THE STATE OF SOUTH CAROLINA
In The Court of Appeals
The State, Appellant,
v.
Sylvester Ferguson, III, Respondent.
Appellate Case No. 2018-002133
Appeal From Laurens County
Frank R. Addy, Jr., Circuit Court Judge
Opinion No. 5915
Heard February 10, 2022 – Filed June 1, 2022
AFFIRMED
Attorney General Alan McCrory Wilson and Senior
Assistant Attorney General Mark Reynolds Farthing,
both of Columbia; and Solicitor David Matthew Stumbo,
of Greenwood, all for Appellant.
Appellate Defender David Alexander, of Columbia, for
Respondent.
WILLIAMS, C.J.: In this criminal appeal, pursuant to Article I, Section 10 of the
South Carolina Constitution, the trial court suppressed evidence of
methamphetamine production that officers found inside an apartment occupied by
Sylvester Ferguson. The State argues the trial court erred in (1) finding officers
needed a reasonable suspicion of criminal activity before approaching the
apartment to conduct a "knock and talk" and (2) ruling the officers did not have a
reasonable suspicion to approach the apartment. We affirm.
FACTS/PROCEDURAL HISTORY
On January 17, 2017, Laurens County Sheriff's Deputy Andrew Hall was
conducting routine patrol in Joanna, South Carolina. While parked at a gas station,
an unknown male approached Deputy Hall and told him that Ferguson was in the
upper-left unit of an apartment building on Whitmire Highway "cooking dope."
Deputy Hall was unfamiliar with the tipster, and he failed to collect his name or
any means to contact him. He also failed to ask any questions to verify the tipster's
statement. Although he had never personally arrested Ferguson, Deputy Hall was
familiar with Ferguson from prior encounters at the Laurens County Detention
Center. Deputy Hall immediately called Investigator Charles Nations,1 a member
of the Laurens County Sheriff's Office narcotics unit, to relay the tip and to ask if
Investigator Nations wanted to accompany him in conducting a knock and talk at
the apartment. Deputy Hall explained that the town of Joanna is a high traffic drug
area and that he wanted a narcotics investigator to assist in the investigation.
Roughly twenty minutes after receiving the tip, Deputy Hall and Investigator
Nations arrived at the apartment to conduct a knock and talk.
Investigator Nations testified that he and Deputy Hall had to "guesstimate" which
apartment building the tipster referred to in his statement, but narrowed their
search quickly as there was only one apartment building on Whitmire highway. As
officers approached the upper-left unit, they noticed the front window was open
and they heard the sound of the front door deadbolt cycling. Before the officers
could knock, Henry Davis, Ferguson's cousin, opened the door to leave for work.2
Investigator Nations stated that despite the window being open and Davis opening
1
Investigator Nations also had prior encounters with Ferguson. He had observed
officers arrest Ferguson one night during a "ride-along" after receiving information
that Ferguson was manufacturing methamphetamine in Joanna. However, he
admitted that he was unaware of Ferguson's entire criminal history or prior
convictions before the date of the arrest in this case.
2
Davis leased the apartment. It is unclear if Ferguson lived there, but Investigator
Nations testified that he believed Davis rented Ferguson a room in the apartment
for money. Officers also found vocational rehabilitation papers and a job
application with Ferguson's name on it, and Ferguson's clothing. Investigator
Nations claimed Davis told him Ferguson lived there while the two men were
arrested.
the door, he did not smell ammonia or other pungent fumes associated with
methamphetamine production. Davis spoke with the officers outside of the
residence and confirmed that Ferguson was inside. As Davis went to retrieve
Ferguson, Investigator Nations took a step into the apartment to maintain contact
with Davis and Ferguson appeared out of a rear bedroom. The officers explained
to Davis and Ferguson that they received a tip about drug manufacturing, but both
men denied any knowledge of illegal activity in the apartment. Investigator
Nations then asked if he could walk through the house. Ferguson hesitated and
then acquiesced once Davis consented.
During the walkthrough, Investigator Nations found a bottle of lighter fluid and a
clear wrapper that contained a yellow, paste-like substance in the bathroom.
