          THE STATE OF SOUTH CAROLINA 

               In The Supreme Court 


   The State, Respondent/Petitioner,

   v.

   Roger Bruce, Petitioner/Respondent.

   Appellate Case No. 2013-001208



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



              Appeal from Florence County 

    The Honorable Thomas A. Russo, Circuit Court Judge 



                    Opinion No. 27525 

        Heard February 4, 2015 – Filed May 27, 2015 



                        REVERSED


   Appellate Defender Robert M. Pachak, of Columbia, for
   Petitioner/Respondent.

   Attorney General Alan M. Wilson, Chief Deputy
   Attorney General John W. McIntosh, Senior Assistant
   Deputy Attorney General Donald J. Zelenka, and
   Assistant Attorney General Brendan J. McDonald, all of
   Columbia and Solicitor Edgar Lewis Clements, III, of
   Florence, for Respondent/Petitioner.
JUSTICE HEARN: Roger Bruce was convicted of murder for the death of his
girlfriend, Laura Creel. On appeal, Bruce argued evidence offered at trial relating
to the discovery of Creel's body was obtained in violation of his Fourth
Amendment rights. The court of appeals found the record was incomplete for
appellate review and remanded. State v. Bruce, 402 S.C. 621, 741 S.E.2d 590 (Ct.
App. 2013). We granted both parties' petitions for certiorari. We now reverse the
court of appeals' opinion and affirm his conviction.

                FACTUAL/PROCEDURAL BACKGROUND

      Bruce and Creel were in a romantic relationship and lived together. One
evening, Bruce called Creel's son, Shane Ritch, to ask whether he had spoken with
Creel. Bruce told Ritch he had not seen her in a couple of days and did not know
where she was. Bruce also informed Ritch that Creel's car was still parked outside
of their garage apartment. Ritch was concerned because Creel never went
anywhere without her car, her phone, and her dog. He immediately called his
brother who told him they needed to figure out what happened. Ritch then called
the police.

      Ritch told the police that neither he nor Bruce had seen Creel in a few days
and requested they check on her. He told the police what type of vehicle she drove
and that she had left her car, phone, and dog at the house she shared with Bruce,
which was uncharacteristic.

      Officer Beckett, Officer Starling, and Corporal Hobgood responded to the
call. Upon arrival, the officers informed Bruce they were there on a welfare check
for Creel and asked if she was inside. Bruce said she was not, and the officers
requested permission to look around for her inside. Bruce allowed them inside,
and the officers did a quick scan of the rooms. Not finding anything, the officers
began to question Bruce, who told them Creel had left after the two argued.

       During the conversation, the officers noticed a cell phone and car keys on a
table nearby. Bruce informed the officers they both belonged to Creel and
Hobgood picked up the keys and went outside to the vehicle. Hobgood looked
through the windows into the interior of the car and then attempted to open the
trunk, but it would not open. He then asked Bruce which key opened the trunk and
Bruce moved toward Hobgood as if to grab the keys. Hobgood pulled the keys
back, and Starling pressed the trunk release button. Inside the trunk, the officers
discovered Creel's body.
        Bruce was subsequently charged with murder and the case proceeded to
trial. During the course of Beckett's testimony regarding how the police found
Creel's body in the trunk, Bruce objected "to the discovery of the body in this
fashion" on the basis that there was no consent and no search warrant was
obtained. When the trial court asked what basis Bruce had to object, he responded
that it was on his property and the keys were in his house. The solicitor argued it
was Creel's car and Bruce therefore had no expectation of privacy. He further
claimed Hobgood had testified the previous day that Bruce offered to open the
trunk for them. Ultimately, the court denied the motion stating, "[i]t appears that
this is inevitable discovery; but/for hitting the release button and opening the trunk
according to the earlier testimony Mr. Bruce was gonna [sic] open the trunk for
them, or at least was providing the keys to do so."

       Bruce was convicted and sentenced to life imprisonment. On appeal, Bruce
argued the trial court erred in denying the motion to suppress because Bruce never
consented to the officers taking the keys from his home. The court of appeals
reversed, finding the record was insufficient for appellate review and remanding
with instructions:

      If the court determines Bruce had a legitimate expectation of privacy
      in the trunk of Creel's car, the police violated Bruce's Fourth
      Amendment rights by exceeding the scope of his consent, and the
      evidence should have been suppressed pursuant to the exclusionary
      rule, the court shall consider whether the error in admitting the
      evidence was harmless. If the court determines it erred and the error
      was not harmless, it shall grant a new trial. If the court determines it
      did not err in admitting the evidence, or the error was harmless,
      Bruce's conviction must be affirmed.

