Petition — Ferrell v. South Carolina

Gupreme Court, U.

FILED

APR 4 1980

IN THE | MICHAEL RODAK, JR., CLERK |

Supreme Court of the United States

October TERM, 1979

No. W9-d 5 5 4.

GLEN H. FERRELL, Petitioner,

versus

STATE OF SOUTH CAROLINA, Responpvent

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF SOUTH CAROLINA

GEORGE W. CONE,

Attorney of Record,

111 E. Washington Street,

Walterboro, South Carolina 29488.

JOHN R. HETRICK,

Attorney for Petitioner,

111 E. Washington Street,

Walterboro, South Carolina 29488.

(Not admitted to practice before

this Court.)

The R. L. Bryan Company, Lega! Printers, Columbia, S. C.

TABLE OF CONTENTS

Opinion Below ...... SP er Pers ale

eumeumtion .2. sk Se. wa am eae

Questions Presented ....................

Federal Constitutional Provisions ........

Statement of the Case ..................

Reasons for Granting the Writ. ....

Conelusion __... Pe SA es Be eda ee ee

Appendices

A. Opinion of the Supreme Court of South Carolina 29

B. Excerpts from the Trial Testimony

eet ... 38

C. South Carolina Constitutional and Statutory Pro-

visions. ae ea Wee ae

(i)

See | . 41

TABLE OF AUTHORITIES

Case Citations

PaGE

Aguilar v. Texas, 378 U. S. 108 (1964) ........... 13, 16

peek ¥. Ulio, 379 U. BS. 89 (1965)............:...... 8, 22

Brady v. United States, 24 F. 2d 399 (C. A. 8, 1928) ... 13

Brinegar v. United States, 338 U. S. 160 (1949) ....... 16

Carroll v. United States, 267 U. S. 1382 (1924) ........ 8

Chimel v. California, 395 U. S. 752 (1969) ............ 8

Coolidge v. New Hampshire, 403 U. S. 443 (1971 ...... 22

Draper v. United States, 358 U. S. 307 (1955) .13, 14, 15, 16

Henry v. United States, 361 U. S. 98 (1959) .......... 21

In Re Jones, 264 S. C. 286, 214 S. E. 2d 816 (1975) .... 22

Jones v. United States, 362 U. S. 257 (1960) .......... 16

Katz v. United States, 389 U. S. 347 (1967) ........ 19, 20

Miranda v. Arizona, 384 U. S. 439 (1966) ............ 21

Nathanson v. United States, 290 U. S. 41 (1933) ...... 16

Rakas v. Illinois, 439 U. S. 128 (1979) ................ 19

Sibron v. New York, 392 U. S. 41 (1968) ........ 1, aay EO

Spinelli v. United States, 393 U. S. 410 (1969) ........ 14

zerry ¥. Otis, 302 U.S. 1 (7968) 2... .......-. 11, 23, 24

United States v. DiRe, 32 U. S. 581 (1933) . .7, 19, 20, 21, 22

United States v. Grow, 394 F. 2d 182 (C. A. 4, 1968) .. 13

United States v. Robinson, 414 U. S. 278 (1974) ...... 8

United States v. Ventresea, 380 U. S. 102 (1965) ... .16, 22

Ybarra v. Illinois, .... U. S. ...., 48 U.S.L.W. 4023

(movemener Zo, 1979) ...... <2. 3, 20, 14, 18, 19, 23

Constitutional Amendments

Fourth Amendment Multiple Cites

( ii )

IN THE

Supreme Court of the United States

Octoser TERM, 1979

GLEN H. FERRELL, Petitioner,

versus

STATE OF SOUTH CAROLINA, ResponpEnt

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF SOUTH CAROLINA

Petitioner, by and through his attorneys, George W.

Cone, attorney of record and John R. Hetrick, attorney for

petitioner, prays that a writ of certiorari issue to review

the judgment heretofore entered against him by the Su-

preme Court of South Carolina.

1. OPINIONS BELOW

Petitioner was convicted by a jury in the Cireuit Court

for the Thirteenth Judicial Cireuit of South Carolina in

Greenville, South Carolina, on February 6, 1978, of vio-

lating Section 44-53-370 which incorporates Section 44-53-

230 of the Code of Laws of South Carolina, 1976, Appendix

C at page 41, and specifically of possession with intent

to distribute phencyclidine (PCP), a Schedule III con-

trolled substance. On February 8, 1978, timely notice of

appeal was filed with the Supreme Court of South Caro-

lina. On May 23, 1978, the trial judge, the Honorable John

2 FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT

T. Gentry, ordered that the Public Defender for Greenviile

County be released as petitioner’s trial counsel and that

petitioner be permitted to retain private counsel, John R.

Hetrick, then of Greenville, South Carolina, for perfecting

the appeal. On January 7, 1980, the Supreme Court of

South Carolina, by a 3-2 decision, affirmed petitioner’s con-

viction. The written opinion of the Supreme Court of South

Carolina is fully set forth in Appendix A at page 29 here-

in. On January 14, 1980, a motion for a stay of execution

of sentence under Rule 28 of the Rules of the Supreme

Court of South Carolina was filed with the Supreme Court

of South Carolina. On January 23, 1980, an order granting

a stay of execution of sentence for ninety days pending the

filing of this petition for a writ of certiorari was issued

by the Supreme Court of South Carolina.

2. JURISDICTION

The opinion and judgment of the Supreme Court of

South Carolina, affirming petitioner’s conviction, were en-

tered on January 7, 1980. The jurisdiction of this Court is

invoked pursuant to the provisions of Title 28, United

States Code, Section 1257 (3).

3. QUESTIONS PRESENTED

I.

Under the Fourth Amendment as applied to the States

through the Fourteenth Amendment is probable cause

based on association and mére presence and absent particu-

larity as to petitioner sufficient to support a warrantless

search of petitioner’s person or a warrantless arrest of pe-

titioner and a search of his person incident thereto?

FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT 3

II.

Under the Fourth Amendment as applied to the States

through the Fourteenth Amendment is a second Terry pat-

down search of petitioner constitutionally permissible after

an initial Terry search failed to disclose any weapons?

4. CONSTITUTIONAL PROVISIONS

Constitution of the United States

Amendment [V—Searches and Seizures

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seized.

Amendment XIV, Section 1—Citizenship Rights Not to be

Abridged by States

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shall abridge the

privileges and immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property without due process of law; nor deny to any per-

son within its jurisdiction equal protection of the laws.

4 FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT

5. STATEMENT OF THE CASE

On October 13, 1977, Glen H. Ferrell was arrested in

Greenville County, South Carolina and charged with pos-

session and possession with intent to distribute phencyeli-

dine (PCP), a controlled Schedule ITI narcotic, in viola-

tion of Section 44-53-370 which incorporates Section 44-53-

230 of the Code of Laws of South Carolina, 1976. (Appen-

dix C at page 41.) Ferrell was subsequently indicted and

his trial commenced before a jury on February 6, 1978, at

a term of the Court of General Sessions for Greenville

County.

The federal question brought for review by this Court

was first raised by written motion of trial counsel to sup-

press physical evidence, and was timely made at a pre-trial

suppression hearing held in camera before the presiding

judge of the Court of General Sessions in Greenville

County. (TR. 8) The motion to Suppress was based on the

physical evidence being a fruit of an improper search of

Ferrell’s person. Hearing was held on the motion and tes-

timony was taken from Sergeant Walt M. Parsons of the

Greenville City Police. (TR. 12-34) Counsel’s motion to

Suppress was denied. (TR. 31) Exception was taken to the

trial court’s denial of the motion to suppress.

The salient facts underlying petitioner’s conviction re-

flect that Ferrell’s arrest and search followed execution of

a search warrant at No. 46, Westgate Manor Apartments

in Greenville County by four officers of the Greenville Sher-

iff’s and Police Departments. The warrant authorized the

search of Apartment 46 which belonged to one, Phil Ma-

son. (TR. 13, 37) Information in the warrant was pursuant

to a confidential informant’s “tip” to Sergeant Parsons.

The informant alleged that the apartment’s occupant, Ma-

son, dealt in marijuana and hashish and that the informant

had seen marijuana and hashish on the premises within

FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT 5

the past 24 to 48 hours. (TR. 13-14) The informant also

stated that Mason owned a gray Corvette which he would

likely be driving to transport drugs from a secret location

at Donaldson Center, an abandoned Air Force Base, which

is south of the City of Greenville and approximately 10 to

12 miles from the apartment complex. (TR. 16-17, 38-39)

The warrant alleged that the informant had given reliable

information in the past. (TR. 14-15, 42) No information

was provided as to Ferrell, nor did the police have any in-

formation as to Ferrell from other independent sources at

the time the search warrant was obtained. (TR. 37-38)

On the afternoon of October 13, 1977, at approximately

3:30 P.M., Officer Parsons went to the apartment complex

to observe the scene before obtaining his search warrant.

