State v. Burgess – another trafficking conviction affirmed

In State v. Burgess, decided August 17, 2011, the S.C. Court of Appeals affirmed Burgess’ convictions for trafficking in crack cocaine, possession with intent to distribute (PWID) cocaine, PWID ecstasy and possession of marijuana, affirming the trial court’s determination that the officer had reasonable suspicion to stop Burgess’ vehicle:

We find the evidence in the record supports the trial court’s determination that Lutz had reasonable suspicion to stop Burgess. At the time Lutz activated his blue lights, Lutz was aware the Hardee’s parking lot was a known meeting location for drug sales and had personal knowledge of frequent complaints of drug activity in the parking lot. Lutz observed the Jeep parked at the back of the parking lot. Its occupants were not eating and appeared to be waiting for someone. Lutz observed Burgess enter the parking lot and park haphazardly. The passenger from the Jeep entered the rear passenger seat of Burgess’s car with his hand extended while Burgess looked in his direction. The events in Burgess’s car lasted fifteen seconds.

The Fourth Circuit Court of Appeals pointed out in U.S. v. Foster and U.S. v. Digiovanni that they are concerned “about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity.” Compare the facts cited in Burgess to those in Foster:

As Detective Ragland, in plain clothes, walked towards his unmarked police vehicle, he noticed a young black male sitting in the driver’s seat of an SUV with his hands on the steering wheel. Detective Ragland saw the man’s mouth move, but could not make out what he was saying. He then witnessed a second black male sit up in the passenger seat from a crouching position. The detective recognized the second individual as David Foster, Defendant-Appellant. Detective Ragland knew Foster because he had previously dated Foster’s cousin, and he had arrested Foster in the past for driving with a revoked license. He was also aware that Foster had been arrested at one point for a marijuana-related crime.

I don’t see how the facts that are cited in Burgess are any more inherently suspicious than those that were cited in Foster – in both cases, it is clearly conduct that is subject to multiple interpretations and both are examples of an officer using “whatever facts are present, no matter how innocent, as indicia of suspicious activity.”
Foster was decided in March of 2011, and Digiovanni was decided in July of 2011 – both Burgess and Morris were decided by the S.C. Court of Appeals in August of 2011, and were briefed and argued well before the Fourth Circuit released the Foster and Digiovanni opinions. If the S.C. Supreme Court were to grant cert on either or both of these opinions, they would be more than justified in reversing in light of Foster, Digiovanni, and other recent decisions. “Anything goes” is not and should not be the state of the law when it comes to violations of the Fourth Amendment.

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