THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Michael N. Frasier, Jr., Petitioner.

Appellate Case No. 2020-001405

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

Appeal from Charleston County

Deadra L. Jefferson, Circuit Court Judge

Opinion No. 28117

Heard March 15, 2022 – Filed September 28, 2022

REVERSED

Appellate Defender Kathrine Hudgins, of Columbia, for 

Petitioner.

Attorney General Alan McCrory Wilson and Assistant 

Attorney General Mark Reynolds Farthing, both of 

Columbia, and Solicitor Scarlett Anne Wilson, of 

Charleston, all for Respondent.

JUSTICE HEARN: Petitioner Michael Frasier was convicted of trafficking cocaine 

in excess of 100 grams after police discovered cocaine during a traffic stop for an 

inoperable brake light. The questions before the Court concern whether police had 
reasonable suspicion to prolong the traffic encounter and whether Frasier consented 

to the search. The trial court concluded the officer had reasonable suspicion and 

Frasier consented, and the court of appeals affirmed. In deciding these two issues, 

we clarify the scope of this Court's standard of review in the Fourth Amendment 

context. Ultimately, we reverse the court of appeals because law enforcement lacked 

reasonable suspicion to prolong the traffic stop and Frasier did not consent to the 

search.

FACTS/PROCEDURAL HISTORY

During the morning of August 14, 2013, two plainclothes officers with the 

North Charleston Police Department sat in an unmarked car outside a bus station 

conducting a routine drug interdiction as part of the department's narcotics division. 

On this particular morning, Frasier had traveled from New York to North Charleston 

on a commercial bus. The two officers were approximately 75 to 100 yards away 

from the bus station's exit when they observed Frasier leave the station. According 

to the officers, Frasier immediately stopped after exiting the station and looked left 

and right before walking about ten yards to a vehicle driven by Cheryl Jones. Frasier 

entered the vehicle, and the two left the station. Officers characterized Frasier's 

conduct as clearing the area for threats, including law enforcement, which they 

deemed suspicious. As the vehicle left the station, the officers discovered that it had 

an inoperable third brake light. Accordingly, one of the officers called Steven Hall, 

a patrol officer who previously had worked in the narcotics department, to perform 

a traffic stop. Although the legal basis for the traffic stop stemmed from the broken 

brake light, the officers informed Hall that Frasier seemed suspicious. However, the 

officers never informed Hall of the specific conduct that raised their suspicion, such 

as Frasier's scanning the parking lot. 

Hall subsequently caught up to the vehicle on the North Bridge over the 

Ashley River after reaching a speed of 87 miles per hour. Jones used her turn signal 

to get into the left lane and out of the officer's way. Apparently upon realizing that 

she was being pulled over, she then turned on her flashers and moved into the right 

lane before pulling off the road. Hall testified that Jones took longer than usual to 

pull over although the dashcam video indicated it took less than a minute. Hall exited 

his patrol car and approached Jones's vehicle. He informed Jones that her brake light 

was out, and while talking with her, Hall noticed the zipper was down on her pants. 

He testified that, from his experience, this suggested she was potentially hiding 

contraband in her pants. Hall testified that Frasier "just appeared to be nervous. He 

was sweating profusely. Did not want to really interact with me a whole lot as far as 

eye contact, something like that." Hall asked them where they were traveling from, 

and after repeating the question several times, Jones answered that she picked up 
Frasier from the bus stop. Hall requested Jones's driver's license, but she did not have 

it on her; instead, she gave him her personal information, and dispatch indicated that 

she did not have any outstanding warrants. Hall can be heard on the dashcam video 

telling dispatch that he is going to issue a warning ticket and try to obtain consent to 

search the car. Hall subsequently exited his patrol car, walked over to Jones and 

asked her to step out of her vehicle. Jones complied and consented for Hall to search 

the vehicle. Another patrol officer arrived on scene during the traffic stop, and both 

officers walked over to the passenger side door and asked Frasier to step out of the 

vehicle. Frasier complied, and placed his hands in his pockets. Hall immediately told 

Frasier to remove his hands from his pockets and asked Frasier if he would mind if 

he searched him. Frasier raised his hands in the air and said, "I do, but . . . ." Frasier 

subsequently placed his hands on the hood of the car at the direction of Hall. 

