January 18, 2017
From Spartanburg County R. Keith Kelly, Circuit Court Judge
Appellate Case No. 2014-001669
Appellate Defender Robert Michael Dudek, of Columbia, for
Attorney General Alan McCrory Wilson and Assistant Attorney
General William M. Blitch, Jr., both of Columbia; and
Solicitor Barry Joe Barnette, of Spartanburg, for Respondent.
Lee Moore appeals his conviction for attempted murder,
arguing the trial court erred when it (1) denied his motion
to suppress evidence from a limited warrantless search
identifying him as the owner of a cell phone found at the
crime scene and (2) denied his motion to suppress evidence
obtained pursuant to a subsequent search warrant Moore
contends was based on a conclusory affidavit. Although the
panel majority affirms the circuit court's denial of
Moore's motion to suppress the identification information
obtained from the warrantless search of the cell phone, Chief
Judge Lockemy, Judge Konduros, and I differ in our analyses
of this Fourth Amendment challenge. The majority also affirms
the circuit court's denial of Moore's motion to
suppress the evidence obtained pursuant to the search
warrant, as we find the supporting affidavit was sufficient
to establish probable cause.
and Procedural History
afternoon of February 25, 2013, Travis Hall (Victim) was
found shot in the head in a Taco Bell parking lot. When
police arrived at the scene, Victim was draped out of the
driver's side door of his vehicle, and three cell phones
were found in the car. The phone at issue here was an
AT&T ZTE331 model flip phone (the flip phone) discovered
"almost up under" the driver's side seat. The
other two phones were iPhones belonging to the Victim. In
addition to the three phones, money and drugs were found
inside the vehicle.
photographed and collected the phones, took them to the
Sheriff's Office, and gave them to Detective Lindsay
McGraw. Detective McGraw performed limited forensic
examinations to determine who owned each of the phones.
Specifically, he pulled the flip phone's subscriber
identity module card (SIM card) from the phone and obtained
the telephone number associated with the phone. Detective
McGraw provided the phone number to Investigator Tom Clark,
who ran it through a database and determined the flip phone
belonged to Moore. Investigator Clark then applied for a
search warrant to examine the stored data on the phone. After
obtaining the search warrant, Detective McGraw performed a
full forensic examination of the flip phone during which he
recovered stored contacts, images, call logs, and text
trial, Moore moved to suppress any and all information
derived from the search of his phone, citing Riley v.
California, 134 S.Ct. 2473 (2014). Moore further argued
the search warrant affidavit submitted to support the flip
phone warrant application was conclusory and did not support
the finding of probable cause necessary for issuance of the
search warrant. The trial court denied the motion to suppress
the flip phone evidence, ruling the phone was abandoned
trial, the State's evidence established Victim was at his
mother's home prior to the shooting and received several
phone calls from the same number. Records from the flip phone
revealed five calls were made to Victim's phone between
1:03 p.m. and 2:06 p.m. on the day of the shooting.
the shooting, witnesses observed a white Chrysler 300 rapidly
fleeing the area. One witness who was on foot stated the car
drove against the flow of traffic and had to slam on its
brakes to avoid hitting her. Police later used surveillance
footage to identify the vehicle at a gas station near the
Taco Bell. The video showed that after the vehicle parked at
the gas station, two men exited and threw a bag in the trash
before entering the gas station. The two men were identified
as Tevin Thomas and Moore. Inside, Moore bought potato chips
and cigarettes, and was required to give his birthdate for
the cigarette purchase. This footage showed Thomas wearing
dark clothing and Moore wearing a red jacket. Other cameras
at a Cracker Barrel and an automotive business recorded the
vehicle after it left the gas station. The vehicle was
eventually located in a neighborhood not far from the
testified that he and Moore had planned to rob Victim during
a drug deal. According to Thomas, Moore was given a revolver
by a third man who did not go with them to the Taco Bell.
Moore and Thomas rode to the Taco Bell in Moore's
Chrysler. Once they arrived, Victim parked next to their car
and Moore exited his car and got into Victim's car.
Thomas stated he saw Moore pull the gun on Victim; a struggle
then ensued and Thomas heard a gunshot. Thomas testified that
he got out of Moore's car and tried to intervene when he
saw the struggle, but the doors on Victim's car were
locked. When Thomas later asked whether Moore shot Victim,
Moore responded, "yeah, I seen blood coming out of his
fingerprint expert testified Thomas left ten fingerprints on
the exterior of the passenger side of Victim's car. None
of Moore's fingerprints were found on Victim's car;
however, both Thomas's and Moore's fingerprints were
found on the white Chrysler 300.
called eyewitness Chris Barnes, who testified he was at the
Taco Bell, heard a shot, then saw a man emerge from the
passenger side of Victim's car and jump into another car.
He described the man as wearing a dark colored sweatshirt and
a dark colored toboggan. Barnes was shown the gas station
surveillance video with Moore wearing a red jacket, but
Barnes insisted the man he "locked eyes with" at
the Taco Bell was not wearing red.
jury found Moore guilty of attempted murder, and the circuit
court sentenced him to thirty years' imprisonment.
Standard of Review
appeals from a motion to suppress based on Fourth Amendment
grounds, the appellate court] . . . reviews questions of law
de novo." State v. Bash, 419 S.C. 263, 268, 797
S.E.2d 721, 723-24 (2017). As to a circuit court's
findings of fact, we must affirm "if there is any
evidence to support" the factual findings and "may
reverse only for clear error." State v. Brown,
401 S.C. 82, 87, 736 S.E.2d 263, 265 (2012).
Warrantless Search ...