(TR. 39) There was no gray Corvette parked at the apart-

ments at this time. (TR. 15, 39) Following this and based

on the informant’s information, he obtained a search war-

rant for Mason’s apartment at approximately 5:00 P.M.

No search warrant was obtained for Mason or his automo-

bile. (TR. 26-27) About 9:30 P.M., four officers, including

Officer Parsons, went to execute the search warrant for

Mason’s apartment. At this time they saw a gray Corvette

parked at the apartment complex but the officers were un-

able to get a tag number, apparently because of several

persons in the vicinity’of the parking lot and the fear they

would be recognized as the police. The officers were in an

unmarked ear. (TR. 39, 52-53)

The four officers then drove to a parking lot located

approximately two or three blocks from the apartment

complex to plan the execution of the warrant. (TR. 17; 40-

41) While there, the officers saw a gray Corvette drive past

on Whitehorse Road, a major four-lane highway in the

City of Greenville, running generally in a north-south di-

rection. (TR. 17, 40) The officers did not recognize the

driver of the automobile but observed that there were two

6 FERRELL, PETITIONER, v. STATE OF S. C., —

people in the ear. (TR. 25-26, 40) The officers did not see

Mason’s gray Corvette leave the parking lot of Westgate

Manor Apartments. (TR. 48) Although the gray Corvette

which the officers observed was driving south along White-

horse Road in the general direction of Donaldson Center,

it was not followed by the police. (TR. 61)

The officers returned to the apartment complex to exe-

cute their warrant. The gray Corvette they had seen earlier

in the parking lot was not there at this time. (TR. 18) Ap-

proximately 20 or 30 minutes after seeing a gray Corvette

drive past on Whitehorse Road and momentarily after the

officers’ return to the apartment complex, a gray Corvette

entered the parking lot and Officer Parsons recognized the

driver as Mason. (TR. 18, 41-42) The passenger, Ferrell,

was unknown to the police. (TR. 24-25, 55, 65)

The four officers, with guns drawn, approached the au-

tomobile as the driver, Mason, and passenger, Ferrell, were

getting out. (TR. 30, 44, 52) Both Mason and Ferrell were

frisked for weapons, but no weapons or contraband were

found. (TR. 63, 68) Mason’s car was then searched pursu-

ant to owner’s consent and nothing was found. (TR. 20, 44)

The four officers then informed both Mason and Ferrell

that they should accompany them to Mason’s apartment

where a search of their persons would be conducted. (TR.

19-20, 30, 45) Apparently the night was cold and misting

rain. (TR. 20, 45) Neither Mason nor Ferrell argued with

the officers or resisted going to the apartment. (TR. 19)

Neither person was formally placed under arrest or ad-

vised of his rights at this time. (TR. 24, 30, 56, 67) The

police searched Mason’s apartment pursuant to their war-

rant and found no contraband. (TR. 22) A search of Ma-

son’s person in his apartment revealed no contraband. (TR.

46) No charges were brought against Mason. (TR. 22) In-

side the apartment a second search of Ferrell was then

conducted by Officer Parsons. (TR. 64) Ferrell was again

FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT 7

patted-down, and Officer Parsons heard a suspicious sound.

(TR. 21, 46) Parsons then told Ferrell to remove the “ob-

ject” from his pants or Ferrell could go with him to a bed-

room and take off his pants. (TR. 47) Ferrell removed

from his clothing a bag containing 99 purple tablets. (TR.

47) At this time Ferrell was formally placed under arrest

and advised of his rights. (TR. 48, 67) The 99 purple tab-

lets were subsequently determined to contain phencyclidine.

Ferrell was convicted by a jury verdict of possession

with intent to distribute phencyclidine. On May 23, 1978,

it was ordered that the Publie Defender for Greenville

County be released from the ease and that Ferrell be

allowed to retain a private attorney, John R. Hetrick, for

perfecting the appeal. On direct appeal to the Supreme

Court of South Carolina the judgment of the trial court

was affirmed by a 3-2 decision.

6. REASONS FOR GRANTING THE WRIT

There is apparent confusion on the partof law enforce-

ment officials and the courts in South Carolina regarding

“association” and “mere presence” as a constitutional basis

for probable cause which, we respectfully submit, needs

this Court’s consideration. Contrary to this Court’s defini-

tive position in eases such as United States v. DiRe, 32

U.S. 581 (1933), Sibron v. New York, 392 U.S. 41 (1968)

and most recently Ybarra v. Illinois, U.S. , 48

U.S.L.W. 4023 (November 28, 1979), in South Carolina as-

sociation and mere presence alone are deemed constitution-

ally sufficient to support probable cause to search or arrest,

and searches of all oceupants on suspected premises are

conducted as “standard procedure.” (Excerpts from the

Trial Testimony, Appendix B (1) at page 38). In the

ease at bar a majority of the South Carolina Supreme

Court has perpetuated this misunderstanding by attempt-

ing to factually distinguish the DiRe and Sibron cases, by

8 FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT

not considering this Court’s recent Ybarra decision, which

was considered by Justices Gregory and Rhodes in their

dissenting opinion, and by misapplying the particularity

requirement of the Fourth Amendment. Clarification and

mandate are needed to prevent further abridgment of con-

stitutionally protected privileges and immunities of South

Carolina citizens.

I.

Under the Fourth Amendment as applied to the States

through the Fourteenth Amendment is probable cause

based on association and mere presence and absent particu-

larity as to petitioner sufficient to support a warrantless

search of petitioner’s person or a warrantless arrest of pe-

titioner and a search of his person incident thereto?

Possession of narcoties is an offense in South Carolina.

Therefore, in the ease at bar there is no critical distinction

between probable cause to search, Carroll v. United States,

267 U.S. 132 (1924), and probable cause to arrest. Beck v.

Ohio, 379 U. S. 89 (1965). Had the officers reasonably be-

lieved that Ferrell had narcoties on his person, they neces-

sarily would have believed that he was committing an of-

fense and could have legally arrested him and searched him

incident thereto under the dictates of Chimel v. California,

395 U. S. 752 (1969). See also, United States v. Robinson,

414 U.S. 278 (1974). For this reason, treatment of the ques-

tion of existence of probable cause to search or arrest and

conduct a search incident thereto are joined rather than

examined separately.

At trial pursuant to a motion to suppress and on direct

appeal to the South Carolina Supreme Court, petitioner

challenged the introduction of physical evidenca, obtained

incident to a warrantless search of his person without

probable cause. The trial court denied relief and the South

varolina Supreme Court affirmed the lower court judg-

FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT 9

ment in a 3-2 decision, reasoning that the search of Fer-

rell’s person was justified as incident to his lawful arrest.

On appeal petitioner argued that probable cause fer

arrest or search existed only as to Mason, if at all, and

that the arrest and incident search of Ferrell was improper

' as abrogating the particularity requirement of the Fourth

Amendment. The police had no information linking Fer-

rell to Mason’s activities prior to the second search of Fer-

rell. When the police approached Mason’s car in the apart-

ment parking lot, all their information related to Mason

not Ferrell. (Excerpts from the Trial Testimony, Appendix

B (2) at page 38.) The search of Mason’s car pursuant

to owner’s consent disclosed no evidence or contraband to

justify a subsequent arrest or search of Ferrell. (Excerpts

from the Trial Testimony, Appendix B (3) at page 39.)

The initial pat-down search of Ferrell disclosed no weapons

or contraband to justify a further intrusion of Ferrell's

person. (Excerpts from the Trial Testimony, Appendix B

(4) at page 39.)

