THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Respondent,
v.
Darell Oneil Boston, Appellant.
Appellate Case No. 2018-000504
Appeal From Charleston County
R. Markley Dennis, Jr., Circuit Court Judge
Opinion No. 5808
Heard November 10, 2020 – Filed March 10, 2021
AFFIRMED
David Nelson Lyon, of Duff Freeman Lyon, LLC, and
Chief Appellate Defender Robert Michael Dudek, both of
Columbia, for Appellant.
Attorney General Alan McCrory Wilson and Assistant
Attorney General Mark Reynolds Farthing, both of
Columbia; and Solicitor Scarlett Anne Wilson, of
Charleston, for Respondent.
KONDUROS, J.: Darell Oneil Boston was convicted of manufacturing crack
cocaine and sentenced to seventeen years' imprisonment. He appeals the circuit
court's denial of his motion to suppress evidence found during a "knock and talk."
We affirm.
FACTS/PROCEDURAL HISTORY
On March 6, 2015, Sergeant Joseph Sherwood of the North Charleston Police
Department, after responding to a dispatch call, proceeded to patrol a nearby
apartment community.1 The police department had directed Sergeant Sherwood to
increase patrols of the apartment community as it had been the site of narcotics
activity and because vulnerable adults resided in the apartment community. A
week earlier, the landlord contacted the department to report a nonresident had
threatened him.
At approximately 5:30 p.m. on that evening, Sergeant Sherwood, along with two
other officers—Sergeant Hoose and Officer Etninan—observed two men, later
identified as Boston and William Holmes, get out of a taxi and enter the apartment
of a resident, Denise Holman. Sergeant Sherwood knew Holman had some
undetermined mental challenges and used narcotics. Sergeant Sherwood stated the
area had "always been a hot spot for narcotics activity" and "single occupants that
live in there . . . [are] not mentally handicapped . . . but they need to be assisted
and [can be] easily taken advantage of." Sergeant Sherwood also had some
knowledge of Boston and Holmes, recognizing them from another residence where
drug activity took place. Sergeant Sherwood had previously had "several run-ins
with them."
The entry of the two men into Holman's apartment raised concerns for Sergeant
Sherwood about her safety and the nature of the activity that might be going on
inside the apartment. Sergeant Sherwood and the other officers "decided we were
going to go knock on the door to check on [Holman] and see if everything is okay."
He elaborated:
When [w]e have the complaints that we were having and
the elements that we had at this residence[,] we will
knock on the door to make sure that one, she is okay[,]
and two, see if there is any possib[ilit]y [of] any crime or
if she had any information for us. And maybe they were
just friends and I would have been fine with that and
said[,] okay Ms. Denise[,] see you later[,] and just been
on my way[,] but there was a little more to [it] than that.
1
Sergeant Sherwood was a patrol officer at the time of the incident in 2015 but a
sergeant at the time of the pretrial hearing in 2017.
After Boston and Holmes had been inside Holman's apartment for approximately
fifteen minutes, Sergeant Sherwood knocked on Holman's door. Holman
responded to the knock by answering the door and fully opening the door. Holman
allowed him to enter and she stepped aside. When Sergeant Sherwood entered the
small apartment, he saw two men in the kitchen area of the apartment "huddled
around" a running microwave oven and saw two plastic bags that had a white
residue on them. When the men noticed him, the men opened the microwave, hid
their hands, and ran into the bathroom. Sergeant Sherwood also saw a scale on the
kitchen counter.
Concerned the men may have been armed, Sergeant Sherwood performed a
protective sweep and ordered Boston and Holmes out of the bathroom. Holmes
agreed to Sergeant Hoose's request to conduct a search of his person, which
revealed a scale and a baggie of white powder. Sergeant Sherwood found a Pyrex
brand measuring cup in the bathroom, with a steaming substance in the cup that
appeared to be crack cocaine. Sergeant Sherwood then left the scene to obtain a
search warrant, returned and searched the residence, taking multiple items into
evidence, and arrested Boston and Holmes.
Sergeant Sherwood did not arrest Holman because she was not a participant to the
manufacturing he observed. It was his understanding that often those who
manufacture narcotics pay another person for the use of his or her home to
manufacture crack in exchange for money or crack. Holman allowed the men to
use her apartment because she hoped they would give her some of the
manufactured crack.
At the pretrial hearing on November 30, 2017, Boston moved to suppress the
evidence the officers seized, including baggies containing white powder, scales,
and Pyrex measuring cups, on the grounds that the search violated his right to be
free from an unreasonable search and seizure under both the United States and the
South Carolina Constitutions and was an unreasonable invasion of his privacy
under the South Carolina Constitution. The circuit court denied Boston's motion to
suppress the evidence, finding Sergeant Sherwood had reasonable suspicion to
engage in the knock and talk.