Another officer found a marijuana pipe with residue in it on a coffee table in the
living room. Based on these discoveries, Investigator Nations applied for a search
warrant, and it was issued roughly thirty minutes later. While waiting for the
search warrant, officers noticed Ferguson fidgeting in his pockets and requested he
stop. Ferguson continued and officers conducted a Terry3 frisk. Officers found a
vial containing powder on Ferguson's person that they presumed was crack cocaine
or methamphetamine. Upon executing the search warrant, officers found three
different bottles used to create hydrogen chloride, a bottle of sulfuric acid, and
other paraphernalia used to produce methamphetamine, most of which was found
in a trash pile on the back porch. Officers arrested both Davis and Ferguson based
on their findings.
At a pretrial suppression hearing, Ferguson argued all evidence produced from the
initial walkthrough and pursuant to the search warrant was inadmissible at trial
because the officers violated his right to privacy under the South Carolina
Constitution. Specifically, Ferguson argued that under State v. Counts,4 Deputy
Hall and Investigator Nations needed a reasonable suspicion that he was
manufacturing methamphetamine to approach the apartment and conduct a knock
and talk. Further, he argued the tip was equivalent to an anonymous tip due to the
lack of information it provided about the tipster.
In opposition, the State argued Ferguson did not have standing to assert a privacy
interest in the apartment and that no knock and talk occurred because Davis opened
the door before the officers could make it to the door. Further, the State contended
the "fresh" tip from a face-to-face encounter was sufficient to establish reasonable
3
Terry v. Ohio, 392 U.S. 1 (1968).
4
413 S.C. 153, 776 S.E.2d 59 (2015).
suspicion when coupled with the officers' prior knowledge of Ferguson's
connection to drug production and the apartment being in a high traffic drug area.5
The trial court ruled that Counts required the court to suppress the evidence. It
determined the engagement by officers of the occupants of a residence triggers the
need for reasonable suspicion, which the officers did not have in this case. In so
holding, the trial court reasoned (1) the tipster was unknown and provided officers
with no indicia of reliability or credibility, and Deputy Hall did not know at what
point the tipster observed, if at all, Ferguson manufacturing methamphetamine; (2)
the evidence collected at the apartment did not establish an active
methamphetamine lab, which was the substance of the tip; and (3) the officers
failed to take any measure to independently corroborate the tip. At the conclusion
of the hearing, the State dismissed the case. This appeal followed.
ISSUE ON APPEAL
Did the trial court err in suppressing all evidence seized from the apartment under
Article 1, Section 10 of the South Carolina Constitution?
STANDARD OF REVIEW
The admission of evidence is within the sound discretion of the trial court and will
not be overturned absent an abuse of discretion. State v. Wright, 391 S.C. 436,
442, 706 S.E.2d 324, 326 (2011). The trial court abuses its discretion when the
ruling is based on an error of law or when the ruling is grounded in factual
conclusions that lack evidentiary support. Id. "[A]ppellate court[s] will reverse
only when there is clear error." Id. (quoting State v. Missouri, 361 S.C. 107, 111,
603 S.E.2d 594, 596 (2004) (citation omitted)).
LAW/ANALYSIS
The State asserts the trial court erred in suppressing the evidence under Article 1,
Section 10's prohibition against unreasonable invasions of privacy. We disagree.
5
Moreover, the State argued the officers' actions were supported by exigent
circumstance. The trial court ruled no exigent circumstances existed because the
officers could not smell the production of methamphetamine while approaching the
door and none of their actions indicated they thought an emergency existed,
including the officers' request for consent to enter the home.
The South Carolina Constitution grants citizens an express right to privacy. S.C.
Const. art. I, § 10.6 "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.'" Counts, 413 S.C. at 167, 776
S.E.2d at 67. "As a result . . . 'the drafters were depending upon the state judiciary
to construct a precise meaning of this phrase.'" Id. (quoting 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)).
"[T]he privacy interests in one's home are the most sacrosanct, [and] there must be
some threshold evidentiary basis for law enforcement to approach a private
residence." Id. at 172, 776 S.E.2d at 69 (emphasis added). "[Officers] must have
reasonable suspicion of illegal activity at a targeted residence prior to approaching
the residence and knocking on the door." Id. at 172, 776 S.E.2d at 70 (emphasis
added). "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.'" State v. Boston, 433 S.C. 177, 183, 857
S.E.2d 27, 30 (Ct. App. 2021) (quoting Counts, 413 S.C. at 168, 776 S.E.2d at 68),
cert. granted, S.C. Sup. Ct. Order Dated Jan. 13, 2022.
