SC: Request for consent with “do you mind” met with “I do but …” not voluntary. Also no RS for continuing stop.

“Here, even after accepting the trial court’s factual findings as we must do since they are supported by some evidence, we conclude that Hall lacked reasonable suspicion as a matter of law pursuant to de novo review.” As to consent, “do you mind if I search you” responding “I do, but …” was not consent. The trial court’s findings have less deference because it’s based on a video of the stop. State v. Frasier, 2022 S.C. LEXIS 138 (Sep. 28, 2022):

During the pretrial testimony, Hall noted that he asked Frasier “if he minded if I checked him out or searched him, and he said, ‘I do, but,’ and just kind of put his hands up on top of the car.” The State also described the encounter as, “[R]egarding his actions, Frasier shrugged his shoulders, placed his hands on top of Jones’s vehicle, positioned himself in a manner such that the officer could search him, and exposed both his body and his pockets to the officer.” Because we are able to view the same video as the trial court, we can make an independent finding and are not constrained to defer to the trial court’s conclusion that Frasier consented through his words and conduct. The video clearly indicates that Frasier stepped out of the vehicle at the direction of one of the officers, with a second officer standing beside him. Once Frasier began to place his hands in his pockets, Hall understandably told Frasier to remove them. In response, Frasier raised his hands over his head and began to turn. Hall testified it was Frasier’s conduct that indicated he consented to a search, but it is clear from the video that Frasier only placed his hands on the vehicle at the direction of the officer. Indeed, after asking whether Frasier had any weapons on him, Hall asked Frasier to “put his hands up on the car for me.” Accordingly, because Frasier’s conduct was at the direction of the officer, it was not a voluntary decision to allow Hall to search him. Thus, the State failed to prove that Frasier voluntarily consented, and we therefore reverse on this ground as well.

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