State v. Counts , 413 S.C. 153 ( 2015 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Rushan Counts, Petitioner.
Appellate Case No. 2013-000086
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Richland County
Alison Renee Lee, Circuit Court Judge
Opinion No. 27546
Heard September 25, 2014 – Filed July 8, 2015
AFFIRMED AS MODIFIED
Dayne C. Phillips, of Lexington, and Carmen Vaughn
Ganjehsani, of Columbia, for Petitioner.
Attorney General Alan McCrory Wilson, Assistant
Attorney General Mark Reynolds Farthing and Assistant
Attorney General Julie Kate Keeney, all of Columbia, for
Respondent.
JUSTICE BEATTY: Rushan Counts was convicted of possession with
intent to distribute marijuana, third offense. On appeal, Counts contended the
circuit court judge erred in denying his motion to suppress evidence that was found
at his residence after he opened his door in response to police officers knocking on
the door. Counts claimed the use of the "knock and talk" investigative technique at
his home violated his rights under the constitutions of the United States1 and South
Carolina2 as this procedure constituted an unreasonable search and seizure and
violated his state right to privacy. The Court of Appeals summarily affirmed
Counts' conviction and sentence. State v. Counts, Op. No. 2012-UP-585 (S.C. Ct.
App. filed Oct. 31, 2012). This Court granted Counts' petition for a writ of
certiorari to review the decision of the Court of Appeals. We affirm as modified.
I. Factual / Procedural History
Prior to trial, Counts moved to suppress the drugs and weapon recovered
from his home on the ground that law enforcement's search of his home violated
the Fourth Amendment of the United States Constitution and Article I, section 10
of the South Carolina Constitution. In his written motion, Counts claimed the
search was unconstitutional because law enforcement did not have a warrant or
probable cause. Counts maintained that, prior to searching his home, the officers
failed to corroborate the anonymous tip that precipitated the actions of law
1
The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
U.S. Const. amend. IV (emphasis added).
2
Article I, section 10 of the South Carolina Constitution provides:
The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures and
unreasonable invasions of privacy shall not be violated, and no
warrants shall issue but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, the
person or thing to be seized, and the information to be obtained.
S.C. Const. art. I, § 10 (emphasis added).
enforcement. Additionally, Counts asserted the plain view doctrine did not apply
as law enforcement's initial intrusion into his home was not lawful.
During the pre-trial suppression hearing, Investigator Damon Robinson of
the Richland County Sheriff's Department testified that in June 2007 he received
an anonymous tip alleging Counts was selling marijuana and crack cocaine out of
his mother's house and an apartment in Allen Benedict Court in Columbia. The
anonymous tipster provided Counts' name and aliases, the location of Counts'
alleged drug deals, Counts' girlfriend's name, a vehicle license plate number for a
white Chevy Malibu, the make and model of the car used by Counts' girlfriend, and
Counts' phone number. Based on this information, Richland County deputies
conducted surveillance on the home of Counts' mother and attempted two
controlled drug buys from the apartment in Allen Benedict Court. The controlled
buys were unsuccessful.
On April 2, 2008, Lieutenant Dave Navarro of the Richland County Sheriff's
Department received a complaint from an anonymous tipster claiming Counts was
selling drugs out of his residence. Lieutenant Navarro testified that the tipster
provided Counts' name and phone number, the name and phone number of Counts'
girlfriend, and identified Counts' vehicle. The tipster also informed Lieutenant
Navarro that Counts used multiple identities because Counts knew someone at the
Department of Motor Vehicles through whom he procured at least two false forms
of identification. The tipster further stated Counts was selling drugs at a specific
address and at his girlfriend's apartment in Allen Benedict Court. The tipster also
claimed Counts' father was aware of the drug dealing and would cover for him.
The tipster warned Lieutenant Navarro that Counts carried guns everywhere he
went.
Lieutenant Navarro discussed this information with Investigator Robinson,
who confirmed there were two similar tips about Counts. Lieutenant Navarro then
attempted to corroborate the information provided to him from the tipster by
reviewing Counts' "rap sheet," which revealed two prior charges of distribution and
several other drug charges. He also confirmed that Counts had two identification
cards on record. Based on this information, Lieutenant Navarro and other
members of the Richland County Drug Suppression Team conducted surveillance
of Counts' residence. Once they identified Counts driving into and entering the
residence, Lieutenant Navarro decided to conduct a "knock and talk." According
to Lieutenant Navarro, a "knock and talk" is a common investigative technique
used by the sheriff's department during which officers approach a residence and
explain an allegation to someone who has been accused of wrongdoing.
Lieutenant Navarro, who was accompanied by Deputy Brian Elliott,
knocked on Counts' door. When Counts asked the officers to identify themselves,
Deputy Elliott responded that they were with the Richland County Sheriff's
Department. Upon Counts' request, Deputy Elliott displayed his badge through the
peephole in the door. Counts then opened the door. Both officers testified they
immediately smelled "the strong odor of marijuana." Deputy Elliott testified that
from outside the doorway he saw a "rolled blunt" on the coffee table in the living
room. Deputy Elliott immediately said, "600," indicating to Lieutenant Navarro
that drugs were present. Both officers described Counts' posture as "bladed,"
which suggested that Counts had a gun. Lieutenant Navarro then observed a silver
automatic gun in Counts' hand, to which he responded "59, 59," meaning Counts
was armed. Once the officers drew their guns and approached Counts, Counts
dropped his gun and was immediately detained by the officers.
