Pre-trial motions to suppress evidence

South Carolina Case Law

STATE v. BANDA, 26239 (S.C. 12-11-2006) The State,
Respondent, v. Martha Banda, Appellant. Opinion No. 26239.
Supreme Court of South Carolina. Heard October 17, 2006.
Filed December 11, 2006.

Appeal from Greenville County John C. Few, Circuit Court
Judge.

AFFIRMED.

Appellate Defender Robert M. Dudek, of Columbia, for
Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy

Attorney General John W. McIntosh, Assistant Deputy

Attorney General Salley W. Elliott, and Senior Assistant

Attorney General Norman Mark Rapoport, all of Columbia, and

Solicitor Robert M. Ariail, of Greenville, for Respondent.

CHIEF JUSTICE TOAL.

In this case, the trial court denied Appellant Martha
Banda’s pre-trial motions to suppress evidence and an
incriminating statement she gave to police. The trial court
subsequently convicted Banda for trafficking in ten grams
or more of methamphetamine and sentenced her to four years
imprisonment.

FACTUAL/PROCEDURAL BACKGROUND

In February 2003, Banda, a citizen of Zimbabwe,[fn1] was a
passenger in a car stopped by the City of Greenville
(Greenville) police for having stolen Georgia license tags.
Earlier that evening, Greenville narcotics officers
Detective Mark White (White) and Detective Melissa Lawson
(Lawson) were staking out a house that a confidential
informant had told them was the residence of a female drug
target dealing methamphetamines, and for whom the officers
had an arrest warrant. The confidential informant had
arranged to purchase an “8-ball of meth” at the target’s
house. The informant further told police that the drugs
came from a supplier in Georgia.

During the stakeout, the narcotics officers observed a car
with Georgia license tags pull into the driveway of the
target’s residence and leave thirty to forty minutes later.
Although White’s testimony indicates that at this point,
the officers were aware of the possibility that the deal
between the confidential informant and the target had been
called off, they followed the car assuming that the
occupants might be going to meet with the informant anyway.
As the officers continued to follow the vehicle, they
realized there were two occupants: a male driver and a
female passenger. White and Lawson testified that at this
point, they assumed the female passenger to be their target.
After learning from dispatch that the Georgia tags had been
reported stolen, White and Lawson had another uniformed
Greenville police officer assist them in stopping the car
once it entered the city limits. Detective Conroy (Conroy),
another narcotics officer assisting in the investigation of
the target, also came to the scene.

Upon stopping the car, the officers requested that both the
driver and passenger step out of the car. Conroy and the
uniformed officer attended to the driver and subsequently
handcuffed and arrested him for driving with a stolen
license plate. Meanwhile, White and Lawson approached Banda
on the passenger side. Although the officers immediately
realized Banda was not their target when she stepped out of
the car, they proceeded to question her at the scene
anyway.

Detective White had his gun drawn and pointed at Banda as
Lawson asked her if she had any weapons.[fn2] Banda
responded she did not, but Lawson explained to Banda she
was going to do a routine pat down for Lawson’s own safety.
During the pat down, Lawson felt an object in Banda’s upper
right hand coat pocket. When Lawson asked Banda what it was,
Banda explained that it was her ace bandage. At the same
time, Banda pulled a “loosely rolled up” bandage out of the
pocket and handed it to Lawson. Lawson squeezed the bandage
and felt plastic on the inside. She looked at Banda who
“dropped her head” and told Lawson it was an ounce of
“ice.” Lawson read Banda her Miranda rights at the scene and
after a further search of the vehicle, the officers took
Banda back to the station where they read her Miranda
rights for a second time. After waiving her Miranda rights,
Banda gave the officers a written statement.

Banda made a pre-trial motion to suppress the drugs found
by Lawson on the grounds that Lawson’s stop and frisk was
an unreasonable search and seizure. After an in camera
suppression hearing in which the trial court heard
testimony from Banda and Detectives White and Lawson, the
court denied Banda’s motion to suppress the drugs. The
trial court found the police had probable cause to stop the
car for the stolen tags; they had the authority to request
Banda to get out of the car; and that Banda was properly
frisked for weapons given the officers’ reasonable suspicion
of her involvement in the delivery of drugs.

Banda then made a second pre-trial motion to suppress her
written statement made to the police after her arrest.
Banda argued she had not been informed of her right to
contact Zimbabwe’s consular official as required by
international treaty. The State did not deny this
allegation.

