State v. Spears

THE STATE OF SOUTH CAROLINA
In The Supreme Court

The State, Petitioner,

v.

Eric Terrell Spears, Respondent.

Appellate Case No. 2017-001933

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Richland County
Robert E. Hood, Circuit Court Judge

Opinion No. 27945
Heard January 30, 2019 – Filed February 12, 2020

REVERSED

Attorney General Alan McCrory Wilson, Senior Assistant
Attorney General David A. Spencer, and Interim Solicitor
Heather Savitz Weiss, all of Columbia, for Petitioner.

Appellate Defender LaNelle Cantey DuRant, of
Columbia, for Respondent.

JUSTICE JAMES: Eric Terrell Spears was indicted for trafficking crack cocaine
between ten and twenty-eight grams. Spears moved to suppress the evidence of the
drugs seized from his person on the ground he was seized in violation of the Fourth
Amendment. The trial court denied the motion to suppress, and Spears was
convicted as charged. The trial court sentenced Spears to thirty years in prison. A
divided court of appeals reversed Spears' conviction. State v. Spears, 420 S.C. 363,
802 S.E.2d 803 (Ct. App. 2017). We granted the State's petition for a writ of
certiorari to review the court of appeals' decision. We now reverse the court of
appeals and uphold Spears' conviction. We hold there is evidence in the record to
support the trial court's finding that Spears engaged in a consensual encounter with
law enforcement and that Spears' subsequent actions created a reasonable suspicion
that he may have been armed and dangerous—justifying law enforcement's Terry1
frisk that led to the discovery of the offending crack cocaine in Spears' pants.

I. FACTUAL AND PROCEDURAL HISTORY
Law enforcement officers from Immigration Customs Enforcement (ICE), the
Drug Enforcement Agency (DEA), and the Lexington and Richland County
Sheriffs’ Offices were investigating a tip that two black males (Tyrone Richardson
and Eric Bradley) were transporting drugs into South Carolina via one of the
"Chinese bus lines." These bus lines depart from the Chinatown district in New
York City, dropping off passengers in major cities along the East Coast. Because of
the lack of security measures and required identification, these buses are frequently
exploited by wanted criminals and people trafficking in narcotics and counterfeit
merchandise. There are no traditional bus stations for the "Chinese bus line"; the
buses usually stop at a couple of different locations in Columbia to allow passengers
to disembark.

On March 29, 2012, Agents Dennis Tracy, Briton Lorenzen, and Frank Finch
were dispatched, pursuant to the tip, to conduct surveillance at one of the bus stops.
As the passengers were exiting the bus, most of the passengers were being greeted
by relatives or friends, being picked up by cabs, or talking on the phone (presumably
making arrangements to be picked up). However, the agents observed a man and a
woman with four large suitcases who "stuck out" because "they were paying an
excess amount of attention" to the plain-clothed agents. A few minutes later, the
man and woman began walking down the road away from the agents. The agents
followed, and while walking briskly behind the man and woman to catch up with
them, the agents observed the woman remove an unknown object from her purse and
pass it to the man. When the agents were approximately ten feet from the couple,
they asked the couple to stop and speak with them. The couple complied and
engaged the agents in a conversation. The man was identified as Spears. As they
spoke, Spears kept placing his hands inside his untucked shirt near his waistband.

1
See Terry v. Ohio, 392 U.S. 1 (1968).
Fearing Spears might have a weapon, Agent Tracy repeatedly asked Spears to stop.
Spears persisted in this movement, so Agent Tracy frisked Spears for safety reasons.

During the frisk, Agent Tracy felt a small, hard object about the size of a golf
ball with jagged edges tucked into Spears' waistband. Based on his training and
experience, Agent Tracy believed the object was crack cocaine, and he removed it
from Spears' pants. The object field-tested positive for crack cocaine, and Spears
was arrested. Spears told law enforcement he was paid to bring the crack cocaine
from New York to South Carolina because of the drug's higher street value in South
Carolina. Spears admitted he did so out of "stupidity" and because he needed the
money.

Spears was indicted for trafficking crack cocaine more than ten grams and less
than twenty-eight grams. Prior to trial, Spears moved to suppress the drug evidence.
Spears argued he was seized by the agents in violation of the Fourth Amendment.
Specifically, he contended a seizure occurred because a reasonable person would not
have felt free to walk away from the initial encounter. Spears also contended the
agents did not have a reasonable suspicion to stop him. The State argued the
encounter between the couple and the agents was consensual and the agents therefore
did not need a reasonable suspicion to initiate the stop. The State contended Agent
Tracy properly frisked Spears for safety reasons.

Agent Tracy, a nineteen-year law enforcement veteran with ten years'
experience in narcotics and certified in the field of narcotics interdiction, testified
during the suppression hearing. Agent Tracy testified that on the day of the incident,
he and Agents Lorenzen and Finch were dressed in plain clothes and were observing
passengers disembarking a bus in a parking lot near I-20. Agent Tracy testified he
was carrying a concealed handgun.2 He testified most of the passengers did not
appear suspicious; however, he noted Spears and a woman appeared nervous and
"kept looking at us and talking amongst themselves." Agent Tracy testified as to
why the agents wanted to make contact with the couple:

The reason . . . was to first of all identify them, and second
of all to ascertain if they were involved in any criminal
activity, specifically under our ICE authority it would be
trafficking counterfeit goods. They have four large bags
coming out of a known source area for counterfeit goods,

2
Agents Lorenzen's and Finch's guns were holstered but visible. This fact was
disclosed during trial testimony in front of the jury, not during the suppression
hearing.
 we thought that might be something we wanted to take a
look at.

Agent Tracy conceded the agents wanted to make contact with the couple solely
based on their activity and not based on the original narcotics tip. Agent Tracy
testified Spears and the woman began walking down the street towards the post
office and that the woman appeared to reach into her bag and pass an unknown item
to Spears. Agent Tracy testified that because Spears never lifted his hands above his
waist, the agents believed the object would be in Spears' hands, waistband, or
pockets.

Agent Tracy testified Spears and the woman continued to look back at the
agents as they were walking away and that when the agents got close enough to
Spears and the woman, he requested to speak with the couple. Agent Tracy testified
he said something "nonthreatening" such as, "Excuse us, do you mind if we have a
word with you?" Agent Tracy testified the couple complied. Agent Tracy described
how the agents caught up with the couple: "They're walking, we're walking behind
them, we didn't run. However, [] we [did] walk a little faster than they did to make
contact with them." Agent Tracy testified Spears and the woman were not
handcuffed and would have been free to walk away if they had initially refused to
speak to the agents. Agent Tracy testified:

We identified ourselves, made small talk with them about
their travel itinerary, asked them how the bus ride was, if
they got any bad weather[.] . . . We then asked them if
they had -- or we told them the bus lines, that we had
problems in the past with drugs and wanted subjects and
counterfeit merchandise, and we asked them for ID.

Spears handed the agents his ID. However, the record does not reflect whether the
agents retained his ID or gave it back to him. Agent Tracy testified Spears' answers
about the trip were "very forthcoming"; however, when he asked Spears whether he
had any illegal weapons, Spears hesitated before answering "no." Agent Tracy
testified that based on his training in narcotics interdiction, people traditionally
hesitate when they are confronted with a question they do not want to answer
truthfully.