In the case at bar the trial testimony reflects that there

was no information whatsoever as to petitioner at the mo-

ment he entered the parking lot in Mason’s automobile. Nor

did subsequent search of Mason’s var or the pat-down

search of Ferrell or Mason uncover any evidence whieh

might have ripened into probable cause to either search or

arrest Ferrell. Any probable cause as to Ferrell, if it ex-

isted, must necessarily have been supported by the infor-

mant’s information as to Mason or Mason’s drug activities

and so the South Carolina Supreme Court reasoned, em-

phasizing the “totality of factual circumstances” and their

“cumulative effect” in concluding that probable cause to

arrest Ferrell and search him incident thereto existed. A

majority of the South Carolina Court in State v. Ferrell,

.... 8. C. ...., Opinion No. 21107 (January 7, 1980), re-

lied on the following factual determinations: “(1) that

10 FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT

illicit drugs had recently been seen and sold in Mason’s

apartment; (2) that Mason owned a gray Chevrolet Cor-

vette automobile; (3) that Mason ‘would probably’ be going

out to Donaldson Center to pick-up more drugs; (4) that

a gray Chevrolet Corvette automobile with two oceupants

had recently been driven from the direction of Mason’s

apartment toward Donaldson Center; and (5) that a gray

Chevrolet Corvette automobile occupied by Mason and ap-

pellant (Ferrell) had just pulled into the parking lot.”

State v. Ferrell, Appendix A at page 29. We agree with

the Ferrell Court’s determinations of fact; we disagree

with its conclusions of law based on these facts.

That an informant had recently seen illicit drugs in

Mason’s apartment is wholly unrelated to Ferrell or his

apparent association with Mason. A warrant had issued

for the search of Mason’s apartment based on an infor-

mant’s “tip” that he had seen drugs being sold there within

the past 48 hours. No information in the warrant named

Ferrell or alleged that he or unknown persons were deal-

ing in drugs from that apartment. No information reflected

that Ferrell had ever been to Mason’s apartment or even

knew Mason. Only after the police had arrested Ferrell

and compelled him to go to Mason’s apartment to be

searched was Ferrell on the premises for which the war-

rant had issued and then involuntarily.

The particularity requirement of the Fourth Amend-

ment mandates that a warrant particularly describe the

“place to be searched and the persons or things to be

seized.” We assume that since warrants for the search, not

seizure, of persons are permissible when the person to be

searched is named in the warrant,' then for purposes of a

1In Ybarra v. Illinois, . U.S. ...., 48 U.S.L.W. 4023 (Novem-

ber 28, 1979), the warrant specifically authorized the search of the “per-

= of ,, Greg’ the bartender, a male, white with blondish hair, appx.

yrs.

FERRELL, PETITIONER, Vv. STATE OF S. C., RESPONDENT 11

search, a “person” and a “place” are substantial equiva-

lents. Should the “search of a person” be treated as a “seiz-

ure of that person” the particularity requirement of the

Amendment still controls. In either instance the warrant

in the instant case prescribed the search of a particular

place, Mason’s apartment, not Ferrell’s person.

In the recent case, Ybarra v. Illinois, .... U.S... ,

48 U.S.L.W. 4023 (November 28, 1979), this Court held that

the right of the police to search “compact” premises pur-

suant to warrant did not confer an automatic right to con-

duet even a limited pat-down search of persons found on

the premises. It is well established that a limited weapons

search as recognized in Terry v. Ohio, 392 U. S. 1 (1968),

is a lesser intrusion of privacy than a full search of the per-

son as conducted in the instant ease. How then, absent prob-

able cause, can a body search of a person not on premises

subject to a warrant be constitutionally justified when a

limited pat-down search of persons physically on such

premises is denied?

We would suppose the South Carolina Court in the

ease at bar would contend under its “totality of the cireum-

stances” approach that this faet upon which the warrant

issued corroborated or supported other facts as to Ferrell

and that the “cumulative effect” of all facts taken together

supported probable cause to arrest and search Ferrell.

While we agree that this faet might be considered in sup-

port of probable cause as to Mason, we deny its relevance

as to petitioner. Mason leased the apartment. He had been

designated by the informer as dealing in drugs out of his

apartment and of using his automobile to transport drugs

from Donaldson Center to his apartment where they were

sold. It logically follows that the apartment played an in-

tegral role in Mason’s operations but had no nexus as to

Ferrell. Ferrell’s riding as a passenger in Mason’s ear and

the search warrant for Mason’s apartment are independent

12 FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT

circumstances linked only by Mason’s common involvement

with each. This consideration is irrelevant and unrelated

to any of Ferrell’s activities.

Facts (2), (3) and (4), supra, at 10, largely relate

to the informant’s information as to Mason’s activities. The

informer told the police tha. Mason would “likely” be driv-

ing his ear, a gray Corvette, te Donaldson Center to pick-

up drugs and then return to the apartment complex. Again

there was no information as to Ferrell but only as to

Mason.

Prior to the execution of their warrant, the police went

to the apartment complex for a look at the scene. They saw

a gray Corvette parked in the parking lot but were unable

to get the license number because of several persons “mill-

ing around” in the vicinity and the fear they would be ree-

ognized as the police. They left and went to a parking lot

several blocks away to plan the execution of the warrant.

While there, they saw a gray Corvette traveling south on

Whitehorse Road, a major four-lane highway in the City

of Greenville, and in the general direction of Donaldson

Center. They saw two occupants in the car but could ree-

ognize neither. On their return to the apartment complex,

they observed that the gray Corvette they had seen earlier

in the parking lot was gone. Momentarily after their re-

turn, Mason’s automobile entered the parking lot and the

police recognized Mason.

All of the informant’s information related to Mason,

his ear or his activities. Prior to Mason’s ear entering the

parking lot, the police did not know Ferrell existed. Only

if it is assumed that Ferrell was one of the two occupants

in the Corvette seen traveling on Whitehorse Road, only

if it is assumed that the gray Corvette was Mason’s, only

if it is assumed that the Corvette did go to Donaldson Cen-

ter and only if it is assumed that drugs were picked-up, if

and when the Corvette went to Donaldson Center, can any

FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT 13

involvement by Ferrell in Mason’s activities be inferred. On

the facts, this is pure speculation. Inference piled upon in-

ference does not support probable cause as envisioned by

the Fourth Amendment.? Brady v. United States, 24 F. 2d

399 (C.A. 8, 1928); United States v. Grow, 394 F. 2d 182

(C.A. 4, 1968).

We consider, however, whether the informant’s infor-

mation supported probable cause even as to Mason, for if

it failed to, then undoubtedly probable cause was absent as

to Ferrell. In Aguilar v. Texas, 378 U. S. 108 (1964), Mr.

Justice Goldberg, writing for a majority of this Court, set

forth a “two-pronged” test for determining the sufficiency

of an informer’s information necessary to support a search

warrant. First, “the mag*strate must be informed of some

of the underlying circumstances from which the informant

concluded that the nareoties were where he claimed they

were” and second, “some of the underlying cireumstances

from which the officer concluded that the informant, whose

identity need not be disclosed, was ‘credible’ or his infor-

mation ‘reliable’.” Aguilar, at 114. We do not question the

informant’s “credibility” in the instant ease. We do ques-

tion the lack of information as to the underlying cireum-

stances from which thé informant concluded that Mason

would drive to Donaldson Center to pick-up drugs on that

particular night. How did the informant know this? Had

Mason told the informant that the transaction was to take

place that night? Had the informant been to Mason’s “stash

house” at Donaldson Center before? Had he seen Mason

pick-up or drop-off drugs at the “stash house”? Had Ma-

son even told the informant that he had a “stash house” at

2 We acknowledge that the quantum of evidence necessary to sup-

port probable cause is lesser than that needed to convict at trial and in

this respect Brady v. United States, 24 F. 2d 399 (C.A. 8, 1928), is dis-

tinguishable. Draper v. United States, 358 U. S. 307 (1959). Neverthe-

less, the logic underlying the legal reasoning in both Brady and Grow,

we submit, is applicable to a determination of probable cause and the

quantum of information necessary to support it.

14 FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT

Donaldson Center? This is critical information which must

support probable cause for a warrant to issue in accordance

with the Aguilar standards. See also, Spinelli v. Uniled

States, 393 U. S. 410 (1969). Without it the warrant is de-

fective. It follows that if the information is insufficient to

support probable cause for a search with warrant, it is in-

sufficient to support probable cause for a search without

warrant.

Nor did the police independently corroborate the infor-

mant’s information, following the reasoning in Draper v.