Ultimately, Hall found a white powdery substance later identified as cocaine on 

Frasier and a larger quantity in Frasier's jacket in the back seat of the vehicle. Frasier 

was arrested and charged with trafficking in cocaine in excess of 100 grams.

Thereafter, Frasier filed two motions to suppress, one contending Hall lacked 

reasonable suspicion to prolong the traffic stop and the second asserting he never 

consented to the search. Following the testimony of the officers, which was 

consistent with the account relayed above, Frasier argued all the drugs should be 

suppressed. The solicitor contended the following established reasonable suspicion 

to prolong the traffic stop in order to obtain consent: 1) Frasier's behavior at the bus 

stop, specifically traveling on a commercial bus which law enforcement knew was

frequented by drug traffickers and his "scanning" the parking lot upon exiting the 

bus station; 2) Jones's purportedly "evasive driving" and the delay in pulling over; 

3) the zipper down on her pants; 4) "evasively not answering very simple direct 

questions" such as where they were coming from; 5) the sense of nervousness Frasier 

displayed; and 6) "his sweating profusely."

Frasier contended once Hall wrote the warning ticket, the legal justification

for the stop ended, and nothing the officer relied on established reasonable suspicion 

to prolong the encounter. The trial court stated that this issue "is at best a 50/50 call." 

Ultimately, the court denied Frasier's motion to suppress, concluding the facts above 

supported a finding of reasonable suspicion, with the exception of Jones's alleged 

"evasive driving" and taking too long to pull over. The court found Jones's driving 

reasonable, and thus, it did not take that fact into consideration.

As to Frasier's second argument—that he did not give Hall consent to search 

him—defense counsel noted that Frasier responded, "I do, but . . ." in response to 

Hall asking whether he minded being searched. The solicitor contended that, "it was 

the officer's belief, as he testified earlier, that his words and actions together was 
[sic] consent." The trial court concluded the dashcam video unambiguously showed 

that Frasier consented to the search by virtue of his words and conduct, and it denied 

the second motion to suppress as well. 

Ultimately, the jury found Frasier guilty, and the trial court sentenced him to 

the mandatory minimum sentence of twenty-five years imprisonment. Frasier 

appealed to the court of appeals which affirmed, citing our deferential standard of 

review and concluding evidence supported the trial court's decision. Frasier 

subsequently filed a petition for a writ of certiorari, which the Court granted in part.

1

ISSUES

I. Did the court of appeals err in affirming the trial court's decision that 

Officer Hall had reasonable suspicion to prolong the traffic stop in order 

to subsequently ask for consent to search?

II. Did the court of appeals err in affirming the trial court's determination that 

Frasier gave Officer Hall consent to search him? 

STANDARD OF REVIEW 

Before reaching the merits, we take this opportunity to clarify our standard of 

review when reviewing an appeal from a motion to suppress based on Fourth 

Amendment grounds. Historically, we have repeatedly noted that appellate courts 

review an appeal from a motion to suppress based on a violation of the Fourth 

Amendment under the deferential "any evidence" standard. See, e.g., State v. Morris, 

411 S.C. 571, 578, 769 S.E.2d 854, 858 (2015). Pursuant to this standard, our 

appellate courts "will not reverse a trial court's finding of fact simply because it 

would have decided the case differently." State v. Spears, 429 S.C. 422, 433, 839 

S.E.2d 450, 455 (2020) (quoting State v. Pichardo, 367 S.C. 84, 96, 623 S.E.2d 840, 

846 (Ct. App. 2005)). 

In State v. Brockman, 339 S.C. 57, 528 S.E.2d 661 (2000), this Court declined 

to follow the United States Supreme Court's decision in Ornelas v. United States, 

517 U.S. 690 (1996) requiring federal courts to employ a more rigorous two-part 

analysis where courts defer to the trial court's factual findings but review the ultimate 

legal conclusion de novo. Brockman concluded that Ornelas was an advisory 

 

1 This Court denied Frasier's argument concerning the admission of statements 

Frasier made following a Miranda warning when officers had asked similar 

questions before Miranda was given. 
opinion, and thus, the Court declined to implement de novo review. Id. at 64-65, 528 

