April 12, 2017
from Richland County Doyet A. Early III, Trial Court Judge
OF CERTIOARI TO THE COURT OF APPEALS
Chief Appellate Defender Wanda H. Carter, of Columbia, for
Attorney General Alan Wilson, Senior Assistant Deputy
Attorney General J. Benjamin Aplin, Solicitor Daniel E.
Johnson, of Columbia, and Brent H. Arant, of North
Charleston, all for Respondent.
Xavier Miller appeals his conviction for possession of crack
cocaine. He argues the trial court erred in denying his
motion to suppress drug evidence seized during an inventory
search of his vehicle after he was arrested for driving with
a suspended license. We find the trial court correctly denied
the motion, and affirm.
Facts and Procedural History
January 2013, Columbia Police Department Officers James
Westbury and Shaun McDonald were in the Rosewood area of
Columbia investigating criminal activity unrelated to this
case. During their investigation, a resident of the area
informed the officers that an older-model, silver and green
Chevrolet with large rims had been making frequent stops at a
location known for drug activity.
that day, Officer Westbury and Officer McDonald-driving
separately- observed a vehicle fitting that description pull
into a gas station parking lot. Both officers turned their
vehicles around and followed the silver and green Chevrolet
as it left the gas station and traveled along several
streets. The officers did not activate their blue lights or
sirens. The Chevrolet came to a stop in the private driveway
of an apartment complex, so the officers parked on the street
and exited their vehicles.
Miller got out of the driver's seat, the officers
approached him to ask for identification. Miller told the
officers he did not have his driver's license with him,
but gave them his name and date of birth. When the officers
provided Miller's information to the Department of Motor
Vehicles, they discovered his license was suspended, so they
arrested Miller for driving with a suspended license in
violation of section 56-1-460 of the South Carolina Code
(2018). The officers searched Miller incident to his arrest
and found an electronic scale in one of his pockets. They
asked for consent to search the Chevrolet, but Miller
the officers were arresting Miller, his girlfriend-Nikea
Berry-came out of one of the apartments. She told the
officers she lived there, and Miller was visiting her. The
officers also learned the owner of the Chevrolet was
Cassandra Jones, who did not live at the apartment complex
and was not present at the scene.
Police Department's standard procedures permit its
officers to tow vehicles when the driver is arrested away
from his residence and there is no responsible party present
at the scene. The Department's written policy requires
police officers to conduct an inventory search of the
passenger compartment of a towed vehicle. Because Miller was
arrested away from his residence, and because Jones was not
present at the scene, the officers called a towing company to
tow the Chevrolet. Before the tow truck arrived, the officers
conducted an inventory search and found just under five grams
of crack cocaine beneath the driver's seat.
jury indicted Miller for possession with intent to distribute
crack cocaine. Prior to his trial, Miller moved to suppress
the drug evidence arguing the officers did not have authority
to tow the Chevrolet from the private driveway, they were not
authorized to conduct the inventory search, and thus the
seizure of the drugs violated the Fourth Amendment. The trial
court denied the motion to suppress.
trial, the jury found Miller not guilty of possession with
intent to distribute, but convicted him of simple possession
of crack cocaine, which was his third offense. The trial
court sentenced Miller to nine years in prison. See
S.C. Code Ann. § 44-53-375(A) (2018) ("For a third
or subsequent offense [of possession of cocaine base], the
offender is guilty of a felony and, upon conviction, must be
imprisoned not more than ten years . . . ."). Miller
appealed to the court of appeals, which affirmed his
conviction in an unpublished opinion. State v.
Miller, Op. No. 2016-UP-040 (S.C. Ct. App. filed Jan.
20, 2016). Miller filed a petition for a writ of certiorari,
which we granted.
issue on appeal is whether it was reasonable under the Fourth
Amendment for the officers-acting pursuant to their
department policy-to seize, search, and then tow the vehicle
Miller was driving when he was arrested on private property
away from his residence and the owner of the vehicle was not
present. The facts relevant to this appeal are not in
dispute, so we address the issue as a question of law, which
we review de novo. See State v. Adams, 409 S.C. 641,
647, 763 S.E.2d 341, 344 (2014) (stating "this Court
reviews questions of law de novo").
The Fourth Amendment and Inventory Searches
Fourth Amendment protects the "right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." U.S. Const. amend.
IV. "The ultimate standard set forth in the Fourth
Amendment is reasonableness." Cady v.
Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37
L.Ed.2d 706, 713 (1973). "Whether a search and seizure
is unreasonable within the meaning of the Fourth Amendment
depends upon the facts and circumstances of each case."
S. Dakota v. Opperman, 428 U.S. 364, 375, 96 S.Ct.
3092, 3100, 49 L.Ed.2d 1000, 1009 (1976). In most
circumstances, evidence seized in violation of the Fourth
Amendment's reasonableness standard must be excluded from
trial. State v. Weaver, 374 S.C. 313, 319, 649
S.E.2d 479, 482 (2007).
a warrantless search is per se unreasonable and violates the
Fourth Amendment prohibition against unreasonable searches
and seizures." Id. However, a warrantless
search can be reasonable if it falls under one of the
exceptions to the warrant requirement. Id. One of
those exceptions is an inventory search conducted according
to standard police procedures. Robinson v. State,
407 S.C. 169, 185, 754 S.E.2d 862, 870 (2014) (stating
"if police officers are following their standard
procedures, they may inventory impounded property without
obtaining a warrant" (citing Colorado v.
