There are several different types of warrants in SC that authorize law enforcement to either search a person’s property or seize a person or their property.

Despite what you saw in a YouTube video, “Come back with a warrant!” is not always the best answer when you are confronted by a police officer (although sometimes it is…) because police are not always required to get a warrant before searching property or taking a person into custody.

Below, I’ll try to dispel a few common myths about warrants and discuss the different types of warrants in SC, including:

• Search warrants,
• What happens if a search warrant is invalid,
• Search warrant exceptions,
• Arrest warrants, and
• Bench warrants.

Types of Warrants: Search Warrants

Search warrants authorize law enforcement to search a person’s home, person, or other property. They must be issued by a magistrate or municipal court judge, and they must be based on facts that establish probable cause that a crime has been committed and that evidence will be found on the person or at the location to be searched.

What can you do if police want to search your home and they do not have a warrant?

If police ask to search my home, my person, or my vehicle, I am going to say, “No, and I ask that you respect my privacy.” It doesn’t matter if I “have something to hide” or not – we have a constitutional right to be free from unreasonable searches and seizures and I’m not giving that up for anyone. Nor should you.

Do not consent to a warrantless search. Even if you know there is nothing illegal, 1) you might be wrong – anything can happen, and 2) if there is nothing illegal, there is most likely no probable cause for the search anyway, which means the officers are overreaching their authority and subjecting you to unreasonable harassment.

If police insist on searching anyway, do not try to stop them, but make it clear that you are not consenting. If they say they have a warrant, ask to see it, and ask them to leave a copy of it with you that you can provide to your attorney later.

Evidence can be Excluded if the Search Warrant is Invalid

If you refused consent to search and police searched your home or other property with a warrant, what happens if the warrant is not valid?

You can’t stop them from searching, but, if the court later finds that the warrant was not valid, any evidence that they found can be excluded from your trial. Depending on the facts of your case, the exclusion of key evidence could mean your case gets dismissed.

For a search warrant to be valid, it must:

• Be signed by a judge,
• Be supported by a sworn statement in an affidavit that contains facts that support probable cause that evidence of a crime will be found at the location (the affidavit can also be supplemented by sworn testimony to the judge who signs the affidavit),
• Describe the place to be searched with particularity – this should include both a physical address and a description of the property to be searched, and
• Describe the evidence that police are searching for with particularity – if police are looking for a person, for example, they have no business going through your dresser drawers or a lockbox in your closet.

If the warrant is not valid, any evidence found should be excluded under the “exclusionary rule,” as “fruit of the poisonous tree” – the only practical way to discourage warrantless searches and constitutional violations is to prevent law enforcement from using the evidence against you.

Search Warrant Exceptions

There are many, many exceptions to the search warrant requirement – if there is a valid exception, police are not required to get a warrant, and any evidence found will not be excluded by the trial court.

Some of the more common exceptions include:

• The automobile exception,
• The plain view (and plain feel) exception,
• The “border search exception,”
• Search incident to arrest,
• “Hot pursuit,” and
• Exigent circumstances.

Types of Warrants: Arrest Warrants

An arrest warrant, signed by a judge and containing probable cause that the person has committed a crime, is required before law enforcement can take you into custody except…

There are so many exceptions to this rule that most arrests in SC are made without an arrest warrant or a judge’s pre-approval. For example:

• Felony arrests: any person, including a police officer, is authorized to make a citizens arrest if they witness either 1) a felony or 2) larceny being committed,
• Misdemeanor arrests: sheriffs and deputy sheriffs are also authorized to make warrantless arrests for any crime committed in their presence, including misdemeanors,
• Uniform traffic tickets (UTT): police are authorized to use a blue UTT, without presenting probable cause to a judge, for 1) any traffic offense, 2) any offense that is listed in SC Code Section 56-7-10, or 3) any offense that was committed or in the officer’s presence or “freshly committed” and that is within the jurisdiction of the magistrate or municipal court.

When a warrantless arrest is made and the officer is not authorized to use a UTT to charge you, the officer must still get a warrant signed and have it served on you after the fact.

If an arrest warrant is invalid, it doesn’t necessarily require the exclusion of evidence unless the warrantless arrest led to the discovery of evidence that would not have been found otherwise.

Bench Warrants

A bench warrant is a different kind of arrest warrant – it authorizes law enforcement to take you into custody and either bring you to the court or take you to jail, but not for a specific crime that has been committed.

Bench warrants may be issued by the court when:

• You do not appear at a required court date,
• You did not respond to a valid subpoena requiring your appearance in court,
• You were found guilty in your absence and sentenced to jail time, or
• You did not pay a fine following a criminal or traffic court conviction.

Once a bench warrant is issued, it is entered into NCIC (the National Crime Information Center), and any law enforcement anywhere in the country will see it if they run a background check on you.

If you suspect that you have a bench warrant for your arrest, call your criminal defense attorney immediately to see if you can get the warrant lifted before the police pick you up – your attorney may be able to file a motion to lift the bench warrant, so you have an opportunity to appear in court and attempt to resolve the matter without going to jail.

Questions About Different Types of Warrants in SC?

Charleston criminal defense lawyer Grant B. Smaldone focuses on criminal defense cases – challenging search warrants and getting bench warrants lifted for our clients is a routine part of our law practice.

If you have been charged with a crime in the Charleston area, call SC criminal defense lawyer Grant B. Smaldone now at (843) 808-2100 or fill out our online contact form to schedule a free consultation.