"Reasonable suspicion consists of 'a particularized and objective basis' that would
lead one to suspect another of criminal activity." State v. Kotowski, 427 S.C. 119,
128, 828 S.E.2d 605, 610 (Ct. App. 2019) (quoting State v. Lesley, 326 S.C. 641,
644, 486 S.E.2d 276, 277 (Ct. App. 1997)), aff'd in part, vacated in part on other
grounds, 430 S.C. 318, 844 S.E.2d 650 (2020). It is more than a hunch but
amounts to less than what is required for probable cause. Boston, 433 S.C. at 185,
857 S.E.2d at 31. In evaluating the existence of reasonable suspicion, courts may
consider an officer's experience and intuition. Id. "Nevertheless, 'a wealth of
experience will [not] overcome a complete absence of articulable facts.'" Id.
(quoting Kotowski, 427 S.C. at 129, 828 S.E.2d at 610). "Furthermore, an officer's
6
In pertinent part, it 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 . . . .
(emphasis added).
impression that an individual is engaged in criminal activity, without confirmation,
does not amount to reasonable suspicion." Id. (quoting Kotowski, 427 S.C. at 129,
828 S.E.2d at 610).
Counts and Boston are both instructive. In Counts, an officer received an
anonymous tip alleging the defendant was selling marijuana and crack cocaine out
of his mother's house and a separate apartment. 413 S.C. at 157, 776 S.E.2d at 61–
62. The tipster provided the defendant's name and aliases; the location of the
alleged drug deals; the defendant's girlfriend's name; the make, model, and license
plate number of his car; his phone number; and the make and model of the
defendant's girlfriend's car. Id. at 157, 776 S.E.2d at 62. Based on this
information, officers conducted surveillance on the defendant's mother's home and
attempted two, unsuccessful, controlled drug buys from the the apartment. Id.
Roughly ten months later, another officer received an anonymous tip about the
defendant. Id. The tipster claimed the defendant was selling drugs out of his
apartment and provided the defendant's name, phone number, his girlfriend's name
and phone number, and identified his vehicle. Id. The tipster also disclosed that
the defendant used multiple identities because the defendant knew someone at the
Department of Motor Vehicles through whom he procured two false forms of
identification. Id.
Officers then corroborated the tip by reviewing the defendant's criminal record
which showed two prior convictions for distribution of drugs and several other
drug charges. Id. at 158, 776 S.E.2d at 62. The officers also confirmed that the
defendant had two different identification cards on record. Id. Based on this
information, the officers conducted surveillance on the defendant's apartment, and,
upon identifying the defendant driving to and entering the apartment, the officers
decided to do a knock and talk. Id. When the defendant opened his door after the
officers knocked, the officers encountered the smell of marijuana and saw a rolled
blunt on a coffee table. Id.
On appeal to our supreme court, the defendant argued that under South Carolina's
express right to privacy, officers needed reasonable suspicion in light of the totality
of the circumstances to initiate the knock and talk. Id. at 161, 776 S.E.2d at 64.
The supreme court agreed with the defendant, stating, "law enforcement must have
reasonable suspicion of illegal activity at a targeted residence prior to approaching
the residence and knocking on the door." Id. at 172, 776 S.E.2d at 70. The court
found, however, that the officers had reasonable suspicion to approach the
defendant's residence and knock on the door because (1) the officers received two
separate anonymous tips that alleged the defendant was selling drugs; (2) the tips
identified vehicles driven by the defendant, his phone number, and his use of
multiple identities; and, (3) through investigation, officers corroborated that the
defendant had two false identification cards and prior drug distribution convictions
on record. Id. at 173, 776 S.E.2d at 70. In conclusion, the supreme court noted,
For our state constitutional right to privacy to 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.
Id. at 174, 776 S.E.2d at 70–71.
In Boston, this court determined that officers held a reasonable suspicion to
approach and knock on the door of an apartment where the defendant was visiting.
