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THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Eric Peter Nelson, Appellant.

Appeal From Horry County

James E. Brogdon, Jr., Circuit Court Judge

Opinion No. 24984

Heard May 11, 1999 - Filed August 9, 1999

AFFIRMED

James L. Hills, of Myrtle Beach; and Robert T.

Bockman, of McNair Law Firm, PA, of Columbia, for

appellant.

Attorney General Charles M. Condon, Chief Deputy

Attorney General John W. McIntosh, Assistant Deputy

Attorney General Salley W. Elliott, all of Columbia;

and Solicitor Ralph J. Wilson, of Conway, for

respondent.

PER CURIAM: In this criminal matter, Eric Nelson ("Defendant") was

convicted by a jury for driving under the influence. Defendant appeals his

conviction.

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FACTUAL/PROCEDURAL BACKGROUND

On April 17, 1996, Defendant was visiting a client in the Myrtle Beach

area. Defendant testified that while he was speaking with his client outside of

her house, his dog jumped out of the back window of his Jeep Cherokee.

Defendant's dog was a full bred Weimaraner. A neighbor, Jeffrey Soles,

testified that Defendant's dog began running loose in his yard and garden.

Soles asked Defendant if he would remove the dog from his yard. Soles further

testified: I don't know if he cussed me but his reaction on his face seemed like

he did cuss me and didn't do anything about the dog." Defendant claimed that

he did not "cuss" Soles, but did yell at his dog. Soles called the police.

Defendant eventually captured his dog and left the area. Officer Mark

Hadden soon thereafter arrived at the scene in response to Soles' call about

Defendant's dog. After briefly speaking with Soles, the officer left in his patrol

car to go find Defendant. At trial, the officer provided the following explanation

for going after Defendant:

I wanted to have - generally in a situation like this I like to have

both sides of the story and have both people in front of me present.

I like to talk to 'em and get both sides of the story. At that time I

asked the complainant to stay there and I would go attempt to

bring the driver of the white Jeep Cherokee back to this location

where I could get both of their information, both sides of the story,

so I fill out a report on the incident.

After leaving the neighbor, Officer Hadden pulled up behind Defendant's

Jeep at a stop sign. The officer testified that, as he came up behind Defendant,

his intention was not to make a traffic stop but just to get his attention. The

officer stated he "hit his high beams several times." The officer stated that

Defendant rolled through the stop sign without coming to a complete stop and

then turned right at a high rate of speed. He testified that the speed limit was

25 m.p.h., and Defendant was probably doing 35 m.p.h. He heard Defendant's

tires squeal as they came around the turn. The officer responded by putting on

his blue lights to initiate a traffic stop.

Defendant initially refused to stop. The officer called into the station to

report that Defendant was not stopping. The officer subsequently turned his

siren on to get Defendant's attention. One of the officer's supervisors came over

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the radio and advised Officer Hadden to "back off' Defendant's vehicle.

Defendant then made a left turn after traveling approximately one-tenth of a

mile. The officer stated that Defendant was traveling at a high rate of speed as

they approached the corner. Defendant finally came to a stop after making the

turn. The officer testified "[Defendant] stopped in a manner that the vehicle

slid approximately five feet, hard brakes coming out." The officer further stated

Defendant stopped right in front of a group of kids who were playing in the

street. The children scattered after seeing Defendant and the police car stop in

front of them.

The officer approached Defendant and asked him to turn off the vehicle.

Defendant was on his car phone at the time, and his dog was barking at the

officer from the back seat of the vehicle. For his own safety, the officer asked

Defendant to hang up the phone, turn off the car, and step to the rear of the

vehicle. Defendant refused. The officer took the phone out of Defendant's hand

and escorted him to the rear of the vehicle. Officer Hadden testified he smelled

the odor of alcohol and asked Defendant to participate in a field sobriety test.

Defendant refused. The officer testified that he placed Defendant under arrest

due to Defendant's driving and the odor of alcohol.1

Defendant was eventually taken down to the police station where he

refused to take a breathalyzer test. The officer on duty testified that he smelled

an odor of alcohol on Defendant. Defendant posted bond and requested a jury

trial.

By letter dated August 2, 1996, the Myrtle Beach Municipal Court

instructed Defendant to appear either personally or through counsel on August

21, 1996.2 The notice further informed Defendant that any defendants with

bonds posted, failing to appear, shall forfeit the bond and be tried in their

absence. Defendant nor his attorney appeared at court on August 21.

Defendant's bond was subsequently forfeited, and he was convicted without a

jury for DUI

called for animal control to come pick up the dog. Defendant repeatedly asked

the officer to let him go so that he could recapture his dog. For his own safety,

the officer refused to release him from his hand-cuffs.

2Defendant's case was scheduled for trial during a four-day term of court

on September 10, 11, 12, and 13, 1996.

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On August 28,1996, Defendant made a motion before the municipal court

to have his conviction reopened. Defendant explained in the motion that the

failure of his attorneys to appear on August 21, 1996, was "due to confusion."

