State v. Taylor

562, 566 n. 2 (Ct.App.2006) S.E.2d (finding defendant did preserve not argument regarding malice and in damages malicious prosecution claim when failure to meet those ele- motion); ments was not argued directed verdict see also McClellion, 264, 267, v. Scoggins 321 S.C. 468 S.E.2d (Ct.App.1996) (holding defendant preserve did not argument element regarding in tort negligence claim when only causation and punitive were damages raised directed ver- motion); Distribution, Inc., dict Hendrix v. E. 316 S.C. (“It 446 S.E.2d 446 (Ct.App.1994) upon incumbent [Appellant] argue specifically which element of breach of contract accompanied by a fraudulent act was not established give trial court the opportunity to rule on the point.”).

CONCLUSION prior Eric’s inconsistent statement could have been consid- ered as substantive evidence court family pursuant to holdings Copeland and Stokes. That statement coupled with an evaluation of Eric’s credibility provided trial suffi- cient evidence to withstand Minor’s directed verdict motion. His specific motion regarding grand larceny charge is not preserved for our review. Accordingly, family court’s denial of Minor’s directed verdict motion is

AFFIRMED. THOMAS, JJ.,

HUFF and concur.

694 S.E.2d 60 STATE, Respondent, The D. Syllester TAYLOR, Appellant.

No. 4687. Appeals

Court of of South Carolina.

Submitted June 2009. May

Decided 2010.

Rehearing Denied June 2010. Appellate Franklin-Best, Defender Elizabeth A. of Colum- bia, for Appellant. McMaster,

Attorney Henry General Dargan Deputy Chief Attorney McIntosh, General John W. Assistant Deputy Attor- ney Elliott, Salley General W. Assistant Deputy Attorney Catoe, Columbia; General Christina J. all of and Solicitor III, Edgar Clements, Florence, Lewis for Respondent. SHORT, J.

Syllester D. Taylor appeals his conviction and thirty-year (PWID) possession sentence for with intent to distribute co- base, caine arguing the trial court erred in admitting evidence because the officers lacked reasonable him or probable cause to search his tennis ball. We and vacate Therefore, conviction Taylor’s we reverse

agree. his sentence.1

FACTS 11:00 Florence p.m., 10:30 and between July On anonymous an Bellamy received Toby Deputy Sheriffs County bicycle possibly a ... [was] male on indicating “a black tip The tip Ervin Street.” portion on “dirt selling dope” his Bellamy drove description. a clothing not include did Street, Street, Ervin which intersects Gilyard car down patrol a male, Taylor, riding as black later identified and observed a he decided to Bellamy testified on the dirt road. bicycle basically exactly “see what was area on foot to approach Yarborough Darren and Lieutenant Bellamy on.” going Streets. Gilyard of Ervin and toward the intersection walked Street, Bella- from Gilyard Ervin As turned onto Street they this time “huddled Taylor bicycle, on my observed again the officers black male. As with another together” close between anything pass not witness Bellamy did approached, However, Taylor testified when and Bellamy men. the two his Taylor mounted nearing, noticed the officers companion his the other individual Bellamy, while and rode toward bicycle area. toward the wooded in the direction opposite walked him, bicycle, glanced Bellamy on Taylor pedaled past Taylor ignored him to When stop. ordered Bellamy and ground, and on the get command to Bellamy’s second result, Taylor an arm-bar takedown. As conducted Bellamy appre- Once bicycle ground. off his and onto was forced ball hended, and discovered a tennis searched Bellamy crack cocaine. containing cocaine base. charged with PWID

Taylor was arrested evidence, arguing trial, drug to exclude the Taylor sought At an search, During unlawful. and arrest were stop, camera receiving anonymous hearing, Bellamy testified known for previous in an area drug activity tip possible incidents; bicycle on a where observing Taylor related foot; wit- indicated; Taylor on approaching the tipster in close conversation with another nessing Taylor engrossed argument pursuant to Rule without oral 1. We decide this case SCACR. individual.2 Additionally, Bellamy indicated Taylor’s close proximity to the other man led him to suspect illegal drug- activity; he “in stated: [his] line of work and with recent ... experiences any time two males [were] close huddled up [they trying were] hide ... something 90 percent [and] time[,] of the ... some sort of illegal activity on.” going [was] He stated Taylor pedaled bicycle his as if he would not stop when riding away his companion and toward the officers. Accordingly, Bellamy ordered Taylor to his put up hands and get on the ground ensure the officers’ safety and because Bellamy believed that he had probable cause drug activity might be taking place.

Taylor argued the drug evidence should be suppressed J.L., on based Florida v. 120 S.Ct. (2000), Green,

L.Ed.2d 254 and State v. 341 S.C. S.E.2d 896 (Ct.App.2000). Specifically, he maintained this incident arose as the result of an unreliable anonymous tip. he Additionally, alleged he was rights within his to decline to stop after Bellamy’s command. Taylor also asserted the officers failed to observe him engaged in any illegal activity. He contended the anonymous tip being and close proximity to somebody while in a high-crime area did not rise to reasonable suspicion.

The State averred the following circumstances constituted (1) reasonable suspicion to stop Taylor: the anonymous tip; (2) the area being (3) known drug incidents; for related Taylor’s close conversation with another individual was deno- (4) tative of criminal activity; Taylor’s companion’s departure (5) toward the woods when the approached; officers and Taylor’s on getting bicycle his and pedaling toward the officer “like going Furthermore, not to stop.” [he was] the State insisted these facts were distinguishable from J.L. and Green because Taylor’s close conversation suggested criminal activi- ty, departed he the scene only officers, when he noticed the and he the ignored officers’ stop. commands to Bellamy Taylor 2. "standing bicycle articulated was with his straddled legs between his kind subject of a huddle with the other [who] was standing very him Bellamy beside close.” While was "unable to tell lighting men, anything due to the ... if passed off” between the he approach Taylor light nevertheless decided to illegal activities in the area. evidence, finding