United States, 358 U. S. 307 (1955). The police could have

followed the gray Corvette which passed them on White-

horse Road to positively determine if it went to Donaldson

Center or at the very least to obtain a “tag” number to

identify it as Mason’s ear. They did neither. This lack of

independent corroboration is considered by Justice Greg-

ory in his dissenting opinion in Ferrell, Appendix A at

page 29. Viewing the factual circumstances in the light

most favorable to the government, at best the only “cor-

roboration” by the police was (a) that they initially saw

a gray Corvette at Mason’s apartment complex and on their

return 20 or 30 minutes later the gray Corvette was gone,

(b) that they saw a gray Corvette traveling south on

Whitehorse Road in the general direction of Donaldson

Center, (c) that there were two persons in a gray Corvette

that passed the police on Whitehorse Road and there were

two persons in Mason’s gray Corvette as it entered the

apartment complex parking lot and (d) that the expired

time from the moment the police saw the gray Corvette

pass them on Whitehorse Road until Mason’s automobile

entered the parking lot was approximately 20 or 30 minutes

and this, considering the round-trip distance involved, was

sufficient time for an automobile to travel from the apart-

ment complex to Donaldson Center and return.

FERRELL, PETITIONER, v. STATE OF §S. C., RESPONDENT 15

These facts and the inferences reasonably drawn from

them, considered in conjunction with the informant’s infor-

mation, fall short of the detailed corroboration underlying

Draper. In Draper the degree of detail in which the infor-

mant described Draper, to include a precise description of

his complexion, age, height, weight, clothing and gait, eou-

pled with the informant’s precise information as to the time

of Draper’s return and the train he would be on, sufficiently

corroborated the informant’s information as to the nar-

coties to support probable cause for Draper’s arrest. This

Court emphasized that “. .. with every other bit of infor-

mation verified, Marsh had “reasonable grounds” to believe

that the remaining unverified bit of Hereford’s informa-

tion—that Draper would have the heroin with him—was

likewise true.” Draper, at 313.

We agree that had the police in the instant case verified

their information by first determining that the gray Cor-

vette that passed them was in fact Mason’s and then by fol-

lowing the ear to Donaldson Center, they might have had

sufficient probable cause to arrest Mason and search him

incident to arrest even though the information that he

would pick-up drugs was unverified. This justification, how-

ever, would not extend to the passenger, Ferrell, since the

police had no information as to him. But even as to Ma-

son, the facts in the case at bar when considered with the

informant’s information simply do not support such an in-

trusion. Specifically, the informant’s information is too

general; the police corroboration too incomplete. Had Ma-

son driven a pink Ferrari or even a Ferrari, a visual sight-

ing by the police may have been sufficient corroboration

that the car that passed them on Whitehorse Road was in

fact Mason’s. This, of course, still fails to establish that the

automobile went to Donaldson Center or that Ferrell was

a passenger in the ear that passed the police on Whitehorse

Road. But Mason drove a gray Corvette. On direct appeal

16 FERRELL, PETITIONER, v. Stare or S. C., RESPONDENT

petitioner argued that in a city the size of Greenville, it

can hardly be suggested that there is only one gray Cor-

vette and that it belongs to Phil Mason. Gray is a common

color and Corvettes, though expensive automobiles, are by

no means rare.

Corroboration of a gray Corvette seen headed south in

the general direction of Donaldson Center is likewise in-

conclusive. Whitehorse Road is a major thoroughfare run-

ning north and south in the City of Greenville. Any auto-

mobile traveling on Whitehorse Road would have a fifty

percent chance of traveling in the direction of Donaldson

Center.

Nor is the time element conclusive. Even assuming that

the automobile the police saw was Mason’s, there are any

number of places besides Donaldson Center he could have

driven to and returned from in a 20 to 30 minute period.

Probable cause must be more than a “mere suspicion.”

Brinegar v. United States, 338 U. S. 160 (1949). Mere affir-

mation of belief or suspicion is not enough and this is par-

ticularly true when hearsay information supports probable

cause, Nathanson v. United States, 290 U. S. 41 (1933);

Aguilar v. Texas, 378 U. S. 108 (1964); United States v.

Ventresca, 380 U. 8. 102 (1965); Draper v. United States,

358 U.S. 307 (1959); and an affidavit supporting probable

cause which is based on hearsay will only be sufficient “so

long as a substantial basis for crediting the hearsay is pre-

sented.” Jones v. United States, 362 U. S. 257, 269 (1960).

Though independent corroboration may be sufficient to

ripen hearsay information into probable cause in the ab-

sence of personal knowledge of an informant, such corrobo-

ration must be sufficiently detailed to enable a detached

magistrate to infer that the informant had gained his in-

formation in a reliable way. Draper, at 313. See also, Agui-

lar v. Texas, 378 U.S. 108 (1964).

FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT 17

In the case at bar we agree that considered together

the “cumulative effect” of the police observations, cou-

pled with the informant’s information, might have been suf-

ficient to raise a “suspicion” that Mason’s illegal activities

were underfoot. But the corroboration is too slight, the de-

tail too sparse, to ripen hearsay into probable cause even

as to Mason. In sum, since there was no probable cause to

search or arrest Mason, it logically follows there was none

as to Ferrell.

When Mason’s automobile entered the apartment com-

plex parking lot, the police obtained their first “informa-

tion” as to Ferrell. Prior to this it is undisputed that they

had no information, hearsay or otherwise, as to him. For

all the police knew, at that moment, Ferrell was merely a

passenger in Mason’s ear. They had no information as to

any actual association as distinguished from apparent as-

sociation, between Mason and Ferrell. There was no evi-

dence that Mason and Ferrell knew each other or that their

“association” was more than momentary. “Ferrell could

have been a hitchhiker.” Testimony of Sergeant Walt Par-

sons, Appendix B(2) at page 38. However, based on this

“apparent association” with nothing more, the police

grounded their probable cause to arrest and search Ferrell.

We rely initially on Sibron v. New York, 392 U.S. 41

(1968), to support the position that “guilt by association”

or more precisely “probable cause by association” is con-

stitutionally impermissible. Factually, Sibron would ap-

pear to be a stronger case for supporting probable cause

since in that case the policeman determined the association

between Sibron and the addicts to have continued over a

period of eight hours. In the instant case the apparent as-

sociation of the parties was momentary. No conversation

between the parties was overheard by the police in either

18 FERRELL, PETITIONER, v. STATE OF §S. C., RESPONDENT

ease. Mr. Chief Justice Warren, writing for the majority

in Sibron, noted in reversing appellant’s conviction:

The inference that persons who talk to nareotie addicts

are engaged in criminal traffie in narecoties is simply

not the reasonable sort of inference required to sup-

port an intrusion by police upon an individual’s per-

sonal security. Sibron, at 62.

We suggest that there is no significant legal distinetion be-

tween talking to known nareotie addicts in a bar and rid-

ing in an automobile with a person suspected of dealing in

drugs. Further, Mr. Justice Harlan, coneurring in Sibron,

wrote:

Although association with known criminals may, I

think, properly be a factor contributing to the suspi-

ciousness of circumstances, it does not, entirely by it-

self, create suspicion adequate to support a stop. There

must be something at least in the activities of the per-

son being observed or in his surroundings that affirma-

tively suggests particular criminal activity, completed,

current or intended. Sibron, at 73.

Petitioner’s activities in the instant ease do not suggest

particular criminal activity completed, current or intended.

Ferrell was merely a passenger riding in an automobile.

In the recent case Ybarra v. Illinois, .... U.S. .

48 U.S.L.W. 4023 (November 28, 1979), a majority of this

Court, citing Sibron, said:

A person’s mere propinquity to others independently

suspected of criminal activity does not, without more,

give rise to probable cause to search that person.

Ybarra, at 4025; Sibron, at 62, 63.

Further,

Where the standard is probable cause, a search or

seizure of a person must be supported by prebable

cause particularized with respect to that person. This

requirement cannot be undercut or avoided by simply

FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT 19

pointing to the fact that coincidentally there exists

_ probable cause to search or seize another or to search

the premises where the person may happen to be. The

Fourth and Fourteenth Amendments protect the ‘legit-

imate expectations of privacy’ of persons, not places.

Ybarra, at 4025; Rakas v. Illinois, 489 U. S. 128, 138-

143, 148-149 (1979); Katz v. United States, 389 U.S.

347, 351, 352, (1967).

The particularity requirement of the Fourth Amendnient

was eroded in supporting probable cause to search or ar-

rest Ferrell. Ferrell’s “mere propinquity” to Mason and

Mason’s activities was the government’s basis for his ar-

rest and search in the instant case.

In United States v. DiRe, 32 U. S. 581 (1933), relied

heavily on by petitioner in support of his case on appeal,

the government conceded that “armed with a search war-

rant for a house they could not search the occupants in the

house,” DiRe, at 587, and this Court reasoned:

By parity of reasoning with that on which the govern-

ment disclaims the right to search oceupants of the

house, we suppose that the government would not con-

tend that if it had a valid search warrant for the ear

only, it could search the oceupants as incident to its

execution. How then could we say that the right to

search a car without 2 warrant confers greater latitude

to search occupants than search by warrant would per-

mit? DiRe, at 587.

