State v. Brannon

¶1dissenting:

¶2I respectfully dissent. Based on the record before us, I believe the trial court properly denied Ricky Brannon’s directed verdict motion as to the resisting arrest charge. I vote to affirm.

¶3During the early morning hours of April 21, 2003, Ricky Brannon went to the Westwood Apartments in Gaffney, South Carolina, for the purpose of breaking in vehicles. Maria Rainey, a resident of the apartment complex, looked outside and noticed that the interior light of her car was on. Brannon was inside Rainey’s vehicle. Rainey called 911. Gaffney city police officers Michael Scruggs and Randy Quinn were dispatched to the Westwood Apartments.

¶4The 911 dispatcher coordinated communications. Rainey informed the police dispatcher that Brannon had broken in another car, a Ford Explorer. Officers Scruggs and Quinn were alerted to the break-in of the Explorer as they arrived. The officers parked a short distance away and quietly approached the crime in progress. As the uniformed officers rounded the corner to Building 800 of the apartment complex, they observed Brannon next to the Explorer — the door was open and the car’s interior light was on. Brannon saw the uniformed officers and immediately bolted. The officers gave chase, shouting “stop, police!” Brannon continued to flee and disregarded the officers’ commands to stop, but he was ultimately apprehended in front of Building 1100 of the complex, about 300 yards from where the pursuit began.

¶5Brannon was convicted on all charges, yet the sole issue before us is whether, viewing the evidence in a light most favorable to the State, there was any evidence that Brannon’s attempt to avoid police detention falls within our resisting arrest statute, section 16-9-320 of the South Carolina Code (2003). Based on the directed verdict grounds asserted in the trial court, together with the unchallenged jury charge, I would affirm the denial of the directed verdict motion.

¶6The majority has expanded upon Brannon’s directed verdict motion, as well as his final brief. I am not aware of any rule or procedure which allows this Court to expand an appellant’s argument to justify a reversal of the trial court.

¶7*521In moving for a directed verdict and arguing an arrest never took place, Brannon’s counsel argued:

I would move for a directed verdict on the resisting arrest count because both officers testified that they never told Mr. Brannon or said he or tried, attempted to place him under arrest until after they caught him. They just came up on him, stop police, he took off running, they ran after him. There was never any stop police, you’re under arrest. In fact, one officer testified that he, they weren’t going to place him under arrest until they were actually able to talk to him and determine what went on.

So, I would move for a directed verdict on the resisting arrest based on the fact that he was never placed under arrest.

¶8As counsel summarized his position, he told the trial court, “Now, if he says stop, you’re under arrest, you have to stop at that point in time. You’re resisting arrest if he says you’re under arrest. But just stop by itself is not sufficient to give grounds for resisting arrest.” This was the heart of counsel’s closing argument to the jury: “Did they ever place him under arrest? Did they ever say stop, you’re under arrest? No, just stop police.”

¶9The argument presented in the trial court forms ho basis for the rationale of the majority in reversing. Indeed, the majority relies on an exhaustive Fourth Amendment “seizure” analysis that is nowhere to be found in the record or Appellant’s final brief. The majority opinion even refutes Brannon’s concession at trial that “[yjou’re resisting arrest if [the officer] says you’re under arrest.” Cf. State v. Williams, 237 S.C. 252, 257, 116 S.E.2d 858, 860 (1960) (stating a formal declaration of arrest is not necessary to effectuate an arrest).

¶10As for the jury charge, there was no definition or consideration of the statutory term “arrest.” The only relevant term defined for the jury was “resist.”2 The trial court charged the jury: “Even peaceful nonviolent indirect obstruction of an arrest ... is considered resisting arrest. If the means used are sufficient to prevent the officer from making an arrest, the defendant is guilty of resisting arrest.” There was no excep*522tion to the charge. When viewing the particular facts of this case juxtaposed to the unchallenged jury instruction, there is certainly evidence that Brannon’s fleeing and disobeying the officers’ commands to stop amounted to resisting an arrest.

¶11I would, therefore, adhere to general principles of issue preservation and the law of the case doctrine to affirm the denial of the motion for directed verdict.

¶12If this Court were free to refine and recast Brannon’s arguments in the trial court and on appeal, I would still lean to affirm. As I will explain below, the essence of my position is that: (1) per South Carolina Supreme Court precedent, the term “arrest” in section 16-9-320 encompasses a process, not a single act; (2) under the common law, the process of an arrest does not necessarily require the application of actual force or manual touching of the body; and (3) under the particular facts and circumstances of this case, a reasonably prudent law enforcement officer had probable cause to arrest Brannon for the felony of breaking in a motor vehicle at the time of the initial encounter.

