State v. Moore

¶1dissenting.

¶2I would affirm the trial court’s decision denying Moore’s motion to suppress because there is evidence in the record to support the trial court’s factual findings, and its legal conclusions are not clearly erroneous. See State v. Tindall, 388 S.C. 518, 523 n. 5, 698 S.E.2d 203, 206 n. 5 (2010) (summarizing our standard of review — “we must ask first, whether the record supports the trial court’s assumed findings ... and second, whether these facts support a finding that the officer had reasonable suspicion of a serious crime”). As explained by the majority, trial courts employ a “totality of the circumstances analysis” and “must give due weight to common sense judgments reached by officers in light of their experience and training.” State v. Taylor, 401 S.C. 104, 112-13, 736 S.E.2d 663, 667 (2013). In this case, the trial court did just that in concluding the officer’s observations and the circumstances under which he assessed the situation gave rise to a reasonable suspicion that Moore was engaged in serious criminal activity.

¶3The majority’s opinion lists numerous observations the officer made that led him to be suspicious of Moore. I agree many of the facts the officer observed are insignificant, and I share the majority’s frustration over the officer’s attempt to make innocent circumstances appear suspicious. In this case, however, the trial court made specific factual findings regarding observations it found to be significant, focusing on two key facts — the “large sum of wadded money in [Moore’s] pocket” and Moore’s explanation that he was driving to his grandmother’s house at 1:00 a.m. Our standard of review forbids us to disagree with these findings if there is any evidence to support them. See 401 S.C. at 108, 736 S.E.2d at 665 (“A trial court’s Fourth Amendment suppression ruling must be affirmed if supported by any evidence.”).

¶4The majoritys decision expressly disregards this standard of review as to these key facts. First, the majority improperly reassesses the significance the officer placed on the money found in Moore’s pocket. During the suppression hearing, the officer testified,

I felt what I perceived as a large sum of wadded money in his pocket, and I left it there, and then Deputy or Corporal *646Hancock proceeded in checking his pockets, then he pulled out the wad of money, and then put[ ] it back in his pocket.

¶5When asked how much money he thought Moore had, the officer replied, “Well, it’s more ... folded money than I carry. I would ... [say] it was at least ... bordering a thousand dollars.” The officer also testified that Moore told him he was unemployed. When asked about the apparently large amount of money in the possession of an unemployed suspect, the officer replied, “That would be cause for alarm.”

¶6The trial court found that “someone unemployed ... [and] carrying such a large amount of cash in their pocket ... would obviously give an officer reasonable suspicions.” Despite the officer’s testimony to support the trial court’s finding, the majority disagrees. The majority states, “As to Moore’s wad of money, [the officer] had no way of determining the total amount of cash in Moore’s pocket, and it could have consisted of one dollar bills or one hundred dollar bills. Thus, this fact does not reasonably contribute to his reasonable suspicion.”2 In State v. Wallace, 392 S.C. 47, 52, 707 S.E.2d 451, 453 (Ct.App.2011), this court stated “the application of the law to a specific set of facts in an individual case can be unsettling.” By that, we meant it can be difficult to determine “whether [the trial court’s factual findings] support a [legal conclusion] that the officer had reasonable suspicion of a serious crime”— the second step in the analysis set out in Tindall. See 388 S.C. at 523 n. 5, 698 S.E.2d at 206 n. 5. In the first step of the Tindallanalysis — reviewing the factual findings themselves— we are not permitted to make it difficult. Rather, we are constrained to determine whether there is any evidence to support the finding. In this instance, the majority simply disagrees with the trial court despite evidence supporting the trial court’s finding. In doing so, the majority has failed to observe our standard of review.