Bertine, 479 U.S. 367, 374, 107 S.Ct. 738, 742, 93
L.Ed.2d 739, 747 (1987))).
an inventory search to be valid, the vehicle searched should
first be in the valid custody of the law enforcement officers
conducting the inventory." United States v.
Brown, 787 F.2d 929, 931-32 (4th Cir. 1986) (citing
Opperman, 428 U.S. at 374, 96 S.Ct. at 3099, 49
L.Ed.2d at 1008). "The question . . . is . . . whether
the police officer's decision to impound was reasonable
under the circumstances." Brown, 787 F.2d at
932; see also United States v. Bullette, 854 F.3d
261, 265 (4th Cir. 2017) ("An inventory search of an
automobile is lawful (1) where the circumstances reasonably
justified seizure or impoundment, and (2) law enforcement
conducts the inventory search according to routine and
standard procedures designed to secure the vehicle or its
contents.") (citing Bertine, 479 U.S. at
371-76, 107 S.Ct. at 741-43, 93 L.Ed.2d. at 745-48).
Reasonableness of the Impoundment
first step in our analysis is to determine whether Officers
Westbury and McDonald's decision to seize Miller's
vehicle violated the Fourth Amendment. We find the decision
was reasonable under the circumstances, and thus there was no
begin our explanation with the fact the officers seized and
towed the vehicle pursuant to lawful authority. They acted in
accordance with the requirements set forth in a written
police department policy, which was adopted pursuant to a
City of Columbia ordinance, which was passed under authority
of a state statute, which the General Assembly enacted
pursuant to the Home Rule provisions of the Constitution of
VIII, section 9 of our Constitution provides, "The
structure and organization, powers, duties, functions, and
responsibilities of the municipalities shall be established
by general law, " and article VIII, section 17 provides,
"The provisions of this Constitution and all laws
concerning local government shall be liberally construed in
their favor. Powers, duties, and responsibilities granted
local government subdivisions by this Constitution and by law
shall include those fairly implied and not prohibited by this
Constitution." Pursuant to the authority granted it in
article VIII, section 9, our General Assembly enacted section
5-7-30 of the South Carolina Code (Supp. 2017), which
Each municipality of the State . . . may enact regulations,
resolutions, and ordinances, not inconsistent with the
Constitution and general law of this State, including the
exercise of powers in relation to roads, . . . law
enforcement, . . . and order in the municipality or
respecting any subject which appears to it necessary and
proper for the security, general welfare, and convenience of
the municipality or for preserving . . . peace, order, and
good government in it . . . .
to section 5-7-30, the City of Columbia enacted section 10-31
of its Code of Ordinances granting the chief of police broad
powers over law enforcement in the City. Section 10-31
The chief of police, subject to the city manager, shall have
administrative supervision over the police department. He
shall be responsible for the enforcement of state laws and
city ordinances, . . . establish training programs, . . .
[and] establish departmental rules and regulations . . . .
turn, the chief of the Columbia Police Department adopted the
Columbia Police Department's Policy Manual, which
provides in section 7.2 of the Auxiliary Traffic Services
chapter, Departmental personnel may also tow the following
. Any vehicle from which an officer makes an
arrest and there is no responsible party to whom the arrestee
can turn over the possession of the vehicle.
a hearing on the motion to suppress, the State presented the
testimony of the arresting officers to further explain the
department policy and their decision to seize and tow the
vehicle. Officer McDonald testified, "The vehicle needs
to be towed . . . to make sure that nothing happens to the
vehicle to cover our end." The trial court asked Officer
McDonald, "What authority did you . . . rely upon in
removing [the Chevrolet] from the private driveway?"
McDonald replied, "Like I said, sir, to my knowledge, it
wasn't his residence, and I was trained from day one that
if the person gets arrested and it's not their residence
that the vehicle gets towed." The solicitor asked
Officer Westbury, "When discerning the responsible party
to . . . possibly leave the car with, what factors do you
look at?" Westbury replied, "It's . . . going
to come up to the actual vehicle owner where the vehicle
owner is on the scene or whether it's something to where
I'm given information as far as where they want it
left." When the trial court asked Officer Westbury why
the Chevrolet was towed, he said, "Due to the fact that
he wasn't the vehicle owner, and the owner wasn't on
the scene." Officer Westbury also testified,
"It's per the policy."
the towing provision of the policy to include three
requirements that must be met before the vehicle may be
towed: (1) the officer makes the arrest from the vehicle, (2)
the arrest occurs away from the arrestee's residence, and
(3) the owner is not present at the scene and no other person
is present who is authorized to take responsibility for the
vehicle. Because all three of these requirements were met in