S.E.2d at 664-65. At the time this Court issued Brockman, appellate courts routinely 

reviewed cold records and depended on trial courts to review credibility and weigh 

conflicting evidence in reaching its decision. However, with the dawn of the 

technological age, appellate courts are no longer dependent on the trial court in our 

review of evidence. The most obvious example is the advent of body and dashcam 

footage, whereby this Court reviews the same video as the trial court. Accordingly, 

while the need for deference remains, particularly in determining issues of 

credibility, it is no longer necessary for us to defer to the trial court's overall ruling 

in every case. Instead, we take this opportunity to refine our standard of review to 

better align with the federal standard, which has been adopted in nearly every state.2

 

2 See James v. State, 197 So.3d 532, 535 (Ala. Crim. App. 2015); State v. Miller, 

207 P.3d 541, 543 (Alaska 2009); State v. Fornof, 179 P.3d 954, 956 (Ariz. Ct. App. 

2008); MacKintrush v. State, 479 S.W.3d 14, 17 (Ark. 2016); People v. Letner and 

Tobin, 235 P.3d 62, 99-100 (Cal. 2010); People v. McKnight, 446 P.3d 397, 402 

(Colo. 2019); State v. Lewis, 217 A.3d 576, 586-87 (Conn. 2019); Lopez-Vasquez v. 

State, 956 A.2d 1280, 1284-85 (Del. 2008); Huffman v. State, 937 So.2d 202, 205-

06 (Fla. Dist. Ct. App. 2006); State v. Cartee, 844 S.E.2d 202, 203 (Ga. Ct. App. 

2020); State v. Spillner, 173 P.3d 498, 504 (Haw. 2007) (reviewing a trial court's 

ruling on a motion to suppress evidence de novo); State v. Perez, 434 P.3d 801, 803 

(Idaho 2018); People v. Timmsen, 50 N.E.3d 1092, 1097 (Ill. 2016); Marshall v. 

State, 117 N.E.3d 1254, 1258 (Ind. 2019); State v. Brown, 930 N.W.2d 840, 844 

(Iowa 2019); State v. Hanke, 415 P.3d 966, 969 (Kan. 2018); Commonwealth v. 

Conner, 636 S.W.3d 464, 471 (Ky. 2021); State v. Boeh, 324 So.3d 653, 659-60 (La. 

Ct. App. 2021); State v. Sasso, 143 A.3d 124, 129 (Me. 2016); State v. Holt, 51 A.3d 

1, 7 (Md. Ct. Spec. App. 2012); Commonwealth v. Henley, 171 N.E.3d 1085, 1097 

(Mass. 2021); People v. Pagano, 967 N.W.2d 590, 592 (Mich. 2021); State v. 

Bergerson, 671 N.W.2d 197, 201 (Minn. Ct. App. 2003); Eaddy v. State, 63 So.3d 

1209, 1212 (Miss. 2011); State v. Peery, 303 S.W.3d 150, 153 (Mo. Ct. App. 2010); 

State v. Neiss, 443 P.3d 435, 443 (Mont. 2019); State v. Shiffermiller, 922 N.W.2d 

763, 772 (Neb. 2019); State v. Beckman, 305 P.3d 912, 916 (Nev. 2013); State v. 

Francisco Perez, 239 A.3d 975, 981 (N.H. 2020); State v. Nyema, 267 A.3d. 449, 

459 (N.J. 2022); State v. Ochoa, 206 P.3d 143, 147 (N.M. Ct. App. 2008) ("The 

constitutionality of a search or seizure is a mixed question of law and fact and 

demands de novo review."); People v. Blandford, 176 N.E.3d 1043, 1044 (N.Y.

2021); State v. Watson, 792 S.E.2d 873, 874 (N.C. Ct. App. 2016); State v. Marsolek, 

964 N.W.2d 730, 735 (N.D. 2021); State v. Hawkins, 140 N.E.3d 577, 580-81 (Ohio 

2019); Fuentes v. State, __ P.3d __, __ 2021 WL 3027309 (Okla. Crim. App. 2021); 

State v. Maciel-Figueroa, 389 P.3d 1121, 1123 (Or. 2017); Commonwealth v. Smith, 
Accordingly, appellate review of a motion to suppress based on the Fourth 

Amendment involves a two-step analysis. This dual inquiry means we review the 

trial court's factual findings for any evidentiary support, but the ultimate legal 

conclusion—in this case whether reasonable suspicion exists—is a question of law 

subject to de novo review. 

