"Arrest" may be generally defined as a deprivation of personal liberty resulting from a restriction on an individual's right to movement, against his will and by force, threat, or assertion of authority.
Recognizing the seriousness of an interference with an individual's right of liberty, the U.S. Constitution and the S.C. Constitution have placed restrictions on the power of arrest.
"No person shall be . . . deprived of life, liberty, or property without due process of law . . ." (U. S. Const., Fifth Amendment; see S. C. Const. Art. I, Section 3, for similar language).
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (U. S. Const., Fourth Amendment; see S. C. Const., Art. I, Section 10 for similar language).
General statutory provisions relating to arrest warrants may be found in S.C. Code Ann. §§17-13-10 through 17-13-160. Reference should also be made to section 22-3-710 which provides: "All proceedings before magistrates in criminal cases shall be commenced on information under oath, plainly and substantially setting forth the offense charged, upon, and only which, shall a warrant of arrest issue." This section is made applicable to municipal judges by section 14-25-45 which states: "Each municipal court shall have jurisdiction to try all cases arising under the ordinances of the municipality for which established. The court shall also have all such powers, duties and jurisdiction in criminal cases made under state law and conferred upon magistrates. . . ." Town of Honea Path v. Wright, 194 S.C. 461, 9 S.E.2d 924 (1940); State v. Fennel, 263 S.C. 216, 209 S.E2d 433 (1974).
From the language of the Fourth Amendment, it is clear that there is a constitutional preference for arrests made with rather than without warrants. However, certain exceptions to the general rule requiring a warrant are still recognized.
Felony Arrests: An officer may arrest without a warrant if he has probable cause to believe that the person has committed a crime classified as a felony. (§17-13-10). Nevertheless, in order to protect the rights of the defendant and the interest of the arresting officer, a warrant should be obtained prior to arrest unless it appears the alleged felon may escape or further violate the law.
Misdemeanor Arrests: An officer may arrest without a warrant a person who has allegedly committed a crime classified as a misdemeanor only if the crime was committed in the officer's view. (§ 17-13-30). Off-duty police officer may not arrest as private citizen for misdemeanor committed outside his jurisdictional limits. See State v. McAteer, 340 S.C. 644, 532 S.E. 2d 65 (S.C. 2000).
Uniform Traffic Tickets: Under §56-7-10 and §56-7-15 there are only three categories of offenses for which the State may use a uniform traffic ticket (UTT) instead of an arrest warrant to commence proceedings in the magistrate and municipal court: (1) traffic offenses; (2) offenses specifically listed in §56-7-10; and (3) offenses within the subject matter jurisdiction of the magistrate or municipal court that are committed "in the presence of a law enforcement officer." In State v. Ramsey, 398 S.C. 275, 727 S.E.2d 429 (S.C.App., 2012), the Court of Appeals clarified that “freshly committed” offenses may not be written on a UTT because the clear language of §56-7-15 requires the offense be committed in the presence of the officer, not freshly committed.
Subsection (B) of § 56-7-15 requires that an officer who uses a uniform traffic ticket to make an arrest in a criminal domestic violence matter (for a violation of Chapter 25 of Title 16) must complete and file an incident report immediately after the issuance of the ticket.
Courtesy Summons: A private citizen may swear out an affidavit concerning criminal charges against another without the assistance of law enforcement. When a private citizen serves as the affiant for a criminal offense at the summary court level, a courtesy summons should be issued, in lieu of an arrest warrant, pursuant to SC Code Section 22-5-115. (See Memorandum in Benchbook, dated July 7, 2008). The courtesy summons is criminal process and must be served on the defendant personally by law enforcement. Pursuant to an Attorney General Opinion, dated July 31, 2008, the courtesy summons may be countersigned in the county in which it is to be served. The summary court must then hold a hearing (without the benefit of an arrest or bond proceeding) to determine whether or not the defendant should be convicted of the offense. The defendant may enter a plea of guilty, no contest, or avail himself of a trial by a judge or jury. The victim’s rights are protected in the same manner as they would be if the charge resulted in an arrest. The Attorney General’s office has issued several opinions relating to the use of the courtesy summons. A summary of two of the opinions is provided below:
The first Opinion, dated August 18, 2008, is summarized below:
“…a courtesy summons would be applicable in shoplifting and fraudulent check cases involving misdemeanor offenses where the warrant is signed by non law enforcement personnel, including personnel associated with a business.”
The second Opinion, also dated August 18, is summarized below:
“…service [of a courtesy summons] by certified mail would not be authorized.”
“…a courtesy summons is a criminal process, not a civil process.”
““… a courtesy summons, a recognized charging document…does not ‘grow stale’ by virtue of an inability to immediately execute it.”
If an arrest has been made without a warrant, the arresting officer should take the person to a magistrate or municipal judge without unreasonable delay so that the judge may investigate the circumstances of the arrest and if proper, issue an arrest warrant. The issuance of an arrest warrant after arrest serves informational and administrative purposes. It protects the police officer from prosecution under §17-13-50 which provides that it is a criminal offense for an arresting officer not to inform the arrested person of the grounds of the arrest. It constitutes the charging paper in a magistrate or municipal court and informs the defendant of the charges against him. Finally in cases beyond the trial jurisdiction of the magistrate or municipal judge, it provides the necessary information to the solicitor from which the indictment may be drawn.
(1) The Complaint
A law enforcement officer may appear before a magistrate or municipal judge and "swear out a warrant" seeking the arrest of a person. Pursuant to §40-18-110, a security officer also has the right to sign an arrest warrant on a suspect that has committed an offense on the property the guard is contracted to protect. See 8-10-09 Op. Atty. Gen. This complaint must be in writing and under oath. The magistrate or municipal judge should remind the law enforcement officer the penalty for perjury attaches to all facts alleged in the affidavit and then administer an oath. For example:
"Do you swear or affirm that the information contained in this complaint is true, so help you God?"
The affidavit should then be completed by either the law enforcement officer or by the magistrate or municipal judge from the information given to him by the law enforcement officer. The affidavit itself must be signed by the law enforcement officer and the magistrate or municipal judge. Note that the affidavit is part of the arrest warrant and that §17-13-160 requires that all arrest warrants must be completed on forms prescribed and approved by the State Attorney General. All arrest warrants issued by magistrates and municipal judges must be on numbered forms distributed by S.C. Court Administration. They are generally disclosable to the public upon service of the warrant, because of requirements of the state Freedom of Information Act. (See 8-1-89 Op. Atty. Gen).