The trial court admitted judge anonymous tip.3 more than the The trial was based on observations, nature of high-crime to the officers’ referred his area, Taylor’s proximity companion. close and conceding Taylor’s suspicion argument While ano- court the tipster’s nevertheless believed persuasive, evidence, credibility and the weight affected nymity its not existence.4 trial re- Bellamy Yarborough testified at

Accordingly, At Taylor’s arrest. surrounding the circumstances garding case, objec- Taylor renewed prior the close of State’s trial its denial previous tions court reiterated The Taylor’s jury motion convicted suppress. base, him to cocaine and the trial court sentenced PWID years’ imprisonment.5 This followed. thirty appeal

STANDARD OF REVIEW standard review Fourth Amendment appellate “[T]he any limited determining search seizure cases is to whether and court’s and finding appellate evidence the trial supports Taylor interpreted acknowledged correctly and 3. The trial court J.L. Green, premise ... explained and Green for the but J.L. “stand that solely anonymous tip suspicion on an based lacks sufficient reliability.” testimony court “if the was that [indicia of] The believed area, they anonymous they they person tip, went had an to the found fitting description up they bicycle[, t]hey that on a walked him and him,” preclude J.L. frisked then and Green would the admission of Nevertheless, drug at evidence. the trial court differentiated the facts Green, finding just anony- solely hand and it [an] from J.L. was "not tip.” mous Taylor probable 4. also claimed the officers lacked to continue cause ball; therefore, searching finding after him the tennis evidence suppressed should be as fruit of an unlawful search and seizure. feeling large Taylor's Bellamy in camera that after item in testified pocket, pocket identify object was a he searched his whether the weapon. Bellamy pushed object Taylor's pocket, out of ground. picked up, Bellamy tennis rolled on the ball ball tennis it, slit, bag squeezed he noticed and observed what believed to be a Consequently, ball. also crack cocaine inside the tennis trial court suppression regard argument, Taylor’s motion with denied this Bellamy right satisfy object finding had "the himself that hard [the] weapon.” was not a absence, initially 5. was tried his sentence was sealed.

109 may court only reverse where there is clear error.” State v. Green, 214, 3, 341 896, S.C. 219 n. 532 S.E.2d 898 n. 3 Sanders, (Ct.App.2000); 292, accord State v. 388 S.C. 696 (Shearouse S.E.2d 592 (App.2009) 80); Adv. No. Sh. 16 at Willard, 129, 133, State v. 252, 374 S.C. 647 S.E.2d 255 (Ct.App.2007).

LAW/ANALYSIS Taylor argues the trial court erred admitting drug evidence because officers lacked reasonable suspicion him. stop We agree.

“A police officer may stop and briefly detain and question a person for investigative purposes, without treading his Fourth upon Amendment rights, when the officer has a reasonable suspicion facts, supported by articulable short of arrest, probable cause for the person is involved in criminal activity.” 240, 248, State v. Blassingame, 338 S.C. 525 S.E.2d 539 (Ct.App.1999); Sokolow, see also U.S. 1, 7, 490 U.S. (1989); 109 S.Ct. 104 L.Ed.2d 1 Terry v. Ohio, 1, 30, (1968). 88 S.Ct. 20 L.Ed.2d 889 “Reasonable is a lesser standard than probable cause and allows an officer to effectuate a when there is objective some manifestation of criminal activity involving the person stopped.” Padgett, State v. 354 S.C. (citations

S.E.2d 162 (Ct.App.2003) omitted); Blassin game, (“The at S.C. S.E.2d term ‘reason able suspicion’ requires a particularized objective basis that would lead one to suspect another of activity.”) criminal Cortez, (citing 411, 417-18, v. 690, U.S. 449 U.S. 101 S.Ct. 66 (1981)). L.Ed.2d 621 evaluating When an investigatory stop’s validity, a court must consider the totality of circumstances. Sokolow, 8, Likewise, 490 109 U.S. S.Ct. 1581. the court “must require the agent to articulate the leading factors to 10, 109 that conclusion.” Id. at S.Ct. 1581.

Therefore, we examine an extensive litany of cases and factors leading reasonable in suspicion order to properly determine the appropriate application of suspicion in the instant matter.

[110] Suspicion Leading to Reasonable Factors

A. are suf whether the circumstances determining When officers further investigation, warrant ficiently suspicious of a the relevant characteristics required ignore are not 673, Wardlow, 119, 124, 120S.Ct. v. 528 U.S. location. Illinois (2000). However, presence individual’s “[a]n 570 145 L.Ed.2d alone, is not activity, standing criminal expected in an area reasonable, that particularized a enough support 124, 673; 120 crime.” Id. at S.Ct. committing is a person (4th Cir.1993) 151, a Lender, (stating 985 F.2d 154 v. U.S. area not itself in a crime does presence high defendant’s an consider an may but officer suspicion, constitute reasonable v. accord U.S. activity); toward criminal propensity area’s (4th Cir.1997) 613, (articulating an F.3d 617 106 Sprinkle, more, area, will in a without presence high-crime individual’s however, the finding suspicion; of reasonable not sustain activity may be consid of an area toward disposition finding support factors to particularized ered with additional suspicion).6 of reasonable location, lateness of the hour is “[t]he

In addition Lender, suspicion.” raise the level of may another fact that the officers’ observations (finding 985 F.2d at 154 1 a.m. a in a area at approximately defendant known contributing suspicion). to reasonable factor Furthermore, innocent and lawful actions an individual’s situations, criminal activi- suggest in certain combine to may, Wardlow, 119, 125, 120 145 v. 528 U.S. S.Ct. ty. Illinois (2000) Ohio, v. 392 88 S.Ct. (citing Terry L.Ed.2d (1968), of “conduct example as an 20 L.Ed.2d stop [being] ambiguous susceptible justifying “Terry recognized explanation”).7 Specifically, innocent U.S., 690, 700, 134 L.Ed.2d v. 116 S.Ct. 6. Ornelas Cf. (1996) (stating may on "police officer draw inferences based experience deciding probable cause exists” and an own whether finding give weight that the "appeals court should due to a trial court's Davis, reasonable”); and the inference was State officer was credible ("[T]he (Ct.App.2003) law is 580 S.E.2d S.C. knowledge general in criminal trends well that the officer’s settled cause."). determining probable a relevant consideration behavior is pacing Terry, two individuals back and forth 7. officer observed "[t]he store, periodically peering the window and confer- of a into front

HI the officers could detain the individuals to resolve the ambigui- ty” Wardlow, of their actions. at U.S. 120 S.Ct. 673.

