Criminal Law

SCOTUS: Search Warrant Required for Cell Phone Search


This June, the Supreme Court finally admitted what the rest of us already knew: Cell phones aren’t wallets. They aren’t cigarette packages. And by themselves, they aren’t dangerous. Cell phones are, however, devices containing a treasure trove of personal information. Which is why the Court’s ruling in Riley v. California, 134 S. Ct. 2473 (2014), issued just in time for Independence Day, is a victory for civil liberties advocates.

Riley was a consolidation of two cases that raised the same question: can the police search the contents of an arrestee’s cell phone without a warrant? In the case of David Riley, the police accessed text, photographs, and videos from Riley’s cell phone that implicated him as a gang member, leading authorities to charge him with additional crimes. See Riley, 134 S. Ct. at 2480–81. In the other case, police used the contact information and call log on Brima Wurie’s cell phone to locate his apartment, where a subsequent search turned up drugs and a firearm. See id. at 2481. The evidence from Riley and Wurie’s cell phones helped convict the two men, earning them lengthy prison sentences. See id. at 2481–82.  Continue reading

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Failure to Instruct a Lesser-Included Offense Is Subject to Harmless Error Review

In State v. Middleton, the supreme court held that (1) the offense of assault and battery in the first degree does not require physical harm; and (2) a judge’s failure to instruct a jury on a lesser-included offense is subject to harmless error review.

Middleton owned a moped and decided to use it for a drive-by shooting.  He pulled up to a vehicle driven by Mack and with Stephens in the passenger seat; Mack’s vehicle was stopped for a school bus stop sign.  Middleton unloaded five bullets into the vehicle.  Mack and Stephens, however, laid back in their seats and were not hit.  Stephens took control of the vehicle and rammed Middleton.  The only injuries that Mack and Stephens suffered were a few cuts from broken glass. Continue reading

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Not Feeling Ten White Jurors Were Right for the Jury Is Not a Sufficient Justification under Batson

In State v. Giles, the supreme court held that a race neutral explanation, although it may be implausible or fantastic, must be clear and reasonably specific to provide the movant an opportunity to prove the justification is pre-textual.

During jury selection, Giles, representing himself with standby counsel, used his peremptory challenges to strike eight white males and two white females.  The State requested an inquiry pursuant to Batson v. Kentucky, 476 U.S. 79 (1986).  The trial court asked Giles why he excluded the jurors, and his standby counsel stated that Giles “did not feel the jurors were right for the jury.”  The trial court agreed that this was a race neutral reason, but did not provide any support for whether the decision was pre-textual.  The trail court granted the State’s motion and quashed the jury panel.  Thereafter, a jury convicted James A. Giles of first-degree burglary, strong arm robbery, and kidnapping.  Continue reading

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The Attorney General Can Prosecute Cases in Magistrate and Municipal Court

In State v. Long, the supreme court held that the Attorney General has the authority to prosecute cases in magistrate and municipal courts.

The supreme court consolidated two criminal domestic violence cases where the defendant raised the issue of the Attorney General prosecuting a case in municipal court.  One municipal court granted the motion, while the other did not.

The issue before the court was whether Article V, Section 24 of the South Carolina Constitution prohibits the Attorney General from prosecuting cases in summary courts. Continue reading

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A Messy Menace: Immunity under the South Carolina “Protection of Persons and Property Act”

Professor F. Patrick Hubbard
Ronald L. Motley Distinguished Professor of Tort Law

Karl Llewellyn, who was both a prominent legal philosopher and principal drafter of the Uniform Commercial Code, once noted, “Technique without morals is a menace; but morals without technique is a mess.”  The immunity established by the South Carolina “Protection of Persons and Property Act” provides an unfortunate example of the wisdom in both parts of Llewellyn’s statement: The Act is both a menace and a mess.

I.          Summary

The Menace.  The Act is a menace because the substantive rules that provide a basis for the immunity place too little weight on the value of life compared to other values.  For example, the Act authorizes a person to shoot a friend with intent to kill if the friend, who had left his cell phone at the person’s house, pushes his way into the house after being told not to come in at this time.