(2) Probable Cause Requirement
Before the magistrate or municipal judge may issue the arrest warrant for execution, he must determine whether or not there is probable cause to believe that the named defendant committed the alleged offense. It is at this stage that the magistrate or municipal judge must not only insure that the execution of the law is in proper form, but he must also exercise his independent judgment. The arrest warrant process should not be treated as a bureaucratic process in which the magistrate or municipal judge becomes merely a rubber stamp for the police. The magistrate or municipal judge should not allow himself to become an agent of the police. The primary purpose of the arrest warrant is to provide for an independent judicial officer. It is the judge, not the police officer or citizen, who decides whether the prosecutorial power of the state should be brought to bear against a person.
Both the Fourth Amendment of the U.S. Constitution and Article I, Section 10 of the S.C. Constitution protects every person from "unreasonable seizures." An arrest must be based on probable cause, otherwise it is an "unreasonable seizure." "Probable cause" may be defined as a substantial and objective belief that the person to be arrested committed the alleged offense. Probable cause does not mean an absolute certainty, but it is more than a mere suspicion.
Therefore, the magistrate or municipal judge must find within the complainant's affidavit enough information that will justify a reasonable belief that (1) a crime has been committed and (2) the person to be arrested committed the offense. The information in the affidavit must be such that the magistrate can make the determination of probable cause. That is, the affidavit must contain facts, not conclusions. For example, if the complainant merely says, "I swear under oath that Brian Smith stole an automobile," it is conclusory and insufficient.
In many instances, the law enforcement officer may rely on facts provided by an informant. Generally the magistrate or municipal judge should encourage the informant to appear and swear to the alleged facts under oath. If this is not feasible, the magistrate or municipal judge may accept the hearsay information if the complainant can show in the affidavit that the informant is reliable. Here again, the magistrate or municipal judge may not rely on a conclusory statement e.g., "I received information from an informant who is reliable." The complainant must provide the magistrate with facts upon which the magistrate may decide if the informant is reliable or not. (See Search Warrants for further discussion on hearsay affidavits).
Finally, probable cause must exist at the time the warrant is issued, i.e. ultimate proof of guilt will not cure the lack of probable cause at the time of issuance. See Prosser v. Parsons, 245 S.C. 493, 141 S.E.2d 342 (1965). Whether probable cause exists depends upon the totality of the circumstances surrounding the information at the officers disposal. State v. George, 323 S.C. 496, 476 S.E.2d 903 (1996), cert. Denied, 520 U.S. 1123 (1997).
If the magistrate or municipal judge determines that there is probable cause to believe the named defendant committed the alleged offense, then he may issue the warrant for execution.
In filling out the arrest warrant, the magistrate or municipal judge need not use precise legal language in describing the alleged offense. However, the description of the offense must be stated clearly so that the defendant will be informed of the charge(s) against him. Every element of the offense should be cited.
To avoid confusion, the magistrate or municipal judge should issue separate warrants for each defendant and for each offense. Also, the arrested person should be furnished a copy of the warrant and affidavit. (§22-5-210).
(2) Legal Principles
"Duplicity" in a warrant is the technical fault of uniting two or more offenses in the same count, or alleging that the accused has committed a crime in two or more inconsistent ways. The accused may make a motion before the magistrate to quash the warrant before entering his plea. Drunk driving cases in which the warrant follows the words of the statute would be a classic example of duplicity. To allege that the accused was "under the influence of intoxicating liquors, narcotic drugs, barbiturates," does not inform the accused as to which impairing substance the State is really intending to base its charge. Where the prosecution has evidence that the accused was under the influence of both liquor and another impairing agent, the charge must reflect this. It would be best to charge the use of each inhibiting agent in a separate count. W. Ledbetter on Magistrates (1976).
(b) Traffic Offenses
"Some offenses are without lesser included degrees, such as are found in certain common law crimes like assault and battery where the offenses may range from bodily violence with intent to kill to menacing gestures. On the other hand, traffic offenses do not have degrees of severity. For example, the magistrate or municipal judge begins trial with the accused charged on the warrant with drunk driving. Should the State introduce conclusive evidence that the accused was speeding, the drunk driving charge would not support it. Speeding is not a lesser included offense. To convict the accused of speeding would amount to a substitution of charges which is prohibited by law. 1966-67 Op. Atty. Gen. No. 2327, p. 151." Ledbetter on Magistrates, Id.
(c) Description of the Person
The arrest warrant must be in a form "particularly describing . . . the person . . . to be seized." (U. S. Const., Fourth Amendment; S. C. Const., Art. I, Section 10). Therefore, positive identification of the accused is necessary in the warrant. "John Doe Warrants" are not legally sufficient. However, the name of the accused is not required if he may be particularly described in such a way that he may be positively identified; leaving to the arresting officer no discretion to arrest more than one person. For example a warrant for the arrest of "a short man named 'Shorty'" would be too vague and therefore legally unacceptable.
The person accused must be identified to a moral certainty as the perpetrator of the criminal act. For example, a law enforcement officer observes an unidentified motorist driving in a reckless manner and gives pursuit. The motorist evades the officer but not until the officer has jotted down the car's license number. The law enforcement officer now comes to the magistrate or municipal judge seeking an arrest warrant for the owner of the car. Should it be issued? Has the driver's identification been established to a moral certainty? The magistrate has been made aware that a certain car was driven in a reckless manner, but what has been alleged which factually links the owner to the observed violation? Was the owner seen by a credible witness driving his car in the vicinity a short time before the officer gave chase? In short, other information is needed. The judge asked to issue the arrest warrant needs ownership plus some other relevant information. 1965-66 Op. Atty. Gen. No. 1969-A, p.360. Ledbetter on Magistrates, Id.
