In State v. Frasier, decided September 28, 2022, the SC Supreme Court changed the standard of review in Fourth Amendment cases.
Previously, SC appellate courts applied the deferential “any evidence” standard in appeals from motions to suppress evidence based on Fourth Amendment violations – if there was “any evidence” to support the trial court’s decision, the appellate court would affirm the conviction.
The new standard of review – de novo review of the trial court’s legal conclusions – means that the appellate courts are not required to defer to a trial court’s findings of law when the trial court is clearly wrong…
State v. Frasier: De Novo Review in Fourth Amendment Cases
SC’s appellate courts “have repeatedly noted that appellate courts review an appeal from a motion to suppress based on a violation of the Fourth Amendment under the deferential ‘any evidence’ standard,” stubbornly insisting that “appellate courts will not reverse a trial court’s finding of fact simply because it would have decided the case differently.”
SC opinions have repeatedly noted that this is how appellate courts review Fourth Amendment appeals even though this is not how appellate courts review Fourth Amendment appeals anymore…
In 1996, the US Supreme Court held, in Ornelas v. United States, 517 U.S. 690 (1996), that federal courts must apply “a more rigorous two-part analysis where courts defer to the trial court’s factual findings but review the ultimate legal conclusion de novo.”
Since Ornelas was decided, nearly every state has adopted the federal standard except South Carolina. See, e.g., State v. Morris, 411 S.C. 571, 578, 769 S.E.2d 854, 858 (2015), State v. Spears, 429 S.C. 422, 433, 839 S.E.2d 450, 455 (2020), State v. Pichardo, 367 S.C. 84, 96, 623 S.E.2d 840, 846 (Ct. App. 2005), State v. Brockman, 339 S.C. 57, 528 S.E.2d 661 (2000).
In State v. Frasier, the SC Supreme Court changes the standard of review for Fourth Amendment cases to allow the appellate courts to review a trial judge’s ultimate legal conclusion de novo and correct the trial court’s conclusions when they are wrong.
State v. Frasier: Why it Matters
Why does it matter?
This is a significant opinion because it recognizes that the appellate courts have access to dashcam and bodycam footage from traffic stops and can review the same videos that the trial court watched before making its decision:
At the time this Court issued Brockman, appellate courts routinely reviewed cold records and depended on trial courts to review credibility and weigh conflicting evidence in reaching its decision. However, with the dawn of the technological age, appellate courts are no longer dependent on the trial court in our review of evidence. The most obvious example is the advent of body and dashcam footage, whereby this Court reviews the same video as the trial court. Accordingly, while the need for deference remains, particularly in determining issues of credibility, it is no longer necessary for us to defer to the trial court’s overall ruling in every case. Instead, we take this opportunity to refine our standard of review to better align with the federal standard, which has been adopted in nearly every state.
When a trial court bases its legal conclusion on testimony or arguments that are demonstrably false, the appellate courts should be free to correct those mistakes and should not be bound by a deferential “any evidence” standard that requires them to rubber-stamp the trial court’s decision.
What makes this case so significant is that the SC Supreme Court not only changed the standard of review to bring SC in line with the rest of the nation but also called out the misrepresentations and inconsistencies on which the trial court based its ruling…
Prolonged Traffic Stop
When police pull over a motorist for a traffic violation, they can hold the motorist there on the side of the road only long enough to 1) request the driver’s license and registration, 2) run a computer check, and 3) issue the citation.
If the police want to prolong a traffic stop beyond that, they must have a reasonable, articulable suspicion that “criminal activity may be afoot.” That means an “objective, specific basis for suspecting the person stopped of criminal activity.”