Agent Tracy testified about Spears' subsequent behavior, which is of
particular importance to the issues on appeal:
 I noted that while I was speaking with [Spears,] he
continued to put his hands underneath his shirt and I guess
the motion would be like puff his shirt away from his
waistband. . . . I asked him to keep his hands where I
could see them . . . because I didn't know what if he was
reaching in his pockets. He did it a couple more times, and
I kept reminding him to cease putting his hands in his
pockets . . . for officer safety regards[.] . . . So he
continued to get frustrated, or he continued to put his
hands in his pockets or pulled his shirt out, and I told him
I was going to conduct a pat down of him so I could be
sure he didn't have any weapons on him or anything that
was going to hurt me.

Agent Tracy testified he frisked Spears for his and the other agents' safety. He
testified it was during the frisk in which he discovered the crack cocaine and a small
amount of marijuana.

Traci Jenkins (referred to as Traci Williams by the court of appeals), the
woman with Spears at the time of the incident, also testified at the suppression
hearing. She testified Spears was her boyfriend at the time of the incident. Jenkins
testified she and Spears were waiting on a ride when they first disembarked the bus
but decided to walk when the ride was taking too long to arrive. Jenkins testified
she and Spears were told by the agents to "stop." She testified the encounter lasted
probably less than twenty minutes and that she did not believe she was free to walk
away. Jenkins testified she was told by the agents to sit down; however, she recalled
that particular instruction was likely given to her after Spears was searched and
handcuffed. She was unsure as to whether the agents' guns were visible. Spears did
not testify at the suppression hearing.

The trial court denied Spears' motion to suppress the crack cocaine. The trial
court found the agents engaged Spears in a consensual encounter and that Agent
Tracy "pointed to specific and articulable facts [that] warranted a search of Spears'
person."

During trial, Agents Tracy, Lorenzen, and Finch testified about their
encounter with Spears. Tara Kinney, a forensic chemist, identified the seized drug
as crack cocaine and determined it had a net weight of 11.43 grams. When the State
moved the drug into evidence, Spears renewed his pretrial objection to its
admissibility. The jury convicted Spears of trafficking crack cocaine, and because
this was Spears' third offense, the trial court imposed a thirty-year sentence pursuant
to section 44-53-375(C)(1)(c) of the South Carolina Code (2018).

Spears appealed, and a divided court of appeals reversed his conviction. State
v. Spears, 420 S.C. 363, 802 S.E.2d 803 (Ct. App. 2017). The majority held Spears
was seized under the Fourth Amendment at the time of the initial encounter because
a reasonable person would not have felt free to walk away from the agents at that
point. Id. at 369-72, 802 S.E.2d at 806-08. The majority found Spears was arguably
seized the moment the agents made initial contact with him, but, at the latest, he was
seized when Agent Tracy asked whether Spears had any weapons or illegal items.
Id. at 371, 802 S.E.2d at 807. The majority recognized the trial court did not rule as
to whether the agents had a reasonable suspicion to stop Spears since the trial court's
ruling was based on the premise that Spears and the agents engaged in a consensual
encounter. Id. at 372 n.3, 802 S.E.2d at 808 n.3. However, in the interest of judicial
economy, finding a remand unnecessary, the majority held the agents did not have a
reasonable suspicion to seize Spears—thereby violating Spears' Fourth Amendment
rights. Id. at 372-76, 802 S.E.2d at 808-10. The majority held the trial court erred
in denying Spears' suppression motion. Id. at 376, 802 S.E.2d at 810.

The dissent at the court of appeals believed the appellate court's deferential
standard of review in Fourth Amendment cases required the court of appeals to
affirm. The dissent noted "a faithful adherence to the 'any evidence' standard of
review will prevent any misconception that we have substituted our own findings in
place of those of the [trial] court." Id. at 377, 802 S.E.2d at 810 (Williams, J.,
dissenting). This Court granted the State's petition for a writ of certiorari to review
the court of appeals' decision.

II. ISSUE
Did the court of appeals err in reversing the trial court's denial of Spears'
motion to suppress?

III. STANDARD OF REVIEW

"On appeals from a motion to suppress based on Fourth Amendment grounds,
this Court applies a deferential standard of review and will reverse if there is clear
error." State v. Tindall, 388 S.C. 518, 521, 698 S.E.2d 203, 205 (2010). "[T]his
deference does not bar this Court from conducting its own review of the record to
determine whether the trial judge's decision is supported by the evidence." Id. If
there is any evidence to support the trial judge's decision, this Court will affirm.
State v. Brockman, 339 S.C. 57, 66, 528 S.E.2d 661, 666 (2000). "The 'clear error'
standard means that an appellate court will not reverse a trial court's finding of fact
simply because it would have decided the case differently." State v. Pichardo, 367
S.C. 84, 96, 623 S.E.2d 840, 846 (Ct. App. 2005) (citing Easley v. Cromartie, 532
U.S. 234, 242 (2001)).

IV. DISCUSSION
The State argues the court of appeals erred in reversing the trial court's
decision to deny Spears' suppression motion. The State contends the court of appeals
failed to properly apply the standard of review and substituted its own findings in
place of the trial court's findings. The State argues there is evidence in the record to
support the trial court's finding that law enforcement engaged Spears in a consensual
street encounter that only became a seizure when law enforcement necessarily
performed a Terry frisk. We agree.

A. Seizure
Spears unquestionably possessed Fourth Amendment rights as he walked
down the street, for "the Fourth Amendment protects people, not places." See Katz
v. United States, 389 U.S. 347, 351 (1967). "The Fourth Amendment to the United
States Constitution prohibits unreasonable searches and seizures. Evidence seized
in violation of the Fourth Amendment must be excluded from trial." State v.
Khingratsaiphon, 352 S.C. 62, 69, 572 S.E.2d 456, 459 (2002). The Fourth
Amendment guarantee "protects against unreasonable searches and seizures,
including seizures that involve only a brief detention." Pichardo, 367 S.C. at 97,
623 S.E.2d at 847 (citing United States v. Mendenhall, 446 U.S. 544, 551 (1980)).
"This inestimable right of personal security belongs as much to the citizen on the
streets of our cities as to the homeowner closeted in his study to dispose of his secret
affairs." Terry v. Ohio, 392 U.S. 1, 8-9 (1968).

"A person has been seized within the meaning of the Fourth Amendment at
the point in time when, in light of all the circumstances surrounding an incident, a
reasonable person would have believed that he was not free to leave." Robinson v.
State, 407 S.C. 169, 181, 754 S.E.2d 862, 868 (2014). In other words, when law
enforcement "accosts an individual and restrains his freedom to walk away, [law
enforcement] has 'seized' that person." Terry, 392 U.S. at 16. "Only when the
officer, by means of physical force or show of authority, has in some way restrained
the liberty of a citizen may we conclude that a 'seizure' has occurred." Id. at 19 n.16.