Further,

We are not convinced that a person by mere presence

in a suspected car, loses immunities from the search

of his person to which he would otherwise be entitled.

DiRe, at 587.

In the ease at bar the South Carolina Supreme Court

dismissed the factual applicability of DiRe, reasoning that

“it is important to distinguish the search in this case (Fer-

20 FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT

rell) from the search of companions in a publie place.” 3

State v. Ferrell, Appendix A at page 29. We would sup-

pose that the South Carolina Court would contend that

while the search of occupants of a “public place”, the “ecom-

pact premises” in Ybarra, would be constitutionally im-

permissible, the search of a small number of persons in a

“private place”, particularly where some degree of associ-

ation, either actual or apparent, can be shown, would be

justified, providing that the “place and cireumstances”

satisfy the test of reasonableness per the Katz decision.

Katz v. United States, 389 U. S. 347 (1967). This fails to

grasp the legal significance of the DiRe and Katz decisions.

Dike held that mere presence in a suspected automobile

does not abrogate a person’s Fourth Amendment immuni-

ties. The importance of the DiRe decision is affirmed in

Katz and its progeny, “the Fourth Amendment protects

persons, not places,” Katz, at 353, and so this Court has

held on numerous oceasions.

Factually, the search of DiRe would appear easier to

justify than the search of Ferrell since contraband was seen

passing between two occupants of the ear in which DiRe

was a passenger while in Ferrell the consent search of Ma-

son’s ear disclosed none. Certainly it could reasonably be

inferred that DiRe was aware of the illegal transaction

though he may not have been an accessory or party to a

conspiracy. By comparison such an inference as to Ferrell

is unsupported.

The state’s interest in enforcing its drug laws does not

override the personal liberties safeguarded by the Fourth

Amendment. Necessity does not justify arrests or searches

otherwise impermissible because of lack of probable cause.

Though necessity is suggested as a justification for the

search of Ferrell, since drugs are easily concealable and the

% Factually, both DiRe and the instant case deal with the search of

occupants of an automobile not patrons of public places.

FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT 21

expedient of hiding contraband on a person is a reality,

this Court in DiRe expressly rejected this argument. Dike,

at 587.

When Ferrell and Mason were patted-down in the

apartment parking lot, the police had no probable cause as

to either. The pat-down search of Ferrell disclosed no

weapons or contraband. The consent search of Mason’s au-

tomobile uncovered nothing. Since no contraband was

found, these factual aspects of the case are noted but not

discussed since they do not affect the ultimate determina-

tion of probable cause.

We agree with the South Carolina Supreme Court that

Ferrell and Mason were placed under arrest when they

were compelled to accompany the police to Mason’s apart-

ment where a search of their persons was to be conducted

since at this point they were substantially deprived of their

freedom irrespective of whether the formalities of Miranda

v. Arizona, 384 U. S. 439 (1966) were followed. See also,

Henry v. United States, 361 U. S. 98 (1959). Faetual dis-

crepancy exists in the trial record as to whether Ferrell

was arrested prior to the second search in Mason’s apart-

ment or after the contraband was discovered and Ferrell

was formally placed under arrest and advised of his rights.

(TR. 28, 54.) The distinction is not eritical since probable

cause for the second search in Mason’s apartment or Fer-

rell’s arrest in the parking lot prior to the second search

was nonexistent. The analysis is affected, however, by

factually viewing the second search as an illegal seareh or

as incident to an invalid arrest. In either instance we sub-

mit that Ferrell should not have been compelled to submit

to the second search but should have been permitted to

leave the premises after the fruitless pat-down search in

the parking lot, if not before.

Though contraband was found on Ferrell’s person as a

fruit of the search in Mason’s apartment, it is well estab-

22 FERRELL, PETITIONER, Vv. STATE OF S. C., RESPONDENT

lished that probable cause is not retroactive in its determi-

nation, application or effect. In Re Jones, 264 8. C. 286, 214

S. E. 2d 816 (1975). “The pertinent circumstances (upon

which probable cause is based) are those of the moment, the

actual ones. A search is not made legal by what it turns up.

In law, it is good or bad when it starts and does not change

character from its success.” DiRe, at 595. In the case at bar

the contraband found on Ferrell’s person was the fruit of

an illegal search or a search incident to an unlawful arrest.

The result did not justify the search or arrest by retroac-

tively establishing probable cause.

Finally, it is well established that searches or arrests

pursuant to warrant are favored in law over those without.

Beck v. Ohio, 379 U. S. 89 (1965); United States v. Ven-

tresca, 380 U. S. 102 (1965); Coolidge v. New Hampshire,

403 U.S. 443 (1971). Assuming that the police had probable

cause for the arrest or search of Ferrell, which we expressly

deny, they should have obtained a warrant before pro-

ceeding with their arrest or search of petitioner. No offense

had been committed in their presence. Ferrell could easily

have been detained long enough for a neutral, detached

magistrate to make the probable cause determination. He

posed no threat to the police, who had previously patted

him down and found no weapons. At best the government’s

quantum of evidence was minimal and undeniably cireuin-

stantial. Probable cause, if it existed was marginal. In eases

where probable cause is a “close” determination, searches

or arrests pursuant to warrant may be upheld on a lesser

quantum of evidence, whereas a search or arrest without

warrant may not be. United States v. Ventresca, 380 U.S.

102, 106 (1965). In the case at bar the determination of

probable cause at best was “close”. Since the search or ar-

rest of Ferrell took place without a warrant, any evidence

as to Ferrell, if it existed, should be deemed insufficient to

support probable cause.

FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT 23

II.

Under the Fourth Amendment as applied to the States

through the Fourteenth Amendment is a second Terry pat-

down search of petitioner constitutionally permissible after

an initial 7'erry search failed to disclose any weapons?

There is some factual question as to whether the see-

ond search of Ferrell in Mason’s apartment was a limited

pat-down search of his clothing or a full search of his per-

son. As discussed in Question I, the second search of peti-

tioner’s person cannot be justified since the police lacked

probable cause to search him or to arrest him and search

him ineident thereto. Can then a second limited Terry

search be justified ?

It is well established that the purpose of the limited

pat-down search of a suspect’s outer clothing as author-

ized in Terry v. Ohio, 392 U. S. 1 (1968), is to diseover

weapons which might be used against the “detaining” offi-

cer. Thus, the scope of Terry is narrow and the weapons

frisk must be reasonable and is only justified where there

is a “reasonable belief” short of probable cause that the

suspect is armed. Terry, at 27; Ybarra, at 4025. Protection

of the officer is the paramount consideration, and though

contraband discovered pursuant to a lawful Terry search

is admissible, Terry is not a substitute for the search of a

person pursuant to warrant. In the case at bar the initial

pat-down of Ferrell failed to disclose any weapons. It is

difficult to understand how the government justifies its see-

ond pat-down search of Ferrell in Mason’s apartment. Re-

ferring to the second pat-down search of Ferrell, Sergeant

Walt M. Parsons testified on direct examination:

Q. Sergeant, you say a “search,” you mean a pat-

down?

A. A pat-down, yes, sir.

(TR. 46.)

24 FERRELL, PETITIONER, v. STATE OF §. C., RESPONDENT

Assuming that the initial pat-down of Ferrell in the park-

ing lot was to discover weapons and to protect the officers,

it can hardly be suggested that the officers’ safety was en-

hanced by compelling petitioner to go to Mason’s apart-

ment, since it is reasoned that the greater the number of

persons on the premises during the execution of the search

warrant, the greater the potential threat to the officers

would be.

On appeal petitioner argued that multiple pat-down

searches are patently unreasonable and constitute an “end-

run” around the protections of the Fourth Amendment as

implemented by this Court’s narrow holding in Terry. To

permit a series of “limited” intrusions is tantamount to the

more severe intrusion of a personal search, if not a more

harrassing and abusive procedure. We submit that when

multiple Terry searches are conducted, such searches cease

to be a mere “minor inconvenience or petty indignity” to the

person searched. Terry, at 10. In the ease at bar the second

pat-down search of petitioner was unreasonable and con-

stitutionally unjustified.

