Michael Milledge, Respondent, v. State of South Carolina, Petitioner.
Appellate Case No. 2014-002386
THE STATE OF SOUTH CAROLINA In The Supreme Court
Filed March 14, 2018
Opinion No. 27784
ON WRIT OF CERTIORARI; Appeal from Greenville County, James R. Barber, III, Circuit Court Judge; Submitted September 21, 2016
REVERSED
Attorney General Alan M. Wilson and Senior Assistant Attorney General DeShawn Herman Mitchell, both of Columbia, for Petitioner.
Appellate Defender Susan B. Hackett, of Columbia, for Respondent.
FACTUAL BACKGROUND
Deputies John Lanning, Patrick Swift, and Fred Miller were on patrol in a high-crime area1 of Greenville County when they initiated a traffic stop after observing Milledge
After Lanning returned to the patrol vehicle but before he could perform a check on the driver‘s license and registration, Milledge complied with Swift‘s request to exit and walk towards the rear of his vehicle. Seeing that his partner had asked Milledge to exit the vehicle, Lanning ceased running the information check and approached Milledge. Noticing Milledge would not look at him and only stared straight ahead, Lanning asked him if he had any weapons on him, using specific language meant to elicit some sort of response from persons being questioned.4 Failing to get any response or reaction, Lanning decided it was necessary for the deputies’ safety to conduct a pat-down search for weapons. As he began the frisk, Lanning felt what he recognized as a revolver in Milledge‘s shorts pocket. As Deputy Miller reached in to remove the revolver, a baggie containing pills and crack cocaine also emerged from the same pocket. The deputies then placed Milledge under arrest.
Milledge was indicted on charges of trafficking in crack cocaine; possession of a gun during the commission of a violent crime; possession of cocaine with intent to distribute; and possession of ecstasy. Prior to trial, Milledge‘s defense counsel made a motion in limine to suppress the drugs, arguing they were found as a result of an unlawful search. Defense counsel conceded the deputies had probable cause to conduct the traffic stop, but asserted the deputies lacked justification for the subsequent frisk, arguing the deputies’ sole reason for conducting the frisk was because Milledge “acted nervous.”
The trial court5 denied Milledge‘s motion in limine and found the frisk was based on a reasonably articulable suspicion.
Extreme nervousness, not nervousness as is customarily incident to a traffic stop but extreme nervousness to the extent that the phone couldn‘t be dialed. The fact that there was a phone called [sic] that being [sic] attempted at the time. The fact that it was a high drug use area, the reluctance or recalcitrance of the defendant to respond to any questions. And the dubiousness of the explanation for the shaking that the officer received when he asked for or posed the first question. All of those things in the aggregate give me cause to believe that there was probable cause for the search.
Later, at trial, defense counsel did not contemporaneously object when the drugs were introduced into evidence. The jury found Milledge guilty of all charges.
The court of appeals affirmed the trial court‘s findings in an unpublished opinion, holding the issue of the admissibility of the drugs was not preserved for appellate review because defense counsel failed to contemporaneously object.
Milledge then filed an application for PCR. Milledge argued his defense counsel was deficient by failing to renew his objection to the contraband when the State entered it into evidence at trial, and Milledge suffered prejudice as a result of this failure.
The PCR court granted Milledge‘s application for a new trial, finding defense counsel was deficient in failing to renew his objection to the evidence at trial. Furthermore, the PCR court held the factors asserted by the officers did not give rise to the level of reasonable and articulable suspicion required by the Fourth Amendment to conduct a frisk. Thus, the PCR court determined Milledge suffered prejudice because there was a reasonable probability an appellate court would have found the search unreasonable. Therefore, the PCR court concluded Milledge satisfied both prongs of the Strickland6 test and granted a new trial. The State appealed and this Court granted certiorari.
ISSUE PRESENTED
Did the PCR court err in finding a new trial was warranted in this case because defense counsel failed to object to the admission of evidence of contraband at trial on the grounds the evidence was the result of an unreasonable search in violation of the Fourth Amendment?