(d) Service of Arrest Warrant
Arrest warrants should be served within a reasonable time. Nevertheless, there is no statute of limitations on an arrest warrant. The Attorney General issued an opinion on August 5, 1996, which confirmed earlier opinions regarding the timeliness of an arrest warrant. The opinion stated:
[t]his office in a previous opinion . . . dated October 26, 1978, stated in part that ". . .once an arrest warrant is issued, such warrant does not 'grow stale' by virtue of an inability to immediately execute it." Therefore, all reasonable attempts should be made to serve any arrest warrant previously issued. However, of course, if it appears that upon the face of the warrant that service is no longer justified or if any additional facts are brought to your attention which would indicate that service is no longer proper, service should not be made. This is a determination that would have to be made as to each individual arrest warrant."
(e) Countersigning Warrant Issued by Magistrate from other County
Magistrates are at times requested to countersign a warrant issued by a magistrate from another county. When this situation arises, section 22-5-190 should be consulted. This section provides in subsection (A) "[a] magistrate may endorse a warrant issued by a magistrate of another county when the person charged with a crime in the warrant resides in or is in the county of the endorsing magistrate. When a warrant is presented to a magistrate for endorsement, as provided in this section, the magistrate shall authorize the person presenting it or any special constable to execute it within his county." Endorsement is discretionary. ". . . [w]hether or not such warrants shall be endorsed is entirely within the discretion of the magistrate, and he may not be required to do so." 1966-67 Ops. Att'y Gen., No. 2339, p.170.
The proper procedure to be used when a warrant is sent from one county to another for countersigning is as follows:
1. The warrant is sent to the magistrate having jurisdiction over the area in which the person may be found;
2. The warrant may be countersigned by the magistrate; See Atty. Gen. Op. cited above.
3. The warrant is then sent to the sheriff of the county of the countersigning magistrate for service on the person named in the warrant;
4. The warrant is served on the person;
5. The person named in the warrant is brought before the magistrate who countersigned the warrant. The magistrate should then contact the issuing magistrate to determine what action he or she wants done on the warrant. Depending on what action the issuing magistrates prefers, the countersigning magistrate may do either of the following:
(a) The magistrate may hold a bond hearing and release the person upon the condition he or she appear before the magistrate who originally issued the warrant to answer the charges in the warrant; or
(b) The person arrested shall be turned over to law enforcement officers of the county from which the warrant was originally issued who are empowered to return the person to the county involved.
(c) The countersigning magistrate has no jurisdiction to accept a plea on the offense or collect a fine/restitution.
The matter of countersigning a faxed copy or a certified copy of an arrest warrant is left to the discretion of the individual judge. An opinion of the Attorney General in 1991 addressed this matter. "There appears to be no authority which would absolutely prohibit countersigning of faxed copy of arrest warrant; such would remain matter for individual magisterial discretion. Although one disadvantage to endorsement of certified or faxed copy is that original warrant remains in circulation, giving potential for erroneous utilization at later time, in absence of any absolute prohibition against use of copies, it remains matter for individual discretion." 1991 Op Atty Gen, No 91-2, p-19.
(f) The Warrant at Trial
In a magistrate or municipal court, the arrest warrant constitutes the charging paper or trial document. The warrant is the formal document which informs the defendant of the charges. Honea Path v. Wright, 194 S.C. 461, 9 S.E.2d 924 (1940). While the warrant may not be amended after the trial has begun, it may be amended at any time prior to trial. (§22-3-720). However, if the warrant is amended prior to trial, the defendant must be given enough time in which to prepare a new defense, i.e. the magistrate or municipal judge must continue the case if the defendant is surprised by the amendment.
At trial the magistrate or municipal judge must find that the warrant charges an offense that is within his criminal trial jurisdiction, i.e. offenses punishable by imprisonment of not more than 30 days or by fine not exceeding $500, or both. In addition, at trial or preliminary examination, the magistrate or municipal judge must find that the violation was committed within his territorial jurisdiction.
A bench warrant is a form of process issued "from the bench" for the attachment or arrest of a person. Section 17-13-160 requires that all arrest and search warrants be in a form prescribed by the Attorney General. It is the opinion of the Attorney General that bench warrants ". . . not being arrest warrants per se, are not required to be in such form." (1978-79 Op. Atty. Gen. No. 78-179, October 31, 1978).
A bench warrant, regardless of its form, however, may not be used to initiate a criminal action. It is a form of process to be used to bring a defendant back before a particular court on a particular charge for a specific purpose after the court has acquired jurisdiction over the defendant on that particular charge by virtue of a previously served proper charging paper.
Common examples of instances where bench warrants might be issued are: 1) where the defendant, under recognizance, fails to appear; 2) where the defendant, under sentence, fails to properly pay a fine or otherwise comply with the sentence; 3) where the defendant, tried in his/her absence, must now be brought before the court to comply with the sentence and, 4) where a witness, having failed to respond to a subpoena, must now be brought before the court.
It should be noted that §38-53-70 provides that "[i]f a defendant fails to appear at a court proceeding to which he has been summoned, the court must issue a bench warrant for the defendant." Thus, while a bench warrant might be issued to bring the individual back into court to dispose of the original charge, it would be necessary to execute and issue a regular arrest warrant before a bench warrant could be issued for the defendant.
Bench warrants are generally disclosable to the public upon service of the warrant, unless issued in open court, when they should be disclosed upon issuance. (See 8-1-89 Op. Atty. Gen.).
The right of one state to demand of another state the return of a fugitive from its justice is controlled by Article IV, Section 2, Clause 2 of the U.S. Constitution and effectuating statutes. The Constitution provides:
A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.
In order for a state to invoke its constitutional right of extradition, all of the criteria in this provision must be present. The person sought must be formally charged with a crime in the demanding state. It is immaterial that the crime with which he is charged is not an offense in the state from which extradition is sought. (35 C.J.S. Extradition, §7). Also, he must have fled from the demanding state and be a fugitive from justice.
To constitute one a fugitive from justice from a given state, it is essential to show that at the time of the commission of the alleged crime in the demanding state he was bodily present, or incurred guilt therein and that he left it and is within the jurisdiction of the state from which his return is demanded, and that he refuses to return voluntarily to the former state. King v. Noe, 244 S.C. 344, 348, 137 S.E.2d 102 (1964).
In addition, the fugitive must be found in the state from which his extradition is sought.
To facilitate the apprehension of fugitives from other states, South Carolina has provided for the issuance of fugitive arrest warrants pursuant to §17-9-10.