However, not all personal intercourse between law enforcement and citizens
triggers Fourth Amendment concerns. Id. The United States Supreme Court has
made it clear that "a seizure does not occur simply because a police officer
approaches an individual and asks a few questions." Florida v. Bostick, 501 U.S.
429, 434 (1991). "[L]aw enforcement officers do not violate the Fourth Amendment
by merely approaching an individual on the street or in another public place, by
asking him if he is willing to answer some questions, by putting questions to him if
the person is willing to listen, or by offering in evidence in a criminal prosecution
his voluntary answers to such questions." Id. at 434 (quoting Florida v. Royer, 460
U.S. 491, 497 (1983)). "While most citizens will respond to a police request, the
fact that people do so, and do so without being told they are free not to respond,
hardly eliminates the consensual nature of the response." I.N.S. v. Delgado, 466
U.S. 210, 216 (1984). "What has evolved from our cases is a determination that an
initially consensual encounter between a police officer and a citizen can be
transformed into a seizure or detention within the meaning of the Fourth
Amendment, 'if, in view of all the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave.'" Id. at 215
(quoting Mendenhall, 446 U.S. at 554).

There is not "a litmus-paper test for distinguishing a consensual encounter
from a seizure." Royer, 460 U.S. at 506. Rather, "there will be endless variations in
the facts and circumstances, so much variation that it is unlikely that the courts can
reduce to a sentence or a paragraph a rule that will provide unarguable answers to
the question whether there has been an unreasonable . . . seizure in violation of the
Fourth Amendment." Id. at 506-07.

Here, in denying Spears' motion to suppress, the trial court pointed to certain
facts in the record to support a finding that the encounter was consensual. The trial
court found: (1) law enforcement initiated a conversation with Spears; (2) Spears
willingly stopped and spoke with law enforcement; (3) law enforcement notified
Spears they were law enforcement; (4) law enforcement never told Spears he was
not free to leave; and (5) Spears was originally forthcoming with his answers to law
enforcement's questions until he was asked about having anything illegal on his
person.

The court of appeals held the trial court's characterization of the evidence
ignored the totality of the circumstances. See Spears, 420 S.C. at 371, 802 S.E.2d
at 807. The court of appeals concluded a reasonable person in Spears' position would
not have felt free to terminate the encounter and go about his business. Id. at 372,
802 S.E.2d at 807. In so concluding, the court of appeals cited the framework it
employed in State v. Williams, 351 S.C. 591, 600, 571 S.E.2d 703, 708 (Ct. App.
2002), to determine whether a seizure had occurred:
 Although no single factor dictates whether a seizure has
occurred, courts have identified certain probative factors,
including the time and place of the encounter, the number
of officers present and whether they were uniformed, the
length of the detention, whether the officer moved the
person to a different location or isolated him from others,
whether the officer informed the person he was free to
leave, whether the officer indicated to the person that he
was suspected of a crime, and whether the officer retained
the person's documents or exhibited threatening behavior
or physical contact.

The court of appeals concluded most of the factors it enumerated in Williams
to be probative of whether Spears had been seized:

Spears and [Jenkins] were approached by three agents, two
of whom had their guns visible; the agents waited to
engage Spears and [Jenkins] until they were alone; the
agents did not inform Spears and [Jenkins] they were free
to leave; Agent Tracy indicated Spears was suspected of a
crime by following Spears, telling him the bus lines were
known for illegal activity, and asking him if he had any
illegal weapons or items on his person or in his property;
and the agents exhibited threatening behavior by following
Spears and [Jenkins] for several hundred feet before the
agents increased their pace to catch up with Spears and
[Jenkins].

Spears, 420 S.C. at 371, 802 S.E.2d at 807. The court of appeals found "particularly
significant" the fact that "the agents increased their speed to catch up with Spears,"
indicating Spears was no longer free to continue to walk away. Id. at 371-72, 802
S.E.2d at 807. The court of appeals held that although Spears was arguably seized
when the agents made contact with him, Spears was seized, at the latest, when Agent
Tracy inquired as to whether Spears had any weapons or illegal items on his person
or in his property. Id. at 371, 802 S.E.2d at 807. Even though Traci Jenkins was
unsure whether the officers' guns were visible, the court of appeals found the
visibility of the guns to be a factor in the analysis. Id.

We disagree with the court of appeals and find the facts and circumstances as
a whole support the trial court's finding that Spears engaged in a consensual
encounter with law enforcement and was not seized until he was frisked by Agent
Tracy. The court of appeals erred in finding that the trial court ignored the totality
of the circumstances; the trial court simply considered the facts of this case and, in
its broad discretion, determined Spears' encounter with law enforcement was
consensual up until the moment Agent Tracy frisked Spears. The deferential
standard for reviewing the trial court's ruling compels our reversal of the court of
appeals. When facts in the record support the trial court's decision, an appellate court
cannot reweigh the facts to support its own conclusions.

Specifically, there is evidence in the record to support a finding that a
reasonable person would have felt free to walk away from the encounter up until the
point of being told an agent was going to frisk him. The evidence supports the
conclusion that after Spears and Jenkins disembarked a bus known for harboring
illegal activity, they paid undue attention to the three plain-clothed agents. The three
agents followed Spears and Jenkins down a public street and sped up to a brisk walk
to catch up with the couple to see if the couple would answer some questions. The
agents did not move Spears and Jenkins to an isolated place to speak to them. The
record supports the conclusion that when the agents reached Spears and Jenkins,
Agent Tracy, in a "nonthreatening" manner, asked if the couple would stop and speak
with the agents. Spears complied, engaged in small-talk with the agents, and gave
them his ID; Agent Tracy informed Spears in general terms about prior issues
involving illegal activity on the buses and did not accuse Spears of committing a
crime. Agent Tracy then inquired as to whether Spears had any weapons or illegal
items. Again, the trial court's ultimate finding that a reasonable person would have
felt free to walk away from the encounter is supported by the evidence.

We reject Spears' contention that the only conclusion the trial court could have
reached was that a reasonable person would not have felt free to walk away from the
encounter. The evidence supports a finding that the agents' goal was not to impede
Spears' movement and that he was free to walk away from the encounter up until the
time he was frisked. As noted previously, Jenkins testified she felt she was not free
to walk away from the encounter; however, she testified her impression she was not
free to leave arose only after Spears was searched, the drugs were found, and Spears
was handcuffed. Even if Jenkins believed she was not free to leave before then, the
law requires us to discount her subjective belief, as our analysis must be based upon
whether a "reasonable person" would have felt free to decline the agents' requests or
otherwise terminate the encounter. See Bostick, 501 U.S. at 436.

While we acknowledge many of the Williams factors might apply in any given
case, we decline to expressly adopt the specific factor test enumerated in Williams;
we believe a proper determination of whether a seizure occurred involves a broader
analysis of the totality of circumstances and does not lend itself to what might be
construed as a rigid test. Nevertheless, even when we apply the Williams factors to
this case, our deferential review of the evidence supports the trial court's conclusion:

- Time and place of the encounter: Here, it was daylight, and Spears and
Jenkins were walking down a public street. See United States v. Weaver, 282
F.3d 302, 312 (4th Cir. 2002) ("Unlike those situations that may occur in the
traffic stop context, pedestrian encounters are much less restrictive of an
individual's movements.").