For Sokolow, example, U.S. v. the United States Supreme Court found the following circumstances established reason- able suspicion to stop Sokolow:

(1) $2,100 he paid for two airplane tickets from a roll of $20 (2) bills; he traveled under a name that did not match the name under which his (3) telephone listed; number was his original Miami, destination was a source city for illicit (4) drugs; he stayed Miami for hours, only 48 even though a round-trip flight from Honolulu to Miami takes 20 (5) hours; he appeared (6) nervous during his trip; and he checked none of his luggage. (1989). 109 S.Ct. 1581 The Court held “[a]ny

one of these factors is not by itself proof any illegal conduct quite is consistent with innocent travel. But we think taken together they amount to reasonable suspicion.”8 Id. at 9, 109 S.Ct. 1581.

Nervous, evasive behavior is also considered a pertinent factor when determining Wardlow, reasonable suspicion. U.S. 120 S.Ct. 673. Similarly, evasion can contribute to reasonable suspicion. Lender, (4th 985 F.2d Cir.1993). Lender, officers advanced to a street corner in a neigh-

borhood known for drug activity and observed a group of four men, or Lender, five including “huddled on a corner.” Id. at 153. The officers saw Lender with his hand outstretched and palm up and the other men looking down at palm’s contents. Id. neared, As the officers of men group dispersed and Lender “walked away the officers with his Wardlow,

ring.” 528 U.S. at 120 S.Ct. 673. While this conduct lawful, suggested was itself "it also casing the individuals were planned robbery." store for Id. rejected 8. The argument Court analysis that the by was altered agents' belief that Sokolow’s behavior mimicked a profile. courier Sokolow, Instead, 490 U.S. at 109 S.Ct. 1581. the Court insisted determining courts the existence require of reasonable "must agent conclusion, leading to articulate the factors to that but the may fact that these 'profile' factors be set forth in a does not somehow evidentiary significance detract from their agent.” as seen a trained Id. had The determined the officers back to them.” Id. court among other stop reasonable to Lender because suspicion dispel suspi- to their earlier things, evasive conduct failed court “Evasive activity. of Id. at 154. The stated: cions conduct, may in- stopping headlong flight, short of although Id. an of a streetcorner encounter.” appraisal form officer’s eva Likewise, “the consummate act of headlong flight, Wardlow, 124, sion,” at is of 528 U.S. suggestive wrongdoing. However, of is not indicative flight necessarily 120 S.Ct. 673. reasons to activity depart because innocent 124-25, 120 Therefore, an at 673. when police exist. Id. S.Ct. without approaches suspicion officer individual cause, lawfully ignore the individual can probable or 125, (“[A]ny cooperate, 120 673 ‘refusal to officer. Id. S.Ct. more, objective does not the minimal level of without furnish unpro for a detention or seizure.’ But justification needed not a to flight simply cooperate. Flight, voked is mere refusal fact, nature, business’; not one’s very ‘going its is about by officers such just opposite. Allowing it is confronted with investigate quite further is flight stop fugitive and go his business right consistent with individual’s about of stay and remain silent in the face put police question or omitted)).9 (citations ing.”

Another factor to consider when wheth determining is er reasonable has been aroused the existence of suspicion tip party “completely and the thereof. Third quality tips ... either no lacking reliability police indicia warrant further investigation stop or before a forcible response require Williams, suspect be Adams 407 would authorized.” 143, (1972). 147, 1921, 612 92 32 L.Ed.2d There S.Ct. fore, degree reliability, “a has a low tip relatively when more information to establish the required requisite quan [is] if tum of than would be were more suspicion required tip 325, White, reliable.” Alabama v. 110 S.Ct. (1990). 2412, 110 L.Ed.2d 301 Commonwealth, Va.App. Accord 35 9. Jones v. 670 S.E.2d (2008) (finding requests a defendant's to heed refusal officers' justification because who are failed to serve as for his seizure "citizens every right under otherwise have to refuse or not arrest or detained officers”). ignore requests from law enforcement Adams, 407 U.S. at 92 S.Ct. State United Supreme justified Court found the officer was responding tip illegal activity10 a known informant’s because the alleging informant, personally officer knew the the informant provided in the tips past, and the informant “came forward personally to give immediately information that was verifiable at the location,11 Additionally, scene.” the Court referenced the time of day, suspect’s justifi- and the behavior12 as additional 147-48, cation for the officer’s actions. Id. at 1921. S.Ct. hand, the other On “reasonable based solely on a call made from an unknown location an un known caller sufficient indicia of to make an reliability lack[s] Green, investigatory stop.” State v. S.C. 896, J.L., 266, (Ct.App.2000);

S.E.2d Florida v. 269, 1375, (2000) 120 S.Ct. 146 L.Ed.2d 254 (“Anonymous tips ... are generally less reliable than infor tips known mants and can form the basis for reasonable if suspicion only accompanied by specific indicia of for reliability, example, correct subject’s predicted’ forecast of a ‘not move easily White, 2412) 332, ments.” (quoting 496 U.S. at 110 S.Ct. (“Unlike added)); at 270, (emphasis Id. tip S.Ct. 1375 a from a known reputation informant whose can be assessed and who can be held if responsible allegations [the] turn out to be [fabrications], anonymous ‘an alone seldom demonstrates tip ”) (citations the informant’s basis of or knowledge veracity.’ omitted). Therefore, in anonymous justify order for an tip White, an investigatory stop, reliability its must be verified. 330, 110 496 U.S. at 2412. S.Ct. a.m., approximately alleged At