Any officer in the state authorized by law to issue warrants for the arrest of any person charged with crime shall, on satisfactory information laid before him under the oath of any credible person that any fugitive in the state has committed, out of the state and within any other state, any offense which by the law of the state in which the offense was committed is punishable either capitally or by imprisonment for one year or upwards in any state prison, issue a warrant for such fugitives and commit him to jail within the state . .
The warrant must be "based upon an affidavit sworn to, setting forth the facts as of the personal knowledge of the affiant." (1940-41 Op. Atty. Gen. 171). A warrant issued upon an affidavit made "upon information and belief" cannot be honored (Ex Parte Murray and Harris, 112 S.C. 342, 99 S.E. 798) unless the source of the information is revealed "so that if the things recited were not true, the person making the affidavit would be guilty of perjury." (1940-41 Op. Atty. Gen. 171). The warrant "may also be based upon certified copy of Indictment, upon which a 'True Bill' has been returned by a grand jury." (1940-41 Op. Atty. Gen. 170).
Section 17-9-10 requires that the alleged crime be punishable by imprisonment for at least one year in the state in which it was committed. (1967-68 Op. Atty. Gen. No. 2524, p.214). If the offense is not punishable by imprisonment for one year, the warrant should not be issued and it is the duty of the issuing judge to ascertain the punishment. "It is suggested that you might be well advised to require a certified copy of the law of the state demanding the fugitive in every case so that you can make a determination as to whether or not a fugitive warrant can be issued." (1967-68 Op. Atty. Gen., Id.). Section 17-9-15 provides that upon demand of the executive authority of another state, the Governor of South Carolina may extradite a person in this state who is charged in another state with committing an act in this state or a third state which intentionally resulted in committing an offense in the requesting state. This section closes a loophole in South Carolina's Extradition Laws. Before this section was added, there was no authority for the state to extradite a person who solicited another person to commit a crime in another state since the South Carolina resident was not present in the other state at the time of the crime.
Any person arrested on a fugitive warrant has the right to be released "on bail as in cases of similar character of offenses against the laws of this state." (§17-9-10). When setting bail, the judge must compare the crime to a similar crime in South Carolina, and make the same considerations he would have made if that offense has been committed in this state. (See BAIL PROCEEDINGS). Any fugitive granted bail should be ordered to appear at the place and time specified in a notice from either the Governor's or Attorney General's office. Usually, the extradition hearing will be conducted in the Attorney General's Columbia office. Notice of the hearing will be by mail. Please see example of the applicable portion of the bond form as it should appear when completed as shown below.
If the fugitive is not entitled to bail, he may be committed to jail for twenty days unless the state seeking his return makes a demand before the expiration of the twenty days. If no demand is made within the twenty days, "the fugitive shall be liberated, unless sufficient cause be shown to the contrary." Section 17-9-10. Liberation does not mean that he is released absolutely and that the demanding state has abandoned its extradition efforts. It merely means that the fugitive is released from jail so as to prevent unreasonably long confinements pending receipt of the demand. Bolton v. Timmerman, 233 S.C. 429, 105 S.E.2d 518 (1958).
When a warrant issued pursuant to §17-9-10 is returned to the issuing judge upon the fugitive's arrest, the magistrate or municipal judge must "keep a record of the whole proceedings before him and immediately transmit a copy thereof to the Governor of this State." (§17-9-20). This requires that the magistrate or municipal judge file the original warrant and all other papers pertaining to the case in his office. The warrant and papers are not transmitted to the clerk of court because these cases cannot be disposed of in general sessions court and are not within that court's jurisdiction. Extradition cases are handled through the Governor's Office, with the assistance of the Office of the Attorney General, and it is the Governor who declares if the person will be extradited. Send copy of fugitive warrant and all related paperwork to: Angelica Ellerbe, 1205 Pendleton St., Columbia, SC 29201. Telephone number: (803) 896-2827, fax (803) 896-7048.
The laws of search and seizure are aimed at protecting a basic American right: the right to be left alone. The power of the state to interfere with a person's privacy was restricted by the framers of the Constitution. The most specific restriction is found in the Fourth Amendment of the U.S. Constitution which provides:
"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized." (See Article I, Section 10, S. C. Constitution for similar language).
Time and time again, the U.S. Supreme Court has stated that a warrantless search is per se "unreasonable." While there are certain narrowly defined exceptions to the search warrant requirement (infra), it is the general rule that a search warrant must be justifiably issued by a "neutral and detached" judicial officer. The purpose of the warrant requirement was enunciated in McDonald v. United States, 335 U.S. 451, at 455-456, 69 S.Ct. 191, 93 L.Ed. 153 (1948).
"We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was not done to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals."
The initial question to be answered in a Fourth Amendment problem is:
"Is the Fourth Amendment applicable?" Generally, the Fourth Amendment is intended to protect a person's expectation of privacy from government intrusion. Therefore, the Fourth Amendment does not bar a search and seizure, even an arbitrary one, effected by private party on his own initiative. It does, however, bar evidence resulting from such intrusions if the private party acted as an instrument or agent of the government. State v. Cohen, 305 S.C. 432, 409 S.E.2d 383 (1991). In addition, it has been found not to apply to open fields (Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 ), or to abandoned property or abandoned places (Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 688 ). The United States Supreme Court gave explicit approval to warrantless aerial surveillance of areas exposed to observation from above: 1) Fixed Wing Aircraft (Calif. v. Ciraolo, 476 U.S. 207 (1986), 2) Helicopters Fla. v. Riley, 499 U.S. 445 (1989).
The right to be secure against government intrusion is thought to be so essential that the U.S. Supreme Court has held that if government agents intrude upon a person or his property in an unreasonable manner, it is better to let that person go without being convicted (unless he can or could have been convicted with evidence other than that evidence which was unreasonably obtained) than it is to condone the intrusion by permitting the use of the evidence so obtained. This is known as the exclusionary rule. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Hill, 245 S.C. 76, 138 S.E.2d 829 (1964); State v. Baker, 251 S.C. 108, 160 S.E.2d 556 (1968).