- The number of officers present and whether they were uniformed: Three
plain-clothed agents spoke with Spears and Jenkins.

- The length of the detention: The record is not clear as to the exact length;
Jenkins was unsure but believed the detention likely lasted less than twenty
minutes; in this case, that is not an excessive length of time.

- Whether the officer moved the person to a different location or isolated him
from others: Spears was not moved into an isolated location; he walked away
from the bus on his own accord. Once they caught up with Spears, the agents
did not move him to a more isolated location and did not separate him from
Jenkins.

- Whether the officer informed the person he was free to leave: The agents did
not inform Spears he was free to leave; however, the agents did not inform
Spears he was not free to leave. See Delgado, 466 U.S. at 216 ("While most
citizens will respond to a police request, the fact that people do so, and do so
without being told they are free not to respond, hardly eliminates the
consensual nature of the response." (emphasis added)); United States v.
Ringold, 335 F.3d 1168, 1172 (10th Cir. 2003) (refusing to view any one
factor as dispositive).

- Whether the officer indicated to the person that he was suspected of a crime:
Agent Tracy informed Spears in general terms of the illegal activity that often
occurs on the bus line. Agent Tracy asked Spears whether he had any
weapons or illegal items.

- Whether the officer retained the person's documents: Agent Tracy asked for
Spears' identification. The record does not indicate whether it was or was not
returned to Spears. See Weaver, 282 F.3d at 312 (differentiating a pedestrian
 encounter from an encounter involving a traffic stop because a pedestrian can
refuse to cooperate when asked for identification).

- Whether the officer exhibited threatening behavior or physical contact: The
agents did not physically touch Spears until he was frisked, and Spears was
frisked only after he refused to comply with Agent Tracy's instruction to stop
reaching under his shirt. The agents did not run after Spears but walked
briskly at an accelerated rate so they could reach him. Agent Tracy politely
asked if Spears would speak with him, and Spears complied. Agent Tracy
testified his firearm was concealed. Jenkins testified she was unsure as to
whether the agents' guns were visible.

The court of appeals found important to its reasonable person analysis the fact
that the agents increased their walking speed before speaking with Spears. Spears,
420 S.C. at 371-72, 802 S.E.2d at 807. In Michigan v. Chesternut, 486 U.S. 567,
574 (1988), the United States Supreme Court held law enforcement officers' pursuit
of the defendant did not constitute a seizure implicating the protections of the Fourth
Amendment. The officers observed a man get out of a car and approach the
defendant at a street corner. Id. at 569. The defendant saw the officers in their patrol
car and ran, and "[t]he cruiser quickly caught up with [the defendant] and drove
alongside him for a short distance." Id. The officers observed the defendant
discarding pills from his pockets as he ran. Id. At a pretrial hearing, the defendant
moved to suppress the drugs, arguing he was seized during an "investigatory
pursuit." Id. at 570-71. The Supreme Court disagreed with the lower court's
suppression of the drugs, holding the officers' conduct would not have
communicated to a reasonable person "an attempt to capture or otherwise intrude
upon [the defendant's] freedom of movement." Id. at 575. The Supreme Court noted
the record did not show "the police activated a siren or flashers; or that they
commanded [the defendant] to halt, or displayed any weapons; or that they operated
the car in an aggressive manner to block [the defendant's] course or otherwise control
the direction or speed of his movement." Id. The Supreme Court provided, "While
the very presence of a police car driving parallel to a running pedestrian could be
somewhat intimidating, this kind of police presence does not, standing alone,
constitute a seizure." Id.

Here, the agents briskly walking behind Spears is similar—but much less
"threatening"—to the police cruiser's "investigatory pursuit" discussed in
Chesternut. The brisk approach of the agents in the instant case did not
automatically morph a street encounter into a seizure. A finding of a seizure in this
context could create the absurd result of law enforcement officers only being able to
ask questions of individuals who were standing still, walking slowly, or walking
toward the officers. Law enforcement does not have unlimited license to deploy
interdiction efforts or engage in general policing; however, legitimate efforts in these
areas would be unrealistically restricted if law enforcement was not permitted to
walk fast in an effort to speak to a pedestrian on a public street. Walking briskly
towards a suspect may, in any given case be interpreted differently based on the
totality of the circumstances; however, in this case, the record supports the finding
that the agents walked briskly to catch up with Spears and Jenkins as a matter of
practicality—not as a show of authority to restrain Spears' liberty. Spears was free
to continue walking and to refuse the agents' request that he speak with them. See
Mendenhall, 446 U.S. at 554 ("[C]haracterizing every street encounter between a
citizen and the police as a 'seizure,' while not enhancing any interest secured by the
Fourth Amendment, would impose wholly unrealistic restrictions upon a wide
variety of legitimate law enforcement practices.").

The asking of incriminating questions by law enforcement does not
automatically trigger Fourth Amendment protections. See Bostick, 501 U.S. at 434-
35 ("[E]ven when [police] officers have no basis for suspecting a particular
individual, they may generally ask questions of that individual, ask to examine the
individual's identification, and request consent to search his or her luggage—as long
as the police do not convey a message that compliance with their requests is
required." (internal citations omitted)). There is no evidence in the record that the
agents asked incriminating questions in a forceful or persistent manner to compel
Spears' compliance. See Ringold, 335 F.3d at 1173 ("[T]he mere fact that officers
ask incriminating questions is not relevant to the totality-of-the-circumstances
inquiry—what matters instead is 'the manner' in which such questions were posed.");
United States v. Little, 60 F.3d 708, 712 (10th Cir. 1995) ("Accusatory, persistent,
and intrusive questioning can turn an otherwise voluntary encounter into a coercive
one." (internal quotation marks omitted)). The record supports the finding that the
tone of the agents' interaction with Spears was not aggressive but conversational.
The evidence supports the finding that the agents simply noted to Spears, in general
terms, issues in the past with people transporting illegal items on the bus line and
inquired as to whether Spears had any illegal weapons or other items in his luggage
or on his person. See United States v. Wilson, 895 F.2d 168, 170 (4th Cir. 1990)
(finding no seizure occurred when a narcotics agent stopped the defendant in an
airport, informed the defendant he was investigating drug trafficking, and asked the
defendant if he had anything illegal in his possession).

Spears dwells on the fact that Agents Lorenzen's and Finch's firearms were
visible. The court of appeals also found this fact important to its analysis. Spears
argues, "It was not consensual because Spears did not feel free to leave with police
guns facing him." First, the fact that Agents Lorenzen's and Finch's firearms were
visible was never argued to the trial court during the suppression hearing. This fact
did not surface until trial. Second, even if it had been argued during the suppression
hearing, Spears' statement improperly characterizes and inflates the impact of the
agents' firearms and ignores the fact that both agents' firearms remained holstered
during the entire encounter. It is common knowledge a law enforcement officer
carries a holstered weapon, concealed or visible. The record does not indicate the
agents displayed their firearms in a manner that would cause a reasonable person to
feel he could not walk away. This conclusion is supported by the fact that Traci
Jenkins was unsure if the officers' guns were even visible. It would be unrealistically
restrictive and unsafe for a law enforcement officer to have to remove his firearm
and leave it elsewhere before approaching and questioning a person on the street.
We hold, under the facts of this case, the court of appeals erred in concluding the
"display" of handguns in Lorenzen's and Finch's holsters would have caused a
reasonable person to feel he was not free to leave the encounter.