Bruce, 402 S.C. at 627, 741 S.E.2d at 593. Both the State and Bruce petitioned for
certiorari and the Court granted both petitions.1




1
  We decide this case with regard to the issue raised in the State's petition and
dismiss Bruce's petition for certiorari as improvidently granted.
                               ISSUE PRESENTED 


     Did the court of appeals err in failing to affirm the trial court's denial of the
motion to suppress?

                            STANDARD OF REVIEW

       "A ruling on the admissibility of evidence is within the sound discretion of
the trial court and will not be reversed absent an abuse of discretion." State v.
Mercer, 381 S.C. 149, 160, 672 S.E.2d 556, 561 (2009). On review of a Fourth
Amendment search and seizure case, an appellate court must affirm if there is any
evidence to support the ruling and will reverse only when there is clear error. State
v. Wright, 391 S.C. 436, 442, 706 S.E.2d 324, 326 (2011).

                                 LAW/ANALYSIS

       Prior to addressing the legal issue before the Court, we correct the error of
the court of appeals' mandate. The court of appeals held the trial court did not
provide sufficient findings for appellate review and remanded for consideration of
whether Bruce had an expectation of privacy in the trunk of Creel's car and the
scope of his consent. The court of appeals further instructed the trial court that if it
found the introduction of the evidence was in error, it "shall consider whether the
error in admitting the evidence was harmless." Bruce, 402 S.C. at 627, 741 S.E.2d
at 593. As both parties agree, it is clearly improper for the trial court to perform a
harmless error analysis on its own evidentiary ruling. Trial courts cannot sit in
judgment of their own rulings and proceedings. See Floyd v. State, 303 S.C. 298,
299, 400 S.E.2d 145, 146 (1991) (adopting, as a matter of policy, a per se rule of
recusal that a judge who presided over a defendant's criminal trial cannot preside
over a subsequent post-conviction relief proceeding). Furthermore, the harmless
error analysis is an appellate doctrine arising from the principle that "appellate
courts will not set aside judgments due to insubstantial errors not affecting the
result." Way v. State, 410 S.C. 377, 384, 764 S.E.2d 701, 705 (2014). The court of
appeals cannot relinquish its responsibility to make this fundamental determination
in reviewing an appeal from a criminal conviction.

    Turning now to the merits, Bruce argues the police violated his Fourth
Amendment rights by removing the car keys that were in his home without his
consent.2 We disagree and find the officers' seizure of Creel's car keys from inside
Bruce's home was reasonably encompassed within his consent to enter the home
and search for Creel.3

       The Fourth Amendment to the United States Constitution protects a person's
right to be free from unreasonable searches and seizures. U.S. Const. amend. IV.
"A 'search' occurs when an expectation of privacy that society is prepared to
consider reasonable is infringed[ and a] 'seizure' of property occurs when there is
some meaningful interference with an individual's possessory interests in that
property." United States v. Jacobsen, 466 U.S. 109, 113 (1984). Searches and
seizures without a warrant are per se unreasonable absent a recognized exception.
Wright, 391 S.C. at 442, 706 S.E.2d at 327. The State bears the burden to
demonstrate that it was entitled to conduct the search or seizure under an exception
to the Fourth Amendment's warrant requirement. State v. Gamble, 405 S.C. 409,
416, 747 S.E.2d 784, 787 (2013). It is well-settled that one of the "established
exceptions to the requirements of both a warrant and probable cause is a search
that is conducted pursuant to consent." Schneckloth v. Bustamonte, 412 U.S. 218,
219 (1973). "The standard for measuring the scope of a suspect's consent under
the Fourth Amendment is that of 'objective' reasonableness—what would the
typical reasonable person have understood by the exchange between the officer and
the suspect?" Florida v. Jimeno, 500 U.S. 248, 251 (1991).