STANDARD OF REVIEW
In PCR actions, this Court will uphold the lower court‘s findings if there is any evidence of probative value to support them. Cherry v. State, 300 S.C. 115, 119, 386 S.E.2d 624, 626 (1989). However, the Court will reverse the lower court‘s decision if it is controlled by an error of law. Pierce v. State, 338 S.C. 139, 145, 526 S.E.2d 222, 225 (2000). The PCR applicant bears the burden of proving his allegations by a preponderance of the evidence. Frasier v. State, 351 S.C. 385, 389, 570 S.E.2d 172, 174 (2002) (citing
Generally, in supporting his allegations of ineffective assistance of counsel, the applicant must satisfy a two-prong test. See Strickland, 466 U.S. at 687. First, the applicant must demonstrate trial counsel‘s performance was deficient. Cherry, 300 S.C. at 117, 386 S.E.2d at 625. Second, the applicant must demonstrate trial counsel‘s “deficient performance prejudiced the [applicant] to the extent that ‘there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.‘” Cherry, 300 S.C. at 117–18, 386 S.E.2d at 625 (quoting Strickland, 466 U.S. at 694). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Smith v. State, 386 S.C. 562, 566, 689 S.E.2d 629, 631 (2010).
LAW/ANALYSIS
The State argues the PCR court erred in finding Milledge‘s defense counsel was ineffective because regardless of whether counsel‘s performance was deficient, there was no
“[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810 (1996). Upon initiating the traffic stop, a police officer may order the driver out of the vehicle in the interest of officer safety. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977). In conjunction with a valid automobile stop for a traffic violation, an officer may conduct a Terry7 frisk for his own safety after forming a reasonable conclusion “that the person whom he ha[s] legitimately stopped might be armed and presently dangerous.” Id. at 112; State v. Banda, 371 S.C. 245, 253, 639 S.E.2d 36, 40 (2006).
Pursuant to the doctrine established in Terry, an officer that has initiated a legitimate stop of an individual may conduct
a reasonable search for weapons for the protection of the police officer . . . . The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.
Terry, 392 U.S. at 27. The reasonableness of the officer‘s actions under the circumstances must be determined based on “the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” Id.
One of the touchstones of Terry is the immediate interest of police officers in assuring themselves the person with whom they are dealing “is not armed with a weapon that could unexpectedly and fatally be used against [them].” Id. at 23. The Supreme Court warned against placing unreasonable restrictions on police officers that would require them to take “unnecessary risks” in carrying out their law enforcement duties. Id. After initiating a lawful traffic stop, the additional intrusion of ordering the driver to exit the vehicle is de minimis and can only be characterized as a “mere inconvenience . . . when balanced against legitimate concerns for the officer‘s safety.” Mimms, 434 U.S. at 111 (noting a “significant percentage” of murders of police officers occur during traffic stops). Thus, the prevailing justification for conducting a Terry frisk is not simply crime prevention, but the more immediate need of assuring officer safety. Terry, 392 U.S. at 23.
In determining whether reasonable suspicion exists to perform an investigative stop and frisk without infringing upon an individual‘s Fourth Amendment rights, courts must consider the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 8 (1989). While the officer must be able to point to articulable facts beyond a mere unparticularized suspicion, due weight must be given to the officer‘s experience, training, and common-sense conclusions. United States v. Cortez, 449 U.S. 411, 417–18 (1981). A police officer‘s assessment of the circumstances may include “various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions—inferences and deductions that might well elude an untrained person.” Id. at 418. In reviewing the totality of the circumstances, the individual factors of the stop must not be considered in isolation or piecemeal. United States v. Branch, 537 F.3d 328, 337 (4th Cir. 2008). Factors which alone may not
A person‘s presence in a known high-crime area is one relevant consideration in analyzing reasonable suspicion to conduct a Terry frisk. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Additionally, officers may also draw inferences and conclusions from the “extreme nervousness” of motorists during traffic stops, particularly where, in the officers’ experience, the nervousness is excessive when compared to other motorists who are not engaged in criminal activity. See State v. Provet, 405 S.C. 101, 111–12, 747 S.E.2d 453, 459 (2013). Furthermore, an officer need not have a reason to suspect criminal activity sufficient to justify a Terry frisk at the outset of a traffic stop, but may develop such reasonable suspicion based on his observations while conducting the stop. See Arizona v. Johnson, 555 U.S. 323, 327-28 (2009).
