                    THE STATE OF SOUTH CAROLINA 

                         In The Supreme Court 


            The State, Respondent,

            v.

            Jomar Antavis Robinson, Petitioner.

            Appellate Case No. 2012-212042



       ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                           Appeal From York County 

                        Lee S. Alford, Circuit Court Judge 



                              Opinion No. 27463 

                 Heard June 19, 2014 – Filed November 12, 2014 



                          AFFIRMED AS MODIFIED


            Appellate Defender David Alexander, of Columbia, for
            Petitioner.

            Attorney General Alan McCrory Wilson, Senior
            Assistant Deputy Attorney General Salley W. Elliott,
            both of Columbia, and Solicitor Kevin Scott Brackett, of
            York, for Respondent.


CHIEF JUSTICE TOAL:              Jomar Robinson (Petitioner) appeals the court of
appeals' decision affirming his convictions for possession of crack cocaine with
intent to distribute (PWID), PWID within one-half mile of a public park, unlawful
carrying of a pistol, possession of marijuana, and resisting arrest. See State v.
Robinson, 396 S.C. 577, 722 S.E.2d 820 (Ct. App. 2012). We affirm as modified.

                       FACTS/PROCEDURAL BACKGROUND
        On Thursday, March 20, 2008, the York Police Department received
several anonymous complaints that people were selling drugs and carrying
weapons outside of the Hall Street Apartments in York, South Carolina. Starting at
10:00 p.m., Sergeant Rayford Ervin, a police officer working with the York
County Drug Enforcement Unit, stood in a wooded area across the street from the
apartment complex and used a pair of binoculars to conduct covert surveillance.

       Over the next half hour, five cars stopped in front of Apartment 122, where
five men stood on the porch of that unit. Each time a car stopped, the same man
wearing a black jacket and blue jeans walked from the porch to the car, spoke
briefly with the car's occupants, conducted a "hand to hand transaction," and then
rejoined the other four men on the porch. As a veteran narcotics officer, Ervin
found "that type of activity [] consistent with drug sales," particularly because
Thursdays tend to "have more drug dealing activity going on." He therefore called
for backup.

       At 10:30 p.m., Lieutenant James Ligon and Officer Brian Schettler parked in
front of Apartment 122 with the illuminated headlights pointed towards the porch.
Ligon and Schettler identified themselves as police officers and walked onto the
porch of Apartment 122. At that point, the five men standing on the porch were
standing in two groups, with two men wearing black jackets and jeans—Laquaris
Patton and Petitioner—on the left side of the porch, and the other three men (none
of whom were wearing jackets) on the right side.1 Because of Ervin's description
of the potential drug dealer's clothing, the officers were primarily interested in
Patton and Petitioner. Ligon asked both men for identification, which they readily
provided.

       While Ligon inspected the two drivers' licenses, both officers began to smell
a strong odor of green marijuana emanating from Petitioner's side of the porch.
Further, Ligon noticed the butt of a gun protruding from the pocket of Petitioner's
1
 The other three men's names were Odarius Williams, Jerome Neely, and Travis
Walton. The Record is unclear which man rented Apartment 122, although it is
clear that Petitioner did not rent the apartment.
jacket. As a result, Ligon informed Patton and Petitioner that the officers were
going to conduct a Terry2 frisk for drugs and weapons.

       At that point, Petitioner began to back away from the officers, and, in fear
for his safety, Ligon lunged for and seized the gun, immediately before Petitioner
also reached for it. A struggle ensued, during which Petitioner's jacket fell to the
ground. Petitioner fled the scene, abandoning his jacket. Ligon pursued Petitioner,
and after another brief scuffle, subdued and arrested Petitioner. After Ligon
brought Petitioner back to Apartment 122, Schettler searched Petitioner's discarded
jacket and found a semiautomatic pistol, a bag containing 3.2 grams of marijuana,
a bag containing 0.84 grams of loose crack cocaine rocks, and a bag containing
2.97 grams of crack cocaine rocks packaged in eleven individually wrapped bags.

       Prior to his trial, Petitioner made a motion to suppress the gun and drugs,
claiming that the police conducted a warrantless search and seizure of him on the
curtilage of Apartment 122, and that the gun and drugs were obtained after the
officers illegally entered on the property. The trial court denied the motion to
suppress, finding that Petitioner did not have a reasonable expectation of privacy
on the porch of Apartment 122, and that the officers, possessing a reasonable
suspicion to investigate, entered the property merely to talk to the men on the
porch and request their identifications.