       The State contends the officers had consent to seize the keys because they
were given permission by Bruce to perform a welfare check. We agree. Bruce
was aware that the officers were seeking to determine Creel's whereabouts when
they requested entry to his home. It is undisputed that Bruce then allowed them in
his home. A reasonable person would have understood that this search may extend
to looking in her car, which was parked just outside, for any additional insight into
where she may have gone or what could have happened to her. Furthermore, our

2
   Bruce also alleges the search of the trunk of Creel's car was unreasonable and
violated his Fourth Amendment rights. However, Bruce only argued to the court
of appeals about the seizure of the car keys; we therefore find any challenge to the
subsequent search of the trunk unpreserved. City of Columbia v. Ervin, 330 S.C.
516, 520, 500 S.E.2d 483, 485 (1998) (holding an issue not raised by exception to
an intermediate appellate court cannot be raised in a subsequent appeal).
3
  Given our determination that the officers did not violate Bruce's Fourth
Amendment rights, we find it unnecessary to address the State's contention that the
evidence would have been inevitably discovered.
conclusion that the officers acted within the scope of Bruce's consent is supported
by Bruce's failure to stop this alleged violation of his constitutional rights. United
States v. Jones, 356 F.3d 529, 534 (4th Cir. 2004) ("[A] suspect's failure to object
(or withdraw his consent) when an officer exceeds limits allegedly set by the
suspect is a strong indicator that the search was within the proper bounds of the
consent search."). When Hobgood picked up the car keys and walked outside,
Bruce did not object but simply accompanied the officers out to the car. We
accordingly find no violation of Bruce's Fourth Amendment rights.

                                  CONCLUSION

      Based on the foregoing, we find the trial court did not err in denying Bruce's
motion to suppress. We therefore reverse the court of appeals and affirm Bruce's
conviction.

TOAL, C.J. and KITTREDGE, J., concur. BEATTY, J., concurring in result
only. PLEICONES, J., concurring in part and dissenting in part in a separate
opinion.
JUSTICE PLEICONES: I concur in part and dissent in part. I agree with the
majority that the Court of Appeals' mandate was improper. I dissent, however,
from the majority's decision on the merits of the suppression ruling itself, and
would reverse the trial court's denial of that motion. Accordingly, I would reverse
petitioner-respondent's (Bruce) murder conviction and sentence and remand for a
new trial. In order to explain my decision, I find it necessary to review, in detail,
both the trial record, the issue on direct appeal, and the petitions for rehearing in
the Court of Appeals.

The critical issue, in my view, is the scope of Bruce's consent to search, and I begin
with a review of the actual words spoken. An officer testified that "[w]e first asked
[Bruce] if we could come inside and take a quick look and make sure that [the
victim] wasn't inside, and he gave us permission to come in and take a look." The
officer testified the searchers observed car keys "consistent to the [victim's] vehicle
outside" and a cell phone on a table, and that another officer "picked up the car
keys and went out to the vehicle" with Bruce and the testifying officer following
him. The officer testified that the other officer "attempted to open [the car's]
trunk," and at that juncture, was interrupted by Bruce's attorney's objection. At the
suppression hearing that followed, Bruce's attorney argued "there was no search
warrant and no consent to search the vehicle . . . they took the keys out of the
house [without] permission . . . they were just picked up by the police, whisked
outside, and the car attempted to be opened at that point." He sought to suppress
the body found in the trunk, arguing that the seizure of the keys and the search of
the car were beyond the scope of Bruce's consent. The State responded by
referencing a different officer's testimony from "yesterday" to the effect that Bruce
showed the officer which remote button to use on the key fob to open the trunk.
From this representation, the judge ruled that the body would have been inevitably
discovered and denied Bruce's motion to suppress.

The record reveals that the only testimony the previous day was taken at the
pretrial Jackson v. Denno4 hearing held following Bruce's motion to suppress his
oral statements made to police officers. Prior to hearing that motion, the parties
agreed that the Fourth Amendment suppression issue would be taken up at trial.
Assuming it was proper for the State to reference testimony from the Jackson v.
Denno hearing at the Fourth Amendment suppression hearing, the officer's
testimony at the Jackson v. Denno hearing was:

               Q. And did you have opportunity to look in a car?

4
    378 U.S. 368 (1964).
             A. Yes, I did.