Both officers testified they performed a protective sweep of the residence
during which they discovered in plain view a bag of marijuana and a scale in the
kitchen. A search of Counts' person revealed another bag of marijuana. Once the
house was cleared, the officers contacted Investigator Robinson, who obtained a
search warrant for Counts' residence the same afternoon. The search revealed
approximately 800 grams of marijuana, $3,637 in cash, two cell phones, a digital
scale, two false identification cards with Counts' picture, and three pieces of mail
addressed to Counts.
After hearing arguments, the trial judge denied the motion to suppress. In
prefacing her ruling, the judge made the following findings of fact: (1) on April 2,
2008 the officers received an anonymous tip, which indicated that Counts was
selling narcotics and identified Counts' name, vehicle, phone number, and his
girlfriend's name; (2) the sheriff department's investigation revealed that Counts
drove multiple vehicles, was known to carry weapons, and used multiple aliases;
(3) during the course of surveillance of Counts' residence, the officers did not
witness Counts engaging in activity to suggest that he was selling drugs; (4) after
the officers observed Counts enter the residence, they approached, knocked on the
door, and identified themselves as law enforcement officers; (5) when Counts
opened the door both officers detected a "strong odor of marijuana emanating from
inside" the residence; (6) the officers described Counts as standing at the door with
his "body bladed" in an attempt to conceal a weapon; and (7) the officers observed
Counts with a gun and, in turn, drew their guns and ordered Counts to drop the
gun. The judge, however, questioned whether the officers saw the "blunt" on the
living room table before they entered the residence as the written incident report
indicated that Deputy Elliott did not see the "blunt" until after Counts was
detained.
Although the trial judge found the officers did not have probable cause at the
time they went to Counts' residence to either arrest Counts or search his residence,
the judge ruled that law enforcement did not "need a warrant to do what any
private citizen may legitimately do, approach a home to speak to the inhabitants."
Additionally, the judge found that Counts could have refused to answer his door,
stated that he did not wish to speak with law enforcement, or ordered the officers
to leave his residence. The judge ultimately found that once Counts opened the
door and the officers saw him with a gun an exigent circumstance was presented as
there was a risk of danger to the officers. The judge also noted the officers were
aware that Counts was a convicted felon who was known to have guns. Based on
this sequence of events, the judge ruled the officers had probable cause to detain
Counts and then conduct the protective sweep. Finally, the judge found that once
the officers observed drugs in plain view they took the necessary steps to procure
the search warrant. Thus, the judge declined to suppress the evidence as there was
a "reasonable search" that was "done pursuant to the constitutional protections
afforded by the Fourth Amendment." Ultimately, the jury convicted Counts of
possession with intent to distribute marijuana.
On appeal, the Court of Appeals summarily affirmed in an opinion pursuant
to Rule 220(b) of the South Carolina Appellate Court Rules. State v. Counts, Op.
No. 2012-UP-585 (S.C. Ct. App. filed Oct. 31, 2012). The court found the trial
judge did not abuse her discretion in denying Counts' motion to suppress. Id. In
support of this decision, the court cited state and federal precedent that permits law
enforcement, who are not armed with a warrant, to knock on a person's door and
ask to speak to the occupant of the residence as they do no more than what a
private citizen might do. Id. The Court of Appeals did not rule on Counts'
argument that law enforcement's "knock and talk" violated Article I, section 10 of
the South Carolina Constitution. Id.
In his petition for rehearing, Counts challenged the court's ruling, but also
pointed out that the court failed to address his argument regarding the heightened
privacy protection afforded by the South Carolina Constitution. Following the
denial of his petition for rehearing, this Court granted Counts' petition for a writ of
certiorari to review the decision of the Court of Appeals.
II. Standard of Review
"On appeal from a motion to suppress on Fourth Amendment grounds, this
Court applies a deferential standard of review and will reverse only if there is clear
error." Robinson v. State, 407 S.C. 169, 180-81, 754 S.E.2d 862, 868 (2014), cert.
denied, 134 S. Ct. 2888 (2014); see State v. Tindall, 388 S.C. 518, 520, 698 S.E.2d
203, 205 (2010) (recognizing that in criminal cases an appellate court sits to review
errors of law only and are, therefore, bound by the trial court's findings unless
clearly erroneous).
III. Discussion
A. Arguments
Counts asserts the Court of Appeals erred in affirming the trial judge's denial
of his motion to suppress because law enforcement used the "knock and talk"
technique to avoid the warrant requirement. Counts maintains that law
enforcement violated his constitutional rights against unreasonable searches and
seizures and unreasonable invasions of privacy.
Counts acknowledges that the "knock and talk" technique is not per se
violative of the Fourth Amendment or the parallel provision in the South Carolina
Constitution. However, he claims it can become so when officers, who do not
have reasonable suspicion or probable cause, use the technique to circumvent the
warrant requirement. In support of this claim, Counts cites United States v.