In a case factually similar to the case at hand, the court of appeals held officers had reasonable suspicion to conduct a protective frisk of a motorist. State v. Smith, 329 S.C. 550, 495 S.E.2d 798 (Ct. App. 1998). In that case, police officers lawfully stopped Smith for speeding. Id. at 557, 495 S.E.2d at 801. As an officer approached Smith‘s vehicle, he noticed Smith was acting in an “edgy” manner and was looking around. Id. at 557, 495 S.E.2d at 802. For the sake of officer safety, the officer ordered Smith out of the vehicle and asked him whether he had any weapons on him, but Smith did not respond. Id. at 554, 495 S.E.2d at 800. Accordingly, the officer conducted a pat down for weapons which yielded narcotics. Id. Under a Terry analysis, the court of appeals found when the facts of that case were considered as a whole and from the viewpoint of a reasonably prudent officer, the officer had reasonable suspicion to perform the frisk. Id. at 557, 495 S.E.2d at 801–02.
In this case, the PCR court found the factors asserted by the deputies were not sufficient to give reasonable suspicion to conduct a protective frisk on Milledge. The PCR court cited to State v. Tindall, 388 S.C. 518, 698 S.E.2d 203 (2010), and State v. Moore, 404 S.C. 634, 746 S.E.2d 352 (Ct. App. 2013), rev‘d, 415 S.C. 245, 781 S.E.2d 897 (2016), to support its conclusion. We find the PCR court‘s decision to grant a new trial is an error of law because Milledge did not meet his burden of proof to establish prejudice,8 and the PCR court‘s conclusions are not supported by existing case law.
As an initial matter, the court of appeals opinion relied on by the PCR court has since been reversed by this Court. See Moore, 415 S.C. 245, 781 S.E.2d 897. In reversing the court of appeals, this Court found that while many of the factors asserted by the State were innocent when viewed in isolation, the totality of the surrounding circumstances supported a finding of reasonable suspicion to prolong the traffic stop. Id. at 253, 781 S.E.2d at 901. The Court also noted how a motorist‘s nervousness may impact a police officer‘s reasonable suspicion, cautioning law enforcement against relying on nervousness alone to support reasonable suspicion. Nonetheless, the Court concluded when considered in the aggregate with other circumstances, nervousness is a factor that can support a finding of reasonable suspicion. Id. at 254–55, 781 S.E.2d at 902.
In Tindall, this Court found a police officer‘s conduct violated the Fourth Amendment when the officer continued to question a motorist for an additional six to seven minutes after the purpose of the traffic stop had been accomplished, aside from issuing the ticket itself. 388 S.C. at 522–23, 698 S.E.2d at 205. The Court held after the purpose of the stop was complete, the officer did not have reasonable suspicion to continue to detain the motorist and conduct a search of his vehicle based on the information available to the officer. Id. at 523, 698 S.E.2d at 206. Tellingly, earlier in the stop, the officer ordered the driver out of the car and conducted a protective frisk, revealing no weapons. Id. at 522, 698 S.E.2d at 205. Thus it was not the protective frisk which the Court found unreasonable, but the prolonged detention of the motorist and search of his vehicle for contraband. Id. at 522–23, 698 S.E.2d at 205–06.
When due weight is given to the deputies’ training and experience, the record indicates reasonable suspicion to conduct the search existed. Both Deputy Lanning and Deputy Swift were experienced law enforcement officers10 and possessed a familiarity with the high-crime area where the traffic stop occurred. Milledge‘s nervousness during the traffic stop was not the routine nervousness to be expected with every traffic stop, but was so extreme that his hands were visibly shaking and he could not dial his cellphone. Based on the deputies’ training and experience, Milledge‘s attempt to make a phone call during the traffic stop was a relevant consideration in determining whether he posed a threat to officer safety.