Spears is a black male. During oral argument, this Court inquired as to
whether Spears' race was a factor to be considered in determining whether a
reasonable person would have felt free to terminate the encounter with law
enforcement and continue walking. Spears did not argue this point during the
suppression hearing or to the court of appeals or in his brief to this Court; in fact, he
contended no one would have felt free to leave this encounter. Even though the issue
is not before us, we will briefly address it.

In Mendenhall, the defendant, a black female, was approached by DEA agents
in the concourse of the Detroit Metropolitan Airport after she exhibited behavior the
agents believed to be characteristic of a person carrying illegal drugs. 446 U.S. at
547. The agents approached the defendant and began asking her questions about her
flight documentation. Id. at 548. The defendant appeared "extremely nervous" and,
according to the agents, provided inconsistent accounts about her flight
documentation. Id. An agent asked the defendant if she would accompany him to
the airport DEA office for further questions. Id. The defendant acquiesced and,
after being escorted to a private office, consented to a search of her person by a
female agent. Id. at 548-49. Two packages of heroin were found, and the defendant
was arrested. Id. at 549. The district court denied the defendant's motion to suppress,
and the defendant was convicted of possessing heroin with the intent to distribute.
Id.

The United States Supreme Court held the original encounter did not
constitute a seizure. Id. at 555. When discussing whether the agent's request for the
defendant to accompany him to the airport DEA office constituted a seizure, the
Court concluded, "The question whether the [defendant's] consent to accompany the
agents was in fact voluntary or was the product of duress or coercion, express or
implied, is to be determined by the totality of all the circumstances." Id. at 557. The
Court noted the defendant's age and education and stated, "It is additionally
suggested that the [defendant], a [black female], may have felt unusually threatened
by the officers, who were white males. While these factors were not irrelevant,
. . . neither were they decisive[.]" Id. at 558. The United States Supreme Court
ultimately held the totality of the evidence was sufficient to support the trial court's
finding that the defendant voluntarily consented to accompany the agents to the DEA
office. Id.

In United States v. Smith, the defendant argued the Fourth Amendment
reasonable person analysis should consider the defendant's race. 794 F.3d 681, 687
(7th Cir. 2015). The defendant specifically argued "no reasonable person in his
'position'—as a young black male confronted in a high-crime, high-poverty,
minority-dominated urban area where police-citizen relations are strained—would
have felt free to walk away from the encounter" with the law enforcement officers.
Id. at 687-88. The Seventh Circuit Court of Appeals stated:

We do not deny the relevance of race in everyday police
encounters with citizens in Milwaukee and around the
country. Nor do we ignore empirical data demonstrating
the existence of racial profiling, police brutality, and other
racial disparities in the criminal justice system. But today
we echo the sentiments of the Court in Mendenhall that
while [the defendant's] race is "not irrelevant" to the
question of whether a seizure occurred, it is not dispositive
either.

Id. at 688.

The Tenth Circuit Court of Appeals has concluded differently, rejecting the
argument that race is an appropriate consideration in the reasonable person analysis.
See United States v. Easley, 911 F.3d 1074, 1081-82 (10th Cir. 2018), cert. denied,
2019 WL 1886117 (U.S. Apr. 29, 2019). The Tenth Circuit distinguished
Mendenhall, finding its discussion of race was limited to the context of assessing
voluntariness, not seizure. Id. at 1081. The Tenth Circuit explained:

Requiring officers to determine how an individual's race
affects her reaction to a police request would seriously
 complicate Fourth Amendment seizure law. As the
government notes, there is no easily discernable principle
to guide consideration of race in the reasonable person
analysis. . . . There is no uniform life experience for
persons of color, and there are surely divergent attitudes
toward law enforcement officers among members of the
population. Thus, there is no uniform way to apply a
reasonable person test that adequately accounts for racial
differences consistent with an objective standard for
Fourth Amendment seizures.

Id. at 1082.

We need not consider whether Spears' race is a factor to be considered when
resolving the issue of whether the encounter was consensual. The trial record
contains no evidence on this point other than the fact that Spears is a black male, and
Spears advanced no argument on this point to the trial court, thus rendering the issue
unpreserved.

There is evidence in the record to support the trial court's conclusion that the
encounter was consensual. We reverse the court of appeals on this point and hold
Spears was not seized until he was frisked by Agent Tracy. Consequently, until the
frisk, the Fourth Amendment was not implicated, and there was no requirement of a
showing of reasonable suspicion that Spears was engaged in criminal activity. See
Bostick, 501 U.S. at 434 (providing as long as the encounter remains consensual, it
does not trigger Fourth Amendment scrutiny, and there is no requirement of a
showing of reasonable suspicion of criminal activity).

B. Legality of the Frisk
We next address the legality of the frisk. Giving due consideration to the
evidence in the record, we conclude the law requires us to sustain the trial court's
finding that the frisk was justified.

"[B]efore the police may frisk a defendant, they must have a reasonable belief
the defendant is armed and dangerous." State v. Fowler, 322 S.C. 263, 267, 471
S.E.2d 706, 708 (Ct. App. 1996). "In other words, a reasonable person in the position
of the officer must believe the frisk was necessary to preserve the officer's safety."
Id. "In assessing whether a suspect is armed and dangerous, the officer need not be
absolutely certain the individual is armed." State v. Blassingame, 338 S.C. 240, 248-
49, 525 S.E.2d 535, 540 (Ct. App. 1999). A protective frisk may be employed after
either an investigative stop or a consensual encounter. United States v. Ellis, 501
F.3d 958, 961 (8th Cir. 2007) (citing United States v. Davis, 202 F.3d 1060, 1063
(8th Cir. 2000)). Terry dictates that even in the setting of a protective frisk, "it is
imperative that the facts be judged against an objective standard: would the facts
available to the officer at the moment of the seizure or the search 'warrant a man of
reasonable caution in the belief' that the action taken was appropriate?" 392 U.S. at
21-22 (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)).

