State v. Baker, 18776

• Decision Date: 02 April 1968
• Docket Number: No. 18776,18776
• Citation: 160 S.E.2d 556,251 S.C. 108
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. James BAKER, Appellant.

Page 556

160 S.E.2d 556

251 S.C. 108

The STATE, Respondent, v. James BAKER, Appellant.

No. 18776.

Supreme Court of South Carolina.

April 2, 1968.

Hayes, Brunson & Gatlin, Rock Hill, for appellant.

Mike S. Jolly, Solicitor, Union, for respondent.

LITTLEJOHN, Justice.

The defendant was tried and convicted by a jury in the Court of General Sessions for York County of possessing and keeping alcoholic liquor in a place of business (filling station) in violation of Section 4--95 of the South Carolina Code.

During the course of the trial the State offered and the court admitted into evidence a quantity of tax-paid liquor which had been found and seized by the use of a search warrant, obtained by a police officer from a magistrate, to search the filling station of the defendant. Timely and appropriate objections were raised by counsel for the defendant to the introduction of such evidence on the grounds, first, that the affidavit used as a basis for procuring the search warrant was insufficient, and second, on the ground that the search warrant was obtained on February 5, 1966 and was not served and executed until March 19, 1966. The warrant was issued at York, the county seat, and the filling station involved is located in the town of Clover, a few miles away. There is no explanation whatsoever in the record showing why the warrant was held 42 days before service.

Some statutes fix a time limit within which a search may be made; other statutes indicate that the search must be made forthwith.

The search warrant involved here was issued pursuant to Section 4--414 and Section 4--415 of the Code. Such sections do not provide any time limit for the serving of the warrant and/or the making of a return to the issuing authority.

There is no common law right to issue search warrants. The issuing authority is subject to the constitutional prohibition against unreasonable searches and seizures as set forth in the fourth amendment to the Constitution of the United States, and subject to statutory control.

'The constitutional guaranties are violated where the warrant is not executed within a reasonable time; what is a reasonable time is a question of law for the court to determine in each case, according to the circumstances.' 47 Am.Jur. 526. Searches and Seizures--Time of Execution, Paragraph 40.

The general law cited above is consistent with that applicable to intoxicating liquors as follows:

'The constitutional guaranty against unreasonable searches and seizures requires that the search warrant for intoxicating liquors be executed within a reasonable time; what constitutes a reasonable time is a question of law for the court to determine in each case, according to its circumstances.' 30 Am.Jur. 792. Intoxicating Liquors--Execution of Warrant. Paragraph 469.

An application for a search warrant is a request for permission to search premises. It insinuates an existing violation of the law and impliedly represents that there is a necessity to search promptly. The permission to search, in the absence of a time limit in the warrant or the statute, impliedly directs that the search should be made forthwith or without delay, and certainly within a reasonable time. 79 C.J.S. Searches and Seizures § 83c, Execution of Warrant, p. 899. The courts have in the absence of statute been careful to refrain from indicating, as a matter of case law, any specific number of days as being a reasonable time, and this is proper because a reasonable time depends on all of the circumstances of the case.

'Some jurisdictions make a distinction between the execution of a search warrant...