10. 2:15 the informant "an individual nearby carrying gun seated in a vehicle and at his narcotics had Adams, 144-45, waist.” 407 U.S. at 92 S.Ct. 1921. suspect activity. 11. The was located in an area known Id. for at 92 S.Ct. 1921. investigate tip, tapped 12. When the he officer reached the vehicle to Williams, occupant, open on the window and asked the Robert door. Id. at 92 S.Ct. 1921. "When Williams rolled down the instead, fully window reached into the car and removed a [the officer] gun loaded revolver from waistband. The had not been Williams’[s] car, place” ... precisely visible from outside the but it was in informant indicated. Id. Furthermore, readily ob anonymous tips providing reliabil sufficient indicia of supply do not servable information investigatory justify ity to establish Green, Green, at 897. In 532 S.E.2d stop. 341 S.C. male Alonzo [named] notified that a ‘black the “officer was ... Bayside the area of Manor’ leaving [with] Green 216, 532 narcotics.” 341 S.C. at money sum of large the vehicle tipster The identified anonymous at 896. S.E.2d four-door Maxima and said driving gray be as Green would Manor. Id. The officer Bayside recently departed Green Green, on the by sight, solely whom he knew based stopped vehicle, he approached Id. As he Green’s anonymous tip. the front seat.” Id. The “fumbling under noticed Green vehicle, him weap exit the frisked for officer asked Green to Id. ons, large money. narcotics and a sum and discovered trial, all evidence found incident suppress At Green moved and search violated the Fourth stop, arguing to the Amendment, Id. at at 897. On to no avail. S.E.2d review, determined the evidence was this court appellate information available erroneously “only admitted whereas unknown, to the officer was the statement of an unaccountable informant who neither how he knew about explained narcotics, any nor basis for the officer money supplied about Id. at believe he had inside information Green.” tipster because the at 898. Our court stated S.E.2d credibility he not risk his and could anonymous, remained did hence, “judge because we could not impunity; lie with caller, ... the risk of fabrication credibility [became] Id. unacceptable.” an inves

An can the basis for anonymous tip provide tip’s if the officer the verifies the stop conducting stop tigatory in criminal activi reliability by observing suspect engaged the White, White, 331, at 110 2412. an ty. 496 U.S. S.Ct. White anonymous tip indicating officer received an Vanessa time; a apartment specific would be a at leaving particular wagon right a brown station with a broken driving Plymouth in a carrying to a certain motel cocaine taillight; going after her stopped witnessing brown case. The officer White Plymouth leave the drive the brown specified apartment; indicated; time the wagon approximately tipster station at 327, named motel. Id. at 110 and travel in the direction of the

115 Recognizing tips 2412. anonymous rarely S.Ct. alone demon- strate “the informant’s basis of knowledge veracity or inas- much ordinary generally as citizens do not provide extensive recitations of of everyday the basis their observations and veracity that the given persons supplying is anonymous tips ” unknowable,’ ‘by largely unknown, and hypothesis Id. at 329, Gates, 213, 110 2412 (quoting S.Ct. Illinois v. 2317, (1983)), 103 76 L.Ed.2d S.Ct. 527 the United States Supreme Court concluded reasonable suspicion existed under totality anonymous circumstances because “the tip, corroborated, sufficient as exhibited indicia reliability justify investigatory 331-32, at stop car.” Id. [White’s] 110 S.Ct. 2412.

Nevertheless, was a case White close because “[knowledge person’s about a future movements familiarity indicates some affairs, that person’s having with but such knowledge does not knows, necessarily imply particular, the informant J.L., whether that is hidden person carrying contraband.” Therefore, 1375. U.S. S.Ct. reasonableness “[t]he of official must be suspicion measured what officers knew before conducted their search.” they Id. rely anonymous

In order to an upon tip to effectuate stop, a must demonstrate of concealed tip knowledge J.L., Florida activity. See (2000). J.L., 146 L.Ed.2d 254 example, S.Ct. For stop anonymous officers were to a bus after an dispatched male young wearing plaid caller13 claimed a black shirt at arrived, the bus carrying gun. When officers they an individual matching description, identified him, weapon. uncovered a Id. from the “Apart searched ... tip, the had no reason to suspect any illegal officers firearm, did not conduct. The officers see and J.L. made no Thus, or otherwise unusual movements.” threatening Id. arose solely anonymous tip, officers’ not any perceptions of their own. Id. at S.Ct. 1375. Emphasizing anonymous tip’s need to demonstrate knowledge activity, of concealed criminal the court elucidated: recording 13. No about the informant or audio of the call information J.L., existed. 529 U.S. at 120 S.Ct. 1375. 116 subject’s readily of a observable description

An accurate limited is of course reliable this appearance and location help correctly identify person will the police sense: It however, a tip, means to accuse. Such tipster whom the of concealed tipster knowledge that the has does not show The reasonable here at issue activity. suspicion tip illegality, that a reliable its assertion of requires be tendency person. in its a determinate just identify not 272, anonymous tip The court held “an Id. at 120 S.Ct. 1375. in Adams reliability contemplated of kind lacking indicia Williams, 143, 1921, 407 92 32 L.Ed.2d 612 v. U.S. S.Ct. 2412, White, 325, (1972), 496 110 Alabama v. S.Ct. and U.S. (1990), not and frisk justify 110 L.Ed.2d 301 does of a alleges illegal possession and however it whenever Id. firearm.”14 determining