       At trial, after Ligon testified on behalf of the State, but before the State had
formally introduced the gun or drugs into evidence, defense counsel introduced the
bag of marijuana during cross-examination of Ligon in an attempt to discredit the
officer.3 Later in the trial, Petitioner objected to the State introducing the gun and
the bags of crack cocaine into evidence.

       Ultimately, the jury convicted Petitioner of PWID, PWID within one-half
mile of a public park, unlawful carrying of a pistol, possession of marijuana, and
resisting arrest. The trial court sentenced Petitioner to life without the possibility
of parole. See S.C. Code Ann. § 17-25-45 (2014).



2
    Terry v. Ohio, 392 U.S. 1 (1968).
3
 Petitioner sought to prove that Ligon lied about the strong odor of green
marijuana on the night of his arrest, and questioned Ligon regarding whether he
could smell the bagged marijuana from certain distances.
        Petitioner appealed, arguing that the trial court erred in refusing to suppress
the gun and drugs. The court of appeals affirmed the trial court's decision. See
Robinson, 396 S.C. at 577, 722 S.E.2d at 820. Specifically, the court of appeals
summarily dismissed Petitioner's contention that the trial court should have
suppressed the marijuana, finding that because Petitioner introduced the marijuana
during his cross-examination of Ligon, he waived his objection to the marijuana.
Id. at 583, 722 S.E.2d at 823. Further, the court of appeals found that (1) Petitioner
was not a resident or overnight guest of Apartment 122, and thus did not have a
reasonable expectation of privacy on the porch of the apartment; and (2) the police
had reasonable suspicion to enter the porch without a warrant and conduct a Terry
frisk. Id. at 583–86, 722 S.E.2d at 823–24.4

      This appeal followed.

                                        ISSUE
      Whether Petitioner established that his Fourth Amendment rights were
      violated by the officers' entry onto the porch of Apartment 122?

                               STANDARD OF REVIEW
       In criminal cases, appellate courts sit to review errors of law only, and are
therefore bound by the trial court's factual findings unless clearly erroneous. State
v. Tindall, 388 S.C. 518, 520, 698 S.E.2d 203, 205 (2010); State v. Wilson, 345
S.C. 1, 5–6, 545 S.E.2d 827, 829 (2001). Because the admission of evidence is
within the sound discretion of the trial court, appellate courts should not reverse
the decision of the trial court absent an abuse of discretion. State v. Wright, 391
S.C. 436, 442, 706 S.E.2d 324, 326 (2011) (defining an abuse of discretion as a
decision "'based on an error of law, or, when grounded in factual conclusions, [a
decision] without evidentiary support'" (quoting Clark v. Cantrell, 339 S.C. 369,
389, 529 S.E.2d 528, 539 (2000))).




4
 Petitioner also contended that the trial court erred in qualifying one of the State's
witnesses as an expert. The court of appeals affirmed the trial court's decision to
qualify the witness as an expert, see Robinson, 396 S.C. at 586–88, 722 S.E.2d at
825–26, and Petitioner does not challenge that ruling here.
                                      ANALYSIS
       The Fourth Amendment to the United States Constitution protects the
people's right to be free from unreasonable searches and seizures. U.S. Const.
amend. IV; cf. S.C. Const. art. I, § 10. At its core, the Fourth Amendment "stands
[for] the right of a man to retreat into his own home and there be free from
unreasonable governmental intrusion." Silverman v. United States, 365 U.S. 505,
511 (1961). Accordingly, warrantless searches and seizures inside a man's home
are presumptively unreasonable absent a recognized exception to the warrant
requirement. United States v. Karo, 468 U.S. 705, 714–15 (1984); Wright, 391
S.C. at 442, 706 S.E.2d at 327.5 Likewise, the Fourth Amendment extends the
same protection to a home's curtilage, including a porch. Florida v. Jardines, 133
S. Ct. 1409, 1414–15 (characterizing the front porch as a "classic exemplar" of the
curtilage); accord State v. Herring, 387 S.C. 201, 209, 692 S.E.2d 490, 494 (2009).

