Saturday, January 30, 2010

Warrantless Searches Coming to South Carolina?

Yesterday the Post & Courier ran a story about S.191, a bill making its way (yet again) through the General Assembly.  Essentially, S.191, which is titled the "South Carolina Reduction of Recidivism Act of 2009," would amend the current code to require (yes, require, not merely allow) parolees, probationers, furloughees, and essentially all other participants in early-release programs (including juveniles) to sign a document submitting themselves to warrantless searches for the duration of their early-release program, notwithstanding whether cause even exists.

Well, of course, the bill wouldn't allow unrestricted warrantless searches of the released offender's residence though, right?  Wrong, at least according to the bill in its original form.

Fortunately, Rep. Keith Kelly's amendment to the bill has tempered the language at least somewhat by removing the language allowing warrantless searches of released offenders' residences.  Additionally, the Kelly Amendment would waive the warrantless search condition for offenders convicted of Class C misdemeanors or unclassified misdemeanors with prison terms of one year or less.  However, the amended bill would still allow warrantless searches of the released offender's person, any vehicle the offender owns or is driving, and "any of the [offender's] possessions."

This bill should raise questions in the minds of South Carolina criminal defense lawyers.

(1) What is the scope?  The text of the bill doesn't offer any kind of guidance regarding the "any possessions" language.  What if the possessions are in the offender's house?  Can the police enter the house without a warrant to search possessions located inside?  For that matter, what if the possessions are inside someone else's house?  Could the police enter the home of an offender's friend where the offender left a backpack?  The breadth of this provision seems limitless.

(2) How is this law supposed to reduce recidivism?  The Post & Courier article quotes Charleston Police Chief Greg Mullen as saying that the bill targets "the violent, repeat offenders who are victimizing the community on a continuing basis while they are out on probation and parole."  If that's true, then why is the bill essentially an across-the-board measure?

(3) Would the bill survive a constitutional challenge?  I would expect this law would be challenged very quickly under the Fourth Amendment.  In the "whereas" section of the bill, there are listed a few Supreme Court cases that the bill's authors apparently think support the bill's constitutionality.  It seems odd, however, that the sponsoring legislators would find it necessary to include supporting case law in the text of the bill itself.  I admittedly do not have in-depth knowledge of the cases listed in the bill, but my limited understanding is that none of them can be stretched to these lengths.

I'd be very interested to see this law challenged in court, and I'll be watching to see how it's utilized, if passed.

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