Search and Seizure: Burden of Proof Case Law

U.S. Supreme Court

The self-incrimination dilemma, so central to the Jones decision, can no longer occur under the prevailing interpretation of the Constitution. Subsequent to Jones, in Simmons v. United States, we held that a prosecutor may not use against a defendant at trial any testimony given by that defendant at a pretrial hearing to establish standing to move to suppress evidence. For example, under the Simmons doctrine the defendant is permitted to establish the requisite standing by claiming ‘possession’ of incriminating evidence. If he is granted standing on the basis of such evidence, he may then nonetheless press for its exclusion; but, whether he succeeds or fails to suppress the evidence, his testimony on that score is not directly admissible against him in the trial. Brown v. United States, 411 U.S. 223, 228 (1973) (citation omitted)

S.C. Supreme Court

As an initial matter, the parties dispute who had the burden of proving the alleged illegality of the police officers' actions here. Each party has the burden to prove separate things during the motion to suppress. The State bears the burden to demonstrate that it was entitled to conduct the search or seizure under an exception to the Fourth Amendment's warrant requirement. The State also bears the burden to show that the warrantless entry was limited in scope and duration in accordance with the exigent circumstances which required its presence.

However, the criminal defendant retains the burden to establish that he is asserting his own Fourth Amendment rights, rather than vicariously asserting the rights of others; therefore, the defendant bears the burden to demonstrate that he had an actual and reasonable expectation of privacy in the place illegally searched. Here, assuming arguendo that the police officers committed a Fourth Amendment violation when they entered the porch of Apartment 122 without a warrant, the burden rests with Petitioner to establish that he had a reasonable expectation of privacy in the porch of Apartment 122. State v. Robinson, 410 S.C. 519, 530 (2014) (citations omitted).

Most important to the issue before us is the settled principle that “the burden is upon the State to justify a warrantless search.” State v. Peters, 271 S.C. 498, 501, 248 S.E.2d 475, 477 (1978). At no time has this Court placed the burden on a defendant to establish that an exception to the warrant requirement does not exist. State v. Key, No. 2017-001013, 2020 WL 2463063, at *3 (S.C. May 13, 2020)

We must therefore part company with the Mitchell Court, as we will not impose upon a defendant the burden of establishing the absence of exigent circumstances. We have consistently held the prosecution has the sole burden of proving the existence of an exception to the warrant requirement. Likewise, the United States Supreme Court and all state and lower federal courts have consistently held the State bears the burden of establishing exigent circumstances. See, e.g., Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (stating “the burden is on the government to demonstrate exigent circumstances”);3 McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (“We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.”); United States v. McGee, 736 F.3d 263, 269 (4th Cir. 2013) (“The government bears the burden of proof in justifying a warrantless search or seizure.”). State v. Key, No. 2017-001013, 2020 WL 2463063, at *5 (S.C. May 13, 2020)

See also Welsh, 466 U.S. at 749-50, 104 S.Ct. 2091 (emphasis added) (internal citation omitted) (“Prior decisions of this Court ... have emphasized that exceptions to the warrant requirement are ‘few in number and carefully delineated,’ and that the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests. Indeed, the Court has recognized only a few such emergency conditions[.]” (citing Schmerber, 384 U.S. at 770-71, 86 S.Ct. 1826)). State v. Key, No. 2017-001013, 2020 WL 2463063, at *5 (S.C. May 13, 2020)