Milledge v. State
Milledge v. State
Opinion
**371 Respondent Michael Milledge was arrested and convicted of multiple drug-related offenses in Greenville County following a traffic stop. Milledge applied for post-conviction relief (PCR), arguing his defense counsel was deficient for failing to object at trial to the introduction of contraband found pursuant to an illegal search. The PCR court agreed and granted Milledge a new trial. We reverse.
FACTUAL BACKGROUND
Deputies John Lanning, Patrick Swift, and Fred Miller were on patrol in a high-crime area 1 of Greenville County when they initiated a traffic stop after observing Milledge driving with a cracked windshield and missing rearview mirror. Upon making contact with Milledge, the deputies observed him exhibiting extreme nervousness. Swift noted Milledge was attempting to make a call on his cellphone, but his hands were shaking so much he could not dial the right number. 2 Swift asked Milledge why his hands were shaking and he responded it was because he was hot. After Swift stated he too was hot but his hands were not shaking, Milledge stared straight ahead, refused to respond to any further questions, and "acted like [Swift] wasn't even there." This behavior, coupled with the high-crime area where the stop **372 occurred, caused Swift to fear for his safety so he asked Milledge to step out of the vehicle. 3
After Lanning returned to the patrol vehicle but before he could perform a check on the driver's license and registration, Milledge complied with Swift's request to exit and walk towards the rear of his vehicle. Seeing that his partner had asked Milledge to exit the vehicle, Lanning ceased running the information check and approached Milledge. Noticing Milledge would not look at him and only stared straight ahead, Lanning asked him if he had any weapons on him, using specific language meant to elicit some sort of response from persons being questioned. 4 Failing to get any response or reaction, Lanning decided it was necessary for the deputies' safety to conduct a pat-down search for weapons. As he began the frisk, Lanning felt what he recognized as a revolver in Milledge's shorts pocket. As Deputy Miller reached in to remove the revolver, a baggie containing pills and crack cocaine also emerged from the same pocket. The deputies then placed Milledge under arrest.
Milledge was indicted on charges of trafficking in crack cocaine; possession of a gun during the commission of a violent crime; possession of cocaine with intent to distribute; and possession of ecstasy. Prior to trial, Milledge's defense counsel made a motion in limine to suppress the drugs, arguing they were found as a result of an unlawful search. Defense counsel conceded the deputies had *800 probable cause to conduct the traffic stop, but asserted the deputies lacked justification for the subsequent frisk, arguing the deputies' sole reason for conducting the frisk was because Milledge "acted nervous."
The trial court 5 denied Milledge's motion in limine and found the frisk was based on a reasonably articulable suspicion.
**373 The trial court held that standing alone, the individual characteristics relied on by the deputies would not support a reasonably articulable suspicion to conduct a frisk, but when considered in the aggregate, the circumstances and Milledge's conduct justified the frisk. Specifically, the trial court stated:
Extreme nervousness, not nervousness as is customarily incident to a traffic stop but extreme nervousness to the extent that the phone couldn't be dialed. The fact that there was a phone called [sic] that being [sic] attempted at the time. The fact that it was a high drug use area, the reluctance or recalcitrance of the defendant to respond to any questions. And the dubiousness of the explanation for the shaking that the officer received when he asked for or posed the first question. All of those things in the aggregate give me cause to believe that there was probable cause for the search.
Later, at trial, defense counsel did not contemporaneously object when the drugs were introduced into evidence. The jury found Milledge guilty of all charges.
The court of appeals affirmed the trial court's findings in an unpublished opinion, holding the issue of the admissibility of the drugs was not preserved for appellate review because defense counsel failed to contemporaneously object.
Milledge then filed an application for PCR. Milledge argued his defense counsel was deficient by failing to renew his objection to the contraband when the State entered it into evidence at trial, and Milledge suffered prejudice as a result of this failure.
The PCR court granted Milledge's application for a new trial, finding defense counsel was deficient in failing to renew his objection to the evidence at trial. Furthermore, the PCR court held the factors asserted by the officers did not give rise to the level of reasonable and articulable suspicion required by the Fourth Amendment to conduct a frisk. Thus, the PCR court determined Milledge suffered prejudice because there was a reasonable probability an appellate court would have found the search unreasonable. Therefore, the PCR court concluded Milledge satisfied both prongs of the Strickland 6 **374 test and granted a new trial. The State appealed and this Court granted certiorari.
ISSUE PRESENTED
Did the PCR court err in finding a new trial was warranted in this case because defense counsel failed to object to the admission of evidence of contraband at trial on the grounds the evidence was the result of an unreasonable search in violation of the Fourth Amendment?
STANDARD OF REVIEW
In PCR actions, this Court will uphold the lower court's findings if there is any evidence of probative value to support them.