The trial court found that even assuming the Greenville
officers had violated the treaty, this violation did not
provide adequate legal grounds to consider applying the
exclusionary rule to Banda’s statement. For this reason,
the trial court refused to grant Banda a suppression
hearing on the admissibility of her statement and denied her
motion to suppress the statement. The trial court
subsequently sentenced Banda to four years imprisonment.

This case was certified to this Court from the court of
appeals pursuant to Rule 204(b), SCACR. Banda raises the
following issues for review:

I. Did the trial court err in refusing to suppress the
drugs found on Banda during a frisk for weapons pursuant
to an automobile stop for a traffic violation?

II. Did the trial court err in refusing to grant a
suppression hearing for Banda’s written statement to
police when police failed to notify the foreign consulate
of Banda’s arrest prior to interrogating her?

STANDARD OF REVIEW

In criminal cases, an appellate court sits to review errors
of law only. Therefore, an appellate court is bound by the
trial court’s factual findings unless they are clearly
erroneous. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d
216, 220 (2006). The same standard of review applies to
preliminary factual findings in determining the
admissibility of certain evidence in criminal cases. State
v. Wilson, 345 S.C. 1, 5-6, 545 S.E.2d 827, 829 (2001). Our
review in Fourth Amendment search and seizure cases is
limited to determining whether any evidence supports the
trial court’s finding. State v. Butler, 353 S.C. 383, 389,
577 S.E.2d 498, 500 (2003).

LAW/ANALYSIS

I. Suppression of Drugs

Banda argues that the trial court erred in refusing to
suppress the drugs found in her coat during the automobile
stop. We disagree.

The Fourth Amendment guarantees “the right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S. Const.,
amend. IV. Temporary detention of individuals by the police
during an automobile stop constitutes a “seizure” of an
individual within the meaning of the Fourth Amendment.
Delaware v. Prouse, 440 U.S. 648, 653 (1979). Therefore, an
automobile stop implicates the Fourth Amendment prohibition
against unreasonable searches and seizures, imposing a
standard of “reasonableness” upon the exercise of
discretion by state law enforcement officials. See id. at
654. The decision to stop an automobile is reasonable where
the police have probable cause to believe that a traffic
violation has occurred. Whren v. United States, 517 U.S.
806, 809-810 (1996). Notwithstanding multiple exceptions,
evidence obtained by searches and seizures in violation of
the Constitution is inadmissible in a state court. Mapp v.
Ohio, 367 U.S. 643, 655 (1961).

In this case, it is undisputed that Greenville police acted
lawfully in stopping the car in which Banda was a
passenger. The car displayed a stolen license tag, and the
stop occurred within the Greenville city limits, which was
within Greenville police jurisdiction.[fn3] Additionally,
both parties acknowledge that the Greenville police were
entitled to order Banda out of the car. See Maryland v.
Wilson, 519 U.S. 408, 415 (1997) (holding that a police
officer may order both the driver and passenger out of the
vehicle pursuant to a valid automobile stop without
violating the Fourth Amendment prohibition against
unreasonable seizures). However, Banda argues that
Detective Lawson did not have reasonable suspicion to
search her for weapons. For this reason, Banda contends the
drugs recovered during the pat down should be suppressed.

Balancing the potential intrusion on an individual’s Fourth
Amendment rights with the need for law enforcement officers
to protect themselves and other prospective victims of
violence, the United States Supreme Court held in Terry v.
Ohio that a police officer must have a reasonable suspicion
that a person is armed and dangerous before conducting a
pat down or frisk of that person. 392 U.S. 1, 24 (1968).
“Reasonable suspicion” of weapons requires that a
reasonably prudent person under the circumstances be
warranted in the belief that his safety or that of others
is in danger. Id. at 27; Butler, 353 S.C. at 390, 577
S.E.2d at 501. The Supreme Court extended the Terry doctrine
to frisks pursuant to valid automobile stops for traffic
violations in Pennsylvania v. Mimms, 434 U.S. 106, 111-112
(1977).