An factor to consider when additional reasonable exists is the officer’s suspicion experience whether Wardlow, v. 120 and intuition. See Illinois (2000) (“[T]he determination 145 L.Ed.2d 570 S.Ct. judg must be based on commonsense behavior.”). Nevertheless, ments inferences about human and a complete “a wealth of will overcome absence experience [not] (4th facts.” v. 513 F.3d 415 McCoy, of articulable U.S. Cir.2008) Ohio, 1868, 20 (noting v. Terry U.S. S.Ct. (1968), ‘must “clearly requires that an officer ... L.Ed.2d which, facts taken point be able to articulable specific facts, reasonably together with rational inferences from those ” an briefly warrant that intrusion’ in order detain or frisk 1868)). 21, 88 (quoting Terry, individual U.S. S.Ct. Furthermore, impression an is officer’s that individual confirmation, activity, in criminal without does not engaged 106 F.3d suspicion. Sprinkle, amount to reasonable (4th Cir.1997). rejected analysis: exception Terry 14. The court firearm to the standard Terry police may properly “If officers conduct frisks on the basis tips guns, would be ... about it reasonable maintain bare-boned police similarly have discretion to frisk based on bare-boned should tips narcotics. As we clarified when we made indicia of reliabili- about White, easily ty in Adams Amendment not so critical Fourth is J.L. at 120 S.Ct. 1375. satisfied.” in Sprinkle, two a high-crime neighborhood officers in a vehicle. Id. sitting parked observed Victor Poindexter 615. Officer Daniel Riccio knew Poindexter was recently released from after time for narcotics viola- prison serving tions, but of any activity by “had no criminal Poindex- reports ter since his Id. at Sprinkle, release.” 615-16. Riccio noticed know, get whom he did not into the seat of Poindex- passenger ter’s vehicle. Id. at As by 616. Riccio walked the driver’s car, of vehicle side Poindexter’s to his he patrol “noticed Sprinkle talking to ... ‘huddling [ ] and Poindexter’ [toward] ‘the console of the vehicle’ with their togeth- hands ‘close[] ” Riccio, Id. down, er.’ When Poindexter saw he his head put covering the left his face if side of with his hand as to conceal identity. his it bright Id. Because was a with fairly day “did not in plenty sunlight, anything Riccio see either man’s Furthermore, hands.” Id. neither “any officer viewed drugs, money, guns, or car ... drug paraphernalia the [and] any Poindexter and did not Sprinkle make movement that indicated an conceal attempt any object inside the car.” Id. cars, The officers to their patrol continued and Poindexter vehicle, street, it pulling started into the and drove away normal, fashion. Id. unsuspicious After Poindexter drove feet, an approximately unrelated traffic blocked his route. Id. the Seizing opportunity, parked the officers be- vehicle, hind Poindexter’s their blue stopped engaged lights, car, the patrol exited and approached. Id. Riccio informed Sprinkle he was himpat weapons. down for Id. As going began Riccio and pat-down, Sprinkle pushed away began run. Id. Sprinkle handgun during brandished a the foot chase and ultimately charged detained and with possess- ing handgun. Id. trial,

At moved to Sprinkle suppress handgun’s admis- sion, it the fruit of an Id. declaring stop. unlawful The court granted trial the motion and his indictment. dismissed Id. The five government appealed, factors com- professing (1) suspicion: bined establish reasonable the officer’s knowl- (2) edge history; Poindexter’s criminal record and narcotics (3) neighborhood being known for activity; narcotics men two huddled the vehicle “with their hands together (4) together”; close Poindexter’s to hide his attempt identity as the (5) “as soon Riccio; departure and Poindexter’s Id. at .617. the car.” walked officers ruled Appeals Fourth Circuit Court appeal, On insufficient an individual was history of criminal prior known could be knowledge but suspicion, reasonable to create reasonable factors to constitute concrete with more combined Additionally, Id. activity. of current neighborhood nature high-crime recognized court for freestanding grounds or independent provide could not Poindexter noted Riccio viewed suspicion, The court men- day. Id. sunny on a p.m. at 5:30 Sprinkle suspi- acts of particular maintained the the government tioned toward the huddling the two men initiated with cious behavior together, their hands close of the vehicle with center console “ were in they that impression Riccio ‘the gave and the acts ” However, transaction.’ Id. at 617. of a narcotics the midst impression more for this “it would take the court held Id. The court concluded suspicion.” a reasonable as qualify with others may be appraised one’s face “is an act hiding reason- reaches the threshold of whether deciding in Poin- Similarly, the court determined Id. at 618. ableness.” right off because he “drove was not evasive departure dexter’s car, and the officers admitted in the passenger got after his normal, manner.” Id. Ultimate- in a unhurried that he drove suspi- the officers lacked reasonable the court ascertained ly, acknowledging Id. at 618-19. While to stop Sprinkle.15 cion upon seeing aroused understandably curiosity Riccio’s activity, the high in with narcotics neighborhood Poindexter particularized additional the officers needed court avowed Neverthe- activity. Id. at 618. evidence to indicate stop illegal, argued Sprinkle's his government also if initial 15. The Sprin- handgun intervening illegal made admissible evidence. acts his kle, discharged Sprinkle, Sprinkle pursued F.3d at 619. As Riccio Court of handgun Id. The Fourth Circuit in Riccio's direction. determining Sprinkle’s illegal acts agreed government, Appeals with the exclusionary triggered exception rule stop to the after the initial any crime that was distinct from he ''committed a new crime because suspected stop.” initial Id. at might of at the time of the he have been triggering examples intervening acts 619. The court cited additional attempting including assaulting to retrieve exception, an officer officer, officer, shooting aiming weapon at an gun, at an the officer's police. shooting at fleeing per in a vehicle while at 115 miles hour Id. at 619 n. 4. less, the court declined to find their huddling together, Poin- Riccio, dexter’s to hide attempt his face from or their depar- ture established reasonable suspicion. Id. Significantly, the court reiterated Riccio could see inside Poindexter’s vehicle and observed of a nothing criminal nature or taking place any attempt conceal criminal activity. Id. at 618.

Sprinkle Lender, (4th differed from U.S. v. 985 F.2d 151 Cir.1993), because “although police could not see ... into hand, Lender’s open the fact that several men were looking to his hand indicated there was actually something it.” Id. at 619 n. 3. In Sprinkle, “Riccio’s initial suspicion that Sprinkle was about pass something to Poindexter was simply not confirmed what Riccio saw” actually when the officers were close enough see both men’s hands. Id. Additionally, Lender exhibited evasive conduct by turning back and walking officers, away the approaching whereas Poindex- ter Also, did not. Id. while “Poindexter was parked broad street,” on a daylight busy Lender was observed on the street a.m.; therefore, corner at 1:00 the lateness of the hour con- tributed to reasonable suspicion Lender. Id. Accord- ingly, court found Lender was distinguishable and not controlling. Id. Application

