Am I Free to Go?

Last week in State v. Spears, the S.C. Court of Appeals reversed a Lexington County conviction for trafficking crack cocaine because the officers did not have an articulable reasonable suspicion at the time they stopped and searched the defendant.

DEA and Lexington County Sheriff’s Office agents received a tip that one or two black males the DEA was investigating were traveling to South Carolina from New York on the “Chinese bus lines.” The officers testified that wanted persons and drug traffickers often travel on the “Chinese bus lines” because their security is lax. The agents saw the defendant getting off the bus, followed him and another person as they walked away from the bus station, moved quickly to catch up to them, questioned them, and then searched them finding the crack cocaine. The state argued that the encounter was consensual and therefore the Fourth Amendment was not implicated. The Court of Appeals disagreed.

Consensual Encounters With the Police

The state’s argument was that the encounter between Spears and the officers was consensual. Then, during the encounter, the officers conducted a valid pat-down to determine whether Spears had a weapon in his waistband. During the pat-down, the officer felt the crack cocaine rock and retrieved it under the “plain feel doctrine” which says that if an officer feels what is clearly contraband during an otherwise valid Terry search the officer may seize the contraband. The factors identified by the trial judge as evidence that the encounter was consensual were:

  • Spears willingly stopped and talked to the agents.
  • The agents told Spears that they were law enforcement.
  • The agents did not tell Spears that he was not free to leave.

In a rare use of the phrase “totality of the circumstances” to benefit the defendant, the Court of Appeals points out the additional facts that demonstrated that Spears was not free to leave and a seizure had occurred triggering the Fourth Amendment:

  • Spears was approached by three agents.
  • Two of the three agents had their guns visible.
  • The agents waited until Spears and his companion were alone before approaching them.
  • The agents did not tell Spears that he was free to leave.
  • The agents acted in a threatening manner by following Spears as he walked away from the bus station and then increasing their speed to catch up with him.
  • The agents indicated that Spears was suspected of a crime by following him, telling him that the bus lines were known for criminal activity, and asking him if he was carrying anything illegal.

The Court of Appeals concludes that “a reasonable person in Spears’ position would not have felt free to walk away, and Spears was seized within the meaning of the Fourth Amendment.”

Reasonable Articulable Suspicion

Once the Court determines that the encounter was not consensual and the Fourth Amendment applies, the Court must then decide whether the officers had a reasonable, articulable suspicion that Spears was involved in criminal activity:

Because Spears was seized within the meaning of the Fourth Amendment, we must determine whether the agents had reasonable suspicion, or “an objective, specific basis for suspecting [Spears] of criminal activity.” Robinson, 407 S.C. at 182, 754 S.E.2d at 868-69 (citing United States v. Cortez, 449 U.S. 411, 417-18 (1981)).

“Pursuant to Terry, a police officer with a reasonable suspicion based on articulable facts that a person is involved in criminal activity may stop, briefly detain, and question that person for investigative purposes, without treading upon his Fourth Amendment rights.” Anderson, 415 S.C. at 447, 783 S.E.2d at 54. “[L]ooking at the totality of the circumstances, reasonable suspicion requires there be an objective, specific basis for suspecting the person stopped of criminal activity.” Robinson, 407 S.C. at 182, 754 S.E.2d at 868.

The officers’ reasonable suspicion according to their testimony was:

  • Spears got off a bus that the agents stated is often used by criminals.
  • He and his companion retrieved four large bags from the bus.
  • They appeared nervous.

The Court discounts all of these facts identified by the agents. Similar to being present in a high crime area, riding on a “high crime bus” may be relevant but carries little weight in the absence of other suspicious activities. There is nothing unusual about carrying luggage when you are traveling a long distance, and most people will understandably appear nervous if they are accosted by police officers with visible guns and accused of criminal activity. Because the encounter was not consensual and there was not sufficient reasonable, articulable suspicion, the evidence found should have been suppressed by the trial court.

Whether a person is involved in illegal conduct or not, it is always advisable to immediately and repeatedly ask an officer, “Am I free to go?” If you do not want to be detained, make it clear that you do not want to be detained and if you stay put it is because the officer is forcing you to stay put. No one wants to be harassed, questioned, or searched by police officers. Although it takes some gumption to walk away from a police encounter, if the defendants had simply asked “Am I free to go,” and told the police “I do not want to talk with you,” the case may have been much simpler for the trial court and appellate courts to decide.


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