THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Appellant,
v.
Terrence Damon Johnson, Respondent.
Appeal From Charleston County
A. Victor Rawl, Circuit Court Judge
Unpublished Opinion No. 2003-UP-757
Heard December 9, 2003 � Filed December
23, 2003
AFFIRMED IN PART, REMANDED IN PART
Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Charles H. Richardson, Senior Assistant Attorney General Mark Rapoport, of Columbia; and Solicitor Ralph E. Hoisington, of Charleston, for Appellant.
Anthony B. O�Neill, of Charleston, for Respondent.
PER CURIAM:� The State appeals the trial court�s suppression of evidence against Terrence Damon Johnson.� We affirm in part and remand in part.
FACTS
The Charleston City Police Department, as part of its attempt to reduce drug-related violence in the city, formed �criminal and narcotics patrol� units.� On November 21, 2000, Officers Keith Wilson and Jeffrey Booker, while on special detail with such a unit, observed Johnson�s burgundy Jaguar coming from a high-crime area in the Ardmore subdivision known as �the hole.� When the car failed to stop at a stop sign and use a proper turn signal, Wilson and Booker initiated a traffic stop.� According to Wilson, when he made the stop, Johnson was �moving around the center console the entire time� and acting visibly nervous.
Wilson and Booker approached the automobile and requested Johnson�s license and registration.� Johnson provided them.� Based on Wilson�s prior experience, Johnson�s actions, and the area in which the stop took place, he then asked Johnson to exit the vehicle.� After Johnson complied, Wilson patted him down, advising Johnson the frisk was �for your safety as well as ours.�� During the pat-down, Wilson felt a large bulge in Johnson�s coat pocket, which Johnson told him was �a grand.�
Wilson then requested permission to search the car and Johnson replied that he �didn�t care.�� Booker opened the console, in which he discovered a purple Crown Royal bag with two cookies of crack cocaine and money inside.� Johnson attempted to withdraw his consent, but Wilson and Booker placed him under arrest.� Five other officers from the unit who had arrived at the scene searched the trunk of the car.� There, they discovered a red �strawberry girl� plastic lunch container that contained crack cocaine and powder cocaine.
Some time later, at the police station, the police issued two traffic tickets to Johnson�one for disregarding a stop sign and the other for failing to use a proper turn signal.� In February 2001, the grand jury indicted Johnson for possession of crack cocaine with intent to distribute within proximity of a school and for trafficking cocaine.� The following month, the grand jury indicted him for trafficking crack cocaine and for possession of cocaine with intent to distribute within proximity of a school.
Prior to trial on the drug charges, Johnson moved to suppress the evidence found in his car.� Johnson argued he did not voluntarily consent to the search of his vehicle and without such consent the search was without probable cause or justification.� As a result, Johnson argued all evidence should be suppressed as �fruits of the poisonous tree.�� The trial court agreed and suppressed the evidence.� The State appeals.
LAW/ANALYSIS
1.� The trial court found the State failed to provide any articulable reasonable suspicion that Johnson committed a serious crime in order to expand the investigatory nature of the detention beyond a traffic stop.� We agree with Johnson that this finding is supported by the evidence and must therefore be affirmed. [1]
As the trial court remarked, �[t]he only articulable suspicion that gives� rise to something other than a traffic stop as enunciated by Officer Wilson is movement toward the console, high crime area.� That�s it.�� We cannot fault the trial court for holding that these factors did not warrant detaining Johnson for purposes beyond the traffic stop.� Regarding Johnson�s suspicious movements in the car after being stopped, the trial court noted, �If the man had his wallet in his center console, it�s perfectly reasonable and not an articulable suspicion that he may have been trying to get his driver�s license and vehicle registration out of the center console or over the visor . . . .�� As to the fact that the events leading to Johnson�s arrest took place in a high crime area, we likewise find no abuse of discretion in the trial court�s reasoning that �[y]ou don�t normally run around giving traffic tickets at 9:30 or ten o�clock at night in Ardmore subdivision.� [2]
2.� The fact that Johnson�s detention exceeded the purpose of a routine traffic stop, however, does not necessarily invalidate his consent to the search of his car or otherwise render it involuntary. [3] � Moreover, we agree with the State�s contention that the trial court�s ruling cannot be read to address the issue of whether, notwithstanding the finding that the detention was improper,� Johnson�s consent to the search of his car could nevertheless be considered voluntary.
As our supreme court has suggested, the presence of �attenuating circumstances that remove the taint of the unlawful stop from the consent to search� [4] could serve as a basis for admitting evidence obtained during a search performed under such circumstances.� In any event, although the State has the burden to show voluntariness, �[w]hether a consent to search was voluntary or the product of duress or coercion, express or implied, is a question of fact to be determined from the �totality of the circumstances.�� [5] � In the present case, we note the solicitor argued that the officer had reasonable suspicion to question Johnson for consent and was making a �fast call.�
We hold that the determination as to whether these factors were sufficient to override any alleged impropriety surrounding Johnson�s detention is best left to the trial court. [6] � We therefore remand this case to the trial court for a ruling on whether, considering the �totality of the circumstances� test, the State has met its burden to show that Johnson�s consent to the search of his car was voluntary. The trial court shall use only the present record to make this finding.
AFFIRMED IN PART, REMANDED IN PART.
GOOLSBY and ANDERSON, JJ., and CURETON, A.J., concur.�
[1] � See State v. Brockman, 339 S.C. 57, 66, 528 S.E.2d 661, 666 (2000) (holding that in an appeal from a motion to suppress on Fourth Amendment grounds, the appellate court would apply a deferential standard of review and �affirm if there is any evidence to support the ruling�).
[2] �� Cf. Sikes v. State, 323 S.C. 28, 31, 448 S.E.2d 560, 562 (1994) (holding the petitioner had received ineffective assistance of counsel because counsel had failed to move to suppress evidence on Fourth Amendment grounds and noting �[p]etitioner was merely a passenger in a car with paper dealer tags that had the misfortune of being in a �high crime area��).
[3] � See State v. Robinson, 306 S.C. 399, 402, 412 S.E.2d 411, 414 (1991) (�A consent to search procured during an unlawful stop is invalid unless such consent is both voluntary and not an exploitation of the unlawful stop.�); State v. Mattison, 352 S.C. 577, 584, 575 S.E.2d 852, 855 (Ct. App. 2003) (�In a custodial situation, the custodial setting is a factor to be considered in determining whether consent was voluntarily given.� Custody alone, however, is not enough in itself to demonstrate a coerced consent to search.�) (citations omitted).
[4] � Robinson, 306 S.C. at 402, 412 S.E.2d at 414.
[5] � State v. Wallace, 269 S.C. 547, 550, 238 S.E.2d 675, 676 (1977).
[6] See Brockman, 339 S.C. at 66, 528 S.E.2d at 666 (citing the rule that �voluntariness of consent to search [is] solely a question of fact�); cf. Mattison, 352 S.C. at 584-85, 575 S.E.2d at 856 (�The issue of voluntary consent, when contested by contradicting testimony, is an issue of credibility to be determined by the trial judge.).