DISCUSSION

 

I. Reasonable Suspicion to Prolong the Traffic Stop

Frasier contends Hall did not have reasonable suspicion to prolong the traffic 

stop beyond the purpose of issuing the warning for an inoperable third brake light. 

He asserts law enforcement had, at best, an "unparticularized suspicion or hunch, 

not reasonable suspicion to justify the prolonged detention." Conversely, the State 

argues evidence supports the trial court's determination that Hall had reasonable 

suspicion of potential criminal activity, and therefore, the extension of the initial 

traffic stop was constitutionally permissible. Applying the facts as found by the trial 

court, we disagree these findings rise to the level of reasonable suspicion.

"A person has been seized within the meaning of the Fourth Amendment at 

the point in time when, in light of all the circumstances surrounding an incident, a 

reasonable person would have believed that he was not free to leave." Robinson v. 

State, 407 S.C. 169, 181, 754 S.E.2d 862, 868 (2014). Once police pull over a motor 

vehicle for a traffic violation, "the police may order the driver to exit the vehicle 

without violating Fourth Amendment proscriptions on unreasonable searches and 

seizures." State v. Pichardo, 367 S.C. 84, 98, 623 S.E.2d 840, 847 (Ct. App. 2005) 

(citing Pennsylvania v. Mimms, 434 U.S. 106 (1977)). "In carrying out the stop, an 

officer may request a driver's license and vehicle registration, run a computer check, 

and issue a citation." Id. (citing United States v. Sullivan, 138 F.3d 126 (4th Cir. 

1998)). 

 

164 A.3d 1255, 1257 (Pa. Super. Ct. 2017); State v. Taveras, 39 A.3d 638, 645-46 

(R.I. 2012); State v. Moore, 415 S.C. 245, 251 781 S.E.2d 897, 900 (2016); State v. 

Aaberg, 718 N.W.2d 598, 600 (S.D. 2006); State v. Smith, 484 S.W.3d 393, 399 

(Tenn. 2016); Herrera v. State, 546 S.W.3d 922, 926 (Tex. App. 2018); Salt Lake 

City v. Street, 251 P.3d 862, 865 (Utah Ct. App. 2011); State v. Rutter, 15 A.3d 132, 

135 (Vt. 2011); McArthur v. Commonwealth, 845 S.E.2d 249, 252 (Va. Ct. App. 

2020); State v. Gatewood, 182 P.3d 426, 427-28 (Wash. 2008); State v. Bookheimer, 

656 S.E.2d 471, 476 (W.Va. 2007); State v. Reed, 920 N.W.2d 56, 65-66 (Wis. 

2018); Jennings v. State, 375 P.3d 788, 790 (Wyo. 2016). 
In order to prolong or exceed the scope of a stop beyond the initial traffic 

violation, law enforcement must have reasonable suspicion that criminal activity 

may be afoot. Robinson, 407 S.C. at 182, 754 S.E.2d at 868-69 ("If, during the stop 

of the vehicle, the officer's suspicions are confirmed or further aroused—even if for 

a different reason than he initiated the stop—the stop may be prolonged, and the 

scope of the detention enlarged as circumstances require."). Although reasonable 

suspicion is not susceptible to a rigid, formulaic approach, it requires more than a 

mere hunch or unparticularized suspicion. Id. at 182, 754 S.E.2d at 868. In other 

words, for an officer to have reasonable suspicion, "there [must] be an objective, 

specific basis for suspecting the person stopped of criminal activity." Id. While

reasonable suspicion is not a high bar and "is a less demanding standard than 

probable cause and requires a showing considerably less than preponderance of the 

evidence, the Fourth Amendment requires at least a minimal level of objective 

justification for making the stop." Illinois v. Wardlow, 528 U.S. 119, 123 (2000). 

This inquiry involves the totality of the circumstances, and "[c]ourts must give due 

weight to common sense judgments reached by officers in light of their experience 

and training." State v. Moore, 415 S.C. 245, 252-53, 781 S.E.2d 897, 901 (2016). 

