SC: State fails to show PC for arrest, but chiding dissent more interesting

State fails to show that information from the CI, who had since died, provided justification for the defendant’s stop. The search incident also had no justification. And the majority really chides the defense (“slams” would be a better word) for blaming the defendant for the state’s failure to show probable cause. (This state will allow an objection at trial on search and seizure grounds even though a motion to suppress, the better practice, is not filed.) State v. Gamble, 405 S.C. 409, 747 S.E.2d 784 (2013)*:

The Record in this case does not demonstrate that probable cause supported Petitioner’s arrest. The officer’s testimony describes Petitioner’s arrival at a certain location, and Petitioner’s subsequent arrest, but does not explain why these events triggered the search. Simply put, it is unknown what it was about Petitioner’s arrival at the location that supported a good faith belief that Petitioner was guilty of a crime.

Additionally, the circumstances surrounding the search incident to arrest in this case do not contain any of the justifications discussed in Freiburger. For example, the officer’s testimony did not allude to any need to disarm Petitioner for the officer’s safety during transport, and any need to preserve evidence only arose after what appears to be a constitutionally infirm search and seizure. Thus, the trial court erred in admitting the drug evidence over Petitioner’s objection that the evidence had been seized in contravention of the Fourth Amendment.fn5

5 Our judicial process is best served when defendants raise Fourth Amendment evidentiary objections through a pre-trial motion to suppress. The rules of evidence are not strictly applied at hearings on a motion to suppress. The atmosphere of these proceedings can facilitate broader discussion before the trial court regarding the circumstances surrounding the evidence’s seizure, and promote efficiency by resolving evidentiary disputes prior to a trial’s commencement. However, had Petitioner filed an unsuccessful motion to suppress, this would not have relieved him of the burden to make a contemporaneous objection if the evidence was later admitted [*14] at trial, and likewise, his failure to utilize the motion to suppress does not foreclose his right to challenge the evidence at trial.

Contrary to the dissent’s view, the trial colloquies described supra, and certainly contained in the Record, demonstrate that nothing need be inferred regarding the State’s inability to establish probable cause in this case. The dissent cites no authority for the proposition that a defendant’s failure to file a motion to suppress somehow forecloses his right to challenge the evidence at trial. See, e.g., State v. Goodstein, 278 S.C. 125, 128, 292 S.E.2d 791, 793 (1982) (“[W]e have no rule in this State requiring that a pretrial motion be made to suppress allegedly illegally obtained evidence.”). The dissent confuses a defendant’s “right” or “entitlement” to certain evidentiary hearings with a compulsory rule mandating that the defendant request the evidentiary hearing or cede all other objections. This is not an accurate statement of the law. Furthermore, the dissent ignores the trial court’s hearsay ruling, and to a larger extent the Record in this case, by somehow placing responsibility for the State’s failure to establish probable cause on the defendant. Moreover, the dissent proposes a rule that essentially eviscerates the Fourth Amendment’s probable cause standard. Under the dissent’s view, if a police officer performs a search and seizure, and then testifies to finding drugs as a result of that search, there is no need for a determination as to whether probable cause supported the search.