Johnson, 170 F.3d 708 (7th Cir. 1999)3 as providing the "proper analysis" to assess
3
In Johnson, law enforcement received a citizen report that drug activity was
taking place in an apartment complex. Johnson, 170 F.3d at 711. Based on this
report, plain clothes officers went to the complex and intended to use the "knock
and talk" technique on certain apartments. Id. As they prepared to knock on one
apartment door, Johnson emerged at "virtually the same instant." Id. The officers
stopped Johnson and asked whether he had any weapons. Id. at 712. When
Johnson did not respond and refused an order to return to the apartment, the
officers struggled with Johnson. Id. During the struggle, the officers found a gun
and cocaine on Johnson's person. Id. On appeal, the Seventh Circuit Court of
Appeals affirmed the district court's order granting Johnson's motion to suppress.
Although the court referenced the "knock and talk" technique, it found that
"[w]ithout reasonable suspicion, [law enforcement] cannot detain a person just
the constitutionality of the use of the "knock and talk" technique. Pursuant to
Johnson and contrary to the trial judge's ruling, Counts asserts that law
enforcement must have reasonable suspicion before they conduct a "knock and
talk" at a person's residence.
Because Counts was the subject of an ongoing investigation, he believes the
trial judge should have assessed whether the officers had reasonable suspicion, in
light of the totality of the circumstances, to conduct the "knock and talk" at his
residence. Had the judge done so, Counts claims there would have been evidence
to grant his motion to suppress. Specifically, Counts posits six reasons to show the
officers lacked reasonable suspicion: (1) the information given by the anonymous
tipster was uncorroborated and unreliable; (2) the officers conducted the "knock
and talk" with the hope of finding an exigent circumstance that would allow them
to circumvent the warrant requirement; (3) the officers' actions "illustrate that they
were doing more than a simple 'meet and greet' or investigation" of a complaint as
they conducted surveillance with the assistance of other members of the Drug
Suppression Team; (4) the Drug Suppression Team did not attempt a controlled
buy from Counts or at his residence; (5) law enforcement created the exigent
circumstance; and (6) the judge noted the inconsistency between Deputy Elliott's
testimony that he saw a "blunt" from the doorway yet documented a different
sequence of events in the incident report.
Alternatively, Counts claims the Court of Appeals erred in failing to analyze
whether the heightened protection against unreasonable invasions of privacy
because that individual walks out of an apartment . . . even if some unspecified
individual . . . thinks something fishy is sometimes going on there." Id. at 720.
For several reasons, we find Counts' reliance on Johnson is misplaced. Initially,
as will be discussed, the Seventh Circuit's decision represents a minority position
with respect to the propriety of the "knock and talk" technique under the Fourth
Amendment. More importantly, Counts misinterprets the court's ruling. A close
reading of the case reveals that the court did not rule that law enforcement must
have reasonable suspicion before using the "knock and talk" technique. Rather, the
Court applied the reasonable suspicion analysis established in Terry v. Ohio, 392
U.S. 1 (1968), to law enforcement's detention of the suspect who left the residence
prior to law enforcement conducting the "knock and talk." Finally, the court in
Johnson did not address any argument regarding the defendant's right to privacy.
As a result, Johnson cannot serve as the basis for our analysis regarding Counts'
right to privacy under the South Carolina Constitution.
afforded by Article I, section 10 of the South Carolina Constitution warranted
suppression of the drug evidence. Counts explains that there is a distinction
between a "knock and talk" where an officer has reasonable suspicion and when an
officer lacks reasonable suspicion prior to approaching a residence. By
implication, Counts asserts that a "knock and talk" that lacks reasonable suspicion,
as in the instant case, is unconstitutional.
B. "Unreasonable Searches and Seizures"
a. Fourth Amendment
The Fourth Amendment to the United States Constitution protects a person's
right to be free from unreasonable searches and seizures. U.S. Const. amend. IV.
"Generally, the Fourth Amendment requires the police to have a warrant in order to
conduct a search." Robinson v. State, 407 S.C. 169, 185, 754 S.E.2d 862, 870
(2014), cert. denied, 134 S. Ct. 2888 (2014). "Evidence seized in violation of the
warrant requirement must be excluded from trial." Id.
"However, a warrantless search may nonetheless be proper under the Fourth
Amendment if it falls within one of the well-established exceptions to the warrant
requirement." Id.; see State v. Brown, 401 S.C. 82, 89, 736 S.E.2d 263, 266 (2012)
(recognizing the following exceptions to the warrant requirement: (1) search
incident to a lawful arrest, (2) hot pursuit, (3) stop and frisk, (4) automobile
exception, (5) the plain view doctrine, (6) consent, and (7) abandonment). "The
exigent circumstances doctrine provides an exception to the Fourth Amendment[']s
protection against warrantless searches, but only where, from an objective
standard, a compelling need for official action and no time to secure a warrant
exists." State v. Abdullah, 357 S.C. 344, 351, 592 S.E.2d 344, 348 (Ct. App.
2004); see State v. Brown, 289 S.C. 581, 587, 347 S.E.2d 882, 886 (1986)
(acknowledging the exigent circumstances doctrine as an exception to the warrant
requirement). "For instance, a warrantless search is justified under the exigent
circumstances doctrine to prevent a suspect from fleeing or where there is a risk of
danger to police or others inside or outside a dwelling." Abdullah, 357 S.C. at 351,
592 S.E.2d at 348 (citing Minnesota v. Olson, 495 U.S. 91, 100 (1990)). "In such
circumstances, a protective sweep of the premises may be permitted." Id. (citing
Maryland v. Buie, 494 U.S. 325, 337 (1990)). "A 'protective sweep' is a quick and
limited search of the premises, incident to an arrest and conducted to protect the
safety of police officers or others." Maryland v. Buie, 494 U.S. 325, 327 (1990).