The matter proceeded to trial,2 and on February 7, 2018, a jury found Boston guilty
of manufacturing crack cocaine. The circuit court sentenced him to seventeen
years of imprisonment. Boston moved for a new trial, which the court denied.
This appeal follows.
STANDARD OF REVIEW
"On appeal from a motion to suppress on Fourth
Amendment grounds, this [c]ourt 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, ––– U.S. ––––, 134
S. Ct. 2888, 189 L.Ed.2d 845 (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 [is], therefore, bound by
the trial court's findings unless clearly erroneous).
State v. Counts, 413 S.C. 153, 160, 776 S.E.2d 59, 63 (2015).
LAW/ANALYSIS
Boston contends the circuit court erred by denying his motion to suppress the
evidence in violation of his right to privacy under Article 1, section 10, of the
South Carolina Constitution and State v. Counts, 413 S.C. 153, 776 S.E.2d 59
(2015), because law enforcement did not have reasonable suspicion to engage in
the knock and talk.3 We disagree.
2
Boston objected to the introduction of the evidence obtained by officers pursuant
to the knock and talk at trial.
3
The State argues even if this court holds the knock and talk was unreasonable
under Counts, the circuit court did not err because the officers acted consistently
with the law in effect at the time of the incident. We recognize the incident that is
the subject of this appeal occurred in 2015, four months prior to the supreme
court's decision in Counts. However, Counts was the prevailing precedent at the
time of Boston's pretrial suppression hearing in 2017. At the pretrial hearing, the
State did not raise the argument to the circuit court that the officers were acting in
accordance with the law prior to the Counts decision. Rather, at the pretrial
hearing, the State asserted the applicability of the Counts decision to the circuit
court. While we may rely on additional grounds a respondent raises on appeal, we
Article 1, section 10, of the South Carolina Constitution establishes:
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.
Our supreme court has also established that South Carolina may provide more
protection than that afforded by the United States Constitution: "[S]tate courts can
develop state law to provide their citizens with a second layer of constitutional
rights," and "this [c]ourt can interpret the state protection against unreasonable
searches and seizures in such a way as to provide greater protection than the
federal Constitution." State v. Forrester, 343 S.C. 637, 643-44, 541 S.E.2d 837,
840 (2001).
In 2015, our supreme court extended constitutional protection in State v. Counts:
law enforcement must have reasonable suspicion of illegal activity to perform a
knock and talk. 413 S.C. at 174, 776 S.E.2d at 71. Without such a requirement,
the supreme court found a knock and talk would violate a person's right to privacy
set forth in the South Carolina Constitution. Id. at 174, 776 S.E.2d at 70-71. In
establishing this threshold requirement, our supreme court reaffirmed that the
South Carolina Constitution's privacy protection against unreasonable searches and
seizures "favors an interpretation offering a higher level of privacy protection than
the Fourth Amendment." Id. at 168, 776 S.E.2d at 68 (quoting Forrester, 343 S.C.
at 645, 541 S.E.2d at 841).
In Counts, law enforcement officers responded to two anonymous tips that Counts
was selling narcotics and using fake identification cards. Id. at 173, 776 S.E.2d at
decline to do so here. See I'On, LLC v. Town of Mt. Pleasant, 338 S.C. 406, 421,
526 S.E.2d 716, 724 (2000) ("[T]he respondent may raise an additional sustaining
ground that was not even presented to the lower court, but the appellate court is
likely to ignore it").
70. The officers independently confirmed Counts had a criminal record and had
used more than one identity. Id. Based upon the anonymous tips and the
information confirmed by the officers, our supreme court found the officers had
reasonable suspicion of illegal activity to engage in a knock and talk. Id.
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."
Id.
This court recently addressed the legality of a knock and talk in State v. Kotowski,
427 S.C. 119, 828 S.E.2d 605 (Ct. App. 2019), aff'd in part, vacated in part on
other grounds, 430 S.C. 318, 844 S.E.2d 650 (2020) (per curiam). In Kotowski,
the sheriff's office of Dorchester County received an anonymous tip alerting the
department to drug use at a particular residence. Id. at 125, 828 S.E.2d at 608. An
officer drove by the residence a number of times, noting a vehicle parked at the
residence was owned by the son of a person previously convicted for crimes
involving methamphetamine. Id. Officers went to the home to engage in a "knock
and talk." Id. at 125-26, 828 S.E.2d at 628. Kotowski responded to the knock and
stepped outside to speak to the officer, closing the door behind him. Id. at 126,
828 S.E.2d at 628. The officer testified Kotowski smelled strongly of ammonia.
Id. Kotowski indicated his girlfriend was also in the home. Id. Kotowski went
inside to get her and attempted to close the door, but the officer placed his foot in
the way. Id. When the girlfriend appeared, the officer asked if she would consent
to a search of her home, but she declined. Id. "Believing something to be amiss,"
the officer ordered his fellow officers to perform a protective sweep of the house,
which revealed evidence of drugs and resulted in the issuance of a warrant and
Kotowski's arrest. Id. at 126-27, 828 S.E.2d at 609.