The municipal court granted the motion, reversed the conviction, and remanded

for trial. Prior to the second proceeding, Defendant moved for a directed

verdict, arguing the second trial subjected him to Double Jeopardy. Further,

following the testimony of Officer Hadden, Defendant made a motion to dismiss,

arguing the officer did not have probable cause or reasonable suspicion to

initiate the traffic stop. The court denied the motion, and Defendant was

ultimately convicted of DUI

At trial, Defendant disputed much of Officer Hadden's testimony.

Defendant claimed he did come to a complete stop at the stop sign. However,

Defendant admitted having one beer at a Holiday Inn before visiting his client

on April 17. Defendant further claimed that at no point was he going at a high

rate of speed. Defendant stated that he did not know the police officer was

following him until the officer turned on his blue lights and siren. Defendant

denied stopping near any children on the road.

On January 26, 1997, Defendant appealed his conviction to circuit court.

By order dated April 8, 1998, the circuit court affirmed Defendant's conviction.

Defendant appeals to this Court, raising the following issues:

(1) Did the circuit court err in failing to vacate Defendant's

conviction due to the fact that the arresting officer had no

probable cause or reasonable suspicion to stop Defendant's

vehicle?

(2) Did the circuit court err in failing to vacate Defendant's

conviction pursuant to the Double Jeopardy and Due Process

clauses of the United States and South Carolina

Constitutions?

LAW/ANALYSIS

A. TRAFFIC STOP

Defendant argues that Officer Hadden lacked probable cause or

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reasonable suspicion to stop Defendant's vehicle. We disagree.

In resolving this issue, the facts must be considered in two parts. The

first part includes those facts leading up to Defendant's first traffic violation,

i.e., running the stop sign. The second part includes those facts ending with

Defendant's arrest for DUI. Defendant argues that under the first set of facts,

there was no lawful justification for making a traffic stop. This being the case,

Defendant contends that any evidence gathered after that point was tainted

and not admissible at trial. Defendant in effect argues the "fruit of the

poisonous tree" doctrine.3

A traffic stop is a limited seizure more like an investigative detention

than a custodial arrest. See Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct.

3138,82 L. Ed. 2d 317 (1984). Thus, in analyzing such investigative detentions,

courts employ the standard articulated by the United States Supreme Court in

Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Under this

standard, "a policeman who lacks probable cause but whose observations lead

him reasonably to suspect that a particular person has committed, is

committing, or is about to commit a crime, may detain that person briefly in

order to investigate the circumstances that provoke that suspicion." Berkemer,

468 U.S. at 439, 104 S. Ct. at 3150, 82 L. Ed. 2d 317. In the instant case,

Officer Hadden arrived on the scene shortly after Defendant had left with his

dog. In fact, Officer Hadden passed Defendant's Jeep on the street while

traveling to the complainant's residence. After briefly speaking with the

complainant, Officer Hadden then left to go talk with Defendant. Assuming

Defendant's conduct in letting his dog run loose could have violated some law,

we believe Officer Hadden would be justified in making the stop. See McFadden

v. United States, 814 F.2d 144 (1987) (officer had reasonable suspicion to make

traffic stop where officer arrived moments after defendant had left the hospital

where defendant had allegedly trespassed). However, in their brief, the State

fails to cite to any specific law or ordinance that Defendant may have violated.4

excluded if it would not have come to light but for the illegal actions of the

police, and the evidence has been obtained by the exploitation of that illegality.

State v. Copeland, 321 S.C. 318, 428 S.E.2d 620 (1996).

4The State does cite to S.C. Ann §§ 47-3-20,-50, & -70 (1987). However,

these sections simply empower counties to enact ordinances and regulations for

the control of dogs. They do not proscribe specific conduct.

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It was not until oral argument that the State argued Defendant's conduct in

allowing his dog to run loose violated certain county ordinances. It is axiomatic

that oral argument may not be used as a vehicle to argue issues not argued in

the appellate brief See Bochette v. Bochette, 300 S.C. 109, 386 S.E.2d 475 (Ct.

App. 1989).

However, even assuming Officer Hadden's initial attempt to stop

Defendant would have violated the Fourth Amendment, Officer Hadden was

nonetheless justified in making the stop after Defendant committed the

subsequent traffic infractions. An automobile stop is subject to the

constitutional imperative that it not be "unreasonable" under the

circumstances. Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L.

Ed. 2d 89 (1996). As a general matter, the decision to stop an automobile is

reasonable where police have probable cause to believe that a traffic violation

has occurred. Id. Although disputed by Defendant, Officer Hadden testified he

witnessed Defendant roll through a stop sign and then speed through a

residential neighborhood. Under Whren, these traffic infractions provided

Officer Hadden with probable cause to make the traffic stop. The question is

whether the stop was nonetheless tainted because Officer Hadden's initial

attempt to stop Defendant may have been unlawful.

In Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441

(1963), the United States Supreme Court declined to hold that all evidence is

"fruit of the poisonous tree" simply because it would not have come to light but

for the illegal actions of the police. See 5 W. Lafave, Search and Seizure: A

Treatise on the Fourth Amendment, § 11.4 (3d. ed. 1996). Since Wong Sun,

courts have recognized that new and distinct criminal acts following an illegal

stop do not qualify as fruit of the poisonous tree simply because such acts were

causally connected to the police misconduct. See John Wesley Hall, Jr., Search

and Seizure, at 364 (2d ed. 1991). For instance, in United States v. Nooks, 446

F.2d 1283 (5th Cir. 1971), the court refused to suppress evidence discovered in

the trunk of a car even though the initial stop had been illegal, when,

subsequent to the initial stop, the defendant fled from the police at speeds in

excess of 100 m.p.h. and fired several shots at them.

This concept was further developed in United States v. Bailey, 691 F.2d

1009 (11th Cir. 1982) where the defendant, who was being escorted by police to

the precinct, broke free and fled from police in an airport. The defendant was

eventually arrested and searched, whereupon the police discovered cocaine. At

trial, the defendant moved to suppress the drugs as the products of an illegal

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arrest and search. The Eleventh Circuit affirmed the denial of the motion,

stating: "we conclude that notwithstanding a strong causal connection in fact

between lawless police conduct and a defendant's response, if the defendant's

response is itself a new, distinct crime then the police may arrest the defendant

for that crime." 691 F.2d at 1016-17. The court further stated: "A contrary rule

would virtually immunize a defendant from prosecution for all crimes he might

commit that have a sufficient causal connection to the police misconduct." Id.

at 1017.

The Fourth Circuit also addressed this issue in United States v. Sprinkle,

106 F.3d 613 (4th Cir. 1997). In Sprinkle, the police followed and eventually

pulled up behind the defendant's parked car. The police turned on their blue

lights and approached the vehicle. The defendant stepped out of his car, and the

police initiated a patdown search. While the police were conducting the search

the defendant broke free and began running from police. During the chase, the

defendant produced a gun and fired a single shot at police. The defendant was

eventually arrested. At trial, the defendant moved to suppress the admission

of the gun as fruit of an illegal search and seizure. The Fourth Circuit first

concluded that the police did not have any reasonable suspicion to stop the

defendant. Nevertheless, the court held that the defendant's intervening illegal

acts of running from and shooting at the police made the gun admissible. The

court stated: "There is a strong policy reason for holding that a new and distinct

crime, even if triggered by an illegal stop, is a sufficient intervening event to

provide independent grounds for arrest." 106 F.3d at 619.

In the instant case, even assuming Officer Hadden's initial attempt to

stop Defendant was unlawful, Defendant's acts of running the stop sign and

speeding through the neighborhood constituted new and distinct crimes for

which Officer Hadden had probable cause to stop Defendant. See Whren, supra.

Thus, any evidence lawfully obtained as a result of the stop was admissible at

Defendant's trial.

B. DOUBLE JEOPARDY

Defendant argues that since his first conviction was unlawful, the act of

trying him again violated the Double Jeopardy Clauses of the United States and

South Carolina Constitutions. We disagree.

The Fifth Amendment to the United States Constitution states: nor

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shall any person be subject for the same offence to be twice put in jeopardy of

life or limb...."5 U.S. Const. amend. V. The Double Jeopardy clause protects

against: (1) a second prosecution for the same offense after acquittal; (2) a

second prosecution for the same offense after conviction; and (3) multiple

punishments for the same offense. State v. Price, 333 S.C. 267, 510 S.E.2d 215

(1998); State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997); State v. Owens, 309

S.C. 4021 424 S.E.2d 473 (1992).

None of the above scenarios exist in the instant case. Here, it was on

Defendant's own motion that the conviction was reopened. The municipal court

granted the motion and reversed Defendant's conviction, remanding the case

for a new trial. It was not until Defendant moved for a directed verdict in the

second trial that he argued that the first conviction was unconstitutional

because no evidence was presented and no jury assembled.

It is well established that where a verdict is set aside by a defendant's

own motion and a new trial granted, the defendant may be again tried for the

offense. See State v. Gillis, 73 S.C. 3182 53 S.E. 487 (1906) (holding that a

defendant indicted for murder and convicted of manslaughter may again be

tried for murder when a new trial is ordered on defendant's own motion).

Moreover, while a determination that the evidence was insufficient to support

a conviction ordinarily precludes a retrial, the Double Jeopardy clause does not

preclude retrial of a defendant whose conviction was set aside because of trial

error. Riddle v. State, 314 S.C. 1, 443 S.E.2d 557 (1994); see also United States

v. Green, 139 F.3d 1002 (4th Cir. 1998). In this case, the first conviction was not

reversed or vacated because the evidence was insufficient to support the

conviction. Rather, the reversal was sought and granted on Defendant's own

arguments that his attorneys were confused about when to appear before the

municipal court. Therefore, Defendant's retrial did not violate Double

Jeopardy.

CONCLUSION

Based on the foregoing, Defendant's conviction is AFFIRMED.

states: "No person shall be subject for the same offence to be twice put in

jeopardy of life and liberty S.C. Const. art. I, § 12.

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