There are exceptions to the exclusionary rule, however, among them:
(1) "Good Faith" exception. The Fourth Amendment exclusionary rule does not apply where evidence is seized in reasonable, good-faith reliance on a search warrant issued by a detached and neutral judge, and based on an affidavit which provides the magistrate with a substantial basis for determining the existence of probable cause. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Suppression of the evidence remains an appropriate remedy if:
(a) the judge issuing the warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for the affiant's reckless disregard of the truth; or,
(b) the judge wholly abandoned his judicial role so that no well-trained officer would rely on the warrant; or,
(c) the affidavit was so lacking in probable cause that belief in its truth was entirely unreasonable; or,
(d) the warrant was so deficient on its face (failing to particularize the place to be searched or things to be seized) that the police officers executing the warrant could not reasonably presume it to be valid. United States v. Leon, Id.
(2) "Independent Source" exception. This exception to the exclusionary rule allows the prosecution to use evidence that has been obtained by lawful means through an independent source, even though the same evidence was also discovered through unlawful means. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), cited in Nix v. Williams, 104 S.Ct. 2501 (1984) at p.2508.
(3) "Inevitable or Ultimate Discovery" exception. If the prosecution can establish by a preponderance of the evidence that the information obtained by illegal means ultimately or inevitably would have been discovered by lawful means, then the evidence may be admitted. Nix v. Williams, Id.
S.C. Code Ann. §17-13-160 requires that all search warrants be on a form prescribed by the Attorney General's office. As in the case of arrest warrants (supra), the affidavit is completed from information provided by the affiant. From this information, the magistrate or municipal judge must determine if there is probable cause to believe that particularly described seizable evidence is presently located at the particularly described location.
The initial step in the procedure is to place the affiant, usually a police officer, under oath. For example:
Do you swear or affirm that the information contained in this affidavit is true, so help you God?
The affiant should be reminded that the penalty for perjury will attach to all statements of fact found in the affidavit.
Upon an objective determination by the magistrate or municipal judge that there is probable cause, the warrant should be issued to any bonded law enforcement officer for execution. The warrant must be executed and an inventory of all seized items made within 10 days from the date of issuance. (§17-13-140). A copy of the warrant must be delivered to the person in charge of the premises by the officer and, if requested, a copy of the inventory must also be provided to the person. (§17-13-150).
Section §17-13-141 provides:
(a) Every judiciary official authorized to issue search warrants in this State shall keep a record along with a copy of the returned search warrant and supporting affidavit and documents for a period of three years from the date of issuance of each warrant. The records shall be on a form prescribed by the Attorney General and reflect as to each warrant:
(1) Date and exact time of issuance.
(2) Name of person to whom warrant issued.
(3) Name of person whose property is to be searched or, if unknown, description of person and address of property to be seized.
(4) Reason for issuing warrant.
(5) Description of article sought in search.
(6) Date and time of return.
(b) Any person who alters or fails to keep for the prescribed period of time the records, warrants and documents as provided for in subsection (a) shall be deemed guilty of a misdemeanor and, upon conviction, shall be punished by a fine not to exceed $100 or by imprisonment not to exceed 30 days. (See Forms)
The presumption of the Freedom of Information Act (FOIA) that disclosure of documents should be permitted does not apply to records of criminal investigations, of which search warrants are an integral part. The FOIA would legally permit a public official, who is custodian of the document or a copy of it, to refrain from disclosing search warrants, based upon his or her evaluation of the particular document or material. This decision is subject to judicial scrutiny by the circuit court. The custodian may disclose search warrants to the public if he or she deems it would not harm law enforcement or a criminal investigation. Law enforcement officials would be in the best position to assess any harm to a investigation. Op. Atty. Gen. dated August 1, 1989.
(2) Probable Cause Requirement
Many of the same points of law discussed under the Arrest Warrant section are applicable to search warrants. A search warrant may issue only upon a finding of probable cause. State v. Weston, 329 S.C. 287, 494 S.E.2d 801 (1997). A search is not reasonable unless there was probable cause to believe that the search would produce evidence of a crime or contraband. Probable cause is defined as a state of facts which would lead a man of ordinary care and prudence to believe that the object sought is presently located at the designated place. The standard is the same whether the search is with or without a warrant, but the constitutional provision and court decisions make it clear that a warrant is preferred, unless there is good reason for not taking the time to obtain the warrant.
A mere hunch, suspicion, guess or unfounded opinion that evidence or contraband will be produced by the search is not probable cause. The person seeking the search warrant must reasonably believe that the evidence or contraband is there, and must be able to point to facts which would create in any prudent and careful man a similar belief. However, if the affidavit standing alone is insufficient to establish probable cause, it may be supplemented by sworn oral testimony. State v. Adolphe, 314 S.C. 89, 441 S.E.2d 832 (1994). State v. Weston,329 S.C. 287 at 290, 494 S.E.2d 801 at 802 (1997). State v. Robinson, 335 S.C 620, 518 S.E. 2d 269 (Ct. App. 1999).
Probable cause as defined above must exist at the time of the search. Thus, a popular belief that seizable items were in a building sometime in the past does not constitute probable cause for a search unless there is a reasonable belief that the items are still there. Staleness of information establishing probable cause cannot be defined by arbitrary time limits. The question of staleness must be reviewed in light of all the circumstances. See State v. Baker, 251 S.C. 108, 160 S.E.2d 556 (1968). In other words, the observations upon which probable cause is based must have been made relatively recently in light of all the circumstances. In order for affidavit in support of search warrant to show probable cause, it must state facts so closely related to time of issuance of warrant as to justify finding of probable cause at such time; affidavit which fails altogether to state time of occurrence of facts alleged therein is insufficient. State v. Winborne, 273 S.C. 62, 254 S.E.2d 297 (1979).
The primary purpose of the search warrant is to provide for an independent judicial officer to objectively determine whether a search and seizure is justifiable.
The task of a magistrate when determining whether to issue a search warrant is to make a practical, common sense decision as to whether, under the totality of the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place. State v. Williams, 297 S.C. 404, 377 S.E.2d 308 (1989). The affidavit constitutes a permanent record of the facts upon which the magistrate bases his finding of probable cause, and thus all pertinent information should be contained on this form.
The magistrate or municipal judge, just as in the case of an arrest warrant, must insist that he be provided with the facts and not just the conclusions which the officer believes establishes probable cause. Regardless of the credibility of the officer, if the affidavit contains only conclusions, then the search warrant will be found to be invalid on its face and consequently all evidence seized on its authority may be excluded and the defendant may well go free regardless of his actual guilt.
