Search and Seizure: Affidavit of Search Warrant


“A warrant issued hereunder shall be issued only upon affidavit sworn to before the magistrate, municipal judicial officer, or judge of a court of record establishing the grounds for the warrant.” S.C. Code Ann. § 17-13-140


S.C. Court of Appeals

Pursuant to section 17-13-140 of the South Carolina Code (2014), “[a]ny magistrate ... having jurisdiction over the area where the property sought is located[ ] may issue a search warrant to search for and seize ... property constituting evidence of crime or tending to show that a particular person committed a criminal offense.” The task of a magistrate when determining whether to issue a warrant is to determine whether the warrant is supported by probable cause. State v. Philpot, 317 S.C. 458, 461, 454 S.E.2d 905, 907 (Ct. App. 1995). “A warrant is supported by probable cause if, given the totality of the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Kinloch, 410 S.C. 612, 617, 767 S.E.2d 153, 155 (2014). Therefore, if a warrant is issued based on an affidavit containing inaccurate information, the warrant will be not be defective so long as the affidavit supports a finding of probable cause once the inaccurate information is removed. Cf. Franks v. Delaware, 438 U.S. 154, 156, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (finding the intentional inclusion of inaccurate information in an affidavit will void the warrant if, when the false material is set to the side, the affidavit is insufficient to establish probable cause); see also State v. Davis, 371 S.C. 412, 416, 639 S.E.2d 457, 459 (2006) (“There will be no Franks violation if the affidavit ... still contains sufficient information to establish probable cause.” State v. Bonilla, No. 2016-001725, 2019 WL 7341486, at *10 (S.C. Ct. App. Dec. 31, 2019), reh'g denied (Feb. 20, 2020)