Did South Carolina’s evidence-preservation law require police to keep an impounded car after searching it?

Plain-English summary

In 2020, the South Carolina Attorney General said a vehicle processed under a search warrant for one of the offenses listed in the Preservation of Evidence Act might itself count as physical evidence. It rejected a categorical assumption that only samples collected from the car needed preservation. Whether a particular vehicle qualified was for local authorities, including the solicitor or prosecutor, to evaluate.

If the vehicle was evidence, the opinion said the custodian had to preserve it using customary forensic methods. It discussed sampling, swabbing, and photographs as possible ways to gather and retain admissible evidence consistent with evidentiary and chain-of-custody rules. The act also allowed a custodian to seek a court order for disposition before the normal period expired when, among other grounds, evidence had to be returned to its owner or its size made retention impracticable.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Was every impounded car automatically evidence under the act?
A: No. The AG said a car searched for a covered offense might qualify; local authorities had to review the particular case.

Q: Could police always return a vehicle once a search was finished?
A: The opinion said preservation duties could prevent release when the vehicle itself was physical evidence.

Q: Did the act provide a way to dispose of bulky evidence early?
A: Yes. The opinion identified a court-order procedure that could apply when the evidence needed return to its owner or its physical character made retention impracticable.

Background and statutory framework

The opinion applied the Preservation of Evidence Act to a sheriff's question about impounded vehicles searched in investigations of listed crimes. It distinguished determining whether the car itself was physical evidence from selecting lawful preservation techniques and from asking a court for early disposition.

Citations and references

The opinion applied S.C. Code § 17-28-320(A)'s preservation requirement and S.C. Code § 17-28-310(9)'s definition of physical evidence to the sheriff's vehicle question.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-3-2020-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2020/08/02346734.pdf

Original opinion text

Alan Wilson
Attorney General

August 3, 2020

The Honorable Charles Wright, Sheriff
Spartanburg County
P.O. Box 771

Spartanburg, SC 29304

Dear Sheriff Wright:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter asks the following: I am requesting an opinion from your office on the "DNA Preservation Act," S.C. Code Ann. § 17-28-300.

The specific questions has. to do with vehicles that are impounded at the Sheriffs Office impound and a search warrant is executed on the car to process it for a crime to collect evidence. We understand that "The Act" requires items that we take into evidence for the twenty-four listed crimes that may yield biological evidence will be maintained for the specified period as defined in "The Act." In an example where a vehicle is towed, so that it can be processed with a search warrant, is the vehicle considered "evidence" as defined in "The Act?" It is our

belief that a vehicle would fall under the same general category as a residence or other structure, where any evidence that is collected during the execution of the search warrant would be the evidence that is to be maintained.

We would like to be able to retum vehicles that we impound to the owners, lien holders, or other interested parties once they have been processed completely. These parties normally have a financial stake in these vehicles, and some ofthem have that as their only mode oftransportation. Law/Analysis

If a vehicle is processed according to a search warrant for one of the twenty-four listed crimes in S.C. Code § 17-28-320(A), such a vehicle may well be considered "physical evidence."

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The Honorable Charles Wright
Page 2

August 3, 2020

S.C. Code § 17-28-310(9). This Office's June 17, 2015 opinion explained the "Preservation of Evidence Act's" (the "Act") statutory scheme as follows:

Section 17-28-320(A) of the South Carolina Code specifies what evidence must

be preserved and by whom. Specifically, it provides that "[a] custodian of evidence must preserve all physical evidence and biological material related to the conviction or adjudication of a person for at least one of the following offenses ...
[the designated twenty-four offenses follow]." S.C. Code Ann. § 17-28-320(A) (2014) (emphasis added). Subsection (B) of Section 17-28-320 provides the

conditions for preservation, stating that:
[t]he physical evidence and biological material must be preserved: (1) subject to a chain of custody as required by South Carolina law; (2) with sufficient documentation to locate the physical evidence and biological material; and (3) under conditions reasonably designed to preserve the forensic value of the physical evidence and biological material. S.C. Code Ann. § 17-28-320(B) (2014). Subsection (C) of the same section relates to the length of time physical evidence and biological material must be preserved, providing that:

[t]he physical evidence and biological material must be preserved until

the

person

incarcerated,

or

is

released

from

is

executed

for

incarceration,

the

offense

dies

while

enumerated

in

subsection (A). However, if the person is convicted or adjudicated on a guilty or nolo contendere plea for the offense enumerated in subsection (A), the physical evidence and biological material must be preserved for seven years from the date of sentencing, or until

the person is released from incarceration, dies while incarcerated, or is executed for the offense enumerated in subsection (A), whichever comes first. S.C. Code Ann. § 17-28-320(C) (2014).

Being that the Act applies to "custodians of evidence" for the preservation of all "physical evidence" and "biological material," the definitions provided for these terms in the Act follow. S.C. Code Ann. § 17-28-310(2) (2014) defines the term "custodian of evidence" as:

...an agency or political subdivision of the State including, but not limited to, a law enforcement agency, a solicitor's office, the

The Honorable Charles Wright
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August 3, 2020

Attorney General's office, a county clerk of court, or a state grand jury that possesses and is responsible for the control of evidence during a criminal investigation or proceeding, or a person ordered

by a court to take custody of evidence during a criminal
investigation or proceeding.

"Biological material" is defined as "any blood, tissue, hair, saliva, bone, or semen from which DNA marker groupings may be obtained. This includes material catalogued separately on slides, swabs, or test tubes or present on other evidence including, but not limited to, clothing, ligatures, bedding, other household material, drinking cups, or cigarettes." S.C. Code Ann. § 17-28-310(1) (2014).