             Q. And did you have the opportunity to open the trunk?

             A. Yes, sir.

             Q. Once the remote was activated and the trunk popped open,
             we discovered that there was a body in the trunk of the car.

In other words, there was no testimony of Bruce's consent to seize the car keys or 

to search the trunk the "day before" at the Jackson v. Denno hearing. 


On direct appeal, Bruce's single issue asked whether the trial court erred in denying 

Bruce's Fourth Amendment suppression motion "when the police took keys to the 

car from the residence without consent and without a search warrant." The Court 

of Appeals accurately repeated the scope of Bruce's consent, but then recited the 

trial testimony of three officers, all of whom testified after the suppression ruling. 

The Court of Appeals ultimately concluded that the circuit court's inevitable 

discovery ruling was unsupported by evidence and also suffered from "inadequate 

findings," and remanded the case to circuit court for "findings consistent with [its]

opinion." 


On rehearing to the Court of Appeals, Bruce reminded the court that his argument 

went to the seizure of the keys without consent or a warrant, which he contended, 

rendered the search of the automobile trunk the fruit of the poisonous tree.5

Further, he argued that the State should not be permitted to introduce new evidence 

on remand, and that on this record, the denial of his suppression motion was patent 

error. The State admitted that the solicitor was incorrect in representing that there 

was evidence of consent at the Jackson v. Denno hearing, but argued that the 

inevitable discovery ruling should have been affirmed because evidence introduced 

after the suppression hearing supported a finding that Bruce consented to opening 

the trunk.6 The Court of Appeals denied the requests for rehearing. 


The issue which Bruce has presented throughout these proceedings is whether his 

consent to a search request by law enforcement to "come inside and take a quick 

look and make sure that [the victim] wasn't inside" was sufficiently broad to permit 

the officers to seize the car keys. In my view, the majority elides this point by 


5
 See Wong Sun v. United States, 371 U.S. 471 (1963). 

6
 See State's pet. for rehearing at App. p. 15, citing ROA pp. 126-127, 145, 156-
158, 168-169. 

finding the scope of Bruce's consent "to come inside" the apartment included
consent to search the vehicle's trunk. I cannot agree. See Walter v. United States,
447 U.S. 649 (1980) (consent limited to scope of terms, e.g., consent to search
garage does not implicitly authorize search of adjoining house). Further, I cannot
agree with the majority that the burden is on the citizen to object to law
enforcement's violation of his Fourth Amendment rights rather than on law
enforcement to respect them. In United States v. Jones, 356 F.3d 529 (4th Cir.
2004), the court held that when a defendant "gives his general and unqualified
consent for an officer to search a particular area, the officer does not need to return
to ask for fresh consent to search a closed container located within that area." Id.
at 534. Obviously the car trunk was not within the apartment. In my opinion, the
majority's reliance on Jones is misplaced, especially in light of United States v.
Neely, 564 F.3d 346 (4th Cir. 2009). The Neely court held that while silence is
indicative that consent extends to item in the area expressly consented to, consent
to the search of a car trunk does not include the interior of the car itself. In my
opinion, these decisions provide support for Bruce, not the State.

The seizure of the car keys exceeded the scope of Bruce's consent, and there was
nothing in evidence to support the trial court's "inevitable discovery" ruling when
made, much less to support the consent theory championed on appeal and on
certiorari. In my opinion, the trial court erred in failing to grant Bruce's motion to
suppress, and nothing in our jurisprudence authorizes a remand to the circuit court
to allow the State a "do-over." Further, the State's suggestion that Bruce may lack
standing to contest the search of the victim's automobile's trunk ignores his
argument. Bruce's Fourth Amendment rights were violated by the unlawful seizure
of the car keys from his home.

I agree with the majority that the Court of Appeals erred in its mandate in this case.
I respectfully dissent on the merits and would reverse the trial court's denial of
Bruce's motion to suppress the body as the fruit of the poisonous tree. I would
therefore reverse Bruce's murder conviction and sentence and remand for a new
trial. Of course, any evidentiary issue must be decided on the record made at that
new proceeding. See, e.g. State v. Steadman, 216 S.C. 579, 59 S.E.2d 168 (1950)
(at retrial "each party must offer his evidence anew, just as though there had been
no previous trial; and when it is so offered it necessarily becomes subject to any
legal objection which may be taken to it").