CONCLUSION

In conelusion, the trial testimony reflects that the po-

lice had no information as to Ferrell or his association with

Mason or Mason’s activities. “Guilt by association” or spe-

cifically, “probable cause by association” is constitution-

ally impermissible. Further, the police had no probable

cause as to Mason, since the informant’s information as to

Mason’s activities lacked detail, was not based on the in-

formant’s personal knowledge or observations, except as

to Mason’s apartment for which the warrant had issued,

and was not sufficiently corroborated by the police. Factu-

ally, in the instant case if probable cause was absent as to

Mason, then it was necessarily absent as to Ferrell. At the

time of Ferrell’s initial frisk in the apartment parking lot

FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT 25

there was no probable cause as to Ferrell, and even the

propriety of the limited pat-down search of petitioner is

questioned by this Court’s decision in Ybarra and the lack

of particularity required for even a “reasonable belief” un-

der Terry. Even assuming that the initial pat-down of Fer-

rell can be justified, nothing was discovered on his person

and the subsequent consent search of Mason’s automobile

likewise uncovered no contraband. At the point Ferrell and

Mason were compelled to go to Mason’s apartment and

submit to a personal search, the sparse information which

the police had as to Mason had not ripened into probable

cause as to Ferrell.

Petitioner was arrested under the rationale of Miranda

since he was substantially deprived of his freedom at the

moment he was compelled to go to Mason’s apartment and

submit to a personal search irrespective of whether he was

formally advised of his rights. His arrest was illegal sinee

it lacked probable cause and the contraband discovered

pursuant to the second search is inadmissible as the fruit

of an unlawful arrest and should have been suppressed.

Probable cause is not retroactive in its determination, ap-

plication or effect :nd so the subsequent discovery of con-

traband did not establish probable cause to justify the prior

arrest and search incident thereto. Should it be determined

that Ferrell was not arrested in the parking lot, then the

search of his person in Mason’s apartment was still not

justified since probable cause to search was lacking. Again

the contraband discovered should have been suppressed as

the fruit of an illegal search. In either ingtanee a warrant

should have been obtained to either search or arrest Ferrell.

Assuming the second search of Ferrell was a limited

pat-down search, as the police testified, the same is unjusti-

fied. Multiple Terry searches are constitutionally imper-

missible as amounting to more than a mere “minor ineon-

venience and petty indignity.” The police hardly fostered

26 FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT

their safety by compelling Ferrell to aecompany them to

Mason’s apartment to execute their search warrant. Peti-

tioner should have been permitted to leave the premises

after his initial frisk in the parking lot, if not before.

Based on the foregoing, petitioner’s rights, privileges

and immunities as claimed under the Constitution of the

United States and the Constitution of South Carolina have

been violated. Petitioner files his writ of certiorari pursu-

ant to the provisions of Title 28, United States Code, Sec-

tion 1257 (3). Petitioner prays this Court that its writ of

certiorari issue to review the judgment of the Supreme

Court of South Carolina entered against him and that said

judgment be reversed.

Respectfully submitted,

GEORGE W. CONE,

Attorney of Record.

th A he fn B24

JOHN R. HETRICK,

Attorney for Petitioner.

(Not admitted to practice be-

fore this Court.)

Appendices

«

APPENDIX A

THE STATE OF SOUTH CAROLINA

IN THE SUPREME COURT

THE STATE, ResponveEnt,

ve rs us

GLEN H. FERRELL, APPELLANT

APPEAL, FROM GREENVILLE COUNTY

Joun T. Gentry, SpeciaL Circuit JuDGE

Opinion No. 21107

Filed January 7, 1980

AFFIRMED

John R. Hetrick, of Greenville, for appellant.

Attorney General Daniel R. MeLeod and Assistant At-

torneys General Brian P. Gibbes and Kay G. Crowe,

all of Columbia; and Solicitor William W. Wilkins, Jr.,

of Greenville, for respondent.

NESS, A. J.: Appellant Ferrell was convicted of pos-

session with intent to distribute phyneyelidine (PCP), a

Schedule IIT controlled substance, and was sentenced to

three years imprisonment. We affirm.

In the early afternoon of October 13, 1977, Sergeant

Walter M. Thompson of the Greenville Police Department

received information from a confidential informant that

illicit drugs were being distributed from an apartment oc-

eupied by Phil Mason. On the basis of this information, a

warrant was obtained to search the apartment.

( 29 )

30 FERRELL, PETITIONER, Vv. STATE OF S. C., RESPONDENT

It is conceded the search warrant for Mason’s apart-

ment was valid, based upon a reliable informant’s tip that

he had personally witnessed the distribution of illicit drugs

from the premises within the past twenty-four to forty-

eight hours. Spinelli v. U. S., 393 U.S. 410, 89'S. Ct. 584, 21

L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U. S. T08, 84

S. Ct. 1509, 12 L. Ed. 2d 723 (1964); State v. Wimborne,

S. C. , 254 8S. FE. 2d 297 (1979) ; State v. Peters, 271

S. C. 498, 248 S. E. 2d 475 (1978).

Additionally the informer advised the police that Ma-

son owned a gray Chevrolet Corvette automobile and that

he “would probably” be going out to Donaldson Center to

pick up more drugs on the evening of the warrant’s

execution.

The officers observed a gray Chevrolet Corvette auto-

mobile with two occupants travelling from the vicinity of

Mason’s apartment in the direetion of Donaldson Center.

Shortly thereafter, they observed a gray Chevrolet Cor-

vette automobile with Mason and appellant therein drive

into the apartment complex parking lot. The officers ap-

proached the two men, conducted a brief pat down search

of their persons in the cold and rain. The officers then di-

rected the two men to go into Mason’s apartment, where a

more thorough search of appellant revealed ninety-nine

PCP tablets.

Appellant asserts this second search of his person was

improper and the PCP tablets should not have been ad-

mitted at his trial. We disagree.

We have no difficulty holding that the initial pat down

search conducted in the parking lot fell well within the

“stop and frisk” exception to the Fourth Amendment war-

rant requirement. See Commonwealth of Pennsylvania v.

Mims, .... U.S. ...., 98S. Ct. 330, 334 (1977); Terry v.

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

State v. Foster, 269 S. C. 373, 237 8. E. 2d 589 (1977). At

the time the officers conducted this search, they were aware

of the following facts: (1) that illicit drugs had recently

been seen and sold in Mason’s apartment; (2) that Mason

owned a gray Chevrolet Corvette automobile; (3) that Ma-

son “would probably” be going out to Donaldson Center to

APPENDICES 31

pick up more drugs; (4) that a gray Chevrolet Corvette au-

tomobile with two occupants had recently been driven from

the direction of Mason’s apartment toward Donaldson Cen-

ter; and (5) that a gray Chevrolet Corvette automobile oc-

eupied by Mason and appellant had just pulled up in the

parking lot. These specific and articulable facts, taken to-

gether with the rational inferences from those facts, clearly

warranted the conclusion that criminal activity might have

been afoot.

We have no more difficulty holding that the more

thorough search in Mason’s apartment fell within the

search incident to a valid custodial arrest exception to the

warrant requirement. Police officers may make a search of

an arrestee’s person and the area within his immediate

control for weapons and destructible evidence without first

obtaining a search warrant. See U.S. v. Robinson, 414 U.S.

218, 948. Ct. 467, 88 L. Ed. 2d 427 (1973) ; In Re Jones, 264

S. C. 286, 214 S. E. 2d 816 (1975). The sole prerequisite is

that there be a prior arrest supported by probable cause.

When the police officers ordered Mason and appellant

out of the parking lot and into Mason’s apartment, they so

substantially deprived the two men of their freedom of

movement as to constitute a full custodial arrest. Henry v.

U. S., 361 U. S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134 (1959).

Clearly the officers’ actions constituted a sufficient show of

authority to restrain appellant’s freedom of movement,

therefore, the appellant was seized. U.S. v. Palmer, 25 Cr.

L. 2456 (8th Cir. 7/26/79). The search in Mason’s apart-

ment being incident to this arrest, the whole issue is

whether it was based upon probable cause.

The seizure of the appellant by requiring him to go

into Mason’s apartment constituted a seizure of his person.

On the facts of this case, considering the existence of prob-

able cause, the very limited intrusion undertaken, and the

ready destructibility of the evidence, we cannot sav that

this search violated the Fourth and Fourteenth Amend-

ments.

Certainly the appellant could have been seized and

searched at the automobile in the cold and rain. Searches

1See U. S. v. Pope, 561 F. 2d 663, 668 (6th Cir. 1977).

382 FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT

and seizures that could be made on the spot at the time of

arrest may legally be conducted later when the accused ar-

rives at the place of detention. Abel v. United States, 362

U. S. 217, 80 S. Ct. 683, 4 L. Ed. 2d 668 (1960). Similarly

here under these circumstances, when the officers’ observa-

tions corroborated the minute and detailed facts contained

in the warrant this would support a probable cause belief

that one or more of the occupants had committed a felony.