 In Moore, a police officer pulled over a vehicle on I-85 for speeding. Id. at 

248, 781 S.E.2d at 899.

3 The officer testified he smelled alcohol, and the occupant 

admitted to having a couple drinks. During the stop, Moore passed two of three field 

sobriety tests. The vehicle was registered out of state to a third party, and the officer 

found $600 on Moore during a consensual pat down. Id. at 249, 781 S.E.2d at 899. 

The officer subsequently asked Moore if he could search the vehicle, but Moore 

declined. Id. The officer decided not to charge Moore with driving while impaired, 

but he did request a canine unit, which subsequently alerted to the presence of drugs. 

The State relied on the following facts to support the presence of reasonable 

suspicion:

 

3 The officer in Moore testified the driver took longer than usual to pull over and 

was evasive because he initially used his left turn signal before finally pulling onto 

the right shoulder. Id. at 250, 781 S.E.2d at 899. Officer Hall testified Jones was 

evasive as she took longer than usual to pull off the side of the road and initially 

switched to the left lane before exiting the highway on the right shoulder. However, 

the trial court expressly rejected this factor in its totality of the circumstances 

approach. Nevertheless, the State continues to argue that this fact is relevant. We 

disagree, as the video in question clearly shows Jones did not attempt to evade 

police. 
(1) Moore initially turned on his left turn signal but then pulled his 

vehicle over to the right; (2) the time Moore took to pull over was longer 

than average, indicating the possibility of flight; (3) Deputy Owens 

noticed an odor of alcohol emanating from the vehicle, which led him 

to believe that Moore had been drinking in order to calm his nerves; (4) 

Moore smoked several cigarettes, which was also an indicator that he 

might be trying to calm his nerves; (5) Moore continued to talk on the 

phone during the traffic stop, which was an indicator of criminal 

activity as phones provide a means of communication between drug 

traffickers; (6) Moore's hands were shaking when he handed Deputy 

Owens his driver's license and rental agreement; (7) Moore's pulse 

appeared to be rapid; (8) Moore's breathing was heavy; (9) Moore tried 

to pick up his cell phone when he was asked to exit his vehicle, also 

indicating the possibility of flight; (10) Moore was carrying a large sum 

of money in his pocket despite being unemployed; (11) Moore was 

driving a rental car, which was rented by a third party; and (12) Moore 

was leaving a suburb of Atlanta, which is a known drug trafficking hub.

Id. at 249-50, 781 S.E.2d at 899-900. Notably, while the Court determined at least 

some evidence supported the trial court's decision to deny the motion to suppress, it 

acknowledged that nervousness is typically present in any encounter with police. 

The Court cautioned law enforcement that although "nervous behavior is a pertinent 

factor in determining reasonable suspicion, we, like many appellate courts, 

have become weary with the many creative ways law enforcement attempts to parlay 

the single element of nervousness into a myriad of factors supporting reasonable 

suspicion." Id. at 254-55, 781 S.E.2d at 902.

Here, even after accepting the trial court's factual findings as we must do since 

they are supported by some evidence, we conclude that Hall lacked reasonable 

suspicion as a matter of law pursuant to de novo review.

4 The two plainclothes 

officers relayed to Hall that Frasier seemed suspicious, but that was only based on a 

subjective hunch. While "scanning the parking lot" is a relevant factor, it is far from 

establishing reasonable suspicion. Accordingly, in order for Hall to prolong the 

traffic encounter, there had to be more indications of criminal activity once Hall 

initiated the traffic stop. Although the State contends the following additional facts 

 

4 We note the trial court believed the issue was at best 50/50 but ruled in favor of the 

State. When a case boils down to a flip of the coin, the Fourth Amendment requires 

that we find in favor of the defendant since the State has the burden to demonstrate 

reasonable suspicion.
establish reasonable suspicion—repeating questions, noticing Jones's unzipped 

zipper, sweating, and being nervous—we disagree.

