What did the 1998 South Carolina AG say about police trackers and computer-made search warrants?

Plain-English summary

An investigator asked about police tracking devices and department-created search warrant forms. The Attorney General said it found no South Carolina statute or regulation then directly governing acquisition, possession or use of trackers. It discussed federal decisions distinguishing observation of a vehicle on public roads from tracking that revealed information inside a private residence. The letter noted that South Carolina courts had not yet resolved the tracker issue under state law.

For computer-generated warrants, the AG said a department could create its own forms if they followed the approved standard forms exactly in content and structure. Any deviation in form or substance would violate the statute cited in the letter. These are the opinion's 1998 analyses, not a statement of present tracker or warrant law.

Currency note

This opinion was issued in 1998. 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: Did the 1998 opinion treat all tracking as warrant-free?
A: No. Its discussion said monitoring that revealed information inside an area shielded from visual surveillance required a warrant under the federal case it cited.

Q: Had South Carolina courts decided the tracking issue then?
A: The letter said no state court had yet addressed it and predicted state courts would likely follow the federal decisions it discussed.

Q: Could police print their own search warrant forms?
A: The AG said yes if the forms matched the approved originals exactly in form and substance.

Background and statutory framework

The letter addressed tracking through United States v. Knotts and United States v. Karo, while acknowledging other states' constitutional rulings. It separately applied Section 17-13-160 to department-generated warrant forms.

Citations and references

• United States v. Knotts, 460 U.S. 276 (1983), discussed for public-road tracking.
• United States v. Karo, 468 U.S. 705 (1984), discussed for tracking into private space.
• Section 17-13-160, the warrant-form provision identified in the letter.

Official title

Concerning: Are there are any laws that regulate the procurement, possession, and/or use of tracking devices by law enforcement agencies in this State and May a law enforcement agency produce original search warrants through the use of computer software rather than use the standard forms usually provided?

Requester

Investigator T.K. Davis, Spartanburg Public Safety Department, Narcotics and Organized Crime Unit

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-1-1998/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/98may1davis.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATTORNEY GENERAL

May 1, 1998

Investigator T.K. Davis
Spartanberg Public Safety Department
Narcotics and Organized Crime Unit
145 Broad Street
Spartanberg, South Carolina 29306

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Re:

Informal Opinion

Dear Investigator Davis:
You have requested an opinion from this off ice concerning two issues: 1) Are there any laws that regulate the procurement, possession, and/or use of tracking devices by law enforcement agencies in this State? 2) May a law enforcement agency produce original search warrants through the use of computer software rather than use the standard forms usually provided? In response to your first question, there is no statute or regulation currently in force in this State which directly relates to the procurement, possession, or use of tracking devices. Such devices are used by numerous law enforcement agencies around the United States, and it seems that the decision to utilize such devices would lie within the discretion of the particular agency. There has been, however, discussion among the federal courts concerning the constitutional boundaries which restrict the use of such tracking devices. The United States Supreme Court has promulgated two opinions which provide extensive analysis concerning the constitutional issues surrounding the use of tracking devices. In United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081 (1983), the Court held that the placing of a "beeper" tracking device on the vehicle of a suspect does not constitute a "search" or "seizure" under the

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Investigator Davis
Page 2
May 1, 1998
Fourth Amendment. There is less of an expectation of privacy in an automobile, and the movements of the vehicle are within plain view of the public:

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A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [the suspect] travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property. 460 U.S. at 281-282. Therefore, the Court held, a warrant was not required to place a tracking device on the vehicle of a suspect. In United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296 (1984), the Supreme Court revisited the issue of tracking devices. In Karo, the law enforcement officers had placed a tracking device on a can of ether which was used in the production of illegal drugs. The critical question presented to the Court concerned the monitoring of the tracking device once it entered a private residence. The Court held that once the tracking device enters an area which is not open to visual surveillance, any further monitoring of the device must be accompanied by a warrant. The essential justification for the Court's ruling is that the government can not obtain information, through the use of electronic tracking devices, which it could not otherwise obtain without a warrant. Once the tracking device allows access to information which could not be obtained through lawful surveillance (i.e. seen from "outside the curtilage of the house"), the constitutional requirement for a lawful search warrant is in force. Of course, the suspect must have a legitimate and reasonable expectation of privacy to enjoy the protection of the Fourth Amendment. See United States v. Jones, 31 F.3d 1304 (4th Cir. 1994) (holding that the defendant had no privacy interest in stolen governmental property to which a tracking device was attached) . The rules established in Knotts and Karo have not been accepted uniformly throughout the United States. At least two state supreme courts have issued opinions rejecting the Knotts/Karo rule on state constitutional grounds. See People v. Oates, 698 P.2d 811 (Colo. 1985); State v. Kelly, 708 P.2d 820 (Haw. 1985). The issue has yet to arise in any South Carolina court, but there is little reason to expect our Supreme Court to reject the Knotts/Karo rule.

Investigator Davis
Page 3
May 1, 1998
As to your second question, it is perfectly acceptable for a police department to create its own search warrants, provided that such warrants contain all of the information required on the standard forms approved by this office. So long as the independently created warrants follow the form and substance of the standard forms to the letter, there need not be any direct authorization by this off ice. If the form or substance of the independently created warrant deviates from the standard in any manner, such warrants are in violation of S.C. Code Section 17-13160.

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I trust this information will be of assistance to you. If you have any further inquiries, please do not hesitate to contact my office. This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion. With warmest regards, I am

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Attorney General
Opinions Division

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