The trial court concluded Agent Tracy had a reasonable suspicion that Spears
was armed and dangerous and was therefore justified in frisking Spears. The trial
court stated, "Now the only justification for patting down the defendant is a
reasonable belief that his safety or the safety of others was in danger. Law
enforcement has pointed to specific and articulable facts which warranted a search
of the defendant's person." Evidence in the record supports the trial court's finding.
First, Agent Tracy was a veteran law enforcement officer with a certification in
interdiction. See State v. Moore, 415 S.C. 245, 255, 781 S.E.2d 897, 902 (2016)
(citing a law enforcement officer's "extensive experience" in drug interdiction in
support of common sense judgments); United States v. Lender, 985 F.2d 151, 154
(4th Cir. 1993) ("Courts are not remiss in crediting the practical experience of
officers who observe on a daily basis what transpires on the street."). Such
experience in law enforcement and interdiction lends support to the common sense
judgments Agent Tracy made during the encounter. Also, Agent Tracy's testimony
supports a finding that Spears kept placing his hands underneath his shirt near his
waistband and "would puff his shirt away from his waistband." Agent Tracy asked
Spears not to do this because he wanted to see Spears' hands to make sure Spears
was not reaching for a weapon. Despite being asked several times to not make this
"puffing" motion under his shirt, Spears did not comply. Only after Spears continued
to disobey Agent Tracy's request did Agent Tracy fear for his safety and find it
necessary to frisk Spears. We affirm the trial court's ruling that the frisk was
justified.

V. CONCLUSION
There is evidence in the record to support the trial court's finding that Spears
engaged in a consensual encounter with law enforcement, and there is evidence in
the record to support the trial court's finding that Agent Tracy was justified in
frisking Spears. Consequently, the trial court properly denied Spears' motion to
suppress evidence of the crack cocaine seized during the frisk. We reverse the court
of appeals and reinstate Spears' conviction and sentence.
REVERSED.

FEW, J., concurs. HEARN, J., concurring in a separate opinion.
BEATTY, C.J., dissenting in a separate opinion in which Acting
Justice John D. Geathers, concurs.
JUSTICE HEARN: I concur but write separately because I share many of the
dissent's concerns regarding whether Eric Spears—an African-American male—
actually felt free to walk away from the encounter with law enforcement. While I
am skeptical that he did, this does not change the fact that our standard of review
requires us to affirm unless there is clear error, meaning we cannot substitute our
judgment for that of the trial court. State v. Cardwell, 425 S.C. 595, 599, 824 S.E.2d
451, 453 (2019) ("The 'clear error' standard means that an appellate court will not
reverse a trial court's finding of fact simply because it would have decided the case
differently."). Further, as pointed out by the majority, Spears never raised the
argument the dissent advances to the trial court, where it would have had the
opportunity to specifically address this issue when deciding whether he was seized
pursuant to the totality of the circumstances. Indeed, had Spears raised this issue to
the trial court and briefed it before this Court, we would be in a position to consider
the reasoning of the dissent. Instead, this important discussion originated from the
bench, and the record contains nothing to enable us to alter our jurisprudence as the
dissent suggests. Accordingly, I concur.
 CHIEF JUSTICE BEATTY: I respectfully dissent. I agree with the
majority of the Court of Appeals and would find: (1) Spears was seized under the
Fourth Amendment because a reasonable person would not have felt free to
terminate the encounter with law enforcement; and (2) law enforcement did not have
reasonable suspicion to justify the seizure. Accordingly, I would conclude the trial
court erred in denying Spears's motion to suppress.

A. Seizure
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.
Not every interaction between law enforcement and a citizen constitutes a seizure.
Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). "Only when the officer, by means of
physical force or show of authority, has in some way restrained the liberty of a
citizen may we conclude that a 'seizure' has occurred." Terry, 392 U.S. at 19 n.16.

"[T]o determine whether a particular encounter constitutes a seizure, a court
must consider all the circumstances surrounding the encounter to determine whether
the police conduct would have communicated to a reasonable person that the person
was not free to decline the officers' requests or otherwise terminate the encounter."
Florida v. Bostick, 501 U.S. 429, 439 (1991); see Robinson v. State, 407 S.C. 169,
181, 754 S.E.2d 862, 868 (2014) ("A person has been seized within the meaning of
the Fourth Amendment at the point in time when, in light of all the circumstances
surrounding an incident, a reasonable person would have believed that he was not
free to leave." (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980))).

The threshold question in this case is whether Spears was seized. The
determination of this issue hinges on how a reasonable person would perceive the
encounter with law enforcement. Our Fourth Amendment jurisprudence does not
take into account personal characteristics such as race, sex, age, disability, and so
forth when making this determination. The test does, however, consider the totality
of the circumstances. In my view, a true consideration of the totality of the
circumstances cannot ignore how an individual's personal characteristics—and
accompanying experiences—impact whether he or she would feel free to terminate
an encounter with law enforcement.

Spears is an African-American male. Scholars have examined ad nauseam
the dynamics between marginalized groups—particularly African-Americans—and
law enforcement.3 African-Americans generally experience police misconduct and
brutality at higher levels than other demographics.4 Consequently, it is no surprise
that scholars have also found African-Americans often perceive their interactions
with law enforcement differently than other demographics. "For many members of
minority communities, however, the sight of an officer in uniform evokes a sense of
fear and trepidation, rather than security." Robert V. Ward, Consenting to a Search
and Seizure in Poor and Minority Neighborhoods: No Place for a "Reasonable
Person", 36 How. L.J. 239, 247 (1993). Moreover, "[g]iven the mistrust by certain
racial, ethnic, and socioeconomic groups, an individual who has observed or
experienced police brutality and disrespect will react differently to inquiries from
law enforcement officers . . . ."). Id. at 253. Unfortunately, under our existing
framework, this can result in the evisceration of Fourth Amendment protections for
many people of color.

Courts have also noted the existence of racial disparities in policing.

[O]ur court addressed at length "the burden of aggressive and intrusive
police action that falls disproportionately on African-American, and
sometimes Latino, males" and observed that "as a practical matter

3
See, e.g., Charles R. Epp et al., Beyond Profiling: The Institutional Sources of
Racial Disparities in Policing, 77 Pub. Admin. Rev. 168 (2017); Emily Ekins, The
Cato Inst., Policing in America: Understanding Public Attitudes Toward the Police.
Results from a National Survey (2016).
4
See, e.g., Epp, supra, at 174 ("Simply put, investigatory stops of vehicles especially
target minority communities and people of color."); Ekins, supra, at 30 ("African
Americans are about twice as likely as whites to report profanity or knowing
someone physically mistreated by the police."); Scottie Andrew, Police Are Three
Times More Likely to Kill Black Men, Study Finds: 'Not a Problem Confined to a
Single Region', Newsweek (July 23, 2018, 1:41 PM), https://www.newsweek.com
/black-men-three-times-likely-be-killed-police-1037922 ("Across the country, black
men are over three times more likely to be killed by police than white men, according
to a study . . . ."); Maggie Fox, Police Killings Hit People of Color Hardest, Study
Finds, NBC News (May 8, 2018, 8:00 AM), https://www.nbcnews.com/health/
health-news/police-killings-hit-people-color-hardest-study-finds-n872086 ("While
just over half of people killed by police are white, Hispanics and African-Americans
are on average younger, the researchers found. And people of black, Hispanic and
Native American background are disproportionately killed by police, they
reported.").
 neither society nor our enforcement of the laws is yet colorblind."
There is little doubt that uneven policing may reasonably affect the
reaction of certain individuals—including those who are innocent—to
law enforcement.