Lastly, after Milledge exited the vehicle, Deputy Lanning inquired whether he had any weapons on him in a manner specifically designed to sound outrageous so as to evoke a response. While Milledge had no obligation to answer the inquiry, his lack of any response whatsoever did nothing to alleviate any apprehension the deputies had, given the high-crime area where the stop occurred. Thus, when the mosaic is considered as a whole in light of the deputies’ training and experience, the deputies had reasonable suspicion Milledge was armed and dangerous sufficient to justify a frisk.
In determining whether a PCR applicant has established prejudice, the PCR court does not act as a finder of fact and substitute its judgment for that of the trial court. Rather, in instances like the case before us, the PCR court must view the trial court‘s ruling through the same lens that would be applied on appeal, which here requires giving appropriate deference to the trial court‘s findings. See State v. Khingratsaiphon, 352 S.C. 62, 70, 572 S.E.2d 456, 459–60 (2002) (explaining that on appeal from a Fourth Amendment motion to suppress, an appellate court will only reverse the trial court if there is clear error, and will affirm if there is any evidence to support the ruling). Based on our analysis of the cases above, we hold the proper inquiry for determining prejudice in this case is whether there is evidence in the record to support the trial court‘s finding the officer had reasonable suspicion. If so, an appellate court would necessarily have affirmed the trial court‘s denial of the motion to suppress. Thus, because there is evidence in the record to support the trial court‘s ruling, the PCR court erred in finding Milledge proved prejudice.
CONCLUSION
For the foregoing reasons, we hold the PCR court erred in finding Milledge met his burden of proof to establish prejudice.
KITTREDGE, J., concurs. FEW, J., concurring in a separate opinion in which KITTREDGE, J., concurs. Acting Justice Pleicones, dissenting in a separate opinion in which BEATTY, C.J., concurs.
JUSTICE FEW: I concur in the majority opinion. I write separately to address the manner in which an applicant may prove prejudice—and our standard for reviewing the PCR court‘s ruling on prejudice—under the second prong of Strickland on the facts and in the procedural posture of this case.
The standard of review an appellate court applies can vary depending on the facts and procedural posture of the individual PCR case. In this case, the PCR court‘s finding on the first prong of Strickland that trial counsel‘s performance did not meet an objective standard of reasonableness is a primarily factual determination, to which we apply the deferential standard of review applicable to a PCR court‘s factual findings. See generally Jordan v. State, 406 S.C. 443, 448, 752 S.E.2d 538, 540 (2013) (“This Court gives deference to the PCR judge‘s findings of fact, and ‘will uphold the findings of the PCR court when there is any evidence of probative value to support them.‘” (quoting Miller v. State, 379 S.C. 108, 115, 665 S.E.2d 596, 599 (2008))). Because there is evidence to support the PCR court‘s ruling on the first prong, I agree with the majority‘s decision to allow that ruling to stand.
As the majority explains, however, the PCR court‘s determination in this case as to the second prong of Strickland was
The manner in which an applicant may prove prejudice also varies depending on the facts and procedural posture of the individual PCR case. To demonstrate prejudice in this case from trial counsel‘s deficient failure to preserve the suppression issue for appeal, Milledge was required to show a reasonable probability the court of appeals would have reversed his conviction and remanded for a new trial if trial counsel contemporaneously objected.11 Instead of analyzing this question, the PCR court studied the record of the suppression hearing and made its own determination as to whether the officers had reasonable suspicion. To state it differently, the PCR court made the determination of how the PCR court would have ruled if the PCR court had been the trial court. This was an error of law.
If trial counsel had preserved the issue for direct appeal, the court of appeals would have applied the Brown “clear error” standard to the primarily factual ruling of the trial court that reasonable suspicion existed. 401 S.C. at 87, 736 S.E.2d at 265; see also State v. Khingratsaiphon, 352 S.C. 62, 70, 572 S.E.2d 456, 459-60 (2002) (stating the standard of review “on appeal from a motion to suppress based on Fourth Amendment Grounds” is “like any other factual finding” and
I recognize there is a potential flaw in my reasoning. I believe, however, that Gibbs and the following discussion demonstrate my reasoning is sound, and expose flaws in the dissent‘s suggestion that we should defer to the PCR court‘s suppression analysis instead of the analysis conducted by the trial court. The potential flaw in my reasoning is that the ruling trial counsel failed to preserve was not the trial court‘s pre-trial ruling that the officers had reasonable suspicion, but the mid-trial ruling the trial court would have made if trial counsel contemporaneously objected. Because the mid-trial ruling was never actually made, one may argue, there is no trial court ruling to which the court of appeals would have been required to defer. Under this circumstance, the argument continues, the PCR court was free to make a new ruling as to suppression according to its own view of the evidence.