We hold that under the circumstances of this case, Lawson
had reasonable suspicion to frisk Banda for weapons
pursuant to a valid automobile stop. This Court has
recognized that because of the “indisputable nexus between
drugs and guns,” where an officer has reasonable suspicion
that drugs are present in a vehicle[fn4] lawfully stopped,
there is an appropriate level of suspicion of criminal
activity and apprehension of danger to justify a frisk of
both the driver and the passenger in the absence of other
factors alleviating the officer’s safety concerns. Butler,
353 S.C. at 391 (quoting U.S. v. Sakyi, 160 F.3d 164,
169-170 (4th Cir. 1998)). In this situation, the police
clearly had reasonable suspicion to suspect that drugs were
present in the vehicle. The police had observed the car
leave the residence of a known drug dealer. Furthermore,
the car displayed stolen Georgia license tags and the
police knew from their confidential informant that the
target’s drug shipments came from Georgia. Even though the
police shortly realized that Banda was not their target,
the fact that the activity observed at the target’s house
corroborated the informant’s statements was enough to give
the officers a reasonable suspicion that Banda was in some
way involved with the target’s drug activity and that drugs
might therefore be in the vehicle. See Cortez, 449 U.S. at
417. Given the frequent association between drugs and guns,
Lawson’s safety concerns were justified based on the
vehicle’s apparent connection to a known drug dealer.

Banda compares her case to State v. Butler where this Court
granted the defendant’s motion to suppress drugs found in a
frisk while he was a passenger in a vehicle stopped for
having no taillights. 353 S.C. at 385, 577 S.E.2d at 499.
We find, however, that Butler is distinguished given that
the frisk in that case occurred as a part of the officer’s
continuing investigation of a possible open-container
violation. Id. at 392; 577 S.E.2d at 503. The Greenville
police had what the officer in Butler did not; that is, a
reasonable suspicion that the suspect was armed and
dangerous. Their reasonable suspicion arose directly from
the presumption of weapons when there is reasonable
suspicion that drugs are present. See id. at 391; 577 S.E.2d
at 502.

Accordingly, we hold that the trial court properly
determined the officer’s frisk for weapons was appropriate
under Terry v. Ohio and did not violate the Fourth
Amendment prohibition on unreasonable searches and
seizures.

II. Suppression of Appellant’s Statement

Banda argues that the trial court erred in refusing to
grant a Jackson v. Denno[fn5] hearing on the admissibility
of her statement to the police because the statement was
taken in violation of an international treaty. This is an
incorrect statement of the issue.

At trial, Banda moved for an in camera suppression hearing
for her statement to police on the grounds that police
obtained the statement in violation of an international
treaty. The motion, as Banda presented it, did not involve
a determination of the voluntariness of the statement:
Banda neither specifically requested a Jackson v. Denno
hearing, nor did she otherwise support the motion with
facts showing that the statement was involuntary.[fn6]
Banda’s claim that the trial court erred by refusing to
grant her a Jackson v. Denno hearing is therefore not
properly before the Court on appeal because the grounds now
asserted are not supported by the motion made at trial. See
State v. Silver, 314 S.C. 483, 487, 431 S.E.2d 250, 252
(1993) (holding that the court of appeals improperly
treated the trial court’s denial of an in camera hearing on
the issue of whether defendant was in custody and entitled
to Miranda warnings as the denial of a Jackson v. Denno
hearing on the voluntariness of defendant’s statement).

A more accurate statement of the issue preserved to this
Court is whether the trial court erred by refusing to grant
Banda an in camera suppression hearing on the admissibility
of her statement to police based upon a violation of a
bilateral consular convention between the United States and
the United Kingdom[fn7] (the U.K. Convention) requiring
consular notification when foreign nationals are detained.

This is not the first time that South Carolina courts have
analyzed the effects of international treaties on South
Carolina law. In State v. Lopez, the court of appeals
addressed the consular notification provision in Article 36
of the Vienna Convention.[fn8] 352 S.C. 373, 574 S.E.2d 210
(2002). In Lopez, the trial court denied the defendant’s
motion to withdraw his guilty plea where the State did not
inform him of his consular notification rights under
Article 36. The defendant claimed that had he known of his
rights, he would have obtained the services of a translator
from the Mexican Consulate to assist him during his guilty
plea hearing. Although the Supremacy Clause of the United
States Constitution provides that treaties to which the
United States is a party take precedence over any state
law, the court of appeals noted that the rights created in
international treaties did not create rights equivalent to
constitutional rights. Id. at 381, 574 S.E.2d at 214.
Therefore, the defendant had to establish prejudice to
prevail on his claim. Id. On these principles, the court of
appeals affirmed the circuit court, observing that because
the defendant had rejected the trial judge’s offers to
provide him a translator, any prejudice suffered by the
defendant from his failure to have a translator’s
assistance during the guilty plea hearing resulted from his
own actions. Id. at 383, 574 S.E.2d at 215.

