October 9, 2018
From Dorchester County Maite Murphy, Circuit Court Judge
Appellate Defender Lara Mary Caudy, of Columbia, for
Attorney General Alan McCrory Wilson and Assistant Deputy
Attorney General David A. Spencer, both of Columbia, and
Solicitor David Michael Pascoe, Jr., of Orangeburg, all for
Kotowski appeals his convictions for manufacturing
methamphetamine and possession of less than one gram of
methamphetamine, arguing the trial court erred in (1) denying
his motion to suppress evidence seized during a "knock
and talk," (2) denying his motion to suppress evidence
seized during a protective sweep of a residence where
Kotowski was an overnight guest, and (3) admitting National
Precursor Log Exchange (NPLEx) records into evidence. We
13, 2014, Sergeant Frank Thompson from the Dorchester County
Sheriff's Office received an anonymous tip about the
possibility of a drug house at 111 Marsh Point Road. Sergeant
Thompson immediately checked NPLEx, which is a system that
provides data used by pharmacies and law enforcement to track
sales of pseudoephedrine. Sergeant Thompson's search
revealed several pseudoephedrine purchases by Michelle
Vining, the homeowner, as well as some by Brian Edwards.
Sergeant Thompson set up an alert to be notified for any
subsequent pseudoephedrine purchases by these individuals.
Thompson also began to conduct "spotty
surveillance" of the residence, mainly consisting of
drive-by viewings. From this surveillance, Sergeant Thompson
confirmed Vining's vehicle was parked at the residence.
On one occasion, Sergeant Thompson observed a vehicle
belonging to William Cherry parked at the residence. Sergeant
Thompson was familiar with Cherry because Cherry's father
had been convicted of methamphetamine related offenses.
October 29, 2014, Sergeant Thompson received three NPLEx
notifications indicating Vining had attempted to purchase
pseudoephedrine three separate times. Two of Vining's
attempts were blocked because she would have exceeded the
statutory threshold. Vining successfully purchased a smaller
amount at a different store on her third attempt. Because of
these three transactions, Sergeant Thompson decided to
conduct a knock and talk at Vining's residence the
Thompson, along with Detectives Daniel Lundberg and Brandon
Allen- all of the Dorchester County Metro Narcotics
Unit-arrived at Vining's residence the following day
wearing clothing indicating they were law enforcement. After
knocking on the door, Sergeant Thompson saw someone looking
through the blinds on the right side of the house. He
requested the person come to the door to no response. After
knocking a second time, Detective Lundberg observed an
individual at a second story window on the right side. After
a third knock, Sergeant Thompson spotted an individual at a
second story window, this time on the left side. After the
third knock, Kotowski opened the door, stepped outside, and
closed the door behind him.
Kotowski stepped outside, Sergeant Thompson was
"immediately overwhelmed with the odor of ammonia"
coming from Kotowski. When asked if he lived at the
residence, Kotowski stated he did not and provided he was
there with his girlfriend Lisa. Kotowski called for Lisa to
come to the door and when she did not, went inside the house
to retrieve her. Kotowski attempted to close the front door
behind him when he re-entered the residence, but Sergeant
Thompson held the door open with his foot.
Lisa came to the door, Sergeant Thompson asked her if she
knew the location of Michelle Vining, to which Lisa answered
she did not. As the conversation progressed, Lisa admitted to
being Michelle Vining. Sergeant Thompson explained the
officers received a tip concerning methamphetamine
manufacturing occurring at the residence. Sergeant Thompson
asked her if she would consent to a search of the residence,
and Vining declined. Sergeant Thompson then asked if anyone
else lived at the residence. According to Sergeant Thompson,
Vining "was pretty deceptive about her answer and kind
of hem hawing."
something to be amiss, Sergeant Thompson ordered Detective
Allen and Detective Lundberg to conduct a protective sweep of
the residence while he contacted another officer to obtain a
search warrant for the residence. During the protective
sweep, Detective Lundberg and Detective Allen encountered a
"heavy haze or a gaseous atmosphere" emanating from
an upstairs bathroom and upon opening the door, were
confronted by an overwhelming smell of ammonia. Based on
evidence in plain sight during the protective sweep, a search
warrant was issued, and Kotowski and Vining were arrested.
jury indicted Kotowski on March 16, 2015, for manufacturing
methamphetamine and possession of less than one gram of
methamphetamine. Prior to trial, Kotowski moved to suppress
the evidence seized in the house. The trial court denied
Kotowski's motion. At the conclusion of trial, the jury
found Kotowski guilty of both counts. The trial court
sentenced Kotowski to concurrent terms of seven years'
imprisonment for manufacturing and three years'
imprisonment for possession of less than one gram of
methamphetamine. This appeal followed.
criminal cases, the appellate court sits to review errors of
law only." State v. Baccus, 367 S.C. 41, 48,
625 S.E.2d 216, 220 (2006). "The admission of evidence
is within the discretion of the trial court and will not be
reversed absent an abuse of discretion." State v.
Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002).
"An abuse of discretion occurs when the trial
court's ruling is based on an error of law or, when
grounded in factual conclusions, is without evidentiary
support." Clark v. Cantrell, 339 S.C. 369, 389,
529 S.E.2d 528, 539 (2000). "On appeal from a motion to
suppress on Fourth Amendment grounds, this [c]ourt applies a
deferential standard of review and will reverse only if there
is clear error." State v. Counts, 413 S.C. 153,
160, 776 S.E.2d 59, 63 (2015) (quoting Robinson v.
State, 407 S.C. 169, 180-81, 754 S.E.2d 862, 868
Knock and Talk
argues the trial court erred in denying his motion to
suppress evidence found following the knock and talk and
subsequent protective sweep of the house. He maintains the
law enforcement officers did not have reasonable suspicion to
conduct a knock and talk and therefore violated his right to
privacy under Article I, Section 10 of the South Carolina
Constitution. We disagree.
Fourth Amendment to the United States Constitution protects a
person's right to be free from unreasonable searches and
seizures. U.S. Const. amend. IV. "Generally, the Fourth
Amendment requires the police to have a warrant in order to
conduct a search." Counts, 413 S.C. at 163, 776
S.E.2d at 65 (quoting Robinson v. State, 407 S.C.
169, 185, 754 S.E.2d 862, 870 (2014)). "In parallel with
the protection of the Fourth Amendment, the South Carolina
Constitution also provides a safeguard against unlawful
searches and seizures." Id. at 164, 776 S.E.2d
at 65 (quoting State v. Forrester, 343 S.C. 637,
643, 541 S.E.2d 837, 840 (2001)). "The relationship
between the two constitutions is significant because
'[s]tate courts may afford more expansive rights under
state constitutional provisions than the rights which are
conferred by the Federal Constitution.'"
Id. (quoting Forrester, 343 S.C. at 643,
541 S.E.2d at 840). "Evidence seized in violation of the
warrant requirement must be excluded from trial."
Id. at 163, 776 S.E.2d at 65 (quoting
Robinson, 407 S.C. at 185, 754 S.E.2d ...