And, the term "physical evidence" is defined as "an object, thing, or substance that is or is about to be produced or used or has been produced or used in a criminal proceeding related to an offense enumerated in 17-28-320, and that that is in the possession of a custodian of evidence. S.C. Code Ann. § 17-28310(9) (2014). In a July

15, 2011

opinion, we opined on the legislative intent in

enactment of both the Post-Conviction DNA Testing Act and the Preservation of Evidence Act. See Op. S.C. Att'v Gen.. 201 1 WL 3346426 (July 15, 201 1). After addressing the rule of construction that the legislative intent should be found in the plain language of the statute itself, we commented as follows:
[t]he Act is part of 2008 S.C. Acts 413, that included the "Access to Justice Post-Conviction DNA Testing Act" aimed at providing

convicted defendants with the opportunity to have evidence, which was not previously subjected to DNA testing or not the same type of DNA testing, tested to determine whether it possesses any exculpatory value. In the opinion of this office, the Legislature's

intent upon passing the Act was twofold. That intent was, first, to provide

procedures

for the preservation

of evidence and to

delineate the offenses for which physical evidence and biological material must be preserved; and secondly, to establish guidelines for the return of evidence prior to the period of time set forth therein, and to provide for penalties for destroying or tampering with evidence covered by the Act.

Op. S.C. Att'v Gen.. 2015 WL 4042029, at 3-4 (June 17, 2015). This Office has also concluded that once evidence for one of the crimes listed in section 17-28-320(A) is "collected" by law

enforcement, i.e., gathered and retained for processing, it becomes either physical evidence or

The Honorable Charles Wright
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August 3, 2020

biological material for purposes of the Act. Op. S.C. Att'v Gen.. 2011 WL 3346426 (July 15, 2011).

The question raised in the request letter specifically concerns how vehicles that are impounded and processed for evidence during an investigation of one of the crimes listed in section 17-28-320(A) are treated under the Act.

This Office has explained that the Act's

evidence preservation requirements can apply to vehicles and even prevail over the claims of a lienholder. Despite our conclusion that a law enforcement agency may generally release a

vehicle confiscated pursuant to Section 56-5-6420, "upon the service of 'claim and delivery' or other repossession orders from the lienholder prior to the adjudication of criminal charges" we note that this conclusion is not absolute. For instance, if a confiscated vehicle that is otherwise subject to forfeiture under Section 56-5-6420 is also involved in any of the 24 offenses where preservation of "physical evidence" is mandated pursuant to Section 17-28-320(A), part of the Preservation of Evidence Act, the vehicle, assuming it amounts to physical evidence, could not be released until the earliest of the circumstances outlined in Section 17-28-320(C) has occurred. Op. S.C. Att'v Gen., 2015 WL 5737884, at 2 n.l (September 15, 2015). Whether a vehicle would be considered "physical evidence" in a given case is, of course, a matter for review by local authorities, including the local solicitor or prosecutor.

If the local solicitor determines that a vehicle should be considered physical evidence, we have consistently advised that evidence must be preserved by the custodian of evidence utilizing normal, customary, and contemporary forensic science techniques in the investigation and retention of evidence gathered and/or used in a criminal prosecution in order to comply with the Act. See Op. S.C. Att'v Gen.. 201 1 WL 2214060, 10 (May 12, 201 1). Moreover, in the opinion

of this office, it would be permissible and consistent with the intent of the Act that the gathering and retention of such evidence allows for the substitution and/or conversion of such original evidence later used as admissible evidence through the techniques of sampling, swabbing, photographing or the use of other forensic science techniques so long as care is taken to preserve

the evidence in compliance with the rules of evidence and chain of custody. See id Finally, the Act permits the custodian of evidence to seek a court order allowing for the disposition of physical evidence or biological material before the expiration of the time periods established in section 17-28-320. Section 17-28-340(A)(l) lists grounds to request such an order

which are consistent with reasons expressed in the request letter where "the physical evidence or

biological material must be returned to its rightful owner, is of such size, bulk, or physical character as to make retention impracticable, or is otherwise required to be disposed of by law."

S.C. Code Ann. § 17-28-340(A)(l).

The Honorable Charles Wright
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August 3. 2020

Conclusion

If a vehicle is processed according to a search warrant for one of the twenty-four listed

crimes in the Preservation of Evidence Act (the "Act"), S.C. Code § 17-28-320(A), such a vehicle may well be considered "physical evidence." S.C. Code § 17-28-310(9). Whether a vehicle would be considered physical evidence in a given case is, of course, a matter for review by local authorities, including the local solicitor or prosecutor.

If the local solicitor determines

that a vehicle should be considered physical evidence, we have consistently advised that evidence must be preserved by the custodian of evidence utilizing normal, customary, and contemporary forensic science techniques in the investigation and retention of evidence gathered and/or used in a criminal prosecution in order to comply with the Act. See S.C. Code Ann. § 17The Act permits a custodian of evidence to seek a court order allowing for the

28-320(B).

disposition of physical evidence or biological material before the expiration of the time periods established in section 1 7-28-320(C). Section 1 7-28-340(A)(l ) lists grounds to request such an order which are consistent with reasons expressed in the request letter for returning a vehicle where "the physical evidence or biological material must be returned to its rightful owner, is of such size, bulk, or physical character as to make retention impracticable, or is otherwise required

to be disposed of by law." S.C. Code Ann. § 17-28-340(A)(l).

Sincerely,

a-

Matthcw I louck

Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General