"In parallel with the protection of the Fourth Amendment, the South
Carolina Constitution also provides a safeguard against unlawful searches and
seizures." State v. Forrester, 343 S.C. 637, 643, 541 S.E.2d 837, 840 (2001); S.C.
Const. art. I, § 10. "The relationship between the two constitutions is significant
because '[s]tate courts may afford more expansive rights under state constitutional
provisions than the rights which are conferred by the Federal Constitution."
Forrester, 343 S.C. at 643, 541 S.E.2d at 840 (quoting State v. Easler, 327 S.C.
121, 131 n.13, 489 S.E.2d 617, 625 n.13 (1997)). "Therefore, state courts can
develop state law to provide their citizens with a second layer of constitutional
rights." Id. "This relationship is often described as a recognition that the federal
Constitution sets the floor for individual rights while the state constitution
establishes the ceiling." Id. "Thus, this Court can interpret the state protection
against unreasonable searches and seizures in such a way as to provide greater
protection than the federal Constitution." Id. at 644, 541 S.E.2d at 840.
b. "Knock and Talk" Technique
In the context of Fourth Amendment analysis, scholars have explained:
One police tactic that courts have increasingly subjected to
reasonableness review is the procedure known as "knock and talk."
The "knock and talk" procedure is a common and seemingly
innocuous procedure that police use proactively, making the
procedure vulnerable to potential abuse. The "knock and talk"
appears innocuous because courts do not generally consider its use a
search and seizure, but rather an investigative tactic. The potential for
abuse arises when police attempt to gain access for consensual
searches and instead provoke exigencies that normally validate a
warrantless search.
Bryan Abramoske, Note, It Doesn't Matter What They Intended: The Need for
Objective Permissibility Review of Police-Created Exigencies in "Knock and Talk"
Investigations, 41 Suffolk U. L. Rev. 561, 562 (2008) (footnotes omitted).
Despite the potential for abuse and the heightened expectation of privacy in
one's home, the United States Supreme Court has recently reaffirmed the "knock
and talk" technique as constitutionally permissible. See Florida v. Jardines, 133 S.
Ct. 1409, 1415-16 (2013) ("We have accordingly recognized that 'the knocker on
the front door is treated as an invitation or license to attempt an entry, justifying
ingress to the home by solicitors, hawkers and peddlers of all kinds. . . . Thus, a
police officer not armed with a warrant may approach a home and knock, precisely
because that is 'no more than any private citizen might do.' " (citations omitted)).
Moreover, nearly every federal circuit, including the Fourth Circuit Court of
Appeals, has recognized the constitutional propriety of the "knock and talk"
technique. See United States v. Cephas, 254 F.3d 488, 493 (4th Cir. 2001) ("A
voluntary response to an officer's knock at the front door of a dwelling does not
generally implicate the Fourth Amendment, and thus an officer generally does not
need probable cause or reasonable suspicion to justify knocking on the door and
then making verbal inquiry."). See generally Fern L. Kletter, Annotation,
Construction and Application of Rule Permitting Knock and Talk Visits Under
Fourth Amendment and State Constitutions, 15 A.L.R. 6th 515, 515 (2006 & Supp.
2015) ("Although the ['knock and talk'] procedure is not per se violative of the
Fourth Amendment and corresponding state constitutional provisions, police must
conduct themselves in a manner that does not communicate to a reasonable person
that he or she is not free to ignore the police presence, and police must remain in
those areas of the property that are impliedly open to the public.").4
4
See also United States v. Daoust, 916 F.2d 757, 758 (1st Cir. 1990) ("A
policeman may lawfully go to a person's home to interview him. In doing so, he
obviously can go up to the door." (citations omitted)); United States v. Lucas, 462
Fed. Appx. 48, 50 (2d Cir. 2012) (recognizing as constitutionally permissible
officer's use of "knock and talk" in approaching defendant's apartment); In re
Estate of Smith, 318 F.3d 497, 519 (3d Cir. 2003) (noting that "courts generally
recognize a 'knock and talk' exception to the warrant requirement"); United States
v. Jones, 239 F.3d 716, 720 (5th Cir. 2001) ("Federal Courts have recognized the
'knock and talk' strategy as a reasonable investigative tool when officers seek to
gain an occupant's consent to search or when officers reasonably suspect criminal
activity."); United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005)
("Consensual encounters do not lose their propriety, moreover, merely because
they take place at the entrance of a citizen's home. A number of courts, including
this one, have recognized 'knock and talk' consensual encounters as a legitimate
investigative technique at the home of a suspect or an individual with information
about an investigation."); United States v. Jerez, 108 F.3d 684, 691-92 (7th Cir.
1997) (recognizing that a "knock and talk" is ordinarily consensual unless coercive
circumstances exist); United States v. Wells, 648 F.3d 671, 679 (8th Cir. 2011)
("This principle permits police officers—consistent with the Fourth Amendment—
to 'approach[ ] the front door to announce their presence,' make 'inquir[ies],' and
'request consent to search the remainder of the property,' 'commonly referred to as
a 'knock and talk.' " (quoting United States v. Weston, 443 F.3d 661, 667 (8th Cir.
