Could a South Carolina business charge police to produce records required by a search warrant?

Plain-English summary

In 1999, Irmo's police chief asked whether a business could charge for producing records required by a lawful search warrant. A South Carolina assistant deputy attorney general left the question open. He found no state statute, court decision, or rule authorizing or addressing such a charge, and said he could not predict whether South Carolina courts would require payment.

The opinion discussed decisions about subpoena costs and the general duty to give evidence, but did not treat those decisions as settling search-warrant fees in South Carolina. It also left open whether the magistrate issuing a warrant could require compensation. The author said legislative or judicial clarification was needed and identified the letter as an informal opinion.

Currency note

This opinion was issued in 1999. 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 Attorney General say the business could charge police for warrant compliance? A: No. The letter found the state-law question unresolved and gave no definitive answer.

Q: Did the cited subpoena cases decide the search-warrant question? A: No. The author discussed them as possible analogies and expressly declined to say South Carolina courts would follow their general rule for this situation.

Q: Could the magistrate issuing the warrant order payment? A: The opinion called that an open question too.

Background and legal framework

The chief described a business policy requiring a production fee for records compelled by a warrant. The opinion compared that question with federal decisions on subpoena compliance costs and the public duty to give evidence. Because it found no South Carolina authority on the precise issue, it left the legality of a fee to future judicial or legislative clarification.

Citations and references

• In re Grand Jury No. 76-3 v. US. and Hurtado v. U S.: federal decisions discussed as analogies in the opinion, not as a South Carolina resolution.

Official title

Asking about the validity of a business’s policy to charge a fee for the production of records compelled by a lawful search warrant.

Requester

Andy Blackwell, Chief of Police, Irmo Police Department

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/november-10-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99nov-10-blackwell.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CH A RLIE CONDON
ATTO RNEY G EN ERAL

November 10, 1999

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Andy Blackwell, Chief of Police
Irmo Police Department
P. 0. Box406
Irmo, South Carolina 29063-0406

Re:

Informal Opinion

Dear Chief Blackwell:
Thank you for your letter, dated August 5, 1999, to Attorney General Condon which has been referred to me for a response. You ask about the validity of a business's policy to charge a fee for the production of records compelled by a lawful search warrant. The law in South Carolina is unclear in this area. We are unaware of any South Carolina statutes, decisions or court rules which authorize or comment upon such a charge. No South Carolina case has required such payment, in other words. I would note that, generally speaking, "a witness or the recipient of a subpoena duces tecum is required to bear the costs of compliance." In re Grand Jury No. 76-3 v. US., 555 F.2d 1305 (5th Cir. 1997). In that case it was held that a bank whose records were subpoenaed by the government as part of a criminal investigation was required to pay the costs of compliance unless such compliance would be considered "unreasonable" or "oppressive." Moreover, in Hurtado v. U S. , 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d (1973), the United States Supreme Court held that the detention of a material witness to assure his presence at a criminal trial does not constitute a "taking" for which just compensation is required under the Fifth Amendment. The Court said that the "Fifth Amendment does not require that the Government pay for the performance of a duty it is already owed." In other words, in the eyes of the Supreme Court, the duty to give evidence is ~;a part of the necessary contribution of the individual to the welfare of the public."
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Again, however, there does not appear to be any authority in South Carolina which addresses your question. As such, we are unable to advise whether our courts would follow the general rule of law expressed above in the Grand Jury and Hurtado cases which found that the duty to provide evidence pursuant to lawful order required no compensation. Whether a magistrate as the officer issuing a search warrant could require compensation would also be an open question.

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In short, it would appear that legislative or judicial clarification would be necessary to determine with certainty the answer to your question. In the interim, you may wish to contact the Division of Court Administration for any policy guidance as to how to proceed with such requests for payment. 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 kind regards, I am Very truly yours, i
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Robert D. Cook
Assistant Deputy Attorney General
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Sgt. Brian Buck
Irmo Police Department