United States v. Brown, 925 F.3d 1150, 1156 (9th Cir. 2019) (quoting Washington
v. Lambert, 98 F.3d 1181, 1187–88 (9th Cir. 1996)). United States Supreme Court
Justice Sonia Sotomayor has intimated:

But it is no secret that people of color are disproportionate victims of
this type of scrutiny. For generations, black and brown parents have
given their children "the talk"—instructing them never to run down the
street; always keep your hands where they can be seen; do not even
think of talking back to a stranger—all out of fear of how an officer
with a gun will react to them.

Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting) (internal
citations omitted); see Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y.
2013) (finding the City of New York liable for the New York Police Department's
stop-and-frisk policy, which violated plaintiffs' constitutional rights, and noting the
racial disparities in the policy's implementation).

In spite of these academic findings and judicial observations, our current
framework fails to meaningfully consider the ways in which a person's race can
influence their experience with law enforcement. As a result, I fear minority groups
are not always afforded the full protections of the Fourth Amendment. Given the
interests at stake, one would expect our criminal justice system to forcefully resist
marginalizing the experiences of people of color by insisting on a "color-blind"
reasonable person standard. See Ward, supra, at 241 ("Because the reasonable
person test assumes that a person's interactions with the police is a generic
experience, the test is biased."). In my opinion, the seizure analysis should consider
whether a reasonable Black person felt free to end an encounter with police. At the
very least, I believe courts should consider a person's race (and other personal
characteristics) in examining the totality of the circumstances in a seizure analysis.5

5
For example, in analyzing the totality of the circumstances to determine whether a
defendant was seized, the Ninth Circuit acknowledged, among other things, "the
publicized shooting by white Portland police officers of African-Americans" and
"the widely distributed pamphlet with which [the defendant] was familiar,
 Notwithstanding the foregoing, Spears's status as an African-American male
is not the only circumstance militating against a conclusion that this was a
consensual encounter. I agree with the Court of Appeals' determination that Spears
was seized at the earliest when the officers made contact with him, and at the latest
when the officers asked him whether he possessed any illegal items. Prior to the
stop, the police followed Spears approximately 500 feet from the bus stop and
walked at a brisk pace to catch up to him. Once Spears stopped to engage with the
police, an officer explained there had been "problems in the past with drugs and
wanted subjects and counterfeit merchandise." The officer also inquired about
Spears's trip and asked for his identification. Subsequently, the officer asked Spears
whether he had any illegal items on him or his property.

Under the totality of the circumstances, a reasonable person in Spears's shoes
would not feel free to terminate the encounter with law enforcement. Spears was
aware that he was being followed by three police officers.6 The agents followed him
to a more isolated area and quickened their pace to catch up to him. In my view, a
reasonable person in this situation would not feel free to continue walking and
disregard the agent's request to talk.7 As the Court of Appeals pointed out—
correctly, in my opinion—the agents signaled to Spears that he was no longer free
to continue walking when they increased their speed to catch up to him.
Accordingly, Spears was arguably seized as soon as the police initiated contact.

Even assuming the initial contact between Spears and the agents did not
amount to a seizure, Spears was undoubtedly seized when the agent asked Spears

instructing the public to comply with an officer's instructions." United States v.
Washington, 490 F.3d 765, 773 (9th Cir. 2007).
6
Agent Tracy testified that Spears kept looking back at the agents as they were
following him. Agents Finch and Lorenzen testified that their guns and badges were
visible.
7
I question what would have happened had Spears continued walking and ignored
the agent's request to speak with him. Indeed, had Spears continued to walk away,
the agents may have interpreted this as furtive behavior that created reasonable
suspicion for a stop. See State v. Taylor, 401 S.C. 104, 736 S.E.2d 663 (2013)
(finding reasonable suspicion existed where the defendant attempted to avoid
officers by riding away on his bicycle). The Fourth Amendment could not possibly
intend to place citizens in this impossible catch-22 situation.
whether he possessed any illegal items. As mentioned, when Spears stopped to talk
with the agents, he was aware the agents had been following him.8 After asking a
few general questions, the agent stated there had been "problems" on the bus lines
with "drugs and wanted subjects and counterfeit merchandise." The agent then asked
Spears for identification and inquired whether Spears possessed any illegal items.

In my view, under these circumstances, a reasonable person would feel like
he or she was suspected of wrongdoing and thus obligated to comply with the agent's
requests.9 Indeed, this is the only logical conclusion a person in Spears's situation

8
In United States v. Jones, the Fourth Circuit examined whether a defendant was
seized when the officers blocked his car from leaving the scene. 678 F.3d 293
(2012). While the facts in Jones obviously differ and can be distinguished from the
instant case, I find the Fourth Circuit's analysis compelling. In Jones, the court noted
"the encounter here began with a citizen knowing that the police officers were
conspicuously following him, rather than a citizen, previously unaware of the police,
being approached by officers seemingly at random." Id. at 300. The court also made
much of the fact that the defendant in Jones was seemingly targeted by the officers.
"[H]ere, the totality of the circumstances would suggest to a reasonable person in
Jones's position that the officers suspected him of some sort of illegal activity in a
'high crime area,' which, in turn, would convey that he was a target of a criminal
investigation and thus not free to leave or terminate the encounter." Id. at 304.
9
In State v. Contreras, a New Jersey appellate court concluded an encounter between
the defendants and police officers was a seizure. In making this determination, the
court stated:
The officers proceeded to explain that there are 'problems' with drugs,
weapons, and other contraband being transported on the trains between
New York and New Jersey. They then asked defendants if they were
carrying any such contraband, a question that clearly conveyed to
defendants the message that the officers suspected them of criminal
activity.
742 A.2d 154, 160 (1999). Similarly, in State v. Pitts, the Supreme Court of Vermont
detailed several cases in other jurisdictions and noted there has been "a recognition
among many courts that while 'mere questioning' may not constitute a seizure per
se, pointed questions about drug possession or other illegal activity in circumstances
indicating that the individual is the subject of a particularized investigation may
convert a consensual encounter into a Terry stop requiring objective and articulable
suspicion under the Fourth Amendment." 978 A.2d 14, 19–21 (Vt. 2009). The court
ultimately found the defendant was seized, stating: "Although the officers' first few
could draw. This was not a situation in which the officers questioned passengers at
random as they disembarked—Spears was singled out, followed, and questioned.
Therefore, under the totality of the circumstances, I do not believe a reasonable
person in this situation would feel at liberty to terminate the encounter with law
enforcement. Accordingly, I would find Spears was seized under the Fourth
Amendment.

I also wish to address the State's and majority's reliance on Michigan v.
Chesternut, 486 U.S. 567 (1988), as I believe that case is readily distinguished. In
Chesternut, the police observed a man get out of a car and approach the defendant.
486 U.S. at 569. When the defendant saw the marked police cruiser approach the
corner where he was standing, he turned and ran. Id. The cruiser caught up to the
defendant and "drove alongside him for a short distance." Id. As the cruiser drove
alongside the defendant, he retrieved several packets from his pocket and discarded
them. Id. An officer got out of the car to examine the packets (which contained
pills), and the defendant stopped running while the officer was examining the
packets. Id.