¶13In light of the particular facts presented, I would construe the intent of the South Carolina General Assembly to include Brannon’s conduct as resisting arrest under section 16-9-320(A), which states, “[i]t is unlawful for a person knowingly and wilfully ... to resist an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not.”

¶14The term “arrest” is not defined in section 16-9-320. I would begin an assessment of statutory construction of section 16-9-320 with South Carolina case law. In State v. Dowd, 306 S.C. 268, 269-70, 411 S.E.2d 428, 429 (1991) the supreme court held an arrest is an ongoing process and .affirmed Dowd’s conviction of resisting arrest by blocking the jail cell door with his arm and leg when officers attempted to place Dowd in his cell. In Dotad, our supreme court cited with approval the North Carolina case of State v. Leak, which holds that an “arrest also includes ‘bringing the person personally within the custody and control of the law.’ ” State v. Leak, 11 N.C.App. 344, 181 S.E.2d 224, 226 (1971) (quoting Hadley v. Tinnin, 170 N.C. 84, 86 S.E. 1017, 1019 (1915)).

¶15*523The novel question before us is identifying the initiation of the arrest process. I read our supreme court’s decision in State v. Williams, 237 S.C. 252, 116 S.E.2d 858 (1960) as recognizing that the concept of arrest is not a rigid and inflexible concept. The particular facts of each case are determinative.

¶16The court in State v. Williams held that “ ‘[t]o constitute an arrest, there must be an actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained.’ ” 237 S.C. at 257, 116 S.E.2d at 860 (quoting Jenkins v. United States, 161 F.2d 99, 101 (10th Cir.1947)). The supreme court provided further guidance:

It is not necessary “that there be an application of actual force, or manual touching of the body, or physical restraint which may be visible to the eye, or a formal declaration of arrest; it is sufficient if the person arrested understands that he is in the power of the one arresting and submits in consequence. However, in all eases in which there is no manual touching or seizure or any resistance, the intentions of the parties to the transaction are very important; there must have been intent on the part of one of them to arrest the other, and intent on the part of such other to submit, under the belief and impression that submission was necessary. There can be no arrest where the person sought to be arrested is not conscious of any restraint of his liberty.”

¶17State v. Williams, 237 S.C. at 257, 116 S.E.2d at 860-61 (quoting 4 Am.Jur. Amst § 2 (Supp.1960)).

¶18State v. Williams analyzed the term “arrest” through a common law framework and that common law understanding of the term is entitled to weight. We are a common law state. “Resisting arrest is one form of the common law offense of obstructing justice; and the use of force is not an essential ingredient of it.” City of Columbia v. Bouie, 239 S.C. 570, 574, 124 S.E.2d 332, 333 (1962), revd on other grounds, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). In the absence of an express statutory definition, it is entirely reasonable for a South Carolina court to consider the common law meaning of the term “arrest” in discerning the legislative intent underlying section 16-9-320.

¶19*524The posture of State v. Williams was an appeal from the denial of a directed verdict. The court held that, under the facts presented, it could not rule on the matter of arrest “as a matter of law.” 237 S.C. at 257, 116 S.E.2d at 860. I would similarly decline to find error in this case in the trial court’s refusal to direct a verdict. The above guideposts from State v. Williams—an arrest entails an actual or constructive seizure or detention of the person and does not always require application of force or manual touching, or a formal declaration of arrest — lead me to reject a rigid definition of arrest. As the majority observes, “Brannon had neither been physically touched for the purpose of restraint nor had he submitted to a show of authority at the time of his flight.” These factors highlighted by the majority do not in my judgment remove the issue from one of fact (properly resolved by the jury) to one of law.

¶20I acknowledge that a closer question is presented as to the intentions of the police officers, for State v. Williams instructs that in the absence of manual touching, “the intentions of the parties to the transaction are very important.” 237 S.C. at 257, 116 S.E.2d at 860. Much is made of Officer Scruggs’ testimony that he initially wanted to merely detain Brannon. Yet I believe the evidence, when viewed in a light most favorable to the State, permits an inference that Brannon was under “arrest.” See Id.(“To constitute an arrest, there must be an actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained.”).

¶21The officers’ testimony reveals the following: based on the information received from the 911 dispatcher coupled with their observations of Brannon next to the Ford Explorer (with its door opened and inside light on), a reasonably prudent police officer would have cause to believe that Brannon was committing the felony of breaking into a motor vehicle. In fact, Officer Scruggs so stated when he was questioned about his belief upon his first sighting of Brannon:

Q: Did you believe [Brannon] was the individual that was breaking into cars? '

A: Yes, sir.