Cherry v. State
,
Generally, in supporting his allegations of ineffective assistance of counsel, the applicant must satisfy a two-prong test.
See
Strickland
, 466 U.S. at 687,
*801
Cherry
,
LAW/ANALYSIS
The State argues the PCR court erred in finding Milledge's defense counsel was ineffective because regardless of whether counsel's performance was deficient, there was no **375 resulting prejudice. In particular, the State contends that, even if defense counsel had renewed his objection when the evidence was presented, the trial court would have denied it, and an appellate court would have upheld the ruling on appeal. Thus, while the State does not contest the PCR court's findings regarding the first prong of Strickland -that Milledge's defense counsel was deficient in failing to object to the evidence when it was entered-the State contends Milledge suffered no prejudice because the search conducted by the deputies was lawful under the Fourth Amendment. We agree the appropriate inquiry is whether the search conducted by the deputies was lawful under the Fourth Amendment, as that issue would have controlled the outcome on direct appeal. We further agree with the State that the search was supported by the deputies' reasonable, articulable suspicion, and thus Milledge was not prejudiced by counsel's failure to contemporaneously object.
"[T]he decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred."
Whren v. United States
,
Pursuant to the doctrine established in Terry , an officer that has initiated a legitimate stop of an individual may conduct
a reasonable search for weapons for the protection of the police officer .... The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.
**376
Terry
, 392 U.S. at 27,
One of the touchstones of
Terry
is the immediate interest of police officers in assuring themselves the person with whom they are dealing "is not armed with a weapon that could unexpectedly and fatally be used against [them]." 392 U.S. at 23,
In determining whether reasonable suspicion exists to perform an investigative stop and frisk without infringing upon an individual's Fourth Amendment rights, courts must consider the totality of the circumstances.
*802
United States v. Sokolow
,
A person's presence in a known high-crime area is one relevant consideration in analyzing reasonable suspicion to conduct a
Terry
frisk.
Illinois v. Wardlow
,
In a case factually similar to the case at hand, the court of appeals held officers had reasonable suspicion to conduct a protective frisk of a motorist.
State v. Smith
,
In this case, the PCR court found the factors asserted by the deputies were not sufficient to give reasonable suspicion to conduct a protective frisk on Milledge. The PCR court cited to
State v. Tindall
,
As an initial matter, the court of appeals opinion relied on by the PCR court has since been reversed by this Court.
See
Moore
,
In
Tindall
, this Court found a police officer's conduct violated the Fourth Amendment when the officer continued to question a motorist for an additional six to seven minutes
after
the purpose of the traffic stop had been accomplished, aside from issuing the ticket itself.
**379 Several factors distinguish the deputies' frisk of Milledge from the search at issue in Tindall . The search in this case was not conducted for the purpose of discovering possible evidence of illegal activities. The motivation for the search was to ensure the safety of the deputies, and Lanning limited the search to the outer layer of Milledge's clothing. The deputies did not unduly prolong the traffic stop or detain Milledge longer than necessary to address the traffic violation. Likewise, the deputies did not detain Milledge for an excessive period in an attempt to question him and possibly gain probable cause to search his vehicle for contraband. Rather, Lanning conducted the Terry frisk before he had an opportunity to check Milledge's information, issue a traffic citation, and send him on his way. 9
When due weight is given to the deputies' training and experience, the record indicates reasonable suspicion to conduct the search existed. Both Deputy Lanning and Deputy Swift were experienced law enforcement officers 10 and possessed a familiarity with the high-crime area where the traffic stop occurred. Milledge's nervousness during the traffic stop was not the routine nervousness to be expected with every traffic stop, but was so extreme that his hands were visibly shaking and he could not dial his cellphone. Based on the deputies' training and experience, Milledge's attempt to make a phone call during the traffic stop was a relevant consideration in determining whether he posed a threat to officer safety.
**380 After Milledge's seemingly dubious explanation for his shaking hands and subsequent refusal to respond to any further questions, Swift was entitled to take the lack of response and avoidance of eye contact into consideration in determining whether Milledge might be a danger to the deputies. In Deputy Swift's experience, a lack of response or a blank stare are indicative of an individual debating whether to "fight or flight."
Lastly, after Milledge exited the vehicle, Deputy Lanning inquired whether he had any weapons on him in a manner specifically designed to sound outrageous so as to evoke a response. While Milledge had no obligation to answer the inquiry, his lack of any response whatsoever did nothing to alleviate any apprehension the deputies had, given the high-crime area where the stop occurred. Thus, when the mosaic is considered as a whole in light of the deputies' training and experience, the deputies had reasonable suspicion *804 Milledge was armed and dangerous sufficient to justify a frisk.