Recently, the United States Supreme Court addressed Article
36 of the Vienna Convention and its role in state judicial
proceedings with respect to triggering the exclusionary
rule. In Sanchez-Llamas v. Oregon, 548 U.S. ___, 126 S.Ct.
2669 (2006), the court held that suppression of evidence
was not an appropriate remedy for violations of Article 36
of the Vienna Convention for a number of reasons. First,
the court observed that the Vienna Convention did not
mandate suppression or any other remedy for its violations,
but rather left Article 36’s implementation to domestic
law. 548 U.S. at ___, 126 S.Ct. at 2678 (quoting Art.
36(2), 21 U.S.T. at 101). Furthermore, the court declared
that it did not hold a supervisory authority over state
courts that would permit it to develop remedies for the
enforcement of federal law in state court criminal
proceedings. Id. at ___; 126 S.Ct. at 2679. Without this
power, the court reasoned that it could not direct the
state courts to apply the exclusionary rule unless required
to do so by the Vienna Convention itself (pursuant to the
Supremacy Clause). Lastly, the court stated that even if
Article 36 implicitly required some judicial remedy for its
violation (as Sanchez-Llamas claimed), the exclusionary
rule would not be appropriate. The court noted that the
exclusionary rule’s primary function was to deter
constitutional violations. Article 36, in contrast, only
secured the right to inform the foreign consulate of an
arrest or detention; it did not guarantee any sort of
consulate intervention or termination of investigation
pending notice to or intervention by the consulate. Id. at
___, 126 S.Ct. at 2681. With respect to interrogations, the
court specifically stated that there was likely to be
little connection between an Article 36 violation and
statements obtained by police. Id. Suppression, it
concluded, “would be a vastly disproportionate remedy for
an Article 36 violation.” Id.

Turning to the instant case, we hold that the trial judge
properly refused to grant Banda a suppression hearing on
the admissibility of her statements to police. Whenever
evidence is introduced that was allegedly obtained by
conduct violative of the defendant’s constitutional rights,
the defendant is entitled to have the trial judge conduct an
evidentiary hearing out of the presence of the jury to
establish the circumstances under which the evidence was
seized. State v. Patton, 322 S.C. 408, 411, 472 S.E.2d 245,
247 (1996) (citing Jackson v. Denno, 378 U.S. 368). To be
entitled to a suppression hearing, a defendant must
articulate specific factual and legal grounds to support
his claim that evidence was obtained by conduct violative
of his constitutional rights. Id. at 411-412, 472 S.E.2d at
247. In making this determination, the trial court shall
take into account the totality of the circumstances and may
eliminate those issues not raising a question of
constitutionality while confining the hearing to those which
have arguable merit. Id. at 412, 472 S.E.2d at 247.

Banda’s only factual ground for her motion —
correctly stated — is that police violated the U.K.
Convention by not informing her of her right to notify
Zimbabwe’s foreign consulate. Federal and state case law
indicate this does not provide a valid legal ground on which
to base her suppression claim. Because the Vienna
Convention’s consular notification provision is nearly the
same as that in the U.K. Convention, the legal analyses in
Lopez and Sanchez-Llamas apply equally to Article 16 of the
U.K. Convention.[fn9] Like the Vienna Convention, the U.K.
Convention does not mandate suppression or any other remedy
for its violations.[fn10] Additionally, because
international treaties do not create rights equivalent to
constitutional rights, Lopez, 352 S.C. at 381, 574 S.E.2d
at 214, the violation of the consular notification
provision does not, on its own, justify applying the
exclusionary rule as a remedy. See Sanchez-Llamas, 548 U.S.
at ___, 126 S.Ct. 2669. Because the U.K. Convention only
secures the right to inform the foreign consulate of a
detention — and not the right to consular
intervention — the violation of the U.K. Convention’s
consular notification provision would have little
connection with a defendant’s statement to police.[fn11]
See id. at ___, 126 S.Ct. at 2681.

With no other legal grounds in support of her motion to
suppress her statement, applying the exclusionary rule to
remedy the treaty violation would be “vastly
disproportionate” to any wrong suffered by Banda.
Accordingly, the trial court did not err in denying Banda a
suppression hearing on the admissibility of her statement
to police.