Generally, personal knowledge and observations cannot be used as a basis for a search warrant when the facts were gained in violation of the Constitution (See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. ). For instance, an officer secretly enters the basement of a man reported to be a bootlegger, and while there he discovers several cases of moonshine. He cannot then obtain a warrant to seize the liquor on the grounds that he has seen it, because he knows of the liquor only through an unconstitutional intrusion. There are exceptions to the exclusionary rule, however, as noted previously.
In many situations, the officer seeking the search warrant will provide the magistrate or municipal judge with second-hand information, i.e., information provided by an informant. There is no prohibition against a magistrate or municipal judge using hearsay information in determining probable cause. However, it is generally recognized that anonymous informants are, for the most part, associated with the criminal sector of society. Consequently, they may not be the most trustworthy persons. Therefore, when dealing with a request for a search warrant involving the anonymous informant the magistrate or municipal judge must be very careful in reviewing the information and distinguishing between facts and conclusions. The purpose is to insure that the informant has provided you with facts, which if true, establish probable cause, rather than reciting to you conclusions which may be no more than "vicious rumors of the underworld."
An officer can rely on an informant's tip if the totality of the circumstances appears to verify the accuracy of the information. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The test which the judge must apply in determining whether probable cause exists to issue a warrant based on an informant's tip is whether the circumstances taken as a whole (the "totality of the circumstances"), provide a "substantial basis" for a finding of probable cause. Massachusetts v. Upton, 104 S.Ct. 2085 (1984). The "totality of the circumstances" test, is based upon "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Massachusetts v. Upton, supra, citing Brinegar v. United States, a 1949 U.S. Supreme Court case.
In conclusion, the magistrate or municipal judge must insist that the affiant provide him or her with all available facts and not merely recite all the facts from which the judge draws his conclusions. Most importantly, the judge, not the police officer, must make the determination of whether or not the sanctity of the threshold and the citizen's right to privacy must yield to the power of the state. The magistrate or municipal judge serves a high function, that of the independent judicial officer, and not that of mere bureaucrat rubber stamping the actions of law enforcement.
(3) The Particularity Requirement
Both the affidavit and the search warrant must particularly describe the place to be searched and the objects to be seized. It is inadequate if the descriptions are so general that the executing officer has discretion to search more than one place or seize more than that specifically intended. For example, if the place to be searched is an apartment, the apartment number as well as the address should be specified. Or for example, if the item to be seized is a gun, it must be described so as to distinguish it from other firearms that may be found.
The purpose of the particularity requirement is to prevent the issuance of general warrants which could be used for general exploratory searches. A search warrant cannot be issued for "the search and seizure of evidence of a crime." A search warrant cannot authorize a fishing expedition.
The search itself must be limited in its scope and intensity. That is, the search must be limited to those items specified in the warrant. If the warrant is for the search and seizure of "one Brand Y 25 inch color TV, serial #2541," the police must search only in those places of the specified location where such an item could be hidden, i.e., they could not search in desk drawers for a 25 inch TV set.
A search warrant allowing the government to obtain evidence from a suspect’s body is a search and seizure under the Fourth Amendment and, therefore, must comply with constitutional and statutory requirements. To secure a warrant for the acquisition of such evidence, the State must establish the following elements:
(1) probable cause to believe the suspect committed the crime;
(2) a clear indication that relevant evidence will be found; and
(3) the method used to secure it is safe and reliable.
The affidavit must set forth facts as to why the police believe the suspect whose DNA sought is the person who committed the crime. The affidavit must set forth the source of the facts alleged in it and must contain a statement that the information or its source is reliable. The State must show there is other DNA evidence in the case to which it can be compared, or in some other manner clearly indicate the relevance of the DNA sought. The magistrate must also consider the seriousness of the crime and the importance of the evidence to the investigation weighing “the necessity for acquiring the involuntary nontestimonial identification evidence against constitutional safeguards prohibiting unreasonable bodily intrusions, searches, and seizures.” See State v. Baccus, 367 S.C. 41, 625 S.E.2d 216 (2006) and State v. Jenkins, 398 S.C. 215, 727 S.E.2d 761 (S.C.App. 2012).
While the general rule is that a search warrant is necessary, there are certain strictly defined exceptions to the warrant requirement. They are: (1) The Automobile Exception, (2) Search Incident to a Lawful Arrest, (3) Consent Searches, (4) The Plain View Doctrine, (5) "Stop and Frisk" and (6) In a few other exceptional cases, e.g., "hot pursuit," border searches, and road blocks in kidnapping cases.
(1) The Automobile Exception
The automobile exception to the Fourth Amendment warrant requirement was first recognized in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 260, 69 L.Ed. 543 (1925). This exception allows law enforcement officers to conduct a search of an automobile based on probable cause alone due to the lessened expectation of privacy in motor vehicles traveling on the public highways. State v. Cox, 290 S.C. 489, 351 S.E.2d 570 (1986). Law enforcement agents' warrantless search, based on probable cause, of a fully mobile home located in a public parking lot, was proper under the "automobile exception" to the Fourth Amendment's warrant requirement. California v. Carney, 471 U.S. 386 (1985).
A recent case decided by the United States Supreme Court makes it clear that there is no separate exigency requirement for conducting a warrantless search of a vehicle based on probable cause. Maryland v. Dyson, 527 U.S. 465 (1999). In its ruling, the Court repeated that the automobile exception does not have a separate exigency requirement: "If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment. . . permits police to search the vehicle without more." Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (per curiam).
Nevertheless, where the police officer has knowledge of the automobile's location and there is no basis for believing it will be removed from that jurisdiction, it cannot be contended that it was impractical to obtain a search warrant prior to the search. The police may not deliberately create a situation in which fear of the automobile's removal is aroused so as to avoid the warrant requirement. When faced with a warrantless automobile search, the primary questions to be answered are:
(1) Was there opportunity to obtain a search warrant before the automobile was likely to disappear?
(2) Was there an opportunity and a basis on which to obtain a search warrant before the confrontation that led to the search of the automobile?
If the answer to either of these questions is "yes," or if the trial judge determines that the police officer did not have probable cause to believe the automobile contained evidence of a crime, then no evidence seized as a result of the search is admissible.
