What are your rights during a police search in South Carolina?
What happens if you do not consent to a search and the police search anyway? In this article, we will cover the basics of search and seizure laws, including a summary of your Fourth Amendment rights during:
- A police search of your car or other vehicle,
- A police search of your home,
- A police search of your person, and
- When police search without a warrant or probable cause.
What Are My Rights During a Police Search in South Carolina?
The Fourth Amendment to the US Constitution and Article I, Section 10 of the South Carolina Constitution are the only things that prevent law enforcement from searching your person, your vehicle, or your home whenever they want.
Police are trained in Fourth Amendment law – they learn how to get around the Fourth Amendment so they can search you without having any evidence they find excluded in court.
You too should know what your rights are – because, if you don’t use them, we will all lose them.
What Are My Fourth Amendment Rights?
The Fourth Amendment to the US Constitution says:
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 Courts have said that this means you have the right to:
- Freedom from searches of your person or property unless there is probable cause that evidence of a crime will be found,
- Freedom from seizure of your person or property unless there is probable cause that you have committed a crime or that the property is evidence of a crime,
- Have a “neutral” judge determine whether probable cause existed before a warrant is issued,
- A warrant that particularly describes the place that will be searched, the evidence that will be seized, or the person who will be arrested, and
- Have a “neutral” judge determine – after the search or seizure – whether probable cause existed when a search or seizure falls within one of the exceptions to the warrant requirement.
Of course, there are many, many exceptions to the warrant requirement, and there are even exceptions to the probable cause requirement where police are permitted to conduct limited searches based only on reasonable suspicion.
What Rights Do I Have Under the South Carolina Constitution?
Article I, Section 10 of the South Carolina Constitution contains similar provisions, but adds an explicit right to 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.
South Carolina’s appellate courts have interpreted the additional right to privacy found in the South Carolina Constitution as giving South Carolina citizens greater protections above and beyond the protections of the Fourth Amendment.
For example, in State v. Forrester, the South Carolina Supreme Court held that, under the South Carolina Constitution, suspects are entitled to limit the scope of their consent to search – when a woman held open her pocketbook for police to look inside, that did not give police the right to take the pocketbook and conduct a more thorough search of it.
What Are My Rights During a Police Search of My Vehicle?
We’ve all probably seen the Youtube videos of people “standing on their rights” by rolling up their car window, refusing to open their car door, and demanding to see a warrant when a police officer asks them to step out of the vehicle.
These videos are not only wrong, but they are also dangerous.
First, police do not need a warrant to search you or your vehicle if there is probable cause for the search. Although you can challenge the search later in the courtroom, the “motor vehicle exception” to the search warrant requirement says that police can search you and your vehicle if there is probable cause that evidence of a crime will be found.
In some situations, they don’t even need probable cause, and they can conduct a limited search based only on reasonable suspicion.
Second, the US Supreme has also said that police have the right to ask you to step out of the vehicle – with or without probable cause – for the officer’s safety (see Pennsylvania v. Mimms).
What should you do during a traffic stop if police are asking to search your vehicle?
- Roll down your window and talk to the officer,
- Be polite and stay calm,
- Step out of the vehicle if the officer requests it,
- Do not consent to any search of your person or vehicle, and
- Ask the officer – repeatedly if necessary – if you are free to go, but
- Do not interfere if the officer decides to search without your permission.
Do not engage in “small talk” with the officers, do not say anything that could be interpreted as consent to search, politely tell them you do not want to answer any questions, but, again, do not interfere if they decide to search anyway.
What Are My Rights During a Police Search of My Home?
Police need a search warrant before they search your residence (or motel room or campsite), but many, many exceptions would allow them to search without first getting a warrant.
If the police have a search warrant, they should show it to you before they begin searching. As with a police search of your vehicle, do not answer any questions, do not consent to the search or say anything that could be later construed as consent to search, do not engage in “small talk” with the officers, and do not interfere if they have a search warrant or if they search without your permission.
What Are My Rights During a Police Search of My Person?
As with a home search, police need a warrant before they can search your person – unless there is an exception to the search warrant requirement – for example, if you are in an automobile.
Police can also do a “Terry frisk” or “pat down” based only on a reasonable suspicion that you have a weapon on your person.
Do not answer questions, do not consent to any searches, but be polite and do not interfere if the police decide to search you without consent.
What if the Police Search Without Probable Cause?
If police search your vehicle, person, or property without probable cause or a warrant when one is required, and if you are charged with a crime based on the evidence discovered, you can challenge the search later and ask the court to exclude any evidence that was discovered during the illegal search.
If you are not charged with a crime, depending on the circumstances, you may also have a lawsuit against the police under 42 USC § 1983 for violating your Fourth Amendment rights.
Questions About Search and Seizure Laws in South Carolina?
If you have been charged with a crime based on evidence found during a search of your person, vehicle, or property, get help from an experienced South Carolina Fourth Amendment defense attorney immediately – before you make any statements or talk to the police.
The criminal defense lawyers at Seaton Law Office will investigate the allegations, answer your questions, and do everything legally and ethically possible to get your case dismissed, get incriminating evidence excluded, win your case at trial, or find a resolution that is fair and reasonable.
Call 843-761-3840 or use this form to contact us today to discuss your case and start working towards the best possible outcome for you.
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