¶7*647Second, the majority disregards our standard of review by minimizing the significance of the trial court’s specific factual finding regarding Moore’s pretextual explanation that he was driving to his grandmother’s house at 1:00 a.m. along a highly improbable route. At the suppression hearing, the State offered in evidence the rental agreement the officer found in Moore’s car, which showed the car had been rented in North Carolina the day before. Moore told the officer he had driven the car to a suburb of Atlanta, and was on his way back to Marion, North Carolina, to visit his grandmother. Based on this evidence, the trial court found:

[T]he rental agreement indicates the rental in North Carolina on the evening, afternoon before the stop was made at one o’clock in the morning. I have my doubts that the car was driven from Morganton to Lawrenceville [Georgia] and back to Marion to visit a grandmother. That’s a long way to go around to visit your grandmother. Morganton and Marion is a much shorter trip than that. So, it appears that he may [have] been less than truthful about the purpose of his trip.

¶8The majority ignores this finding because it claims the officer “did not testify to this particular detail.” However, as part of his testimony regarding observations he made during the traffic stop, which was offered to show why he was suspicious, the officer testified he read the rental agreement and found Moore’s story regarding the purpose of his trip to North Carolina to be dubious, given the hour and his alleged destination. Because the officer’s testimony and the evidence produced at the hearing supports the court’s finding that Moore was “less than truthful about the purpose of his trip,” we are not permitted to simply ignore this finding.

¶9In addition to these two key facts, the trial court relied on other observations made by the officer that support the reasonableness of the officer’s suspicion. In the argument portion of the suppression hearing, the assistant solicitor listed, by my count, eighteen separate facts in support of reasonable suspicion. While some of those facts are almost completely insignificant by themselves, I find the following facts, considered as a whole, to be important to our analysis: (1) Moore turned on his left turn signal, even though he was pulling over to the right side of the road, after the officer activated his blue *648lights; (2) Moore took a long time to pull- over; (3) the officer detected an odor of alcohol; (4) Moore smoked two cigarettes during the stop; (5) Moore continued talking on his cell phone during the stop; (6) the officer described Moore as “overly nervous;” (7) Moore’s pulse was rapid; (8) Moore’s breathing was heavy; (9) Moore tried to pick up his cell phone after he got out of the car; (10) someone other than Moore, who was not in the car, rented the car; (11) Moore was traveling from a city that is a known drug source; and (12) Moore looked down in a “defeated” fashion when asked if there were any illegal items in the car. The trial court clearly indicated it relied on these facts in addition to the two key facts discussed above, stating, “The other factors as noted, I have given those the weight required.” While none of these twelve observations, on their own, could give rise to a reasonable suspicion of criminal activity, when considered together with the two key facts discussed above, they support the trial court’s finding.

¶10We must also consider the officer’s background in law enforcement, which is extensive and includes: (1) being a member of the Highway Patrol with the South Carolina Department of Public Safety for seventeen years; (2) spending twelve of those years with the Aggressive Crime Enforcement Unit — nine of which he served as the first line supervisor for the unit; (3) receiving over a thousand hours in advanced criminal interdiction, which included drug interdiction; (4) being certified as a “master interdictor” through the National Criminal Enforcement Association; and (5) serving as an instructor for the South Carolina Criminal Justice Academy in criminal interdiction. See Wallace, 392 S.C. at 52, 707 S.E.2d at 453 (relying on United States v. Branch, 537 F.3d 328, 336, (4th Cir.2008), for the contention that courts should give weight to the practical experience of officers when determining the reasonableness of an officer’s suspicion). In particular, I find the officer’s experience in the Aggressive Crime Enforcement Unit and his training in drug interdiction important to support the reasonableness of his suspicion. See id.(considering the officer’s education in drugs and drug interdiction in its analysis); State v. Provet, 391 S.C. 494, 506, 706 S.E.2d 513, 519 (Ct.App.2011) (considering, in particular, the officer’s experience with the Aggressive Criminal Enforce*649ment Unit in determining the existence of reasonable suspicion).

¶11Reviewing the record as a whole and considering the totality of the circumstances, the trial court did not err in concluding reasonable suspicion existed. Thus, I would affirm.