What if it is determined that a search of an automobile without a warrant is proper, under the Carroll, rule, and a search is made, but the contraband is not found in plain view (such as marijuana in clear, plastic bags, or uncased illegal weapons)? Suppose that there are closed containers located within the automobile which could contain the suspected contraband. Is search into the closed containers proper? The U. S. Supreme Court addressed this question in California v. Acevedo, 500 U.S.565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). It held that containers within vehicles are subject to warrantless searches if police have probable cause to believe the container holds contraband. See State v. McLaughlin, 307 S.C. 19, 413 S.E.2d 819 (1992).
There are, of course, limitations on the type of containers which might be searched, depending upon the type of contraband. No one would expect to find a stolen lawnmower in a briefcase, for example, so a search of a briefcase within an automobile in which a stolen lawnmower is probably located would not be proper. Similarly, a police officer should not search a suitcase looking for illegal aliens, and expect the fruits of his search into the suitcase to be admissible in evidence.
In addition, if there is probable cause to believe that contraband is located within a specific container, other containers within the automobile may not be searched. For example, if a police officer knew that counterfeit money was located in a leather briefcase, which had recently been delivered to the driver of the automobile after a "drop" at an airport, a search of a suitcase in the car would not be permissible.
The "Automobile Exception" to the search warrant requirement rule should not be confused with the "Search Incident to a Lawful Arrest Exception." Once a person has been lawfully arrested and taken under custody, the police may conduct a full search of the arrested person and the area within his immediate control, which may include portions of the automobile he is driving at the time of the arrest. For a discussion of the "Search Incident to a Lawful Arrest Exception" to the search warrant requirement rule, please read the following section.
(2) Search Incident to a Lawful Arrest
In Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the U.S. Supreme Court prescribed the permissible scope of a search after the individual has been lawfully arrested and taken into custody. Under such circumstance, the officer may conduct a full search of the person and the area within his immediate control. The object of such a search is to discover weapons that could be used against the officer and to discover evidence of a crime so as to prevent its concealment or destruction. The permissible area of search is the area from which the individual arrested might gain possession of a weapon or destructible evidence.
If the person arrested happens to be driving an automobile at the time of the arrest, the officer who makes the arrest may search the passenger compartment of the car. Closed containers within the arrested person's control may also be searched. This exception to the search warrant exists to protect the lives and safety of law enforcement officers, since the arrested person might reach for a weapon in that area within his control. It is important to note however, that the area which may be searched is limited to the space within the control of the arrested person. Therefore, an automobile trunk may not be searched under this exception to the requirement that a search warrant be obtained before a search is made. Neither may a locked glove compartment be searched under this exception. A search may be conducted incident to a lawful arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. State v. Brown, 289 S.C. 581, 347 S.E.2d 882 (1986). Furthermore, the United Supreme Court decided that in a situation where an officer issues a citation rather than makes a custodial arrest, the officer does not have the legal authority to conduct a full search of the vehicle. There is no recognized exception to the Fourth Amendment for "search incident to citation." Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484 (1998).
(3) Consent Searches
In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the U.S. Supreme Court held that a warrantless search is legal where the police were voluntarily given consent to do so. The Court stated that the test to be followed to determine the voluntariness of the consent is the "totality of the circumstances" test. All the factors surrounding the consent and search should be examined. Among the factors to be considered are the defendant's conduct, police coerciveness, and the setting in which the consent was given. Usually, consent to search without a warrant must be given by the person against whom the search is directed. However, a third party may consent to the search under any of the following circumstances: (1) where there is no reasonable expectation of privacy between the defendant and the third party; (2) where the third party consents to a search of his own property or that which he jointly owns, uses, or possesses; or (3) if the police act reasonably pursuant to consent given by a third party with apparent authority to give consent. However, there are two related areas of Fourth Amendment protection where consent is not needed for a warrantless search: (A) Supervisory Searches - The warrantless search of an employee's desk or file cabinet by a supervisor is reasonable if made for noninvestigatory, work-related purposes or to investigate work-related misconduct. O'Connor v. Ortega, 480 U.S. 709 (1987); (B) School Searches - the U. S. Supreme Court approved a warrantless search of a public school student by school authorities, by balancing the school's need to maintain safety, order, and discipline against the student's right of privacy. New Jersey v. T.L.O., 469 U.S. 325 (1985). School administrators and officials may conduct reasonable searches on school property of lockers, desks, vehicles, and personal belongings such as purses, bookbags, wallets, and satchels with or without probable cause. School principals or their designees may conduct reasonable searches of the person and property of visitors on school premises. Notice must be conspicuously posted on school property, at all regular entrances and any other access point to the school grounds. Searches conducted under provisions of these statutes must be reasonable as set forth in New Jersey v. T.L.O. S.C. Code §59-63-1120 through §59-63-1160.
Despite these exceptions to the consent rules, it has been held that a hotel clerk cannot consent to a search of a guest's room, Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); a landlord cannot consent to a search of his tenant's property, State v. Loftin, 276 S.C. 526, 275 S.E.2d 575 (1981); and a child may not consent to a search of his parent's home, People v. Jennings, 142 Cal. App. 2d 160, 298 P.2d 56 (1956).
(4) The Plain View Doctrine
The plain view doctrine is another exception to the warrant requirement of the Fourth Amendment. Evidence which is discovered while in plain view is admissible. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The plain view doctrine is applicable where a police officer is not searching for evidence against the accused but inadvertently comes across an incriminating object. State v. Culbreath, 300 S.C. 232, 387 S.E.2d 255 (1990). The plain view doctrine may operate in conjunction with other exceptions to the Fourth Amendment warrant requirement. For instance, the police may seize inadvertently discovered evidence while they are in "hot pursuit" of a fleeing suspect, or where the evidence was found during a limited search incident to an arrest. The police may not use the plain view doctrine to bypass the warrant requirement when they have prior knowledge that the evidence is located in a certain place. To be valid, the discovery must be truly accidental. Also, the police may not seize an object which is not incriminating on its face simply because they are suspicious of its legality. There must be some reasonable basis for their beliefs before such an object may be seized. Viewing court decisions, it appears that probable cause is the standard to be used in this situation. If the officer has a reasonable basis for believing the object is illegal, then it may be seized under the plain view doctrine if the other two conditions are met.