B. Suspicion of Reasonable Factors

Instant Matter case,

In this Deputy Bellamy stated his belief that Taylor (1) was involved in criminal was activity based on: the (2) anonymous tip; Taylor’s presence in an area associated (3) crime; with high Taylor’s closeness to his companion; and (4) each departure man’s from the scene when the officers approached.16 We find the anonymous tip Bellamy relied on was one in which the reliability could not be tested because nameless, the tipster was the tipster’s location was unidenti fied, unaccountable, the tipster remained and the tipster failed to explain the of the origin allegation of criminal activity, provide any predictive information, or a supply basis for 16. The Dissent also references the lateness of hour aas circumstance However, establishing suspicion. Bellamy testify did not he day considered the time of stop Taylor, to contribute to his decision to argue nor day contributing did the State the time of was a factor to the opposing trial Taylor’s suppress. court when motion to

120 Taylor’s into inside information possessed the believing tipster Furthermore, any specific failed to tip provide the affairs. of concealed knowledge the indicating tipster’s information her therefore, did not risk his or the activity; tipster criminal the information with free to fabricate and was credibility information, readily observable tip The described impunity. stated and and appearance, individual’s location such as the anony- the selling drugs. While possibly individual was the it in the limited sense assisted trustworthy mous was tip the de- matching a Taylor person as Bellamy identifying accuse, tipster whom the wished of the individual scription familiarity an extensive of degree neither the demonstrated tip in terms actions, reliability any independent nor Taylor’s with activity required by as of alleged possibility L.Ed.2d J.L., 120 146 v. S.Ct. Florida Therefore, unreliability, (2000). tip’s to the inherent due 254 and more informa- conclusory allegation a tip merely of requisite quantum suspi- to establish required tion was Taylor. entitled to stop the officers were cion before based Moreover, the officers were on Ervin Street unreliable and made no anonymous tip solely on any illegal activity suggesting observations supplemental more than con nothing did afoot. The officers’ observations communicated noticeable conditions readily firm initial Additionally, Bellamy’s anonymous tipster.17 he failed to observe unsubstantiated when remained Hence, this scenario drug activity. in a toway suggest behave specific tip far less than anonymous tip involved an Green, (Ct.App.2000). 341 S.C. S.E.2d State race, name, There, gender, the officer knew the individual’s vehicle, of his and that he the model and color point origin, narcotics. Id. at money sum of carrying large would be Here, officers knew a nameless at 896. 532 S.E.2d bicycle man on the dirt riding a black tipster suspected The selling drugs. tipster be might of Ervin Street portion of the individual other description supply specific failed State, Md.App. A.2d example, in Green v. 17. For (1989), Maryland Special Appeals the verification of Court of found clothing description an individual's and location accused activity sufficient corroboration to establish criminal “failed to serve as reliability.” than his mode of general transportation, readily-observable location, his gender, Accordingly, his race. we find the anonymous tip requisite lacked the indicia of reliability to be employed as reasonable suspicion for an conducting investiga- tory stop. our

Although recognized courts have the nature of the neighborhood as a contributing factor for reasonable suspicion, our courts have stated an specifically pres- individual’s mere ence in an area high-crime associated with is not reasonable Thus, for an investigatory stop.18 Taylor’s presence on Ervin Street alone did not rise to give suspicion. also the high-crime We find nature area failed to corroborate the anonymous tipster’s information so as to a impart degree of to the reliability allegations other contained in the tip.19

Additionally, we find the close conversation be tween Taylor and his companion also did not enhance the officers’ curiosities to the level of suspicion.”20 “reasonable Perrin, (4th 1995) ("Were 18. See U.S.v. 45 F.3d Cir. we to treat dangerousness neighborhood independent as an corroborat factor, be, effect, ing holding suspect we would accountable for control."). wholly factors outside of his neighboring Georgia 19. Our state of addressed similar issue Swan- State, Swanson, (1991). Ga.App. son 412 S.E.2d 630 an stopped receiving anonymous officer tip alleging an individual after an selling drugs. tip individual was Id. at 631. The included a detailed description clothing of the individual's and his exact address. Id. White, Relying Georgia Appeals on Court of determined even though high drug the officer knew the address was located within a area, trafficking required “further observation and corroboration was stop Specifically, before a forcible was authorized." Id. at 632. court stated: anonymous tip [T]he contained no detailed information demonstrat- behavior, ing ability predict the caller's [the future individual's] police and thus contained no information from which the could have tipster only reason to believe the was not honest but also well enough justify knowledge informed ... [and officer’s] high drug trafficking that address was in a area [failed to anonymous tipster's impart corroborate] information so as to degree reliability allegations to the other made the caller. Id. emphasized Bellamy's 20. While the Dissent notes the trial court curiosi- ty engaged activity based on his closeness between pass testify anything he saw Bellamy did not Deputy together, close them “huddled” he noticed the two men when anything. While attempt to conceal Taylor he witness nor did after observ understandably aroused was Bellamy’s curiosity anony description given matching an individual ing another conversation with in a close tipster engaged mous night, drug activity have previous area known to male in an facts particularized additional needed we find the officers support finding in to a activity order indicating criminal Moreover, officers because the we find suspicion. reasonable riding his his stop Taylor, to suspicion lacked Illinois v. Ward was lawful. See toward the officers bicycle (2000) 145 L.Ed.2d 570 low, 120 S.Ct. if the an officer lawfully ignore an individual can (maintaining or suspicion probable without reasonable officer approaches cause). neither Furthermore, Taylor ped was emphasize we thus, officers; away nor from the abnormally riding fast aling flight. of evasion or not indicative departure his was considerably differs we find this situation Additionally, Cir.1993). (4th Lender, and Taylor While 985 F.2d the officers lacked proximity, in close talking his friend were insinuate by Taylor action observation of an the additional Moreover, ac- activity. Taylor’s in criminal his involvement conversation, from his com- departing concluding tions of his cannot be bicycle toward officers riding and panion, Bellamy’s hunch behavior to confirm characterized as evasive Accordingly, we activity. in criminal Taylor engaged that was in a close Taylor Lender. was this case from distinguish individual, conversation, and he was only but with one other Bellamy's curiosity confirm companion, no evidence existed to with his together criminal suggest positioned were close to conceal or the men engaged "huddle" Bellamy's males in a close activity. belief that two conducting illegal activity ninety percent of the time are conversation activity. Taylor engaged in Re- that criminal was not evidence Bellamy’s experience police officer and inferences spectful of as a therefrom, required specific and articula- point drawn he was still that, experiences conjunction with those when considered in ble facts inferences, reasonably stopping Taylor. Further- warrant and would more, day proximity while the Dissent contends the time suspicious activity, difficulty observing any potential officers caused it, attempting companion were to conceal especially if and his any activity suggest- the officers failed to observe the fact remains that ing illegality was afoot. hour; however, at a high-crime Lender, area late unlike no Taylor exhibited behavior suggesting activity. We do not presence high-crime find in a at a Taylor’s area late hour while conversation engaged close with another activity. individual indicative of criminal (4th find Ultimately, we U.S. v. Sprinkle, F.3d Cir.1997), sufficiently is similar this case compels finding the officers lacked reasonable suspicion Taylor. First, cases, in both the initial illegal activity resulting from the two men’s closeness not con- Here, firmed by the officers’ observations. Bellamy suspected Taylor engrossed was in activity criminal after observing Taylor’s individual; however, close conversation with another he did not Bellamy anything pass stated see Taylor between Thus, and his companion. Bellamy failed to Taylor observe to attempt activity conceal criminal and Bellamy’s suspicions Second, remained both Sprinkle Taylor unsubstantiated. scene; therefore, possessed right depart neither in engaged flight. evasive behavior or in both Additionally, scenarios, neighborhood was considered a area. high-crime fact, in Sprinkle, Riccio’s of Poindex- personal knowledge ter’s narcotics was previous specific violations more and credi- anonymous ble than the tipster’s description readily of in observable situation the instant case. we Although recog- nize day the time of was to five Sprinkle four-and-a-half hours earlier than case sub we do not the time judice, find of day significant enough to favor of weigh finding Bellamy of necessary suspicion demonstrated amount reasonable stop Taylor.