433 S.C. at 186, 857 S.E.2d at 32. After responding to a call, an officer proceeded
to patrol a nearby apartment community known for high volumes of narcotic
activity and because "vulnerable" adults lived there. Id. at 179, 857 S.E. at 28.
While surveilling the apartments, the officer observed two men that he knew were
associated with drug activity enter an apartment. Id. at 180, 857 S.E.2d at 28. The
officer knew the apartment to be the residence of an individual with mental
disabilities that used narcotics. Id. Based on concerns for the resident's safety and
the nature of the activities that might take place inside the apartment, the officer
decided to conduct a knock and talk. Id. at 180, 857 S.E.2d at 28–29.
In response to a knock, the resident opened her door and allowed the officers to
enter the apartment. Id. at 180, 857 S.E.2d at 29. Once inside, officers saw two
men in the kitchen huddled around a microwave, two plastic bags with white
residue on them, and a scale. Id. When the men noticed the officers, they opened
the microwave, hid their hands, and ran to the bathroom. Id. Concerned for their
safety, the officers conducted a protective sweep of the apartment and ordered the
men out of the bathroom. Id. at 180–181, 857 S.E.2d at 29. The officers found a
glass measuring cup filled with a steaming substance suspected to be crack
cocaine. Id.
This court reasoned the officers had a reasonable suspicion to conduct the knock
and talk because of the investigating officer's knowledge of (1) the two men in the
apartment, (2) criminal drug investigation, and (3) the apartment community he
surveilled. Id. at 185, 857 S.E.2d at 31. The officer testified to his objective
knowledge of the apartment community and the three people inside the apartment,
stating he knew all three and that he had previous encounters with the two men that
entered the apartment. Id. The officer also had eleven years of criminal drug
investigation experience and knew the apartment community was a hot spot for
drug activity. Id.
Initially, we note that Counts is explicit in its ruling: our constitution's express
right to privacy found in Article 1, Section 10, to have any substance, requires
officers to form a reasonable suspicion before approaching a residence to conduct
a knock and talk or a warrantless search of a home. Counts, 413 S.C. at 174, 776
S.E.2d at 70–71. Therefore, we find the state constitution required the officers in
this case to develop reasonable suspicion that Ferguson was manufacturing
methamphetamine before approaching the apartment to knock on the door.
Further, we find the officers did not form the requisite reasonable suspicion to
approach the apartment building in an attempt to conduct a knock and talk. See
Counts, 413 S.C. at 172, 776 S.E.2d at 70 ("[L]aw enforcement must have
reasonable suspicion of illegal activity at a targeted residence prior to approaching
the residence and knocking on the door." (emphasis added)). Unlike the two
anonymous tips in Counts, the tip Deputy Hall received lacked any indicia of
accuracy or credibility. Deputy Hall did not receive or solicit any information
from the tipster that would further indicate Ferguson was manufacturing
methamphetamine. For example, he did not ask if Ferguson lived at the apartment
or if he drove a specific car that officers could identify and observe at the
apartment; he did not ask about potential sales Ferguson might make in the future;
he did not ask for Ferguson's phone number or a description of what Ferguson was
wearing; he did not ask if he could smell any scents associated with
methamphetamine production; and, most importantly, he did not ask how he knew
Ferguson or that Ferguson was "cooking dope" at the apartment. Cf id. at 173, 776
S.E.2d at 70 (finding officers had reasonable suspicion to approach a residence and
conduct a knock and talk when the officers received two separate anonymous tips
that the defendant was selling drugs and identified vehicles he drove, his phone
number, and his use of multiple identities and identification cards).
Moreover, unlike the officers in Counts, Deputy Hall and Investigator Nations
failed to conduct any form of independent investigation to buttress the tip—they
did not conduct surveillance, research Ferguson's criminal record, or check the
National Precursor Log Exchange.7 See Kotowski, 427 S.C. at 129, 828 S.E.2d at
610 ("[A]n officer's impression that an individual is engaged in criminal activity,
without confirmation, does not amount to reasonable suspicion." (emphasis
added)); id. ("[An officer's] wealth of experience will [not] overcome a complete
absence of articulable facts." (quoting State v. Taylor, 388 S.C. 101, 116, 694
S.E.2d 60, 68 (Ct. App. 2010), rev's on other grounds, 401 S.C. 104, 736 S.E.2d
663 (2013)).
