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10/17/2011
South Carolina: Lower Court Rules Driving 55 Suspicious
South Carolina lower court rules driving near speed limit justifies stop, but appeals court finds being near marijuana is not possession.

Judge Aphrodite K. Konduros
Spartanburg County Circuit Court Judge Roger L. Couch ruled that driving just 5 MPH under the speed limit, not in the fast lane, is suspicious enough to justify a traffic stop. South Carolina's second highest court on October 5 examined the case, but sidestepped the speed issue to decide whether a man could be convicted of marijuana possession simply because he was in a car that contained the drug.

The three-judge appellate panel reviewed the September 16, 2008 incident that when Nicholas Carl Davy was driving in the middle lane of traffic on Interstate 85 through Spartanburg County. Andre Jackson was a passenger taking a ride to Greenville. He went to school with and was a friend of Davy's 22-year-old son.

The legal speed limit on the road was 60 MPH, but Davy was driving at 55 MPH. Some automakers, fearing liability concerns, intentionally build speedometers that read seven percent too high, or about 5 MPH. It is quite possible for a motorist driving 55 MPH on a 60 MPH road to have cruise control set precisely at the speed limit.

Officer Jonathan Montjoy did not see it that way. He noted that most traffic was cruising at between 70 and 75 MPH, so anyone driving the speed limit would be guilty of impeding traffic. At trial, the judge found that state law prohibits impeding traffic, no matter what the speed limit might be, so the traffic stop was ruled valid.

Once the car was pulled over, Montjoy smelled marijuana and ordered the car searched. Both Davy and Jackson were arrested for possession with intent to distribute marijuana. The appellate court ruled there was no evidence that Jackson had anything to do with the contraband, comparing it to similar cases where a passenger was exonerated after the driver was convicted of carrying drugs.

"Jackson and Davy had only met once previously, at Jackson's grandchild's birthday party," Judge Aphrodite K. Konduros wrote for the panel. "Here, the evidence against Jackson is even less than in either Brown or Blue. The drugs were more out of sight, and the state presented no evidence that Jackson was nervous or made any suspicious movements. Accordingly, the state failed to present sufficient circumstantial evidence of knowledge to submit the case to the jury. Thus, the trial court erred in denying Jackson's motion for a directed verdict."

Because the finding on the possession charge exonerated Jackson, the appellate panel did not bother deciding whether the initial traffic stop was valid.

Source: South Carolina v. Jackson (Court of Appeals, State of South Carolina, 10/5/2011)



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