Similar to federal precedent, this Court has found that "police ha[v]e the
investigative authority to approach the front door of [a] home in order to
investigate [the] anonymous tip." State v. Wright, 391 S.C. 436, 445, 706 S.E.2d
324, 328 (2011).
Applying the above-outlined principles to the facts of the instant case, we
find the Court of Appeals correctly affirmed the trial judge's denial of Counts'
motion to suppress because the actions of law enforcement did not constitute an
unreasonable search and seizure under either the state or federal constitution. We
discern no error of law in the judge's analysis and there is evidence to support the
judge's findings of fact that once Counts, a known felon, voluntarily opened the
door, an exigent circumstance arose when the officers saw that he had a weapon.
Significantly, Counts requested that the officers provide identification before he
opened the door. Yet, even after they provided proof of their law enforcement
authority, Counts opened the door armed with a handgun. Because there was a
risk of danger to the officers, the officers were justified under the exigent
circumstances doctrine to detain Counts and conduct a protective sweep of his
residence. A search of Counts' person revealed a bag of marijuana. During the
protective sweep, the officers also observed drugs and a scale in plain view, which
provided them with probable cause to procure a search warrant. Accordingly, we
affirm this portion of the Court of Appeals' decision.
C. "Unreasonable Invasions of Privacy"
Our ruling, however, does not conclude the analysis as the question becomes
whether the officers' actions constituted a violation of Counts' state constitutional
right against unreasonable invasions of privacy.
2006))); United States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000) (holding
that "no suspicion needed to be shown in order to justify the 'knock and talk' ");
United States v. Cruz-Mendez, 467 F.3d 1260, 1264 (10th Cir. 2006) ("As
commonly understood, a 'knock and talk' is a consensual encounter and therefore
does not contravene the Fourth Amendment, even absent reasonable suspicion.");
United States v. Taylor, 458 F.3d 1201, 1204 (11th Cir. 2006) ("The Fourth
Amendment, which prohibits unreasonable searches and seizures by the
government, is not implicated by entry upon private land to knock on a citizen's
door for legitimate police purposes unconnected with a search of the premises.").
a. South Carolina Invasion of Privacy Jurisprudence
As previously stated, the South Carolina Constitution provides citizens an
express right to privacy. S.C. Const. art. I, § 10. But, other than the use of the
word "unreasonable" to modify this right, there are no parameters concerning the
right or a definition of what constitutes "unreasonable invasions of privacy." As a
result, legal scholars interpreting the legislative history of this constitutional
provision have concluded that "the drafters were depending upon the state judiciary
to construct a precise meaning of this phrase." Jaclyn L. McAndrew, Who Has
More Privacy?: State v. Brown and Its Effect on South Carolina Criminal
Defendants, 62 S.C. L. Rev. 671, 694 (2011). As will be discussed, our state
jurisprudence is scant on the right to privacy. Thus, this case presents us with an
opportunity to further define this state constitutional right.
Although several appellate decisions in this state make a passing reference to
the right to privacy,5 our most comprehensive discussion to date is contained in
State v. Forrester, 343 S.C. 637, 541 S.E.2d 837 (2001) and State v. Weaver, 374
S.C. 313, 649 S.E.2d 479 (2007).
In Forrester, the defendant was approached by law enforcement for
questioning after officers observed the defendant exhibiting suspicious behavior at
a local train station. Forrester, 343 S.C. at 640, 541 S.E.2d at 839. According to
the investigating officer, he identified himself to the defendant who agreed to let
him search her luggage. Id. Because the defendant was clutching her purse
tightly, the officer asked to search the purse. Id. The defendant opened the purse
to allow the officer to look inside. Id. at 641, 541 S.E.2d at 839. Without
requesting permission to search the interior of the purse, the officer took the purse
and tore open the lining at which time he found crack cocaine. Id. On appeal from
her conviction, the defendant argued that she did not give consent to the officer to
5
See, e.g., State v. Herring, 387 S.C. 201, 209, 692 S.E.2d 490, 494 (2009)
("Private residences are places in which an individual normally expects privacy
free of governmental intrusion not authorized by a warrant, and that expectation is
one society recognizes as justifiable. Accordingly, searches and seizures inside a
home without a warrant are presumptively unreasonable absent exigent
circumstances."); State v. Houey, 375 S.C. 106, 651 S.E.2d 314 (2007) (finding
that requiring defendant, who was charged with second-degree CSC with a minor,
to submit to testing for sexually transmitted diseases was not overly intrusive or so
unreasonable as to render statutory authority for this test violative of the South
Carolina Constitution).
search her purse and, thus, the crack cocaine was discovered in violation of the
express right to privacy found in Article I, section 10 of the South Carolina
Constitution. Id. at 645, 541 S.E.2d at 841. This Court disagreed, finding our state
constitutional provision did not require informed consent prior to government
searches. Id. at 647-48, 541 S.E.2d at 842-43.
