State v. Dash

• Court: Court of Appeals of South Carolina
• Decided: June 25, 2003
• Docket: 2003-UP-438
• Status: Unpublished

Opinion

THE STATE OF SOUTH CAROLINA

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Frankie Lee Dash,        Appellant.

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Appeal From Orangeburg County
James C. Williams, Jr., Circuit Court Judge

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Unpublished Opinion No. 2003-UP-438
Submitted April 18, 2003 – Filed June 25, 2003

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AFFIRMED

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Senior Assistant Appellate Defender Wanda H. Haile, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster; Chief Deputy Attorney General John W. McIntosh; Assistant Deputy Attorney General Charles H. Richardson; Assistant Attorney General David A. Spencer, all of Columbia;  and Solicitor Walter M. Bailey, Jr., of Summerville, for Respondent.

PER CURIAM: Frankie Lee Dash (Dash) appeals from his conviction for armed robbery.  Dash contends the trial court erred by denying his motion to suppress evidence seized pursuant to his arrest by the police.

FACTS

William Herndon, an elderly store clerk, saw three black men enter Cherry’s Package store.  One of the men, who was exceedingly tall, asked for a bottle of vodka located high on a shelf.  When Herndon turned to retrieve the bottle, another of the men, later identified by Herndon as Dash, pulled a gun on him and forced him into the storeroom.  Dash sarcastically told Herndon that “everyone needs money at Christmas time” and proceeded to rob him of $175.00 in valid U.S. currency and a single fake one million dollar bill from Herndon’s wallet.  Dash threatened to blow Herndon’s brains out as Herndon begged for his life.  The other men stole two guns and the money from the till.  After the robbers fled, Herndon telephoned the police.

Overwrought by events, Herndon gave a general description to the police that the gunman who robbed him was a black male approximately 5’6” tall.  Although he was unable to recall a more complete description, he assured the policeman he would be able to recognize the gunman by sight.

Only minutes later, Officer Delvin Williams noticed Dash two blocks from the store.  Dash met the description given by Herndon.  Officer Williams approached Dash and explained to him that an armed robbery had just occurred and that he fit the description of the perpetrator.  Accordingly, the Officer asked Dash to accompany him back to the store to determine whether or not Herndon could identify him.  The Officer reminded Dash that he was not under arrest.

Suddenly, Dash became agitated.  Officer Williams testified Dash refused to make eye contact and attempted to get around him.  Dash moved in a threatening poster, coming uncomfortably close to the Officer.  The Officer responded by pushing Dash back.  Then Dash made a dash, running swiftly away.  As he attempted to flee, the Officer caught hold of his jacket and a gun fell out of one of the pockets onto the pavement.  When the Policeman caught him about a block away the two fought until Dash was placed in handcuffs.  On the way back to the patrol car, Officer Williams discovered the gun lying on the ground.  Dash was arrested and charged with simple assault.

Herndon was able to make a positive identification of Dash as the gunman only fifteen minutes after Dash left the store.  After a search of his person, the Police discovered the wad of cash and the fake one million dollar bill taken from Herndon.  The gun Dash dropped belonged to the storeowner, David Cherry, and was one of the guns stolen from the store.

Prior to trial, Dash made a motion to suppress the gun and money recovered during his arrest arguing it was discovered pursuant to an illegal seizure.  An in camera hearing followed and the court denied the motion to suppress. Dash was convicted of armed robbery and sentenced to twenty-two years.

DISCUSSION

Dash contends the trial court erred in denying his motion to suppress the evidence of the gun, cash and the fake million dollar bill seized following his arrest arguing they were obtained by an illegal seizure in violation of the Fourth and Fourteenth Amendments of the United States Constitution and Article 1 § 10 of the South Carolina Constitution.  We disagree.

Dash makes much of the fact the Officer initially told him he was not under arrest.  This fact, alone, does not end our inquiry.  An individual approached by a police officer has the right to ignore the Officer and go about his business, where the officer is without probable cause to believe that the individual has been engaged or will engage in criminal activity.  Florida v. Royer, 460 U.S. 491, 498 (1983).  Mere refusal to cooperate does not furnish the Officer with the objective justification to detain or seize the individual.  Illinois v. Wardlow, 528 U.S. 119, 125 (2000).  However flight amounts to more than a refusal to cooperate.  “Flight, by its very nature, is not ‘going about one’s business’; in fact, its just the opposite.” Id. 

Reasonableness of a warrantless seizure depends on the balance between public interest and the individual’s right to be free from arbitrary interference from law enforcement. State v. Woodruff, 344 S.C. 537, 551, 544 S.E.2d 290, 297 (Ct. App. 2001).  The balancing test requires a review of the circumstances including but not limited to: (1) the seriousness of the offense; (2) the degree of the likelihood the person detained may have witnessed or have been involved in the offense; (3) the proximity in time and space from the scene of the crime; (4) the urgency of the occasion; (5) the nature of the detention and its extent; (6) the means and procedures employed by the officer; and (7) the presence of any circumstances suggesting harassment or a deliberate effort to avoid the necessity of securing a warrant.  Id.  See also State v. Rodriquez, 323 S.C. 484, 476 S.E.2d 161 (1997); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578-79 (1975). 

The offense of armed robbery is a very serious crime.  Dash was within a few blocks of the store moments after the robbery occurred and fit the description provided by Herndon.  The crime was freshly committed and the police had to act quickly to prevent the robbers from getting away.  Officer Williams was very frank with Dash about the circumstances that encouraged him to make an inquiry and his questions were direct and to the point.  There was nothing in the record to suggest the Officer was harassing Dash or even being impolite. 

Once Officer Williams asked Dash to return to the store with him, Dash may have simply declined and gone about his business.  However, he chose to become nervous and evasive, moving threateningly close to the Officer before taking flight.  Dash’s conduct would certainly have aroused reasonable suspicion sufficient to justify further investigation and inquiry.  Dash’s behavior could have given the impression he was a threat to the Officer’s safety, justifying a search for weapons.  See Terry v. Ohio, 392 U.S. 1 (1968).  Dash’s sudden flight created a reasonable suspicion of his involvement in the robbery.  See Wardlow, 528 U.S. at 125.  Accordingly, Officer Williams was justified in grabbing Dash’s jacket to keep Dash from running away.  When the gun fell out of Dash’s pocket, the Officer certainly had probable cause to believe Dash may have been involved in the robbery and had good cause to detain him further.  The gun was in plain view on the pavement and was properly seized.  Dash’s assault on Officer Williams supported his subsequent arrest. 

Under the totality of the circumstances, Dash was legally detained for Herndon’s identification of him and all evidence was legally seized incident to the arrest.  Since the detention was proper and the evidence was lawfully seized, we cannot say the trial court erred in denying the motion to suppress.

Accordingly, Dash’s conviction is

AFFIRMED.

CURETON, ANDERSON and HUFF, JJ., concur.