SC: CoA missapplied std of review by reweighing facts; warns that “nervousness” isn’t a blank check

The court of appeals misapplied the standard of review by reweighing the facts. The court can’t help, however, in talking about nervousness as an “omnipresent” factor in reasonable suspicion. State v. Moore, 2016 S.C. LEXIS 5 (Jan. 27, 2016), rev’g 404 S.C. 634, 746 S.E.2d 352 (App. 2013) (posted here):

Here, while the court of appeals’ panel majority properly set forth the standard of review, it failed to follow the standard of review. As correctly noted by Chief Judge Few, the majority of the court of appeals panel reweighed the facts and substituted its de novo judgment. The question before the court of appeals was whether there was any evidence to support the trial court’s finding of reasonable suspicion—not the court of appeals’ independent view of the facts. See Provet, 405 S.C. at 107, 747 S.E.2d at 456 (“We affirm if there is any evidence to support the trial court’s ruling.” (citing Brockman, 339 S.C. at 66, 528 S.E.2d at 666)). While we acknowledge that many of the factors offered by the State seem innocent when viewed in isolation, there is evidence to support the trial court’s finding of reasonable suspicion to prolong the traffic stop given the totality of the surrounding circumstances.

In evaluating whether reasonable suspicion existed for Deputy Owens to prolong the traffic stop, the trial court first noted the large sum of money found in Moore’s pocket, finding it was unusual and therefore suspicious for an unemployed person to carry such a large amount of cash. We agree with the trial court that, under the circumstances of this case, the presence of a large amount of cash can be a factor supporting reasonable suspicion. See, e.g., United States v. Chhien, 266 F.3d 1, 8-9 (1st Cir. 2001) (holding that the discovery of $2,000 in cash during a traffic stop supported a finding of reasonable suspicion).

Additionally, the trial court focused on Moore’s unusual itinerary. The rental agreement stated that Moore’s vehicle was rented to a third party in Morganton, North Carolina the day before the traffic stop. Yet, when police stopped Moore, he claimed to be traveling from Lawrenceville, Georgia, to visit his grandmother in Marion, North Carolina at approximately 1:10 a.m.—less than twelve hours after the vehicle was rented. The trial court found this circumstance also supported a finding of reasonable suspicion, noting that it would have been very unusual to drive “from Morganton to Lawrenceville and back to Marion to visit a grandmother.” This unusual itinerary, coupled with the large sum of cash, and other factors, support the trial court’s finding of reasonable suspicion. See United States v. Digiovanni, 650 F.3d 498, 513 (4th Cir. 2011) (noting an unusual travel itinerary, “coupled with other compelling suspicious behavior,” supports a finding of reasonable suspicion); cf. United States v. Brugal, 209 F.3d 353, 361 (4th Cir. 2000) (“[A] reasonable officer could conclude that few innocent travelers from New York City are traveling northbound on Interstate 95 in South Carolina at 3:30 a.m. in a vehicle rented in Miami fourteen hours earlier.”).

Moore exhibited excessive nervousness in the judgment of the officer, which lends support to a finding of reasonable suspicion to prolong the traffic stop. We nevertheless comment on law enforcement’s reliance on the seemingly omnipresent factor of nervousness. General nervousness will almost invariably be present in a traffic stop. At the suppression hearing, Deputy Owens gave a lengthy list of factors in support of reasonable suspicion, including many that were merely different manifestations of the element of nervousness. While nervous behavior is a pertinent factor in determining reasonable suspicion, we, like many appellate courts, have become weary with the many creative ways law enforcement attempts to parlay the single element of nervousness into a myriad of factors supporting reasonable suspicion. Here, law enforcement’s penchant for turning nervousness into a laundry list of factors was not necessary. The trial court properly focused not on the factor of nervousness, but rather upon the facts noted above which support a finding of reasonable suspicion that Moore was likely engaged in criminal activity.