The majority compares the agents' brisk walk behind Spears to the police
cruiser's "investigatory pursuit" in Chesternut and finds the agents' behavior here
"much less 'threatening.'" At the outset, I note the United States Supreme Court
expressly limited its holding in Chesternut to the particular facts in that case. Id. at
572–73 ("Rather than adopting either rule proposed by the parties and determining
that an investigatory pursuit is or is not necessarily a seizure under the Fourth
Amendment, we adhere to our traditional contextual approach, and determine only
that, in this particular case, the police conduct in question did not amount to a
seizure."). Additionally, there are significant factual differences between Chesternut
and this case. In Chesternut, the officers never commanded or asked the defendant
to stop. Here, the agents effectuated a seizure when they asked Spears if they could
speak with him. Unlike the police officers in Chesternut, the agents in this case
singled Spears out (among many disembarking passengers), followed him to a more
isolated location, accelerated their pace to catch up to him, and initiated
conversation.

Furthermore, the State and majority assert a finding of seizure in this case
would lead to the "absurd result" of a blanket prohibition on an officer's ability to

questions to [the defendant] were the kind that courts have uniformly held to be
innocuous and nonconfrontational, they rapidly progressed to inquiries indicating a
particularized suspicion of criminal activity."). Id. at 21.
walk briskly. I disagree. Here, the agents' pursuit of Spears is just one of many
circumstances to be considered, and the case does not turn solely on the speed at
which the agents walked. Because a court must always examine the totality of the
circumstances in determining whether a seizure occurred, the specific manner in
which an officer approaches a defendant will remain just one of many facts a court
must consider.

The State also contends upholding the Court of Appeals' decision will
jeopardize officer safety if police can no longer ask a person whether they possess
any illegal weapons. However, the agents did not ask Spears whether he had any
illegal weapons. Rather, the agents asked Spears whether he had any illegal items.

B. Reasonable Suspicion
After determining Spears was seized, the question becomes whether law
enforcement had a reasonable suspicion of criminal activity to warrant the seizure.
See Florida v. Royer, 460 U.S. 491, 512 (1983) ("To justify such a seizure an officer
must have a reasonable suspicion of criminal activity based on 'specific and
articulable facts . . . [and] rational inferences from those facts . . . .'" (quoting Terry,
392 U.S. at 21)).

Law enforcement initially grew suspicious of Spears because he appeared to
pay an "excessive" amount of attention to the officers and seemed "nervous."
According to one officer's testimony at trial, this was unusual because the agents
were dressed in plain clothes. However, two officers testified that their guns and
badges were visible, and one officer speculated that Spears noticed the police were
not "just off the bus or . . . there to pick anybody up." In my opinion, this would
suggest the presence of law enforcement at the bus stop was indeed "obvious." And,
practically speaking, once a person recognizes the presence of police, they are likely
to pay attention irrespective of the officers' dress. Nonetheless, there is nothing
particularly incriminating about looking at law enforcement.

In addition to paying the agents an "excessive" amount of attention, the
officers made only the following observations prior to stopping Spears: Spears and
his companion arrived on a bus line known to be used by criminals; the pair retrieved
four large pieces of luggage; Spears did not appear to be meeting anyone at the bus
stop; Spears began walking down the road away from the bus stop; and, while
walking away, Spears's companion handed him an unidentified item. In my view,
none of these facts, standing alone or together, provide articulable and reasonable
suspicion to justify a seizure.
 Several of the aforementioned facts are entirely reasonable given the context
of the situation. One would expect two people traveling to South Carolina from New
York to have several pieces of luggage. Further, walking away from a bus stop after
disembarking is not suspicious activity. Indeed, Spears's companion testified the
pair decided to walk when their ride failed to show up. In addition, Spears walked
at a normal pace even though he knew he was being followed. Moreover, not one
agent could testify regarding the specifics of what Spears's companion handed him—
or even if she actually handed Spears anything at all. Therefore, these facts cannot
be relied upon to establish a reasonable suspicion that criminal activity was afoot.

Once these facts are dispensed with, law enforcement was left with only two
facts: (1) Spears's arrival on the bus line; and (2) Spears kept looking at the agents.
In Illinois v. Wardlow, the United States Supreme Court recognized that "presence
in an area of expected criminal activity" and "nervous, evasive behavior" are both
relevant—though not dispositive—in a reasonable suspicion analysis. 528 U.S. 119,
124 (2000). When considering the totality of the circumstances, these two factors
alone are woefully inadequate to provide an officer with any reason to suspect Spears
was engaged in criminal activity.

The Fourth Amendment requires a police officer to have more than a mere,
unsupported hunch before subjecting a citizen to police intrusion. See Robinson,
407 S.C. at 182, 754 S.E.2d at 868 ("Reasonable suspicion is something more than
an 'inchoate and unparticularized suspicion' or hunch." (quoting Terry, 392 U.S. at
27)). Although I am sympathetic to the everyday realities police officers face, the
courts must be careful to strike an equitable balance between the needs of law
enforcement and the constitutional rights of citizens. In Schneckloth v. Bustamonte,
Justice Thurgood Marshall aptly noted the following in his dissent:

Of course it would be 'practical' for the police to ignore the commands
of the Fourth Amendment, if by practicality we mean that more
criminals will be apprehended, even though the constitutional rights of
innocent people also go by the board. But such a practical advantage is
achieved only at the cost of permitting the police to disregard the
limitations that the Constitution places on their behavior, a cost that a
constitutional democracy cannot long absorb.

412 U.S. at 288 (Marshall, J., dissenting). Although Schneckloth addressed a
different Fourth Amendment issue, I believe Justice Marshall's words are equally
applicable here.
 The United States population includes 42 million Americans of African
descent. Inexplicably, these Americans are basically invisible to those of us who
apply the analytical framework for reasonable behavior or beliefs. Somehow the
judiciary, intentionally or not, excludes these Americans' normal behaviors,
responses, and beliefs in circumstances involving law enforcement agents. For most,
the "totality of the circumstances" does not include consideration of the reasonable
behavior or response of African-Americans when confronted with certain stimuli.
Thus, the regrettable and unsettling conclusion is that the question of what is
"reasonable" is viewed solely from the perspective of Americans who are White. I
shudder to think about the probable result had the defendant continued to walk and
ignore the police.

This unassailable observation is not intended as an indictment of my
colleagues who wear the robe. I do not believe their obliviousness is due to
intentional disregard. I prefer to assign their selective blindness to a lifetime of being
repeatedly subjected to episodes of minimizing the African-American experience.
Life experiences influence the way that we all view the world and legal issues. We
should be cognizant of this fact and attempt to view the issue truly with an objective
eye. An objective eye would acknowledge the fact that African-Americans are being
reasonable when they respond in accordance with their collective experiences gained
over two hundred years.

This fact of life observation has no bearing on the actual guilt or innocence of
the defendant in this case. However, it has great significance to our Constitution,
due process, equal protection, and what it means to be an American.

Based on the foregoing, I would find the trial court erred in denying Spears's
motion to suppress because Spears was seized pursuant to the Fourth Amendment
without any articulable and reasonable suspicion. Therefore, I would affirm the
decision of the Court of Appeals.

Acting Justice John D. Geathers, concurs.