The Mess.  The South Carolina Legislature created the mess by adopting an immunity from criminal prosecution and civil action without providing a remedy procedure for determining whether a defendant is entitled to an immunity.  The South Carolina Supreme Court’s efforts to address this mess have themselves been messy.  More specifically, one or both opinions concerning the immunity are inconsistent, rely on authority that is clearly unconstitutional, and fail to provide adequate guidance concerning the procedure at a pretrial hearing on the issue of immunity.  Moreover, a denial of the immunity will never be appealable in any meaningful sense because such an appeal could only occur in the case of a conviction, in which case the appeal is too late to prevent prosecution and, as a practical matter, would focus on whether the state had satisfied its burden of showing guilt beyond a reasonable doubt rather than on whether the immunity applied. Continue reading

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Improper Search and Seizure Leads to Exclusion of Drug Evidence

In State v. Gamble, the supreme court held that the trial judge erred in admitting heroin into evidence because the State did not prove that the search and seizure was legally performed.

The police used a confidential informant (“CI”) to gain information about Gamble’s drug activities.  Prior to trial, the CI died.  The State moved to bar reference to the CI because he was unnecessary to the trafficking case.  Although the defense counsel indicated that he would not make reference to the CI, he expressed concern about the State’s ability to demonstrate probable cause for the search of Gamble’s car and his arrest.  The trial court denied the motion, but assured the State that it would not allow the CI’s absence to confuse the jury.   Continue reading

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Police Can Open Car Doors When They Fear For Safety

 In McHam v. State, the supreme court addressed whether a police officer’s decision to open a passenger door because the officer feared for his safety was an impermissible search under the Fourth Amendment. The case arose in the context of a PCR appeal.

 Police conducted a checkpoint on Powell Mill Road in Spartanburg County.  Three police officers in marked cars were present.  McHam was stopped at the checkpoint at 10:50 p.m. McHam had a passenger in his vehicle, and neither of them were wearing their seatbelts.  An officer asked McHam for his license, registration, and proof of insurance.  McHam provided his driver’s license, and McHam and the passenger searched for their rest of the information.  The officer stated that “they were making a lot of movements in the car that he didn’t feel was consistent with looking for a registration card or a proof of insurance.”  The officer walked to the passenger side of the vehicle to make sure they were not accessing a weapon; once there, the officer could not see their hands and so “for his own safety he opened up the door to watch what they were doing while they were going through the car.” Continue reading

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Defendant Was Not Prejudiced by His Counsel Failing to Tell Him that a Guilty Plea Could Lead to a Life Sentence Without Parole in His Other Pending Case

In Taylor v. State, the supreme court held that Taylor did not receive ineffective assistance of counsel where his counsel failed to advise him of the recidivist consequences of pleading guilty because there was evidence to show that Taylor was not prejudiced by his counsel’s failure to inform him.

In Greenville County, Taylor pled guilty to a count of criminal sexual conduct upon a minor in the second degree and two counts of committing lewd act upon a minor.  Plea counsel also represented Taylor on pending charges in Williamsburg County involving one of the Georgetown County victims.  Taylor did not realize nor was he informed by his attorney that by pleading guilty in the Georgetown case, he could receive a sentence for life without possibility of parole (LWOP) under Section 17-25-45(A) of the South Carolina code.  Continue reading

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Probation Time Is Not Tolled During Civil Commitment

In State v. Miller, the supreme court held that civil commitment is not a categorical exception that permits the State to toll the probationary period for a person civilly committed.

In 2001, Miller pled guilty to committing a lewd act on a child under the age of sixteen.  He was sentenced to fifteen years in prison, suspended upon the service of ten years in prison and five years of probation.  In 2005, his probation began, but he was not released from custody because a jury determined that he was a sexually violent predator under the Sexually Violent Predator (SVP) ActContinue reading

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No Need for Police Officers to “Waste” Twenty Minutes

State v. Hercheck and State v. Elwell

Hercheck’s car collided with another vehicle, and he tried to leave the scene.  Police Officers apprehended him and requested him to submit to a breathalyzer.  Hercheck refused.  The officer turned off the videotape recording and arrested Hercheck.  Continue reading

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