In determining whether a PCR applicant has established prejudice, the PCR court does not act as a finder of fact and substitute its judgment for that of the trial court. Rather, in instances like the case before us, the PCR court must view the trial court's ruling through the same lens that would be applied on appeal, which here requires giving appropriate deference to the trial court's findings.
See
State v. Khingratsaiphon
,
CONCLUSION
For the foregoing reasons, we hold the PCR court erred in finding Milledge met his burden of proof to establish prejudice.
**381 The motivation of the deputies in this case is highly probative. While the protections of the Fourth Amendment may have been triggered had the deputies prolonged the detention and engaged in a search of Milledge and his vehicle for the purpose of finding evidence, the limited pat down performed by Deputy Lanning was solely for officer safety. To reach a different conclusion would prevent officers operating in similar high-crime areas from conducting a protective frisk when their specialized training indicates the person may be armed and would subject officers to the "unnecessary risks" in performing their duties the Terry court warned against. The decision of the PCR court is REVERSED .
KITTREDGE, J., concurs. FEW, J., concurring in a separate opinion in which KITTREDGE, J., concurs. Acting Justice Pleicones, dissenting in a separate opinion in which BEATTY, C.J., concurs.
JUSTICE FEW :
I concur in the majority opinion. I write separately to address the manner in which an applicant may prove prejudice-and our standard for reviewing the PCR court's ruling on prejudice-under the second prong of Strickland on the facts and in the procedural posture of this case.
The standard of review an appellate court applies can vary depending on the facts and procedural posture of the individual PCR case. In this case, the PCR court's finding on the first prong of
Strickland
that trial counsel's performance did not meet an objective standard of reasonableness is a primarily factual determination, to which we apply the deferential standard of review applicable to a PCR court's factual findings.
See generally
Jordan v. State
,
As the majority explains, however, the PCR court's determination in this case as to the second prong of
Strickland
was
**382
the determination of a question of law, which we review de novo-without any deference.
Jamison v. State
,
The manner in which an applicant may prove prejudice also varies depending on the facts and procedural posture of the individual PCR case. To demonstrate prejudice in this case from trial counsel's deficient failure to preserve the suppression issue for appeal, Milledge was required to show a reasonable probability the court of appeals would have reversed his conviction and remanded for a new trial if trial counsel contemporaneously objected. 11 Instead of analyzing this question, the PCR court studied the record of the suppression hearing and made its own determination as to whether the officers had reasonable suspicion. To state it differently, the PCR court made the determination of how the PCR court would have ruled if the PCR court had been the trial court. This was an error of law.
If trial counsel had preserved the issue for direct appeal, the court of appeals would have applied the
Brown
"clear error" standard to the primarily factual ruling of the trial court that reasonable suspicion existed.
I recognize there is a potential flaw in my reasoning. I believe, however, that Gibbs and the following discussion demonstrate my reasoning is sound, and expose flaws in the dissent's suggestion that we should defer to the PCR court's suppression analysis instead of the analysis conducted by the trial court. The potential flaw in my reasoning is that the ruling trial counsel failed to preserve was not the trial court's pre-trial ruling that the officers had reasonable suspicion, but the mid-trial ruling the trial court would have made if trial counsel contemporaneously objected. Because the mid-trial ruling was never actually made, one may argue, there is no trial court ruling to which the court of appeals would have been required to defer. Under this circumstance, the argument continues, the PCR court was free to make a new ruling as to suppression according to its own view of the evidence.
The dissent, in apparent agreement with such an argument, would give Milledge and all future defendants a second chance to win a suppression hearing. Then, after allowing the PCR judge to separately consider the evidence presented at the **384 suppression hearing and make its own de novo ruling as to whether the State violated the defendant's constitutional rights, the dissent would require that this Court defer to the PCR court, not to the trial court.
I find two flaws in the dissent's approach. First, the trial court had the benefit of watching and listening to the officers' live
*806
testimony, while the PCR court necessarily conducted its analysis on the cold record of the suppression hearing. Deferring to the PCR court instead of the trial court in this situation is counterintuitive, because a primary reason an appellate court would give such deference in the first place is the trial court's opportunity to assess witness credibility firsthand.
See
Foye v. State
,
To avoid this flawed result, the PCR court-and this Court on certiorari-must focus on the trial court's pre-trial ruling,
see
Gibbs
,
Thus, there is no basis on which the PCR court might suppose the trial court would have changed its ruling. Therefore, **385 the trial court's pre-trial ruling governs, and in determining whether Milledge demonstrated prejudice, the PCR court-and this Court-may do no more than ascertain whether there is evidence in the record to support the trial court's determination that the officers' suspicion was reasonable.
KITTREDGE, J., concurs.
Acting Justice Pleicones :
I respectfully dissent, and would dismiss the writ of certiorari as improvidently granted as I find there is evidence of probative value in the record to support the post-conviction relief (PCR) judge's findings.