CONCLUSION review,21 Mindful “any of our evidence” standard of we find no stopping Specifi- existed for Taylor. cally, Bellamy leading we find failed to articulate facts to the objective conclusion that an manifestation of criminal activity totality existed under the of circumstances. inference Any thé activity of drawn from close illegal Taylor’s proximity his Green, 21. See State v. 341 S.C. 219 n. 898 n. 3 S.E.2d (Ct.App.2000) "any (providing an evidence" standard review for of cases). search and seizure any- observe Bellamy’s failure to dispelled was companion way in a or act the two men pass between thing tip anonymous activity. Additionally, criminal indicate nature Further, the high-crime unreliable. substantially was themselves in and of day are not and the time the area attempted Taylor’s activity. Lastly, indicative bicycle toward by riding his companion, his departure behavior or evasive officers, attempted flight not commands Bellamy’s right ignore he had the because re- Thus, actions Taylor’s we find his business.22 go about con- investigation or further response police either no quired stop was author- before a forcible Bellamy’s curiosities firming clear Therefore, evidence the admission ized. and vacate Taylor’s conviction error, and we reverse circuit court’s order is Accordingly, sentence.23 REVERSED. J.,

GEATHERS, concurs. J., THOMAS, separate opinion. dissents THOMAS, J., (dissenting). stan- I that under our dissent. would hold

I respectfully review, during suppression presented the evidence dard of that the findings the trial affirming judge’s hearing warrants to and detain suspicion approach had police 673, Wardlow, 119, 125, 145 120 S.Ct. v. 22. See Illinois (2000) suspicion (holding lacks reasonable when officer L.Ed.2d 570 individual, cause, individual has a approaches an “the probable if he or business”). go right ignore police about his suspicion to wai'rant an lack of reasonable to the officers’ 23. Due Taylor's remaining on stop, address issue investigatory we decline to probable cause to search his regarding whether the officers had appeal Inc., Georgetown, Towing 335 v. McAllister ball. See Futch tennis 591, (1999) 598, 613, (holding when one issue is 598 518 S.E.2d S.C. event, addressed). any In remaining issues need not be dispositive, stop Taylor, any evi Bellamy lacked reasonable because illegal stop is inadmissible result of the acquired as a direct dence Jeremiah poisonous tree doctrine. See In re pursuant the fruit of the 766, (“The 2, (2004) W., n. 2 'fruit 606 S.E.2d 768 S.C. 624 n. 361 produced which that evidence is poisonous tree’ doctrine holds illegal generally inadmissible directly search is derived from an or taint."). original against because of its the defendant as well as the right precautions take for their own safety when he refused to I cooperate. would also affirm the trial judge’s rejection of Taylor’s arguments for suppressing drugs on found when person police attempted to search him for weapons. Brockman,

In v. 57, 66, State 339 S.C. 528 S.E.2d (2000), the South Supreme Carolina Court set forth the stan- dard of review for rulings Fourth Amendment search and seizure cases: the appellate court “will review the trial court’s ruling any like other factual finding and if reverse there is clear error.... appellate [The will affirm if court] there is any evidence to support the ruling.” In holding reasonable suspicion was laeking, the majority appears have departed from this standard in favor of relying on its own view of the totality of the circumstances the case.

I agree a determination of reasonable suspicion requires consideration of “the totality the circumstances —the whole picture.” Cortez, U.S. v. U.S. 101 S.Ct. (1981). L.Ed.2d 621 State, however, this this analysis of the totality of the circumstances ais function of the trial court and does not alter the deferential standard that appellate courts must observe when reviewing a trial judge’s as finding to whether a Fourth Amendment violation has occurred. See v. State Khingratsaiphon, 69-70, S.C. 572 S.E.2d (2002) 459-60 (adhering to the review, deferential standard of but stating that Brockman “does not hold the appellate court may not conduct its own review of the record to determine whether the trial judge’s decision is supported by the evi- dence”).