CONCLUSION

For the foregoing reasons, we affirm the decision of the
trial court.

MOORE, WALLER, BURNETT and PLEICONES, JJ., concur.

[fn1] Banda came to the United States on a basketball
scholarship. She first attended a university in Oklahoma
and later transferred to the University of South Carolina.

[fn2] Detective White testified that it is routine police
department practice to have guns drawn for car stops
related to narcotics investigations. Because the officers
initially believed that Banda was their target, they
adhered to this practice in approaching Banda during the
stop.

[fn3] We note that “[s]ubjective intentions play no role in
ordinary, probable-cause Fourth Amendment analysis.” Whren,
517 U.S. at 814. Evidence that the Greenville officers were
more interested in apprehending the drug target does not
factor into a probable cause analysis in the otherwise
valid stop of a vehicle for stolen license tags.

[fn4] “Reasonable suspicion” in this context requires an
officer to have “a particularized and objective basis,”
based on the totality of the circumstances, that would lead
one to suspect that drugs are present in the vehicle
lawfully stopped. U.S. v. Cortez, 449 U.S. 411, 417 (1981);
State v. Lesley, 326 S.C. 641, 644, 486 S.E.2d 276, 277
(Ct.App. 1997).

[fn5] Jackson v. Denno held that a defendant in a criminal
case was entitled to an evidentiary hearing on the
voluntariness of statements made by the defendant prior to
submission of such statements to a jury. 378 U.S. 368
(1964).

[fn6] Banda did not dispute the validity of the Miranda
warnings or her signed waiver. Moreover, the State pointed
out that Banda was college-educated and was not intoxicated
that evening.

[fn7] Banda based her motion to suppress the statement to
police on the alleged violation of a consular notification
provision in Article 36 of the Vienna Convention on
Consular Relations, April 24, 1963, 21 U.S.T. 77, T.I.A.S.
No. 6820 [hereinafter Vienna Convention]. This contention
is incorrect. Domestic law enforcement’s obligation to
notify Zimbabwe’s foreign consulate does not come under the
Vienna Convention, but rather, falls under Article 16 of a
bilateral consular convention between the United States and
the United Kingdom of Great Britain and Northern Ireland
[no long-title in original], U.S.-U.K., June 6, 1951, 3
U.S.T. 3426, T.I.A.S. No. 2494 [hereinafter U.K.
Convention]. See also U.S. Department of State, Information
for Americans abroad, Consular Notification and Access,
Part5: Legal Material, http://travel.state.gov/law/consular
/consular_ 744.html.

[fn8] Art. 36(1)(b), 21 U.S.T. at 101.

[fn9] Article 16 of the U.K. Convention reads in relevant
part:

(1) A consular officer shall be informed immediately by
the appropriate authorities of the territory when any
national of the sending state is confined in prison
awaiting trial or is otherwise detained in custody within
his district. A consular officer shall be permitted to
visit without delay, to converse privately with and to
arrange legal representation for, any national of the
sending state who is so confined or detained. . . .

Art. 16(1), 3 U.S.T. 3426.

Article 36 of the Vienna Convention reads in relevant
part:

(b) if he so requests, the competent authorities of the
receiving State shall, without delay, inform the consular
post of the sending State if, within its consular
district, a national of that State is arrested or
committed to prison or to custody pending trial or is
detained in any other manner. . . . The said authorities
shall inform the person concerned without delay of his
rights under this sub-paragraph;. . . .

Art. 36(1)(b), 21 U.S.T. at 101.

[fn10] The U.K. Convention does not have a provision
analogous to Article 36(2) of the Vienna Convention which
specifically leaves implementation of rights in the Vienna
Convention to state law. At the same time, it has no
provisions that suggest it should be implemented otherwise.
See 21 U.S.T. 3426.

[fn11] Interestingly, the Sanchez-Llamas opinion made a
brief mention of other ways to vindicate a defendant’s
Vienna Convention rights, including raising an Article 36
claim “as part of a broader challenge to the voluntariness
of his statements to police.” Id. at 2682. We interpret
this suggestion as indicating that a defendant may
successfully move for a Jackson v. Denno hearing to suppress
a statement by asserting a violation of the consular
notification provisions of a treaty, along with other
factors indicating the involuntariness of a statement (such
as the failure to receive Miranda rights).