A motorist has no reasonable expectation of privacy in the vehicle identification number (VIN) located on his car's dashboard, even if objects on the dashboard prevent the VIN from being observed from outside he car. Where a car has been lawfully stopped, a police officer may reach into the car to remove papers that prevented the officer from viewing the VIN. In doing so, the officer was positioned so as to make a lawful "plain view" seizure of a gun protruding from underneath the driver's seat. New York v. Class, 475 U.S. 106 (1986).
(5) The "Stop and Frisk" Exception
The "Stop and Frisk" exception to the Fourth Amendment warrant requirement is discussed in the U.S. Supreme Court decision of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This exception is based on the police officer's need for self-protection. A police officer may stop and briefly detain a person for investigative purposes when the officer has a reasonable suspicion supported by articulable facts that the person stopped may be armed and dangerous. The officer must be able to point to specific reasonable inferences justifying the frisk. If these conditions are met, the officer may "pat down" the individual so as to discover and remove weapons. The pat down search is limited to the outer garments of the person unless the officer feels an object which might be a weapon, in which case he may reach into the garment and retrieve the object. The officer may not, under any circumstances, use this exception as a pretense for a general exploratory search of the individual. This exception is only to be used as a means of protecting the officer from possible harm.
(6) The Plain-Touch Doctrine
A case decided in 1998 by the South Carolina Court of Appeals, State v. Smith, 329 S.C. 550, 495 S.E.2d 798, (S.C. App. 1998), held that a police officer's warrantless seizure of a baggy containing crack cocaine from the defendant's jacket pocket, made during the initial pat-down search for weapons following a valid Terry stop for a traffic violation, was justified under the "plain-feel" doctrine. The officer, who had 11 years of law enforcement experience, observed a bulge in the defendant's jacket pocket and squeezed the outside of his jacket and determined immediately, without additional squeezing or manipulation, that the object was a baggy containing contraband. When the officer questioned the defendant about the object, the defendant responded that it was "his reefer."
The Court of Appeals upheld the trial judge's denial of Smith's Motion to Suppress the evidence found in the search of Smith. The trial judge found the weapons pat-down was proper under Terry. The trial judge also concluded that the officer "lawfully seized the drugs--a marijuana cigarette which contained crack cocaine rolled up in it and a bag containing 4.72 grams of crack cocaine-- in accordance with the 'plain touch' doctrine and Smith's admission that he possessed illegal drugs."
The court determined that the officer detected the drugs during the initial pat-down search for weapons and did not have to conduct a further search. Because of the officer's years of experience in law enforcement, he knew by the touch and feel that it was some kind of narcotic, and the defendant, Smith, also admitted to the officer that the object in his pocket was contraband.
(7) "Hot Pursuit" or Exigent Circumstances
The exigent circumstances doctrine is an exception to the Fourth Amendment's protection against searches conducted without prior approval by a judge or magistrate. The doctrine recognizes that warrantless entry by criminal law enforcement officials may be legal when there is a compelling need for official action and no time to secure a warrant. State v. Brown, 289 S.C. 581, 347 S.E.2d 882 (1986) quoting Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). Thus, where officers are in "hot pursuit" of a suspect and that suspect hides behind closed doors, the police are justified in entering the premises and making as extensive a warrantless search as is required to insure their safety and the safety of others involved. This exception would, of course, apply where the safety of a kidnap victim is at stake.
"Exigent circumstances" were found where officers entered a laundromat with the expectation of discovering illegal drug activity. A person placed a small plastic bag in his pocket and run to the rear door; however, the door was locked. The person appeared to remove something from his pocket and place it in his mouth. The officers seized him and searched his mouth. During the search, the suspect threw the plastic bag on the floor. The court found "exigent circumstances" make it probable that unless the search had been made, the evidence would have been destroyed. For "exigent circumstances" to exist the officers must have probable cause to believe that evidence was being disposed of, and a clear indication that the evidence will be found. State v. Dupree, 319 S.C. 454, 462 S.E.2d 279 (1995).
The defendant may, at any time prior to or during trial, object to the introduction of evidence which he alleges resulted from an unconstitutional search and seizure. When a defendant moves to suppress evidence on constitutional grounds, the magistrate should hear the issue outside the presence of the jury if there is one. The jury should never know of the existence of the evidence if the magistrate determines that it should be suppressed. If there is no jury, and the magistrate or municipal judge suppresses the evidence, then he is obligated not to consider the evidence in determining the issue of the defendant's guilt. Jackson v. Denno, 378 U.S. 368, 84 S.Ct., 1774, 12 L.Ed.2d 908 (1964). The primary principle is that if evidence is unconstitutionally obtained, it may not be used against the defendant. This is the so-called exclusionary rule. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
The defendant's first hurdle in an effort to suppress evidence is to establish his standing to object. One who seeks to have evidence suppressed on this basis must establish that his own Fourth Amendment rights were violated. United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). These are personal rights which may not be asserted vicariously. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The defendant who seeks to suppress evidence on Fourth Amendment grounds must demonstrate a legitimate expectation of privacy in connection with the searched premises in order to have standing to challenge the search.
In Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed.2d 1247 (1968), it was recognized that the defendant may be faced with an unfair constitutional dilemma. That is, the defendant may have a valid objection to the search and seizure, but will be forced to admit his possessory interest in the evidence so as to have standing. The defendant should not be forced to incriminate himself so as object to an illegal search and seizure. Therefore, it was held in Simmons that the defendant's testimony at the suppression hearing may not be used against him at trial on the issue of guilt. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L Ed.2d (1960), provided that an accused has automatic standing to object to the constitutionality of a search and move for suppression when charged with an offense in which the possession of the evidence to be introduced is an essential element of the crime. The U.S. Supreme Court in United State v. Salvucci, supra., overruled the automatic standing rule of Jones. Justice Rehnquist, writing for the majority, reasoned that an automatic standing rule would permit a defendant to assert a Fourth Amendment claim to which he is not entitled.
(3) Burden of Proof
The burden of proving that the evidence was or was not legally seized will rest on the prosecution or defendant depending upon whether or not there was a warrant. If there was no warrant, the prosecution must show by a preponderance of the evidence that the search and seizure falls within one of the recognized exceptions to the warrant requirement. If there was a warrant, the defendant must show by a preponderance of the evidence that the search and seizure were conducted under an invalid search warrant or that the valid warrant was improperly executed by the police officer.