In Frasier, the Court found that the facts that the trial court relied upon did not support a finding of reasonable suspicion:
- Officers said that Frasier seemed suspicious, but their suspicion was based only on a subjective hunch,
- Frasier “scanning the parking lot” before getting into his car, although relevant, was “far from establishing reasonable suspicion,”
- Frasier repeated the officer’s questions,
- The female driver’s pants were unzipped (the officer said this was indicative of her putting drugs down her pants – except there were no drugs down her pants, she said she simply forgot to zip them up after getting out of the shower, and we can think of some other plausible alternate explanations…), and
- Frasier was sweating (even the judge noted that everyone sweats in Charleston, SC).
The Court noted that this was clearly “a drug stop masquerading as a traffic encounter,” and the goal of the traffic stop was to “try to obtain consent,” as the officer is heard telling dispatch on the dashcam video. Although the Court acknowledges that pretextual traffic stops are legal, they point out that there must be an objective, articulable reasonable suspicion before the traffic stop can be prolonged.
Consent
The state argued that Frasier consented to the search and therefore it was valid. But did Frasier consent to the search?
The officer testified that he asked Frasier “if he minded if I checked him out or searched him,” and Frasier replied, “I do, but” and then put his hands on the top of the car, “positioned himself in a manner such that the officer could search him, and exposed both his body and his pockets to the officer.”
The trial judge found that this was valid consent.
When someone says, “do you mind,” and you reply, “I do mind,” that is not consent. You don’t need to watch the video to know that is not consent.
When the SC Supreme Court reviewed the video – the same video that the trial judge watched at trial – they also discovered that Frasier did not voluntarily put his hands on the car and “expose both his body and his pockets to the officer” as if he were nonverbally consenting to the search.
The officer told him to put his hands on the car:
Because we are able to view the same video as the trial court, we can make an independent finding and are not constrained to defer to the trial court’s conclusion that Frasier consented through his words and conduct. The video clearly indicates that Frasier stepped out of the vehicle at the direction of one of the officers, with a second officer standing beside him. Once Frasier began to place his hands in his pockets, Hall understandably told Frasier to remove them. In response, Frasier raised his hands over his head and began to turn. Hall testified it was Frasier’s conduct that indicated he consented to a search, but it is clear from the video that Frasier only placed his hands on the vehicle at the direction of the officer. Indeed, after asking whether Frasier had any weapons on him, Hall asked Frasier to “put his hands up on the car for me.” Accordingly, because Frasier’s conduct was at the direction of the officer, it was not a voluntary decision to allow Hall to search him. Thus, the State failed to prove that Frasier voluntarily consented, and we therefore reverse on this ground as well.
As the SC Supreme Court refreshingly notes in this case, the ends do not justify the means.
Police should never be permitted to lie under oath to get a conviction. Prosecutors should not be permitted to misrepresent the evidence to get a conviction. Judges should not be permitted to hear an officer’s perjury that is directly contradicted by video evidence, agree with a prosecutor who has just suborned perjury, and then deny a motion to suppress based on what the court should know – if they watched the video – is perjury.
Nevertheless, the officer won’t be charged with what appears to be perjury or disciplined for what appears to be misrepresentations made under oath. The prosecutor won’t be charged with or disciplined for what appears to be subornation of perjury. The trial judge won’t be disciplined or even questioned for their decision or for permitting what appears to be subornation of perjury and perjury in their courtroom.
But it is momentous that, in this one opinion at least, the SC Supreme Court acknowledged what is happening in some of SC’s trial courts, reversed the trial court’s decision, and changed the standard of review to permit the appellate courts to review Fourth Amendment cases de novo.
Criminal Defense Lawyers in Columbia, SC, and Myrtle Beach, SC
The criminal defense attorneys at the Thompson & Hiller Defense Firm focus exclusively on criminal defense cases in SC including drug crimes, traffic stops, and motions to suppress evidence. We have obtained dismissals, pre-trial diversion resulting in dismissals, or acquittals following trial in hundreds of criminal cases, and we have a record of proven results.
If you have been charged with a crime in SC or if you think you may be under investigation, call us now at 843-444-6122 or contact us through our website for a free initial consultation to find out if we can help.
