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Search warrant defenses

Chalreston Criminal Defense Attorney
Dale Savage Law Firm, LLC > Criminal Defense  > Search warrant defenses

Search warrant defenses

Search warrant Defenses

Challenging Probable cause

A magistrate must conclude that probable cause exists before issuing a search warrant, but probable cause does not mean absolute certainty. Magistrates are concerned with probabilities and not certainties.

The evidence contained in the affidavit need not be sufficient to support a conviction, or a verdict of guilty, or to establish guilt beyond a reasonable doubt, nor need the proof be positive. It is enough if the evidence is such as to induce in the mind of the issuing officer an honest belief that the facts set forth exist, or as would lead a man of prudence to believe that the offense has been committed. State v Williams, 262 S.C. 186, 203 S.E.2d 436 (1974).

What is Probable Cause?

Probable cause is a good faith belief that a person is guilty of a crime when this belief rests on such grounds that would induce an ordinarily prudent and cautious person, under the circumstances, to believe likewise. Wortman v. City of Spartanburg, 310 S.C. 1, 425 S.E.2d 18 (1992).

The standard for probable cause to conduct a warrantless search is the same as that for a search with a warrant: a justifiable determination, based on the totality of the circumstances and in view of all the evidence available to the police at the time of the search, that there exists a practical, nontechnical probability that a crime is being or has been committed and incriminating evidence is involved. State v. Bultron, 318 S.C. 323, 457 S.E.2d 616 (Ct. App. 1995); State v. Peters, 271 S.C. 498, 248 S.E.2d 475 (1978).

An affidavit is defective if it does not set forth any facts as to why the police believed the suspect had committed a crime, but rather merely makes conclusory statements. State v. Weston, 329 S.C. 287, 494 S.E.2d 801 (1997); State v. Baccus, 367 S.C. 41, 625 S.E.2d 216 (2006) (where officer didn’t recall supplementing affidavit with further information).

A magistrate’s action cannot be “a mere ratification of the bare conclusions of others.” State v. Smith, 301 S.C. 371, 392 S.E.2d 182 (1990).

Exceptions to the search warrant Requirement:

  1. Search incident to arrest;
  2. Hot pursuit;
  3. Stop and frisk;
  4. Automobile exception;
  5. Plain view doctrine;
  6. Consent;
  7. Abandonment;
  8. Exigency

State v. Griffin, 273 S.C. 723 (1979)

There is no “murder scene exception” to the Warrant Clause, although the police may make warrantless entries onto premises if they reasonably believe a person is in need of immediate aid and may make prompt warrantless searches of a homicide that recently occurred there. Flippo v. West Virginia, 528 U.S. 11 (1999); Mincey v. Arizona, 437 U.S. 385 (1978).

Statutory Violation

When a search warrant is defective under S.C. Code Section 17-13-140, seized items may be admitted under the good faith rule of State v. Sachs, 264 S.C. 541, 216 S.E.2d 501 (1975), which requires the officers to have made a good faith attempt to comply with the affidavit requirement.

When the State is unable to demonstrate a good faith attempt to comply with Section 17-13-140, the evidence should be excluded. Id. (there was no good faith effort to comply with Section17-13-140 where the two officers seeking the warrant were aware of the requirement for an affidavit to support the search warrant, but made no effort to comply with the statute).

The good faith exception does not apply if the underlying affidavit does not include sufficient information to allow a magistrate to determine probable cause. State v. Adolphe, 314 S.C. 89, 441 S.E.2d 832 (1994).

Good Faith Exception

When a search warrant is defective on Fourth Amendment grounds, the good faith exception to the exclusionary rule allows for the admissibility of evidence seized upon reasonable reliance (using an objective test) on a warrant issued by a neutral magistrate that was ultimately found to be invalid. The reason for this exception is that the exclusionary rule was designed to deter police misconduct, not to punish a magistrate’s errors. U.S. v. Leon, 468 U.S. 897 (1984).

This exception to the exclusionary rule does not apply when a search warrant is defective on the basis of a statutory violation (i.e., where it is not based on a written affidavit), rather than on Fourth Amendment grounds. State v. McKnight, 291 S.C. 110, 352 S.E.2d 471 (1987).

Charleston Criminal Defense Attorney

If you have a South Carolina search warrant issue in your case call today at (843) 530-7813 to speak with an experienced Charleston criminal defense attorney about your arrest, the consultation is free and all discussions are confidential.

Dale Savage

dale@dalesavage.com

The Dale Savage Law Firm focusses on Criminal Defense, DUI, and Personal Injury. We are located in historic Charleston, South Carolina. Call (843) 530-7813.

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