A felony arrest validly may be made on that basis. [F. g.

U.S. ex rel. LaBelle v. LaV allee, 517 F. 2d 750 (2nd Cir.

1975); Gullett v. United States, ~s F. 2d 307 (Sth Cir.

1967), cert. den., 390 U. S. 1044, . Ct. 1645, 20 L. Ed.

2d 307 (1968) ; State v. Bell, 268 2 239, 209 S. KE. 2d 890

(1974), cert. den., 420 U. S. 1008, 95 S. Ct. 1453, 48 L. Ed.

2d 767 (1975) }.

Clearly, all the surrounding circumstances within the

knowledge of the arresting officers, when measured by the

standard appropriate for a reasonable, cautious and pru-

dent officer engaged in a narcotics investigation, indicate

that there was probable cause for an arrest.

“Rather than blind worship of cause alone, the law

probes for the basis of ge bay s action measuring it by

an external standard.” U.S. v. Walker, 246 F. 2d 519, 528

(7th Cir. 1957).

In making this assessment we do not isolate for inde-

pendent analysis each factual circumstance, but view the

action of the arresting officers on the basis of the cumula-

tive effect of such facts in the totality of the circumstances.

Jackson v. U. S., 408 F. 2d 1165 (8th Cir. 1969); U.S

Williams, 442 F. 2d 738 (1970). Here the arrest took place

outside the apartment, after the officers made a brief “pat

down” search in the cold and rain. They had a legal search

rarrant, and sufficient information from a confidential in-

former, most of which was corroborated. We would hold

the search was incident to a lawful custodial arrest made

upon probable cause.” U. S. v. Robinson, 414 U.S. 218, 94

2The custodial arrest occurred when the officers required appellant

to come into the apartment.

APPENDICES 33

S. Ct. 467. 38 L. Ed. 2d 427 (1973). Writing for the Court,

Justice Rehnquist stated:

“A police officer’s determination as to how and where

to search the person of a suspect whom he has arrested

is necessarily a quick ad hoc judgment which the

Fourth Amendment does not require to be broken

down in each instance into an analysis of each step in

the search. , does not depend on what a court may

later decide was the probability in a particular arrest

situation...” 94S. Ct. 477

Appellant argues that probable cause for arrest ex-

isted only as to Mason, if at all, and therefore the arrest

and subsequent search of appellant was improper under

Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed.

2d 917 (1968). Unlike Sibron, the facets here were sufficient

to lead the officers to conelude that there was criminal ae-

tivity ; and unlike U. S. v. DiRe, 332 U. S. 581, 68 S. Ct. 222,

92 L. Ed. 2d 210 (1948), the same facets lead to the conelu-

sion that appellant was equally involved as Mason. It is

unreasonable to infer that anyone other than a participant

would be present. In such a persuasive setting probable

cause existed to search all present. U.S. v. Johnson, 475, F.

2d 977, 980 (1973) ; State v. DeSimone, 288 A. 2d 849 (N. J.

1972).

It is important to distinguish the search in this ease

from the search of companions in a publie place. U. S. v.

Dike, supra. While one is entitled to know wherever he may

be “he will be free from unreasonable searches,” Katz v.

U.S., 389 U.S. 347, 88 S. Ct. 507, 515,19 L. Ed. 2d 576

(1967), the test of reasonableness will inelude place and eir-

cumstances.

Moreover, the Fourth Amendment does not forbid the

search for evidence simply because the owner, possessor,

occupant or visitor of the place to be searched is not a sus-

pect when the search warrant was issued. Whether the

third party is suspect or not, the State’s interest in enfore-

ing the criminal law and recovering evidence remains the

same. A search warrant is often acquired, early in an in-

vestigation, certainly before all the perpetrators are or

34 FERRELL, PETITIONER, ¥. STATE OF S. C., RESPONDENT

could be known. Forbidding the search of the third person

on the premises could easily result in the disappearance of

the evidence.

No more should be required where the warrant issued

for the seizure of criminal evidence on the premises. Here

the appellant was on the premises, the criminal evidence

was found in his pocket.’ The search was substantially con-

temporaneous with the arrest.

Under the circumstances in this case, an expectation

of privacy by the appellant is not “one that society is pre-

pared to recognize as reasonable.” Katz v. U. S., 389 U.S.

347, 361 (1967).

Thus even assuming no exigency attended the arrest,

the search was proper since it was contemporaneous with

the arrest. The officers had probable cause to believe that

an offense was being committed and that the appellant was

in possession of evidence of the crime at the time of the

arrest. The standard of reasonableness does not rise or fall

on the detached observations of the courts as to whether

an exigency existed at the time of the arrest. It must be

based on a subjective analysis of the situation confronting

the arresting officers.

Based upon the instant operative factual setting we

conclude the arrest and search was attended by exigent cir-

cumstances. The lawful arrest established the authority to

search. We hold in the case of a lawful custodial arrest a

full search of the person is not only an exception to the

warrant requirement of the Fourth Amendment, but is also

a “reasonable” search.

AFFIRMED.

LEWIS, C. J., and LITTLEJOHN, A. J., coneur.

RHODES and GREGORY, JJ., dissent.

GREGORY, A. J. (dissenting): I respectfully dissent.

The only question presented by this appeal is whether

the second search of the appellant Ferrell was lawful. The

validity of the search warrant for Mason’s apartment, the

validity of the pat-down or first search of the appellant, and

the search of Mason’s automobile are not at issue.

3 For analagous case see Zurcher v. Stanford Daily, et al., 98 S. Ct.

1970 (1978).

APPENDICES 35

The majority opinion justifies this second search as a

search incident to the lawful warrantless arrest of appel-

lant. This justification for the search, however laudatory

it may be in view of the fact that appellant actually was in

possession of the pheneyclidine,’ was introduced into this

case for the first time by the majority opinion.

The record reveals that no arrest was made by any

law enforcement officer at the scene prior to the second

search of appellant:

“MR. HETRICK: Now, at the time that car

pulled up, what exactly happened: Did you immedi-

ately go to the car and place the individuals under ar-

rest, or were they on their way inside the apartment

when you accosted them?

“SGT. PARSONS: We approached the ear, we

placed no one under arrest at that time. They were be-

ing detained.

* * *

“(Q.: He was under arrest at that point?

“A.: IT wouldn’t say he was under arrest, he was

being detained. We had no—no officer at the time had

said, ‘You are under arrest.’ ”

In fact, the record reveals that no arrest was made un-

: 9

til after the second search:

“SOLICITOR WILKINS: All right, after finding

these pills on Mr. Ferrell’s person, did you take him

into arrest custody and transport him to the law En-

forcement Center?

“SGT. PARSONS: Yes, sir, I informed him at

that time that he was under arrest for possession with

intent to distribute PCP and that he would be taken

to the Greenville County Detention Center.” (Kmpha-

sis added.)

Thus, the law enforcement officer in charge asserts no ar-

rest of Ferrell was made prior to the second search.

1 As a result of a recent amendment to Section 44-53-210 (f), 1976

Code, phencyclidine is now a Schedule II controlled substance. See Act

No. 118 of 1979.

36 FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT

At trial, no argument was presented by the capable

solicitor that the second search was made as an incident to

the arrest of Ferrell. The solicitor argued that the second

search of appellant was lawful under the “automobile ex-

ception” to the warrant requirement. The trial judge

agreed and admitted the pheneyelidine into evidence on the

ground that the second search was lawful under the auto-

mobile exception, not the search incident exception.

On appeal, the State actually argues that Ferrell was

not arrested until after the second search, and the brief of

the State contains the following synopsis of the testimony

of the law enforcement officers: “The police consistently

testified that he [Ferrell] was not arrested until after the

pills were found in his possession.”

Since the law enforcement officers had no warrant to

search appellant, the burden was upon the State to show

that the search was permissible without a warrant. State

v. Ellefson, 266 S. C. 494, 224 S. E. 2d 666 (1976). At no

stage of the proceedings in this ease has the State at-

tempted to justify the second search of appellant as an in-

cident of a lawful, warrantless arrest.

Assuming, however, that the State had advanced the

“search incident” justification to the trial court, the faets

of this case simply will not support the finding of probable

cause necessary for the warrantless arrest and search of

appellant.