¶22*525Moreover, when cross-examined about the timing of the custodial arrest, Officer Scruggs stated that Brannon was placed under arrest “after we caught him.” The testimony of Officer Quinn is similar, for he described the chase, observing that “Brannon ran this path here and the 1100 building is here and he was arrested right here.” Officer Quinn was additionally asked, “what was your intention when the subject took off?” He responded, “Our intention was to approach the subject and find out exactly what he was doing there and at that time. We believe [sic] he was breaking into a motor vehicle and we placed him under arrest for that charge.” Taking the officers’ testimony as a whole, and construing it in a light most favorable to the State, I would find there was sufficient evidence of intent to arrest Brannon.3

¶23It is the presence of probable cause to arrest for breaking in a motor vehicle (a class F felony) at the time of the initial encounter which lies at the core of my view that the process of arrest was underway when the officers caught Brannon in the act. Concerning probable cause, we are guided by Fourth Amendment jurisprudence. In this regard, an officer’s “[subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The proper inquiry is an objective one, based on what would a reasonable police officer believe under the same circumstances. Id. at 810-13. In this case, a reasonably prudent officer would have probable cause to arrest Brannon at the initial encounter. Brannon’s location and conduct exactly matched the witness’s description, as Brannon was standing next to the Ford Explorer with an open door in the otherwise deserted parking lot late at night.

¶24The question of intent from Brannon’s perspective is clear. Brannon was breaking into vehicles in an apartment complex in the middle of the night. When he was surprised by the two uniformed police officers, he ran and tried to avoid arrest. Any reasonably prudent person in Brannon’s position would *526not have the slightest doubt that the pursuing officers intended to place him in custody. See 5 Am.Jur.2d Arrest § 4 (2007) (“Police detention constitutes an ‘arrest’ if a reasonable person in the suspect’s position would understand the situation to be a restraint on freedom of the kind that the law typically associates with a formal arrest.”). Without a doubt, Brannon was “conscious of [the] restraint of his liberty.” State v. Williams, 237 S.C. at 257, 116 S.E.2d at 861.

¶25An arrest is defined as depriving a “person of his liberty by legal authority.” Black’s Law Dictionary 109 (6th ed.1990). The definition continues to explain, “[a]ll that is required for an ‘arrest’ is some act by officer indicating his intention to detain or take person into custody and thereby subject that person to the actual control and will of the officer.” Id. at 110. This comprehensive definition lines up with other authorities addressing the breadth and scope of the concept of arrest. See 6A CJS Arrest § 1 (2004) (“An arrest is the taking, seizing, or detaining the person of another by any act which indicates an intention to take him or her into custody and subject the person arrested to the actual control and will of the person making the arrest.”).

¶26I will respond briefly to other South Carolina cases cited by the majority. As an initial observation, neither the facts nor law of these cases warrants reversal of Brannon’s conviction and sentence. The focus of Bouie was whether the defendant resisted arrest by a “momentary delay in responding to the officer’s command.” 239 S.C. at 574, 124 S.E.2d at 333. Bouie says nothing about the meaning of the term “arrest.” Id. In Fernandez v. State, 306 S.C. 264, 265, 411 S.E.2d 426, 427 (1991), Fernandez was simply standing among a group of people. There was no reason to believe that Fernandez was engaged in any criminal activity. Id.Yet Fernandez ran as police officers approached, prompting the officers to pursue. Id.During the pursuit Fernandez discarded drugs. Id.The legal issue in Fernandez was determining at what point the defendant had been “seized” under the Fourth Amendment for purposes of ruling on his motion to suppress. Id.The meaning of the term “arrest” in section 16-9-320 played no role in Fernandez. Id.

¶27*527I view the matter of legislative intent of the statutory term “arrest” under section 16-9-320 as a different proposition from the purely constitutional question of what constitutes a “seizure” under the Fourth Amendment. The concepts may often overlap, but I do not believe that an arrest under section 16-9-320 must be construed in exact parity with a Fourth Amendment seizure.

¶28A Fourth Amendment seizure is always an act, never a process. See California v. Hodari, 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding the subject was only seized when he was tackled by an officer); Brower v. County of Inyo, 489 U.S. 593, 596-99, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (stating a roadblock was a seizure as a seizure occurs “only when there is a governmental termination of freedom of movement through means intentionally applied”) (emphasis in original); Thompson v. Whitman, 18 Wall. 457, 85 U.S. 457, 471, 21 L.Ed. 897 (1873) (stating that, in a vessel seizure case, “[a] seizure is a single act, and not a continuous fact”); Black’s Law Dictionary 1363 (7th ed.1999) (defining seizure as “[t]he act of an instance of taking possession of a person or property by legal right or process”). Conversely, as State v. Dowd instructs, the term “arrest” in section 16-9-320 contemplates a process. 306 S.C. at 270, 411 S.E.2d at 429.