       However, "the Fourth Amendment protects people, not places. What a
person knowingly exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347,
352 (1967). For this reason, mere visual observations from public thoroughfares
do not constitute a search, United States v. Jones, 132 S. Ct. 945, 953 (2012), and
police officers need not "shield their eyes" when passing by a home, California v.
Ciraolo, 476 U.S. 207, 213 (1986). Rather, the Fourth Amendment is not triggered
unless a person has an actual and reasonable expectation of privacy, Katz, 389 U.S.
at 361 (Harlan, J., concurring), or unless the government commits a common-law
trespass for the purpose of obtaining information, Jones, 132 S. Ct. at 949.

       Moreover, "'Fourth Amendment rights are personal rights which, like some
other constitutional rights, may not be vicariously asserted.'" Rakas v. Illinois, 439
U.S. 128, 133–34 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174
(1969)); accord State v. Hiott, 276 S.C. 72, 78, 276 S.E.2d 163, 166 (1981). Thus,
while the Fourth Amendment protects people, and not places, "the extent to which

5
 Even searches conducted under facts unquestionably showing probable cause are
unconstitutional absent a warrant, "for the Constitution requires 'that the deliberate,
impartial judgment of a judicial officer be interposed between the citizen and the
police.'" Katz v. United States, 389 U.S. 347, 357 (1967) (alteration in original)
(quoting Wong Sun v. United States, 371 U.S. 471, 481–82 (1963)).
the Fourth Amendment protects people may depend upon where those people are."
Minnesota v. Carter, 525 U.S. 83, 88 (1998). "A person who is aggrieved by an
illegal search and seizure only through the introduction of damaging evidence
secured by a search of a third person's premises or property has not had any of his
Fourth Amendment rights infringed." Rakas, 439 U.S. at 134; Alderman, 394 U.S.
at 171–72.

       This is not to say that a person cannot have a "legally sufficient interest" in a
place other than his own home. Rakas, 439 U.S. at 142–43. Rather, to claim the
protection of the Fourth Amendment, a defendant must demonstrate that he had an
actual and reasonable expectation of privacy in the place searched. Carter, 525
U.S. at 88 (quoting Rakas, 439 U.S. at 143–44 & n.12); State v. McKnight, 291
S.C. 110, 115, 352 S.E.2d 471, 473 (1987); see also Rakas, 439 U.S. at 136–39
(rejecting the "target theory," in which anyone who was the target of an illegal
search has an automatic right to challenge the search, regardless of where the
search occurred).

       "The proponent of a motion to suppress has the burden of establishing that
his own Fourth Amendment rights were violated by the challenged search or
seizure" by demonstrating he had an expectation of privacy in the area illegally
searched. Rakas, 439 U.S. at 130 n.1; accord Rawlings v. Kentucky, 448 U.S. 98,
104–05 (1980); State v. Crane, 296 S.C. 336, 340–41, 372 S.E.2d 587, 589 (1988);
see also In re Bazen, 275 S.C. 436, 437–38, 272 S.E.2d 178, 178 (1980) ("If the
officer was not to approach [an open garage where a disturbance was occurring] . .
. , appellant had ample opportunity to in some manner demonstrate an expectation
of privacy in the garage. Instead, he did nothing." (citing State v. Easterling, 257
S.C. 239, 185 S.E.2d 366 (1971)). In determining whether the criminal defendant
met his burden, courts may consider factors such as:

         a.	 whether the defendant owned the home or had property rights to
             it;6

         b. whether he was an overnight guest at the home;7


6
    United States v. Salvucci, 448 U.S. 83, 91 (1980).
7
  Carter, 525 U.S. at 90; Minnesota v. Olson, 495 U.S. 91, 93, 96–97 & n.6 (1990);
State v. Missouri, 361 S.C. 107, 110, 115, 603 S.E.2d 594, 595, 597 (2004); State
v. Flowers, 360 S.C. 1, 6, 598 S.E.2d 725, 728 (Ct. App. 2004).
         c.	 whether he kept a change of clothes at the home;8

         d. whether he had a key to the home;9

         e.	 whether he had dominion and control over the home and could
             exclude others from the home;10

         f.	 how long he had known the owner of the home;11

         g. how long he had been at the home;12

         h. whether he attempted to keep his activities in the home private;13

         i.	 whether he engaged in typical domestic activities at the home, or
             whether he treated it as a commercial establishment;14

         j. whether he alleged a proprietary or possessory interest in the
            premises and property seized (even if only at a motion to suppress,



