fourth Amendment to "be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, " U.S. Const. amend.
IV, "extends . . . to . . . the curtilage of the home,
" State v. Herring, 387 S.C. 201, 209, 692
S.E.2d 490, 494 (2009) (citing United States v.
Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326
(1987) and Rogers v. Pendleton, 249 F.3d 279, 287
(4th Cir. 2001)). "Warrantless searches and seizures are
unreasonable absent a recognized exception to the warrant
requirement." State v. Wright, 391 S.C. 436,
442, 706 S.E.2d 324, 327 (2011) (citing Mincey v.
Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57
L.Ed.2d 290, 298-99 (1978)).
appeals from a motion to suppress based on Fourth Amendment
grounds, . . . this Court reviews questions of law de
novo." State v. Adams, 409 S.C. 641, 647, 763
S.E.2d 341, 344 (2014). As to a circuit court's finding
of fact, we must affirm "if there is any evidence to
support it, " and "may reverse only for clear
error." State v. Brown, 401 S.C. 82, 87, 736
S.E.2d 263, 265 (2012).
circuit court ruled the grassy area where Bash and the other
men were standing when the officers approached them was part
of the curtilage of the home. The curtilage of a home is
"the land immediately surrounding and associated with
the home" and is "part ...