In so ruling, we compared this state's right to privacy with the ten other
states that have express right to privacy provisions in their constitutions. Id. at
646, 541 S.E.2d at 841-42. We noted, "South Carolina and five other states have
their right to privacy provision included in the section prohibiting unreasonable
search and seizures," which in turn "creates a distinct privacy right that applies
both within and outside the search and seizure context." Id. at 644, 541 S.E.2d at
841. Consequently, this Court concluded that "[t]he South Carolina Constitution,
with an express right to privacy provision included in the article prohibiting
unreasonable searches and seizures, favors an interpretation offering a higher level
of privacy protection than the Fourth Amendment." Id. at 645, 541 S.E.2d at 841.
Notwithstanding the broader privacy protection afforded by our state constitutional
provision, this Court ultimately rejected the defendant's argument that suspects
must be informed of their right to refuse consent to search. Id. at 647-48, 541
S.E.2d at 842-43. Specifically, we stated, "while our state constitution may
provide a higher level of protection in the search and seizure context, it does not go
so far as to require informed consent prior to government searches." Id.
Although the Court found that our state constitution did not require the
investigating officer to inform Forrester of her right to refuse giving consent to
search her purse, the Court reversed Forrester's conviction. Id. at 648, 541 S.E.2d
at 843. The Court found that the law enforcement officer "exceeded the scope of
Forrester's consent when he proceeded beyond the visual inspection of the purse
granted by Forrester to an intense physical examination of the purse." Id. As a
result, the Court held that the crack cocaine should have been excluded at trial. Id.
Six years later, this Court again acknowledged the higher level of privacy
protection afforded by our state constitution. In Weaver, the defendant was
convicted of murder and possession of a weapon during the commission of a
violent crime following a shooting at a nightclub. Weaver, 374 S.C. at 317, 649
S.E.2d at 480. The investigation of the shooting led law enforcement to the home
of the defendant's cousin where they discovered the vehicle that had been driven by
the defendant parked in the backyard. Id. at 317, 649 S.E.2d at 481. According to
the defendant's cousin, the defendant had recently been at the home and asked for a
change of clothes, some bleach, and a garbage bag. Id. The defendant then left the
home. Id. Upon finding the vehicle driven by the defendant, the investigating
officer opened the door and discovered the inside of the vehicle was wet and
smelled of bleach. Id. at 318, 649 S.E.2d at 481. The officer also found a "bag of
wash" that smelled like bleach in a nearby area. Id. Based on this evidence, the
officers impounded the vehicle and processed it. Id. The investigating officers
found blood in the vehicle that matched that of the shooting victim. Id. On appeal,
the defendant argued the evidence found in the vehicle should have been
suppressed as it was the product of an impermissible warrantless search. Id.
This Court rejected the defendant's contention, finding the warrantless
search met the automobile exception to the Fourth Amendment. Id. at 319-21, 649
S.E.2d at 482. However, the Court also analyzed whether the search and seizure
violated the defendant's right to privacy pursuant to the South Carolina
Constitution. Id. at 321, 649 S.E.2d at 483. Citing Forrester, the majority noted
the South Carolina Constitution affords a higher level of privacy protection than
the Fourth Amendment. Id. Despite this broad protection, the majority declined to
find the privacy provision required a warrant before the search and seizure of a
vehicle located in the backyard of a private residence. Id. at 322, 649 S.E.2d at
483. The majority explained that "[t]he focus in the state constitution is on
whether the invasion of privacy is reasonable, regardless of the person's
expectation of privacy in the vehicle to be searched. Once the officers have
probable cause to search a vehicle, the state constitution's requirement that the
invasion of one's privacy be reasonable will be met." Id.
Justice Pleicones concurred in the result reached by the majority. However,
he wrote separately, and was joined by Chief Justice Toal, to express his
disagreement with the majority's analysis of the vehicle seizure under the South
Carolina Constitution. Id. at 324, 649 S.E.2d at 484. Justice Pleicones found the
majority's analysis was incomplete as he believed it was necessary to "further
analyze the impact of [the privacy] provision on the second prong of a Fourth
Amendment automobile analysis," which included "the expectation of privacy in a
private automobile." Id. at 325, 649 S.E.2d at 484-85. Under the facts of the case,
Justice Pleicones found no state constitutional violation because the defendant was
not the owner of the vehicle that was seized and the vehicle was not parked at the
defendant's residence. Id. at 326, 649 S.E.2d at 485. Justice Pleicones, however,
emphasized that "[o]ur state constitution's provision protecting unreasonable
invasions of privacy necessarily requires some analysis of the privacy interests
involved when a warrantless seizure is made on private property." Id.
As demonstrated by our decisions in Forrester and Weaver, this Court has
sought to guard our state citizens' constitutional right to privacy but still give
credence to the government's interest in conducting legitimate searches. While
Forrester and Weaver provide some general guidance, these decisions are not
dispositive of the instant case. Therefore, we have looked to other state
jurisdictions to see how those courts address the propriety of the "knock and talk"
technique in the context of a state right to privacy.