5 Hall did not see any items that 

would demonstrate potential criminal activity—such as cash on hand, hollowed out 

blunt cigars, or the smell of marijuana—before deciding to extend the stop. See

Moore, 415 S.C. at 249, 781 S.E.2d at 899 (officers found a "wad" of $600 in cash); 

Morris, 411 S.C. at 581, 769 S.E.2d at 859 (police saw hollowed out cigars and 

smelled marijuana). It is equally apparent that this was a drug stop masquerading as 

a traffic encounter. Indeed, the goal of the stop was to "try to obtain consent," as Hall 

can be heard telling dispatch on the dashcam video. While we do not suggest that 

pretexual stops are illegal, in order to prolong the stop, there must be an objective

basis for concluding that criminal activity may be afoot. Simply put, "[i]n law, 

the ends do not justify the means." State v. Adams, 409 S.C. 641, 654, 763 S.E.2d 

341, 348 (2014). Because the State failed to meet its burden of demonstrating 

reasonable suspicion, we reverse. 

 

5 Jones told Hall during the traffic stop that her zipper was undone because she had 

just taken a shower before meeting Frasier at the bus station. Concerning the fact 

that Frasier sweated, we agree with the trial court's statement that "[e]verybody 

sweats profusely in August in Charleston. I sweat profusely in Charleston in August. 

It's hot at 6 in the morning. As soon as you walk out the door, it's 90 to 100 percent 

humidity." The solicitor responded that he had the almanac showing the temperature 

and humidity for the day in question and "would be happy to give it to you." The 

court answered, "No. I live in Charleston. I've lived in Charleston my whole life . . .

." Further, although Hall testified that the driver door opening during the stop was 

unusual, he never articulated a reason as to how that fact was potentially indicative 

of illegal behavior.
II. Frasier's Consent 

Frasier contends the court of appeals erred in affirming the trial court's 

conclusion that he gave Hall consent to search him. The State asserts there is 

evidence in the record to support the trial court's decision. We agree with Frasier. 

Warrantless searches are generally considered per se unreasonable unless they 

fall within a recognized exception under the Fourth Amendment. Police may search 

an individual if that person consents, but the burden is on the State to demonstrate 

consent. State v. Harris, 277 S.C. 274, 276, 286 S.E.2d 137, 138 (1982) ("However, 

the State bears the burden of proving the voluntariness of a consent to search from 

the totality of the surrounding circumstances."). Law enforcement must obtain 

consent voluntarily, which is a fact-intensive inquiry viewed under the totality of the 

circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248 (1973). Police do not 

need to tell an individual that he can refuse to consent, but it is a factor in the overall 

analysis. Id.; State v. Forrester, 343 S.C. 637, 645, 541 S.E.2d 837, 841 (2001) 

("Therefore, like the federal standard, our state standard does not require a law 

enforcement officer conducting a search to inform the defendant of his right to refuse 

consent."). 

During the pretrial testimony, Hall noted that he asked Frasier "if he minded 

if I checked him out or searched him, and he said, 'I do, but,' and just kind of put his 

hands up on top of the car." The State also described the encounter as, "[R]egarding 

his actions, Frasier shrugged his shoulders, placed his hands on top of Jones's 

vehicle, positioned himself in a manner such that the officer could search him, and 

exposed both his body and his pockets to the officer." Because we are able to view 

the same video as the trial court, we can make an independent finding and are not 

constrained to defer to the trial court's conclusion that Frasier consented through his 

words and conduct. The video clearly indicates that Frasier stepped out of the vehicle 

at the direction of one of the officers, with a second officer standing beside him. 

Once Frasier began to place his hands in his pockets, Hall understandably told

Frasier to remove them. In response, Frasier raised his hands over his head and began 

to turn. Hall testified it was Frasier's conduct that indicated he consented to a search, 

but it is clear from the video that Frasier only placed his hands on the vehicle at the 

direction of the officer. Indeed, after asking whether Frasier had any weapons on 

him, Hall asked Frasier to "put his hands up on the car for me." Accordingly, because 

Frasier's conduct was at the direction of the officer, it was not a voluntary decision 

to allow Hall to search him. Thus, the State failed to prove that Frasier voluntarily 

consented, and we therefore reverse on this ground as well. 
CONCLUSION

We hold law enforcement lacked reasonable suspicion to prolong the traffic 

stop, and thus, the discovery of cocaine was the product of an illegal seizure. We 

also conclude that Frasier did not voluntarily consent. Accordingly, we reverse the 

court of appeals.

REVERSED.

BEATTY, C.J., KITTREDGE, FEW and JAMES, JJ., concur.