State v. Taylor

Justice KITTREDGE.

I concur in part and dissent in part. While I concur that law enforcement had reasonable suspicion to detain Respondent Syllester D. Taylor and conduct a Terry5 investigatory stop,6 I believe the officer’s manipulation of the tennis ball exceeded the parameters of the Fourth Amendment as interpreted in Minnesota v. Dickerson.7 I would affirm the court of appeals in result.

Deputies of the Florence County Sheriffs Office were dispatched to investigate an anonymous tip of an individual “possibly selling dope.” The underlying facts, which amply support the trial court’s finding of reasonable suspicion, are set forth in the majority opinion. State v. Brockman, 339 S.C. 57, 64-65, 528 S.E.2d 661, 664-65 (2000). “Our review in Fourth Amendment search and seizure cases is limited to determining whether any evidence supports the trial court’s finding.” State v. Banda, 371 S.C. 245, 251, 639 S.E.2d 36, 39 (2006). “The appellate court may only reverse where there is *119clear error.” State v. Pichardo, 367 S.C. 84, 95, 623 S.E.2d 840, 846 (Ct.App.2005).

“Even where the stop is deemed proper, ‘before the police may frisk a defendant, they must have a reasonable belief the defendant is armed and dangerous.’” State v. Blassingame, 338 S.C. 240, 248, 525 S.E.2d 535, 540 (Ct.App.1999) (quoting State v. Fowler, 322 S.C. 263, 267, 471 S.E.2d 706, 708 (Ct.App.1996)). “The purpose of this limited search is not to discover evidence of a crime, but to allow the officer to pursue his investigation without fear of violence.” Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). “In assessing whether a suspect is armed and dangerous, the officer need not be absolutely certain the individual is armed.” Blassingame, 338 S.C. at 248-49, 525 S.E.2d at 540. “The issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id. “Whether a Fourth Amendment violation has occurred turns on an objective assessment of [an officer’s] actions in light of the facts and circumstances confronting him at the time and not on the officer’s actual state of mind at the time the challenged action was taken.” United States v. Swann, 149 F.3d 271, 276 (4th Cir.1998) (internal quotations omitted) (finding it was objectively reasonable for officers’ suspicion to be aroused by a hard rectangular object which was approximately the same size and shape as a box cutter with a sharp blade and was found in a suspect’s sock).8 There exists an indisputable nexus between drugs and guns, and where an officer has reasonable suspicion that drugs are present, there is an appropriate level of suspicion of criminal activity and apprehension of danger to justify a frisk. Banda, 371 S.C. at 253, 639 S.E.2d at 40.

Police officers may seize non-threatening contraband detected during a protective pat-down search permitted by Terry so long as the “contour or mass [of the object] makes its identity immediately apparent.” Dickerson, 508 U.S. at 373-75, 113 S.Ct. 2130 (emphasis added). “Once an officer has determined *120that the object is not a weapon, however, and if its shape or size does not indicate its contraband nature, the search must stop." United States v. Raymond, 152 F.3d 309, 312 (4th Cir.1998) (emphasis added). Where an officer first believes a hard object under a person’s outer clothing is a gun, but during the course of removing it, becomes aware that it is not a weapon, but rather is an object whose incriminating nature was immediately apparent, the pat-down does not constitute an unreasonable search. Id. at 313 (finding search was reasonable where officer initially thought hard object was a weapon but, upon pulling it from the suspect’s waistband, “immediately realized from the shape of the object and his experience on the force that it was a crack cookie”).

In the present case, as part of the valid investigatory detention, and for officer safety, a deputy conducted a pat-down of Respondent. The deputy felt a hard bulge in Respondent’s right pants pocket. The deputy testified he believed the object could have been a weapon, and he pushed the object to the top of Respondent’s pocket without reaching inside the pocket. The object fell from Respondent’s pocket and rolled on the ground. It was a tennis ball, as the deputy testified: “It rolled out on the ground beside him with [sic] a green tennis ball. At that time, I picked the tennis ball up. As I picked it up, I squeezed it. It had a slit in the top of it. And inside of the tennis ball, you could actually see the bag of what was believed to be crack cocaine at the time.” (emphasis added).9 Significantly, the record contains not a scintilla of evidence that the deputy harbored any belief that the tennis ball, once identified, was a weapon. This undisputed fact belies the majority’s effort to find that “the incriminating contents of the tennis ball became apparent while police were still in the process of ensuring that Respondent was unarmed.” 10

*121Although the deputy could lawfully remove the hard object from Respondent’s pocket to ensure that it was not a weapon, the law does not allow a further search or manipulation of the object when it is clearly not a weapon and its incriminating nature is not immediately apparent. Under Minnesota v. Dickerson,11 once the tennis ball was removed from Respondent’s pocket and determined to be an object whose incriminating character was not immediately apparent, the deputy was not permitted to squeeze or manipulate the tennis ball to discover contraband that was hidden inside. Consequently, the deputy exceeded the limited scope of the pat-down search authorized by Terry when he squeezed the tennis ball and looked inside the slit to discover the drugs. See also United States v. Askew, 529 F.3d 1119, 1146 (D.C.Cir.2008) (finding police officer’s partial unzipping and opening of the defendant’s jacket was a search under the Fourth Amendment and observing that “Terry allows an identification seizure. It does not permit an identification search.”)-, United States v. Miles, 247 F.3d 1009,1013 (9th Cir.2007) (finding a search following a Terry stop invalid under the Fourth Amendment where the officer exceeded a permissible pat-down for weapons by “moving or shaking” a small box in defendant’s pocket).

Because I believe the deputy’s manipulation and search of the tennis ball was impermissible under the Fourth Amendment and the very sort of evidentiary search that Terry expressly refused to authorize, I would affirm the court of appeals in result concerning the suppression of the evidence.

. Teny v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

. I join Judge Thomas' well-reasoned analysis, as she properly applied the correct standard of review. See State v. Taylor, 388 S.C. 101, 124-28, 694 S.E.2d 60, 72-74 (Ct.App.2010) (Thomas, J., dissenting).

.508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993).

. Notably, the United States Court of Appeals for the Fourth Circuit stated, "[a] similarly shaped hard object in Swann’s pocket certainly would have raised no alarms, as there could be innumerable innocent explanations for it.” Swann, 149 F.3d at 276 (emphasis added).

. The deputy's testimony before the jury was similar. The deputy stated the tennis ball "has a split in it and [Respondent] could get what he needed in and out of it.” When questioned whether the drugs were "difficult to see when you squeezed it,” the deputy answered, "No, sir, once you pick the ball up, just the little bit of pressure open [sic] the slit up so that you could see what was inside.”

. Moreover, it may be common (for purposes of meeting the "immediately apparent” standard) for drug dealers to secrete drugs in objects *121such as a tennis ball, but there is no evidence in this record to support such a finding.

. Dickerson provides an example of an impermissible search where the officer "squeeze[ed], slid[], and otherwise manipulate[ed] the contents of the defendant’s pocket.” 508 U.S. at 378, 113 S.Ct. 2130. The United States Supreme Court found that the officer "overstepped [the] bounds of the 'strictly circumscribed’ search for weapons allowed under Terry” with the "continued exploration of [defendant's] pocket after having concluded that it contained no weapon.” Id.