b. Other Jurisdictions
Courts in other jurisdictions have assessed what law enforcement procedure
is necessary to protect a citizen's right to privacy. Specifically, the courts have
analyzed whether law enforcement needs to: (1) have probable cause or
reasonable suspicion to approach the private residence; or (2) inform the citizen of
his or her right to refuse consent to search. See, e.g., State v. Brown, 156 S.W.3d
722 (Ark. 2004) (holding, pursuant to state constitutional implicit right to privacy,
officers using the "knock and talk" technique must apprise the homeowner of his
right to refuse to consent to search); State v. Sanders, 374 So. 2d 1186 (La. 1979)
(finding "knock and talk" did not violate right to privacy even though no cause to
arrest existed when resident opened the door); State v. Ferrier, 960 P.2d 927, 934
(Wash. 1998) (concluding "knock and talk" procedure violated state constitutional
right to privacy where law enforcement failed to advise resident that she could
refuse to give consent to search her home; stating, "unlike a search warrant, a
search resulting from a knock and talk need not be supported by probable cause, or
even reasonable suspicion"). See generally Fern L. Kletter, Annotation,
Construction and Application of Rule Permitting Knock and Talk Visits Under
Fourth Amendment and State Constitutions, 15 A.L.R. 6th 515, §§ 33-34 (2006 &
Supp. 2015) (collecting state and federal cases analyzing the use of the "knock and
talk" technique under federal and state constitution).
After reviewing the analyses in other jurisdictions in conjunction with
Forrester and Weaver, we are not persuaded by the decisions of other states that
require an officer to inform a citizen of his or her right to refuse consent to search
as we specifically rejected this requirement in another context. Even though
Forrester involved a search of the contents of the defendant's purse, this Court
used strong language to disavow the need for informed consent prior to
government searches. See Forrester, 343 S.C. at 647-48, 541 S.E.2d at 842-43
("[W]hile our state constitution may provide a higher level of protection in the
search and seizure context, it does not go so far as to require informed consent
prior to government searches."). We decline to depart from this position.
Therefore, we find the lack of an admonition in the instant case did not vitiate
Counts' voluntary consent to search.
However, as the concurrence emphasized in Weaver, "[o]ur state
constitution's provision protecting unreasonable invasions of privacy necessarily
requires some analysis of the privacy interests involved when a warrantless seizure
is made on private property." Weaver, 374 S.C. at 326, 649 S.E.2d at 485
(Pleicones, J., concurring) (emphasis added). Because the privacy interests in one's
home are the most sacrosanct, we believe there must be some threshold evidentiary
basis for law enforcement to approach a private residence. Otherwise, we foresee
the potential for abuse if law enforcement targets a neighborhood and
indiscriminately knocks on doors with the hope of discovering contraband without
a search warrant. Although the State maintains these encounters are entirely
consensual, we cannot ignore the nature of the "knock and talk" procedure. In
contrast to a routine sales call, the "knock and talk" technique is inherently
coercive as it is conducted by law enforcement and not a private citizen.
Yet, rather than enunciating an unyielding rule or eliminating the "knock and
talk" technique in its entirety, we hold that law enforcement must have reasonable
suspicion of illegal activity at a targeted residence prior to approaching the
residence and knocking on the door. As with our previous right-to-privacy
decisions, we find this rule safeguards the express constitutional right against
unreasonable invasions of privacy and does not hamper law enforcement in their
investigative efforts.
Furthermore, we believe this decision does not exceed the bounds of our
judicial authority as conferred by the drafters of the right-to-privacy provision. In
fact, our ruling effectuates the intent of the Legislature to afford heightened
protection against intrusions into a citizen's home. As evidenced by the enactment
of the "Protection of Persons and Property Act," the Legislature has recognized the
sanctity of one's home and sought to ensure a citizen's right to protect it. S.C.
Code Ann. §§ 16-11-410 to -450 (Supp. 2014).6 Our ruling acknowledges this
6
The Act codifies the common law Castle Doctrine and provides immunity from
criminal prosecution and civil action for the use of deadly force in those
circumstances that are permitted by the Act, including the defense of one's home.
See S.C. Code Ann. § 16-11-420(A) (Supp. 2014) (acknowledging that the
Legislature intended "to codify the common law Castle Doctrine[,] which
recognizes that a person's home is his castle and to extend the doctrine to include
an occupied vehicle and the person's place of business"); id. § 16-11-450(A)
legislative pronouncement and gives greater protection to South Carolina citizens
than that of the federal constitution.
D. Application
Applying this rule to the facts of the instant case, we find the trial judge
correctly denied Counts' motion to suppress. Although the judge did not employ
our newly enunciated rule, we nevertheless conclude that her findings of fact
establish that law enforcement had reasonable suspicion of illegal activity prior to
conducting the "knock and talk" at Counts' residence. Notably, law enforcement
received two separate anonymous tips from citizens who alleged that Counts was
selling drugs. These tips also identified vehicles driven by Counts, his phone
number, and his use of multiple identities. Through their investigation, the officers
confirmed that Counts had two false identification cards on record and had prior
drug convictions. In light of this evidence, the officers were not randomly
knocking on Counts' door but had reasonable suspicion to support their decision to
approach Counts' residence and conduct the "knock and talk."
As previously discussed, the officers were justified under the exigent
circumstances doctrine to detain Counts and conduct a protective sweep of his
residence. The drugs and scale found during the search of Counts' person and the
protective sweep of his residence established probable cause for the officers to
procure a search warrant. Accordingly, we affirm Counts' conviction and sentence
as the evidence that formed the basis of the drug charge was properly admitted for
the jury's consideration.
