Could a magistrate issue a warrant to inspect a home for violating an overnight-occupancy zoning limit?

Plain-English summary

The Attorney General responded to concerns about enforcing a residential overlay zone that limited overnight occupants by referring the requester to an earlier opinion. The quoted portion said the statutory categories of property eligible for a search warrant did not include inspecting dwelling units to enforce this kind of ordinance. It also warned that a warrant without proper authority would be void and that an officer executing one could face liability.

The 2010 letter did not decide whether a particular number of cars supplied sufficient evidence for a warrant. It transmitted and quoted an earlier opinion; the enclosure itself is not reproduced in the linked 2010 letter.

Currency note

This opinion was issued in 2010. 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 cited statute authorize a warrant to inspect a home for this zoning ordinance? A: The earlier opinion quoted in the letter said no: the proposed dwelling inspection did not fit any of the statute's five listed search categories.

Q: Did the Attorney General say cars parked outside proved an overnight-occupancy violation? A: No. The letter mentioned magistrates' reluctance to issue warrants based on cars but did not decide that factual question.

Q: What did the letter say about a warrant issued without legal authority? A: It quoted the earlier opinion's warning that such a warrant was void and could expose the officer executing it to liability.

Background and statutory framework

University counsel described a more restrictive residential overlay zone and difficulties obtaining inspection warrants. The Attorney General sent a prior opinion and reproduced passages on statutory search-warrant authority and constitutional limits.

Citations and references

The original text below identifies S.C. Code Ann. § 17-13-140 as the search-warrant provision discussed in the earlier opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-19-2010/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/meacham-t-e-os-9068-5-19-10-ordinance-number-of-residents-staying-overnight-in-home.pdf

Original opinion text

HENRY MCMASTER
ATIORNEY GENERAL

May 19, 2010

Timothy E. Meacham, University Counsel
Coastal Carolina University
P. 0. Box 261954
Conway, South Carolina 29528-6054
Dear Mr. Meacham:

In a letter to this office you referenced the creation of an "overlay zone" related to residential housing which is more restrictive than the overall county ordinance and limits the number of residents staying overnight in a pa1ticular home. You indicated that magistrates have been reluctant to issue search warrants based upon the number of cars on a particular property. Enclosed please find a copy of a prior opinion of this office responsive to your question. That opinion referenced S.C. Code Ann. § 17-13-140 which authorizes the issuance of a search warrant. The opinion stated that
[b]ased on a plain reading of section 17-13-140, we believe the Legislature intended to allow magistrates, recorders, and judges to issue warrants to search and seize five specific types of property. In comparing the five situations in which a warrant may be issued to the circumstances presented in your letter, we do not believe the inspection ofdwelling units for purposes ofenforcement of this ordinance falls under any of the five types of searches listed in section 17-13-140. The opinion further commented that
[w]e also find it necessary to advise you that a warrant issued without proper authority violates the fourth amendment and is void as a matter oflaw. Furthermore, a law enforcement officer's execution of an invalid search warrant may subject the officer to liability. See Smoak v. Hal, 460 F.3d 768, 784 (6th Cir. 2006) ("Those present for an unconstitutional seizure can also be held liable for failure to protect.").

REMBERT c. DENNIS BUILDING • POST OFFlCE Box 11549 • COLUMBIA, SC 29211-1 549 • TELEPHONE 803-734-3970 • FACS[MlLE 803-253-6283

Mr. Meacham
Page2
May 19, 2010

With kind regards, I am,
Very truly yours,
Henry McMaster
Attorney General

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By:

REVIEWED AND APPROVED BY:

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''Robert D. Cook
Deputy Attorney General

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Charles H. Richardson
Senior Assistant Attorney General