Using the deferential standard of review mandated by our Court, Supreme I would hold the State presented evidence during the suppression hearing to the trial support judge’s finding that Officer Bellamy’s decision to approach and detain Taylor was based “specific facts, which, on and articulable together taken facts, with rational inferences from those rea sonably Ohio, warranted] intrusion.” Terry [the] 392 (1968), S.Ct. 20 L.Ed.2d 889 quoted in v. State Lesley, 643-44, 326 S.C. 486 S.E.2d 277 (Ct.App. 1997). to denying Taylor’s trial stated when motion judge

As the anonymous than tip. this case involved more suppress, that the location testimony police from the officers There the was a area. Further- by well-known tipster named he more, toward the officers when although Taylor pedaled it that he companion, appears undisputed from his separated avoid them. attempting addition, on judge great the trial Officer placed emphasis Taylor he and his Bellamy’s testimony compan that observed that, in Bella up something” ion “huddled to hide and trying “[ijt’s the some of my’s percent time it’s sort experience, the activity Although majority on.” acknowl going illegal Bellamy its of the facts that Officer relied edged in recitation in the experience deciding on law enforcement situation his his reliance detaining Taylor, appears warranted it dismiss fact that experience emphasize on this and instead the none the saw the two anything pass officers the scene between the they up.” men while were observed “huddled What meeting to overlook is that between majority appears late in and companion happened evening and apparently at some distance from where the officers first them. unlike encounter in sighted Sprin This is kle, (4th Cir.1997), majority F.3d on which relies. arresting See at 616 officers had “walked (noting id. in side” of the vehicle the defendant was “hud driver which talking testimony to” another individual and dling quoting and their from the officers that observations of the defendant “ arresting place bright day’ him took on a with ‘fairly before ”). Thus, Sprinkle in ‘plenty light’ whereas officers range saw at the absence of actually bright light close and crime, the in the any present fruits or instruments of officers prevented by lighting case could have been distance observing any particularly suspicious activity, conditions if subjects activity that engaged attempting were that Considering conceal it. the officers had less than optimal scene, I can neither conditions view fault Officer experience for his on his Bellamy rely professional decision training determining that what he saw warranted investigation nor the trial this judge ruling further for reliance was Courts have allowed such reliance reasonable. reviewing when cause determinations. See State v. probable

127 Peters, 498, (1978) (“In 504, 475, 271 S.C. 248 478 S.E.2d cause, dealing probable with ... as the very implies, name we probabilities. technical; deal with These are not they are the factual and practical considerations of life everyday on which men, prudent technicians, act.”); reasonable and not legal Davis, 778, v. State S.C. 580 S.E.2d 783 (Ct.App. 2003) (“[T]he law is well settled that the knowledge officer’s general trends in criminal behavior is a relevant consideration cause.”). in determining probable I see no reason apply not to a similar when policy reviewing determinations of reasonable “ suspicion, require which ‘less than the level of suspicion ” Butler, required for cause.’ probable State v. 343 S.C. 539 S.E.2d 416 (Ct.App.2000) (quoting Nebraska v. Soukharith, (1997)). 253 Neb. 570 N.W.2d

I would therefore follow the set forth reasoning by the Lender, Fourth Appeals Circuit Court of F.2d (4th Cir.1993), which the majority has referenced but case, court, to attempted distinguish. that the in rejecting the defendant’s that he argument unlawfully stopped by police after officers him extending observed his hand with while palm up talking with friends on a street corner in a “[wjhile town, section of that poor stated the defendant’s mere in a crime presence high by area is not itself to raise enough suspicion, propensity reasonable an area’s toward criminal is activity something may that an officer consider.” Id. at 154. The court also noted lateness of the hour is another fact “[t]he may suspicion.” that raise the level of Id. notwith- Finally, the absence of evidence of standing drugs or other contraband scene, justified the court the officers’ decision to defendant, approach explaining as follows: Additionally, the officers observed the defendant engaged they suspected behavior that a transaction. be In this at this late time of neighborhood night, group men was gathered looking around Lender down into his cannot open palm. say police We that officer regard such conduct as required innocuous. Even though acknowledged their passing officers car could not patrol they drugs see or other contraband in hand, were not in the required defendant’s officers probable absence cause shoulders simply “shrug [their] ” and allow a crime to occur. they suspected illegal Because as responded precisely Hill and Thomell

activity, Officers investigate they attempted provides: the law further. added). omitted) (citations (emphasis Id. presented that there was evidence

Because I would hold finding of reason- hearing support during suppression reject that the Taylor’s argument I would also suspicion, able they after him should police stopped drugs discovered stop. of an illegal excluded as fruits have been that the officers did not have Taylor’s argument, other As to intrude into the tennis ball because there right the legal it, I the about would hold nothing inherently incriminating was during hearing supports the testimony presented suppression Bellamy reasonably that acted judge’s finding the trial Officer pat- it on the Taylor’s person. During when he discovered search, that the Bellamy only Officer could determine down object” a “hard that warranted Taylor’s pocket bulge weapon. to ascertain that it was not a investigation further was in his Bellamy pocket, asked what When Officer himself, Bellamy to extricate and Officer Taylor attempted object manipulate Taylor’s pocket out of managed he noticed the ground. According Bellamy, onto the Officer the tennis ball the slit on the surface on drugs through inside Thus, as he was it from the picking up ground. the ball nature of the contents of tennis ball became incriminating in the police they process to the while were still apparent Abrams, was not armed. State v. ensuring Taylor See (Ct.App.1996) (holding 471 S.E.2d S.C. armed, not “they once the discovered the defendant was police of their search unless carry could not intrusiveness further object incriminating during character discovered to the officer immediately apparent performing search pat-down”). Nothing Bellamy’s testimony suggest- Officer any ed that he the ball for other than to squeezed purpose Moreover, ground. picking it off the it was as he was pick up that he it the slit drugs through the ball noticed inside up the surface. on reasons, I trial foregoing judge’s

For the would affirm the denial of motion to evidence of- Taylor’s suppress him and would likewise affirm his against fered the State conviction.

Case Details

Case Name: State v. Taylor

Court Name: Court of Appeals of South Carolina

Date Published: May 13, 2010

Citation: 694 S.E.2d 60

Docket Number: 4687

Court Abbreviation: S.C. Ct. App.