8
 Olson, 495 U.S. at 97 n.6; Missouri, 361 S.C. at 110, 115, 603 S.E.2d at 595, 597;
Flowers, 360 S.C. at 6, 598 S.E.2d at 728.
9
 Rakas, 439 U.S. at 149 (discussing Jones v. United States, 362 U.S. 257 (1960),
overruled on other grounds by Salvucci, 448 U.S. at 85); Missouri, 361 S.C. at
110, 115, 603 S.E.2d at 595, 597.
10
  Rawlings, 448 U.S. at 105; Rakas, 439 U.S. at 149 (discussing Jones, 362 U.S. at
257); Flowers, 360 S.C. at 6, 598 S.E.2d at 728.
11
  Carter, 525 U.S. at 91; Rawlings, 448 U.S. at 105; Missouri, 361 S.C. at 110,
115, 603 S.E.2d at 595, 597.
12
     Carter, 525 U.S. at 90; Missouri, 361 S.C. at 110, 115, 603 S.E.2d at 595, 597.
13
  Olson, 495 U.S. at 99; Rawlings, 448 U.S. at 105; Rakas, 439 U.S. at 149
(discussing Katz, 389 U.S. at 352); Missouri, 361 S.C. at 110, 115, 603 S.E.2d at
595, 597; Bazen, 275 S.C. at 437–38, 272 S.E.2d at 178.
14
  Carter, 525 U.S. at 90–91; Missouri, 361 S.C. at 110, 115, 603 S.E.2d at 595,
597.
         where that admission cannot be used against him to determine his
         guilt)15; and

      k. whether he paid rent at the home.16

       As an initial matter, the parties dispute who had the burden of proving the
alleged illegality of the police officers' actions here. Each party has the burden to
prove separate things during the motion to suppress. 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). The State also bears the burden to show that the
warrantless entry was limited in scope and duration in accordance with the exigent
circumstances which required its presence. Florida v. Royer, 460 U.S. 491, 500
(1983) (plurality opinion).

       However, the criminal defendant retains the burden to establish that he is
asserting his own Fourth Amendment rights, rather than vicariously asserting the
rights of others; therefore, the defendant bears the burden to demonstrate that he
had an actual and reasonable expectation of privacy in the place illegally searched.
Rakas, 439 U.S. at 130 n.1. Here, assuming arguendo that the police officers
committed a Fourth Amendment violation when they entered the porch of
Apartment 122 without a warrant, the burden rests with Petitioner to establish that
he had a reasonable expectation of privacy in the porch of Apartment 122.

       Petitioner failed to carry his burden, as he produced no testimony
whatsoever that would implicate any of the factors set forth, supra, demonstrating
that he had an expectation of privacy in the porch of Apartment 122. At no point
did Petitioner claim to be the renter, an overnight guest, or have any other
connection to Apartment 122. Thus, we find that Petitioner was "merely present
with the consent of the householder," and as such, did not have a reasonable
15
   Rawlings, 448 U.S. at 105; Rakas, 439 U.S. at 148; Crane, 296 S.C. at 340–41,
372 S.E.2d at 589; Neeley, 271 S.C. at 43, 244 S.E.2d at 528 (quoting Brown v.
United States, 411 U.S. 223, 229 (1973)); but see Salvucci, 448 U.S. at 92 ("We
simply decline to use possession of a seized good as a substitute for a factual
finding that the owner of the good had a legitimate expectation of privacy in the
area searched.").
16
  Missouri, 361 S.C. at 110, 115, 603 S.E.2d at 595, 597; Flowers, 360 S.C. at 6,
598 S.E.2d at 728.
expectation of privacy on the porch of Apartment 122. See Carter, 525 U.S. at 90;
accord Robinson, 396 S.C. at 584, 722 S.E.2d at 823–24 ("Furthermore, there is no
evidence [Petitioner] was an overnight guest or otherwise had a connection to the
premises or apartment lessee to give him a reasonable expectation of privacy.
[Petitioner] failed to establish that he had an expectation of not being discovered
on the porch, nor did he ask the police to leave.").

       Petitioner contends that our consideration of his expectation of privacy in the
porch of Apartment 122 is both unnecessary and inappropriate. Citing United
States v. Jones17 and Florida v. Jardines,18 Petitioner argues that any time the
police commit an unauthorized trespass onto private property, the trespass is per se
a violation of the Fourth Amendment, which anyone can assert; therefore, there is
no need to engage in an expectation of privacy analysis. We disagree.