¶29Moreover, even a limited Terry v. Ohio4 detention based on articulable suspicion constitutes a seizure under the Fourth Amendment. See Brendlin v. California, 551 U.S. —, 127 S.Ct. 2400, 2405, 168 L.Ed.2d 132 (2007) (holding that “[a] person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, “ ‘by means of physical force or show of authority,’ ” terminates or restrains his freedom of movement”) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968))). Yet we all acknowledge that an individual fleeing from an attempted Terry v. Ohio detention would not constitute resisting arrest under section 16-9-320, for the element of arrest would be lacking. That scenario presents a Fourth Amendment seizure but not *528an arrest under section 16-9-320. I therefore conclude that it is inappropriate to equate a Fourth Amendment seizure with the term “arrest” in section 16-9-320.

¶30The majority has done a laudable effort in citing to statutes and case law from other jurisdictions. I see no reason to rely so heavily on the law of other jurisdictions. I believe our jurisprudence is sufficient to resolve this appeal. And if my reliance on South Carolina law, with its common law antecedents, for discerning the meaning of the statutory term “arrest” is misplaced, I believe our supreme court should resolve the matter and its concomitant policy implications.

¶31I add one final observation that I believe supports my assessment of legislative intent of the term “arrest” in section 16-9-320. The Legislature created two separate offenses for resisting arrest. Brannon was convicted of violating subsection (A) of section 16-9-320, which makes it a one-year misdemeanor to merely resist arrest. The Legislature further enacted subsection (B) of section 16-9-320, which makes it a ten-year felony to assault an officer while resisting an arrest. Subsection (B) states:

It is unlawful for a person to knowingly and wilfully ... assault, beat, or wound an officer when the person is resisting an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not. A person who violates the provisions of this subsection is guilty of a felony and, upon conviction, must be fined not less than one thousand dollars nor more than ten thousand dollars or imprisoned not more than ten years, or both.

¶32Subsection (B) provides an enhanced penalty when a defendant assaults, beats, or wounds the arresting officer. It is in subsection (B) where we find the physicality component which is a feature of the majority opinion. Construing resisting arrest under the subsection (A) misdemeanor offense in line with the broad common law understanding of the term is a reasonable construction, and one that comports with the marked distinction given the separate offenses by the Legislature.

¶33The majority’s bright line approach of an actual, hands-on seizure would most assuredly facilitate application of section *52916-9-820. Yet I believe such a formulaic approach would result in artificial distinctions not intended by the Legislature. Say, for example, a police officer has probable cause to arrest an individual and the suspect is aware of the officer’s intent to arrest him. In one scenario, the officer approaches the suspect but the suspect flees as the officer’s attempt to grab the suspect comes up inches short. In a second scenario, the same facts are present except the officer has a momentary grasp of the suspect before the suspect flees. Did the Legislature intend for the resisting arrest statute to apply in the second scenario but not the first? I think not. Moreover, a consideration of the facts of each case, as I propose, gives meaning to the holding in State v. Williams that an arrest may occur without the application of actual force or manual touching of the body. 237 S.C. at 257, 116 S.E.2d at 860.

¶34In sum, I vote to affirm and adhere to my view that the reasoning of the majority opinion includes arguments never advanced by Brannon at trial or in his brief. I would affirm on issue preservation principles and the law of the case doctrine. I do address the substance of the majority opinion, albeit with reservation because of the policy implications involved. In voting to affirm the denial of the directed verdict motion, I would apply our resisting arrest statute to a fleeing suspect only in very narrow circumstances. As emphasized above, under the particular facts of this case, when objectively viewed, it is the presence of probable cause to believe that Brannon was committing a felony that gives rise to the application of the misdemeanor offense of resisting arrest under subsection (A) of 16-9-320. I would hold that a person violates section 16-9-320(A) irrespective of the lack of physical contact: (1) when a law enforcement officer, from an objective standpoint, has probable cause to believe a person has committed a crime; and (2) the law enforcement officer through words or actions makes known his intent to arrest or otherwise detain the person; and (3) the person, from an objective standpoint, recognizes the presence of a law enforcement officer and understands the intent of the officer to arrest him; and (4) the person attempts to avoid the arrest by impeding, hindering, or obstructing the law enforcement officer, by means of fleeing from the officer or other method of resisting or opposing the arrest. This initial offense would terminate *530upon the full custodial arrest of the suspect or the suspension of the pursuit by the law enforcement officer.

¶35Viewing the evidence and the reasonable inferences in a light most favorable to the State, I would find a jury question was presented as to the charge of resisting arrest under section 16-9-320(A). I would affirm the denial of the directed verdict motion.