IV. Conclusion
Given the extensive precedent supporting the constitutional propriety of the
"knock and talk" technique, we hold the Court of Appeals correctly affirmed the
judge's finding that there was no unreasonable search and seizure under either the
Fourth Amendment to the United States Constitution or the parallel provision of
the South Carolina Constitution. The Court of Appeals, however, erred in failing
to rule on Counts' argument regarding the heighten privacy protection afforded by
the South Carolina Constitution. For our state constitutional right to privacy to
(providing that "[a] person who uses deadly force as permitted by the provisions of
this article or another applicable provision of law is justified in using deadly force
and is immune from criminal prosecution and civil action for the use of deadly
force . . . .").
have any significance, we believe there must be some minimum evidentiary
standard met before law enforcement conduct a warrantless search of a South
Carolina citizen's home. Therefore, we hold that law enforcement must have
reasonable suspicion of illegal activity before approaching the targeted residence
and conducting the "knock and talk" investigative technique.7
Here, there is evidence that law enforcement officers met this threshold
requirement before conducting the "knock and talk" at Counts' residence.
Moreover, the officers were justified under the exigent circumstances doctrine to
detain Counts and conduct a protective sweep of his residence. The drugs and
7
Although the concurrence agrees with our ultimate conclusion, the concurrence
"would not require law enforcement officers to have a reasonable suspicion of
illegal activity occurring in the home in order to 'knock and talk.'" We should not
lose sight of the fact that "knock and talk" is a criminal investigative technique
used for the sole purpose of discovering criminal activity. In Justice Pleicones'
concurrence in Weaver, he expressly stated that "[o]ur state constitution's provision
protecting unreasonable invasions of privacy necessarily requires some analysis of
the privacy interests involved when a warrantless seizure is made on private
property." Weaver, 374 S.C. at 326, 649 S.E.2d at 485 (emphasis added). We
believe the privacy interests in one's home are precisely what our state
constitutional provision was intended to protect. Further, as supporting precedent,
the concurrence cites Bash. However, the court in Bash did not analyze whether
the "knock and talk" violated our state right to privacy. Rather, the decision
involved a determination of whether law enforcement conduct, which was initiated
with a "knock and talk," violated the Fourth Amendment prohibition against
unreasonable searches and seizures.
Finally, the concurrence's fear that our decision will prevent law enforcement
from conducting "welfare checks" at residences is unfounded. A "welfare check"
is not a criminal investigative technique. As its name implies, a "welfare check" is
conducted by law enforcement based upon concern for a person's welfare not to
inquire about illegal activity at the residence. In the instance of a "welfare check,"
the implicit license to approach a home as referenced in Florida v. Jardines, 133 S.
Ct. 1409 (2013) is applicable. Thus, our decision should not be misconstrued, as
done by the concurrence, to prevent law enforcement from conducting "welfare
checks" at residences. We emphasize that our holding is limited to requiring law
enforcement to have reasonable suspicion of illegal activity before approaching a
targeted residence and conducting the "knock and talk" criminal investigative
technique.
scale found during the search of Counts' person and the protective sweep of his
residence established probable cause for the officers to procure a search warrant.
As a result, we find the evidence that formed the basis of the drug charge was
properly admitted for the jury's consideration. Accordingly, the decision of the
Court of Appeals is
AFFIRMED AS MODIFIED.
HEARN and KITTREDGE, JJ., concur. PLEICONES, J., concurring
in a separate opinion in which TOAL, C.J. concurs.
JUSTICE PLEICONES: I concur in the majority's decision to affirm petitioner's
conviction and sentence, but write separately as I do not believe that the privacy
clause of S.C. Const. art. I, § 10 (2007) altered the common understanding that a
law enforcement officer, like other individuals, has an "implicit license . . . to
approach the home by the front path, knock promptly, wait briefly to be received,
and then (absent invitation to linger longer) leave." Florida v. Jardines, 133 S. Ct.
1409, 1415 (2013). An officer who does not have a warrant "may approach a
home and knock precisely because that is 'no more than any private citizen might
do.'" Id. at 1416 citing Kentucky v. King, 131 S. Ct. 1849, 1862 (2011).
While I appreciate the majority's thorough treatment of the subject, and share their
concern at the potential for coercion when a citizen is confronted by officers on her
porch,8 I would not require law enforcement officers to have a reasonable
suspicion of illegal activity occurring in the home in order to "knock and talk." Cf.
State v. Bash, Op. No. 5314 (S.C. Ct. App. filed April 22, 2015) (analyzing "knock
and talk" under the Fourth Amendment). Most particularly, I would not prevent
law enforcement from conducting welfare checks at residences. However, were
they to conduct the type of neighborhood-wide sweep feared by the majority, I
would find that type of conduct indicative of coercion that could, in certain
circumstances, vitiate the individual's consent to a search of her home.
I concur in the majority's decision to affirm the decision of the Court of Appeals.
TOAL, C.J. concurs.
8
I do not agree, however, that the "Protection of Persons and Property Act"
provides support for the majority's reading of the constitution as the Act
specifically exempts from the presumption of reasonable fear "a law enforcement
officer who enters or attempts to enter a dwelling or residence . . . in the
performance of his official duties . . . ." S.C. Code Ann. § 16-11-440(B)(4) (Supp.
2014); see also § 16-11-450(A) (Supp. 2014) (no immunity for killing of officer).