Although we disagree with Ferguson that the tip was purely anonymous, the
face-to-face encounter alone, or even coupled with the content and nature of the tip
itself, is insufficient to create a reasonable suspicion that Ferguson was
manufacturing methamphetamine at the apartment. See United States v. Perkins,
363 F.3d 317, 323 (4th Cir. 2004) ("The basic rules governing informant's tips are
well-established. In cases where an informant's tip supplies part of the basis for
reasonable suspicion, [appellate courts] must ensure that the tip possesses
sufficient indicia of reliability."). As noted above, Deputy Hall did not ask the
informant any follow-up questions to gain additional information regarding
Ferguson, the apartment, or how he knew about the alleged methamphetamine
production. The informant's tip only provided Ferguson's name, a general location,
and the allegation that Ferguson was "cooking dope." While courts generally find
face-to-face tips sufficiently reliable due to an officer's ability to judge the tipster's
credibility and demeanor, additional facts that allow an officer to evaluate the
veracity of the tip are usually present. See Adams v. Williams, 407 U.S. 143,
146-47 (1972) (finding an officer had reasonable suspicion to perform a traffic stop
based on a face-to-face tip he received from an informant he knew personally, that
had provided accurate information in the past, and the information in the tip was
immediately verifiable at the crime scene); United States v. Christmas, 222 F.3d
141, 143–45 (4th Cir. 2000) (finding an officer had reasonable suspicion to
conduct a Terry stop based on a face-to-face tip received by an individual who did
not provide her name but provided her home address and stated she lived two
houses down from the illegal activity; she also provided the tip to the uniformed
officer in close proximity to the illegal activity, increasing the probability that
someone associated with the illegal activity could see her assist the officer); State
v. Driggers, 322 S.C. 506, 511–14, 473 S.E.2d 57, 59–61 (Ct. App. 1996) (holding
7
The National Precursor Log Exchange is a real-time electronic logging and
compliance system that tracks sales of over-the-counter cold and allergy
medications containing pseudoephedrine, a necessary element of
methamphetamine.
a face-to-face tip was reliable as the basis for probable cause to support a search
warrant where the tipster provided her name to officers, signed a statement, lived
in the residence with the defendant, observed the defendant prepare for the crime
and talk about the crime afterwards, and provided specific details about evidence
from the crime); cf. Perkins, 363 F.3d at 320, 323–24 (finding an anonymous tip
reliable where the tipster disclosed her general location and her basis of
knowledge, stated she was currently watching a crime be committed, the officer
assumed the identity of the informant based on her close proximity to the crime
and the nature of the description she provided, and the officer's subjective
knowledge of the area and the informant's track record). Here, apart from the
informant's limited information, Deputy Hall and Investigator Nations had no
reason to suspect Ferguson of being inside the apartment, much less manufacturing
methamphetamine.
Unlike the officer in Boston, Deputy Hall and Investigator Nations did not
personally observe any specific circumstances that would lead an officer to believe
Ferguson was manufacturing methamphetamine in the apartment. Although the
officers were aware that Ferguson was connected to methamphetamine activity,
they did not observe Ferguson enter the apartment or know that he was inside.
While both Deputy Hall and Investigator Nations testified they were aware that
Joanna was a drug hot spot, Joanna is an entire town and both officers testified
they had never encountered Ferguson at the specific apartment building or made
any drug-related arrests at the apartment building.
Because the informant's tip lacked any indicia of reliability and neither Deputy
Hall nor Investigator Nations conducted independent investigations to corroborate
the tip, we find the officers lacked the requisite reasonable suspicion to approach
the apartment to conduct a knock and talk. See Counts, 413 S.C. at 172, 776
S.E.2d at 70 ("[L]aw enforcement must have reasonable suspicion of illegal
activity at a targeted residence prior to approaching the residence and knocking on
the door." (emphasis added)). Therefore, the trial court did not err in suppressing
the evidence.
CONCLUSION
Accordingly, the trial court's ruling is
AFFIRMED.
KONDUROS and VINSON, JJ., concur.