Cherry v. State
,
Because it misstates the prejudice question, the concurring opinion challenges my conclusion that our scope of review requires we affirm the PCR judge's finding of prejudice. The PCR judge was not asked whether counsel's deficient performance failed to preserve the ruling
in limine
for appellate review, but rather was he deficient in failing to object to the admission of the drug evidence at trial. The prejudice question, then, is whether there is any evidence to support the PCR judge's finding that there is a reasonable probability that such a motion would have been granted and that without the drug evidence respondent would not have been convicted. This is the issue decided by the PCR court and presented to this Court by the State on certiorari.
12
The concurring
*807
opinion evinces its misapprehension when it analyzes the prejudice
**386
issue as whether an appellate court would have reversed and remanded had the issue been preserved. The correct prejudice question is whether there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington
,
Further, since we are reviewing the PCR judge's decision, it is axiomatic that it is to that decision that we "defer" if there is any evidence to support it. Despite the concurring opinion's expressions of concern about "cold records" and attorney "sandbagging," PCR judges are routinely asked to "put themselves in the shoes" of the trial judge and, exercising their own discretion, decide whether evidence would have been excluded had an objection been made.
13
E.g.,
McHam v. State,
BEATTY, C.J., concurs.
Several SWAT narcotics search warrants had recently been executed within a half-mile of their location in the weeks prior to the traffic stop, and the deputies testified to a history of "issues" in the area to which they had responded.
The deputies testified they were taught in training to be alert when motorists attempted to make phone calls during traffic stops because such calls are often made to summon backup against law enforcement or for other nefarious purposes.
Swift testified, "A lot of times when people are avoiding eye contact they are looking for a way out of the situation. They're already going over in their mind, I'm going to run, I'm going to fight, I'm going to do this. ... They're thinking about something else in their mind about what they would rather be going [sic] or what they're about to do. That's what I was thinking of when I asked [Milledge] to step out of the vehicle ...."
Lanning asked Milledge if he had "any guns, knives, bazookas, anything that's going to hurt me, beat me, make me bleed."
The Honorable Robin B. Stilwell presided over the trial.
Strickland v. Washington
,
Terry v. Ohio
,
At the PCR hearing, Milledge relied entirely on this Court's opinion in Tindall to establish prejudice. As discussed, infra , the Tindall decision is not persuasive here because it deals with a prolonged traffic stop and search of the suspect's vehicle, not with a limited protective frisk for officer safety.
Milledge had a history of prior convictions involving weapons and controlled substances, including 1991 convictions for carrying a concealed weapon and possession of controlled substance; a 1994 conviction for possession of a weapon during a crime; a 2001 conviction for possession with intent to distribute marijuana; a 2003 conviction for attempted trafficking in marijuana; and a 2006 conviction for possession of marijuana up to a half ounce. Had Deputy Lanning completed an information check on Milledge, it would have revealed his history of carrying weapons illegally. Inevitably, this information would have further affirmed the deputies' reasonable suspicion to conduct a pat down.
Deputy Lanning had over 10 years of law enforcement experience at the time of the stop, including over two years working with the DEA violent traffic program. Deputy Swift testified about his specialized training, including narcotics schools, gang recognition classes, interview and interrogation classes, and position on the SWAT team.
A PCR applicant in this posture may also demonstrate prejudice by showing a reasonable probability the trial court would have sustained a contemporaneous objection, which in turn was reasonably likely to result in a not guilty verdict, but Milledge does not make that argument.
It appears that the concurring opinion believes that an appellate court may revisit the arguments made by respondent at the hearing, and criticizes the PCR judge's "erroneous as a matter of law" ruling which it finds not apt. In my view, we must take the case as the petitioner chose to preserve and present it. If the State were concerned with the manner in which the PCR judge decided the issue, the burden was on it to raise that concern to the PCR judge by a timely post-order motion. And if such a motion were made and denied, then the proper issue for certiorari would have been "Did the PCR judge err in failing to grant the State's motion and issue an amended order addressing the issue raised by Milledge at the PCR hearing?" The State instead chose to seek certiorari to review the PCR's ruling on its merits, and while we may affirm for any reason appearing in the record, an appellate court may not ignore the issue before it in order to make the arguments it wishes had been made either at trial or by the petitioner on certiorari.
I note that in other circumstances the PCR judge is asked to revisit a trial judge's ruling where, for example, the claim of trial counsel's deficiency is failure to state the proper grounds for a motion.
E.g.,
Stone v. State
,
Reference
- Full Case Name
- Michael MILLEDGE, Respondent, v. STATE of South Carolina, Petitioner.
- Cited By
- 9 cases
- Status
- Published