The law enforcement officers at the scene did not ob-

serve appellant enter or leave Mason’s apartment prior to

the time of the second search. The police could neither iden-

tify the grey Corvette that drove away from the apartment

complex nor the two occupants of the automobile. Although

the Corvette drove in the direction of the Donaldson Cen-

ter, no one followed the car to determine whether it went

to the Donaldson Center.

When a grey Corvette later drove into the apartment

complex, the police were unable to say whether it was the

same grey Corvette that had left the complex earlier, and

if it was, whether the two individuals who got out of the

automobile were the same two individuals who had left in it.

APPENDICES 37

The police searched the automobile for drugs, and con-

ducted a pat-down search for weapons and drugs of both

Mason and appellant. Nothing even remotely suspicious

was uncovered by any of these searches. Every circum-

stance negated probable cause for a warrantless arrest and

search of appellant, who was not known to the police offi-

cers as a criminal or one connected with drug trafficking. It

is also worthy of note that the search of Mason’s apartment,

which occurred after the second search of Ferrell, revealed

no drugs.

Moreover, even if the officers’ suspicion that appellant

was connected with the drug trafficking were reasonable,

nothing short of particularized probable cause would have .

permitted the search of appellant for drugs. His mere pres-

ence on premises subject to a valid search warrant, with-

out more, is not enough. Ybarra v. Illinois, 48 U. S. L. W.

4023, (November 28, 1979). This is especially true sinee the

police ordered appellant into the premises after having con-

ducted a fruitless Terry pat-down outside the premises.

[A] person’s mere propinquity to others inde-

pendently suspected of criminal activity does not, with-

out more, give rise to probable cause to search that

person. Sibron v. New York, 392 U. S. 40, 62-63. Where

the standard is probable cause, a search or seizure of

a person must be supported by probable eause par-

ticularized with respect to that person. This require-

ment cannot be undercut or avoided by simply point-

ing to the fact that coincidentally there exists probable

cause to search or seize another or to search the prem-

ises where the person may happen to be.

Ybarra, supra, 48 U.S. L. W. at 4025.

In my view, none of the informant’s tips were remotely

corroborated by the police prior to the time of the second

search. Because of this total lack of corroboratian, the in-

formant’s tips never ripened into probable cause and the

phencyclidine was seized as a result of a warrantless search

made without probable cause for a warrantless arrest.

I would reverse appellant’s conviction and sentence.

RHODES, A. J., eoneurs.

38

FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT

APPENDIX B

Excerpts from the Trial Testimony

(1) Cross examination of Sergeant Walt M. Parsons at the

pre-trial suppression hearing. (TR. 22-23)

Q. All right, now, in the search warrant for Mr. Ma-

son’s apartment, was there a provision in there to

search all the occupants of his apartment?

A. Yes, sir—well, there was no provision, but it is

standard procedure.

Q. Well, I mean, did you search every occupant inside

that apartment when you went inside to execute

that search warrant?

A. No, sir, we didn’t search completely. There were

two females in the apartment at the time along

with Mr. Mason and Mr. Ferrell. We did not com-

pletely—

You did not search the females present?

No, sir, the only thing we did was we asked them to

empty anything they had in their pockets.

Did they do that?

Yes, sir. ;

So, that you felt, based on your search warrant, you

had probable cause to search anybody inside that

apartment?

A. Yes, sir.

Cross examination of Sergeant Walt M. Parsons at

trial. (TR. 51); Cumulative testimony. (TR. 24-26)

Q. At the time you procured that warrant, did you

have any information whatsoever about the defen-

dant in this ease, Glen Ferrell?

Mr. Ferrell, no, sir, not directly.

No information, whatsoever?

No.

TR. 55-56) ; Cumulative testimony. (TR. 24-26, 28)

. I had received information that afternoon that Mr.

Mason would more than likely be driving a gray

Corvette but I could not substantiate it. My proba-

Oppo pe

>aPOo>

(3)

(4)

APPENDICES 39

ble cause was that he would be driving it to go to

Donaldson Center to the stash house and make the

pick-up. :

But, at the time you approached the vehicle with

your pistols drawn, all of your information con-

cerned Mr. Phil Mason, is that correct?

Yes, sir.

Do you know when Glen Ferrell joined his company

that night?

No, sir, I don’t.

Do you know if Mr. Mason even knew Mr. Ferrell?

Yes, sir, he knew him.

How do you know that, at that time?

At that precise time, the moment we approached

the car, no, sir, but I learned later that they were

good friends.

At that time you did not even know they were

friends?

At that precise moment—

He could have been a hitchhiker?

Right, he could have been a hitchhiker, yes, sir.

So, you had no seareh warrant for Mr. Ferrell’s

apartment or his person or his ear, did you?

A. No, sir.

Direct examination of Sergeant Walt M. Parsons at

trial. (TR. 44); Cumulative testimony. (TR. 20)

Q, All right. Did you conduct a search of the Corvette

there in the parking lot?

A. Yes, sir, we did. We made a thorough search of the

Corvette there in the parking lot.

Q. All right, did you find any type of contraband or

narcotics, anything else illegal there inside the Cor-

vette itself?

A. No, sir.

Direct examination of Deputy William R. Bennett at

trial. (TR. 63); Cumulative testimony. (TR. 68)

Q. All right, did you conduct a pat-down search of de-

fendant, Mr. Ferrell, out in the parking lot?

A. Yes, I did.

©

>PO>O> Ob

OPo> ©

40

FERRELL, PETITIONER, Vv. STATE OF S. C., RESPONDENT

Q. And what were you searching for at that time?

A. Weapons.

Q. Pistols, weapons, knives?

A. Right. ,

Q. Did you find any dangerous weapons on him at that

time?

A. No, sir.

APPENDICES 41

APPENDIX C

Constitution of South Carolina

(1) Article I, Section 10—Searches and Seizures; Inva-

(4)

sions of Privacy

The rights of the people to be secure in their per-

sons, houses, papers and effects, against unreasonable

searches and seizures and unreasonable invasions of

privacy shall not be violated, and no Warrants shall

issue but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, the persons or things to be seized, and the

information to be obtained.

Article I, Section 3—Privileges and Immunities: Due

Process; Equal Protection of Laws

The privileges and immunities of citizens of this

State and of the United States under this Constitution

a not be : a sh nor shall any person be deprived

1 life, liberty or property without due process of law,

nor shall any saa be denied the equal protection of

the laws.

‘

STATUTES OF SOUTI

CODE OF LAWS OF SOUTI

Section 44-53-230—Schedule II]

(a) The controlled substances listed in this section are

included in Sehedule ITI.

(ec) Unless specifically excepted or unless listed in an-

pi schedule, any material, compound, mixture

r preparation which contains any quantity of the

felicnine substances having a depressant effect

on the central nervous system:

Pheneyelidine

Section 44-53-370—Prohibited Acts A; Penalties

(a) Except as authorized by this article it shall be un-

lawful for any person:

(1) To manufacture, distribute, dispense, or pOs-

sess with intent to manufacture, distr ibute, or

dispense, a controlled substance;

[ CAROLINA

[ CAROLINA, 1976

42 FERRELL, PETITIONER, v. STATE OF S. C., RESPONDENT

(2) To create, distribute, dispense, or possess

with intent to distribute or dispense, a coun-

terfeit substance.

(b) Any person who violates subsection (a) with re-

spect to:

(2) Any other controlled substance classified in

Schedule I, IT, or TIT shall be deemed guilty .

of a misdemeanor and, upon conviction, shall

for a first offense be sentenced to a term of

imprisonment for not more than five years or

a fine of not more than five thousand dollars,

or both. For a second offense, or if, in the ease

of a first conviction or violation of any provi-

sion of this subsection, the offender shall pre-

viously have been convicted of any violation

of the laws of the United States or of any

state, territory, or district relating to nar-

cotic drugs, marihuana, depressant, stimulant

or hallucinogenic drugs, the offender shall be

deemed guilty of a felony and, upon convie-

tion, shall be sentenced to a term of imprison-

ment for not more than ten years, or fined not

more than ten thousand dollars, or both. For

a third or subsequent offense, or if the of-

fender shall previously have been convicted

two or more times in the aggregate of any

violations of the laws of the United States or

any state, territory, or district relating to nar-

eotic drugs, marihuana, depressant, stimulant

or hallucinogenic drugs, the offender shall be

deemed guilty of a felony and, upon convie-

tion, shall be sentenced to a term of imprison-

ment for not less than five years nor more

than twenty years, or fined not more than

twenty thousand dollars, or both. Except in

the case of conviction for a first offense the

sentence shall not be suspended and proba-

tion shall not be granted.