This court found the officers did have reasonable suspicion to utilize the knock and
talk investigative technique:
The trial court did not err in denying Kotowski's motion
to suppress the evidence seized by law enforcement
officers after conducting the knock and talk. Law
enforcement relied on three pieces of information in
arguing they had reasonable suspicion: (1) the
anonymous tip Sergeant Thompson received on June 13,
2014; (2) the spotty surveillance Sergeant Thompson
conducted of the house, which is where he recognized the
vehicle belonging to the son of a convicted
methamphetamine cook; and (3) the [National Precursor
Log Exchange] records, showing what Sergeant
Thompson referred to as "a substantial amount of
purchases."
Id. at 129, 828 S.E.2d at 610.
Furthermore, Kotowski lays out the basis for what constitutes reasonable suspicion:
Reasonable suspicion consists of "'a particularized and
objective basis' that would lead one to suspect another of
criminal activity." State v. Lesley, 326 S.C. 641, 644,
486 S.E.2d 276, 277 (Ct. App. 1997) (quoting United
States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66
L.Ed.2d 621 (1981)). "Reasonable suspicion is more
than a general hunch but less than what is required for
probable cause." State v. Willard, 374 S.C. 129, 134, 647
S.E.2d 252, 255 (Ct. App. 2007). "An additional factor
to consider when determining whether reasonable
suspicion exists is the officer's experience and intuition."
State v. Taylor, 388 S.C. 101, 116, 694 S.E.2d 60, 68 (Ct.
App. 2010), rev'd on other grounds, 401 S.C. 104, 736
S.E.2d 663 (2013). "Nevertheless, 'a wealth of
experience will [not] overcome a complete absence of
articulable facts.'" Id. (quoting United States v. McCoy,
513 F.3d 405, 415 (4th Cir. 2008)). "Furthermore, an
officer's impression that an individual is engaged in
criminal activity, without confirmation, does not amount
to reasonable suspicion."
Id. at 128-29, 828 S.E.2d at 610.
In the present case, the circuit court did not err in denying Boston's motion to
suppress. Sergeant Sherwood testified to objective knowledge of the apartment
community and the three people inside the apartment. Sergeant Sherwood had
years of experience investigating criminal drug activity, with extensive training
and certification, including eleven years with the department, and was very
familiar with the apartment community he surveilled. He knew Boston and
Holmes did not live there and recognized them from a previous incident at another
location. Sergeant Sherwood's department had specifically directed him to patrol
the area of the apartments based upon information the area had been "a hot spot of
narcotics activity." He also testified he had knowledge of the practice of those
engaged in illegal activity using the apartments of others to manufacture drugs.
During his patrol, he observed Boston and Holmes enter the home of a person he
knew lived alone, had some undefined limitations, and had used narcotics in the
past.
The circuit court relied on specific evidence to find the knock and talk was based
on reasonable suspicion of illegal activity. Nothing in the Record indicates law
enforcement engaged in the knock and talk "randomly." See Counts, 413 S.C. at
173, 776 S.E.2d at 70 ("T]he 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.'"). Id. at 173, 776 S.E.2d at 70.
Likewise, Sergeant Sherwood and his fellow officers did not randomly knock on
Holman's door. While patrolling an area known as an area of criminal drug
activity, Sergeant Sherwood observed the specific occurrence of Boston and
Holmes going into the home of Holman, forming a basis for reasonable suspicion.4
4
While neither the circuit court nor the parties asserted Sergeant Sherwood
knocked on Holman's door to perform a "welfare check" expressly, Sergeant
Sherwood testified he was concerned about Holman. While Sergeant Sherwood
testified the impetus for the knock and talk was investigative, we are also aware
Sergeant Sherwood had concern for Holman as a person who may have been
vulnerable to being taken advantage of by others. See Counts, 413 S.C. at 176 n.7,
776 S.E.2d at 72 n. 7 ("A 'welfare check' is not a criminal investigative technique.
As its name implies, a 'welfare check' is conducted by law enforcement based upon
Therefore, the circuit court did not err in denying Boston's motion to suppress the
evidence.
CONCLUSION
The circuit court did not err in denying Boston's motion to suppress because law
enforcement had reasonable suspicion of illegal activity to approach Holman's door
and conduct the "knock and talk." Accordingly, the decision of the circuit court is
AFFIRMED.
LOCKEMY, C.J., and MCDONALD, J., concur.
concern for a person's welfare not to inquire about illegal activity at the
residence"). Id. at 176 n.7, 776 S.E.2d at 72 n.7.