The dissent, in apparent agreement with such an argument, would give Milledge and all future defendants a second chance to win a suppression hearing. Then, after allowing the PCR judge to separately consider the evidence presented at the
I find two flaws in the dissent‘s approach. First, the trial court had the benefit of watching and listening to the officers’ live testimony, while the PCR court necessarily conducted its analysis on the cold record of the suppression hearing. Deferring to the PCR court instead of the trial court in this situation is counterintuitive, because a primary reason an appellate court would give such deference in the first place is the trial court‘s opportunity to assess witness credibility firsthand. See Foye v. State, 335 S.C. 586, 589, 518 S.E.2d 265, 267 (1999) (stating the reason appellate courts give “great deference to a [PCR] judge‘s findings” is because the judge has “the opportunity to directly observe the witnesses“). Second, and more importantly, under the dissent‘s reasoning, wise trial counsel who loses a suppression hearing would never make a contemporaneous objection, because not doing so enables the defendant to get a second chance to convince another judge to suppress the evidence in a PCR trial. If that were the law, I would change my vote on the first prong of Strickland, and I would argue that counsel‘s failure to make a contemporaneous objection was the very reason Milledge gets a new trial, and thus counsel‘s decision not to object was strategic—not deficient—as a matter of law.
To avoid this flawed result, the PCR court—and this Court on certiorari—must focus on the trial court‘s pre-trial ruling, see Gibbs, 403 S.C. at 495, 744 S.E.2d at 175–76, unless the evidence in the trial itself includes a substantial reason to believe the trial court would have changed its mind when ruling on a contemporaneous objection. If there is such a reason, the PCR court‘s analysis should focus on the probability the trial court would have changed its ruling; the PCR court should not conduct its own suppression analysis. In this case, nothing changed regarding the existence of reasonable suspicion from the time of the trial court‘s pre-trial ruling to the point during trial when the State offered the evidence. Thus, there is no basis on which the PCR court might suppose the trial court would have changed its ruling. Therefore,
KITTREDGE, J., concurs.
Acting Justice Pleicones: I respectfully dissent, and would dismiss the writ of certiorari as improvidently granted as I find there is evidence of probative value in the record to support the post-conviction relief (PCR) judge‘s findings. Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989).
Because it misstates the prejudice question, the concurring opinion challenges my conclusion that our scope of review requires we affirm the PCR judge‘s finding of prejudice. The PCR judge was not asked whether counsel‘s deficient performance failed to preserve the ruling in limine for appellate review, but rather was he deficient in failing to object to the admission of the drug evidence at trial. The prejudice question, then, is whether there is any evidence to support the PCR judge‘s finding that there is a reasonable probability that such a motion would have been granted and that without the drug evidence respondent would not have been convicted. This is the issue decided by the PCR court and presented to this Court by the State on certiorari.12 The concurring opinion evinces its misapprehension when it analyzes the prejudice
Further, since we are reviewing the PCR judge‘s decision, it is axiomatic that it is to that decision that we “defer” if there is any evidence to support it. Despite the concurring opinion‘s expressions of concern about “cold records” and attorney “sandbagging,” PCR judges are routinely asked to “put themselves in the shoes” of the trial judge and, exercising their own discretion, decide whether evidence would have been excluded had an objection been made.13 E.g., McHam v. State, 404 S.C. 465, 746 S.E.2d 41 (2013); Sikes v. State, 323 S.C. 28, 448 S.E.2d 560 (1994). In this case, despite efforts to turn the question of this traffic stop into a pure question of law, it is a mixed question where the judge must view the facts in light of the law, and make a judgment call. Although I may not have reached the same conclusion, I find there is “any evidence” (i.e. facts) to support his conclusion and would therefore affirm.
BEATTY, C.J., concurs.