       In both Jones and Jardines, the Supreme Court found that the police officers
who conducted warrantless searches of the defendants' property committed Fourth
Amendment violations, solely because of the officers' unauthorized entry onto and
use of the defendants' property. In so finding, the Supreme Court focused
primarily on a common law trespass test, involving licenses to enter and use
private property. See, e.g., Jardines, 133 S. Ct. at 1415–17.

       Importantly, in both cases, the Supreme Court noted that the defendants
were the owners of the property searched, or otherwise definitively had the right to
assert any alleged Fourth Amendment violations.19 Thus, because the
Government's trespasses violated the Jones and Jardines defendants' own Fourth
Amendment rights, the Supreme Court was not required to address the interplay
between the trespass test and the defendants' reasonable expectations of privacy.
See, e.g., Jones, 132 S. Ct. at 950; cf. Rakas, 439 U.S. at 133–34 ("'Fourth
17
     132 S. Ct. 945 (2012).
18
     133 S. Ct. 1409 (2013).
19
  See Jardines, 133 S. Ct. at 1413 (stating that the criminal defendant was the
homeowner); Jones, 132 S. Ct. at 949 n.2 (stating that the criminal defendant's wife
owned the vehicle searched, that the criminal defendant was the exclusive driver of
the vehicle, that the Government did not challenge the court of appeals' holding
that "the vehicle registration did not affect his ability to make a Fourth Amendment
objection," and that the Supreme Court therefore refused to consider whether the
defendant had a reasonable expectation of privacy in the vehicle).
Amendment rights are personal rights which, like some other constitutional rights,
may not be vicariously asserted.'" (quoting Alderman, 394 U.S. at 174)).

      As an example of this interplay, if the police commit a warrantless trespass
on a homeowner's land, and search and seize the homeowner or his property, the
homeowner clearly could assert a Fourth Amendment violation because he would
be asserting his own right to be free of governmental searches and seizures on his
own property. The homeowner would satisfy both Jones and Katz, because not
only could he demonstrate an unauthorized trespass, but also that he had a
reasonable expectation of privacy in his home.

       In contrast, here we are presented the situation in which a casual guest
wishes to assert an alleged trespass on another's property. Petitioner maintains that
the officers' entry onto the curtilage of Apartment 122 satisfies Jones's trespass
test, and that consideration of Petitioner's reasonable expectation of privacy under
Katz is thus irrelevant. We cannot accept such a proposition, as it ignores the
factual dissimilarities between his own case and the defendants in Jones and
Jardines—particularly, the lack of any substantial connection to the property
allegedly trespassed upon.

       Today we hold that, even if the ultimate Fourth Amendment violation a
criminal defendant seeks to vindicate is a trespass under Jones, the defendant must
demonstrate that he had an actual and reasonable expectation of privacy in the area
upon which the police illegally trespassed. See Rakas, 439 U.S. at 130 n.1 ("The
proponent of a motion to suppress has the burden of establishing that his own
Fourth Amendment rights were violated by the challenged search or seizure."). In
doing so, we merely reaffirm the long-standing notion that a defendant must
establish that his own Fourth Amendment rights were violated by the illegal entry,
rather than vicariously asserting the Fourth Amendment rights of the property
owner. In other words, establishing that an illegal trespass occurred is not enough
to satisfy the Fourth Amendment. Cf. Jones, 132 S. Ct. at 960 (quoting Karo, 468
U.S. at 713 ("[A]n actual trespass is neither necessary nor sufficient to establish a
constitutional violation.")); Rakas, 439 U.S. at 136–39 (finding "targets" of illegal
searches do not have an automatic right to challenge the search, regardless of
where the search occurred).

      Accordingly, because Petitioner made no showing that he had a reasonable
expectation of privacy in the porch of Apartment 122, he failed to establish that his
Fourth Amendment rights were violated. We find the court of appeals did not err
in affirming the trial court's refusal to suppress the illegal drugs and gun.20

                                   CONCLUSION
      For the foregoing reasons, the court of appeals' opinion is

AFFIRMED AS MODIFIED.

HEARN, J. concurs. PLEICONES, BEATTY and KITTREDGE, JJ.,
concurring in result only.




20
  Because Petitioner did not establish that he had a reasonable expectation of
privacy in the place searched, we decline to address whether the officers' conduct
was in fact illegal, as well as whether Petitioner waived his right to object to the
admission of the marijuana. Futch v. McAllister Towing of Georgetown, Inc., 335
S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (holding appellate courts need not
address remaining issues when determination of prior issue is dispositive).
