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I.       INTRODUCTION

  A. THE FOURTH AMENDMENT

  B. THE WARRANT REQUIREMENT

  C. PROBABLE CAUSE

  D. NEUTRAL, DETACHED MAGISTRATE

  E. OATH OR AFFIRMATION

  F. PARTICULAR DESCRIPTIONS

  G. PROCEDURAL REQUIREMENTS




  A.       THE FOURTH AMENDMENT

  Any discussion of the law regarding search and seizure must begin with the Fourth Amendment to the United States Constitution, which reads as follows:

  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 Warrants 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.

  The language of the South Carolina Constitution, Article I, Section 10 is almost identical:

  Section 10.  Searches and seizures; invasions of privacy.

  The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained. (1970) (56) 2684; (57) 315.)

 
  B. THE WARRANT REQUIREMENT

  The first and foremost principle affecting development and interpretation of Fourth Amendment law is the warrant requirement. While not explicitly written into the Constitution, it is perhaps best stated in the oft-quoted passage from a United States Supreme Court decision:

  Searches conducted outside the judicial process, without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions. Katz v. United States, 389 U.S. 347 (1967)

  Because of this presumption against the validity of warrantless searches, an examination of the constitutionality of any specific search first must consider whether a warrant was obtained. If a warrant was obtained its constitutional validity may also be challenged.

  While there remains a number of exceptions to the warrant requirement, they are not within the scope of this discussion. The focus here is on those issues which are grounded in the Fourth Amendment and affect the validity of a search warrant.

 
  C. PROBABLE CAUSE

  The clearest expression within the Fourth Amendment is that which states that "no warrant shall be issued but upon probable cause...." The probable cause standard has been defined by the Court as "…facts and circumstances within their knowledge, and of which they had reasonably trustworthy information ... sufficient in themselves to warrant a man of reasonable caution in the belief...." Brinegar v. United States, 338, U.S. 160 (1949), "in dealing with probable cause... we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Carroll v. United States, 267 U.S. 132, at 162 (1925). For a warrant to be valid it must be supported by facts and circumstances which amount to probable cause.

  A detailed discussion of the officer's statement of probable cause is set forth at page 16.

 
  D. NEUTRAL, DETACHED MAGISTRATE

  Equally important is the Supreme Court's conclusion that the determination of probable cause must be made by a "neutral and detached magistrate instead of being judged by the officer who is engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, at 13-14 (1948).

  The following individuals do not meet the requirement of "neutral and detached"; a police officer, solicitor, state attorney general or justice of the peace who receives a fee for each warrant issued. There is no reflection on the credibility or integrity of these individuals, but only on their capacity to be objective.

  In South Carolina officials authorized to issue search warrants are identified in S.C. Code 17-13-140:

  Any magistrate or recorder or city judge having the powers of magistrates, or any judge of any court of record of the State having jurisdiction over the area where the property sought is located, may issue a search warrant…

All of these individuals are "neutral and detached magistrates."

  Because the magistrate has the responsibility for determining the existence of probable cause, he may do so only when the "facts or circumstances presented to him under oath or affirmation" support that conclusion. Nathanson v. United States, 290 U.S. 41 (1933).

 
  E. OATH OR AFFIRMATION

  The requirement for an oath or affirmation is explicitly set forth in the Fourth Amendment. The original idea was to impress upon the person providing the information to the magistrate the seriousness of his act and perhaps invoke whatever concerns that individual might have concerning divine wrath. From a practical standpoint, the rule allows perjury to be charged if false allegations are made. The potential for divine and judicial wrath hopefully encourages truthfulness.

 
  F. PARTICULAR DESCRIPTIONS

  Finally, a valid Fourth Amendment warrant must meet the standard of "particularly describing the place to be searched, and the persons or things to be seized." This requirement has the effect of establishing the scope of a search. By describing the place to be searched, the warrant directs the officer to the area where seizable items are believed to be. By further describing the item or items to be seized from within the area the warrant determines the intensity and duration of the search. The search may extend into- and must be limited by- the places wherein the items described in the warrant could reasonably be located. Once those items have been seized, the authority to search under the warrant is over. A detailed discussion of particular descriptions follows at page 10.

 
  G. PROCEDURAL REQUIREMENTS

  The language of the Fourth Amendment is not complex in its description of what is required to obtain a warrant. It states: "…no Warrants 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." In addition, there are procedural requirements as set forth in S.C. Code §17-13-140:

  § 17-13-140. Issuance, execution and return of search warrants for property connected with the commission of crime; inventory of property seized.

  Any magistrate or recorder or city judge having the powers of Magistrates, or any judge of any court of record of the State having Jurisdiction over the area where the property sought is located may issue a search warrant to search for and seize (1) stolen or embezzled property; (2) property, the possession of which is unlawful; (3) property which is being used or has been used in the commission of a criminal offense or is possessed with the intent to be used as the means for committing a criminal offense or is concealed to prevent a criminal offense from being discovered; (4) property constituting evidence of crime or tending to show that a particular person committed a criminal offense; (5) any narcotic drugs, barbiturates, amphetamines or other drugs restricted to sale, possession or use on prescription only, which are manufactured, possessed, controlled, sold, prescribed, administered, dispensed or compounded in violation of any of the laws of this State or of the United States. Narcotics, barbiturates or other drugs seized hereunder shall be disposed of as provided by §44-53-520.

The property described in this section, or any part thereof, may be seized from any place where such property may be located, or from the person, possession or control of any person who shall be found to have such property in his possession or under his control.

A warrant issued hereunder shall be issued only upon affidavit sworn to before the magistrate, municipal judicial officer, or judge or a court of record establishing the grounds for the warrant. If the magistrate, municipal judge, or other judicial officer above-mentioned is satisfied that the grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. In the case of a warrant issued by a magistrate or a judge of a court of record, it shall be directed to any peace officer having jurisdiction in the county where issued, including members of the South Carolina Law Enforcement Division, and shall be returnable to the issuing magistrate. In case of a warrant issued by a judge of a court of record, it shall be returnable to a magistrate having jurisdiction of the area where the property is located or the person to be searched is found. If any warrant is issued by any municipal judicial officer to municipal police officers, the return shall be made to the issuing municipal judicial officer. Any warrant issued shall command the officer to whom it is directed to forthwith search the person or place named for the property specified.

Any warrant issued hereunder shall be executed and return made only within ten days after it is dated. The officer executing the warrant shall make and deliver a signed inventory of any articles seized by virtue of the warrant, which shall be delivered to the judicial officer to whom the return is to be made, and if a copy of the inventory is demanded by the person from whose person or premises the property is taken, a copy of the inventory shall be delivered to him.

This section is not intended to and does not either modify nor limit any statute or other law regulating search, seizure, and the issuance and execution of search warrants in circumstance for which special provision is made.