Did you know that, unlike the federal Bill of Rights, the South Carolina Constitution has an explicit right to privacy?
Our constitutional right to privacy has been cited by the SC Supreme Court as providing greater protections than the Fourth Amendment in the context of police searches, medical treatment, abortion rights, and warrantless blood draws in felony DUI cases.
In this article, we will provide an overview of SC’s constitutional right to privacy, including:
- What the SC Constitution says about our right to privacy,
- When the constitutional right to privacy applies, and
- Specific examples of how the right to privacy protects you from government overreach.
Does SC Have an Explicit Constitutional Right to Privacy?
The natural tendency of government is to provide security at the expense of personal freedom – security from domestic threats (revolution), security from foreign threats, and security from criminal acts.
But for the federal Bill of Rights and our State Constitutions, our government would inevitably slide into a fascist police state like many other countries that do not have constitutional protections (and many that do), where:
- Police track every citizen,
- We are subject to random searches without explanation,
- Our property is confiscated without probable cause or explanation,
- The religious beliefs of the majority are imposed on all through criminal laws, and
- Summary punishment with minimal evidence is the norm.
No one wants to live in a police state, right?
The problem is many Americans do want to live in a police state.
Many Americans want to live in a society where accused criminals are swiftly and harshly punished, never considering that they could be falsely accused and wrongfully convicted. Many want to live in a society where their religion and morals are imposed on everyone, never considering what will happen when someone else’s religion, one day, becomes the majority…
How do we prevent it?
By 1) having a Bill of Rights and 2) enforcing it.
It is not enough to have a constitution – many fascist dictatorships have constitutions that are ignored – we must also enforce our rights when law enforcement or government officials inevitably overreach and ignore the Constitution.
South Carolina’s Right to Privacy
Article I, Section 10 of the SC Constitution says:
SECTION 10. Searches and seizures; invasions of privacy.
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures and unreasonable invasions of privacy shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, the person or thing to be seized, and the information to be obtained. (1970 (56) 2684; 1971 (57) 315.)
Article I, Section 10 is almost identical to the Fourth Amendment, except for the additional, explicit protection against unreasonable invasions of privacy.
When Does SC’s Constitutional Right to Privacy Apply?
As important as it is that our State Constitution includes this additional layer of protection against government intrusion, it is more important that our courts recognize that it is there and enforce it…
The SC Supreme Court has recognized our right to privacy and applied it in several contexts.
Some examples of when the right to privacy is implicated in South Carolina include:
- State v. Weaver, 374 S.C. 313, 321, 649 S.E.2d 479, 483 (2007) (recognizing the right to privacy but finding it does not apply where the automobile exception applies and there is probable cause (this case’s conclusions were likely modified by Arizona v. Gant)),
- State v. Easler, 327 S.C. 121, 131 n.13, 489 S.E.2d 617, 625 n.13 (1997) (State
courts may afford more expansive rights under state constitutional provisions than
the rights which are conferred by the Federal Constitution),
- State v. Forrester, 343 S.C. 637, 643, 541 S.E.2d 837, 840 (2001) (suppressing evidence when police exceeded the scope of the consent to search given by the defendant),
- Singleton v. State, 313 S.C. 75, 89, 437 S.E.2d 53, 61 (1993) (forcing an inmate to take medication solely to facilitate execution violates the right to privacy),
- State v. Counts, 413 S.C. 153, 162, 776 S.E.2d 59, 65 (2015) (a “knock and talk” without probable cause or reasonable suspicion violates the right to privacy),
- Planned Parenthood v. SC, Opinion No. 28127 (SC 2023) (SC’s right to privacy protects a woman’s right to seek an abortion), and
- State v. German, Opinion No. 28149 (SC 2023) (SC’s right to privacy violated when law enforcement seeks warrantless blood draw without consent in a felony DUI case).
Whether your attorney is preparing your case for trial – including pretrial motions to exclude evidence, preparing a PCR petition, or drafting your appellate brief in a criminal case, they must consider not only the Fourth Amendment’s protections but also whether SC’s explicit right to privacy affords you even greater protections than the Fourth Amendment.
We must use the tools that the Founders gave us in our federal and state constitutions – we must insist upon our rights and our courts must enforce them on behalf of ordinary citizens because if we don’t use it, we will lose it…
SC Criminal Defense Lawyers in Myrtle Beach
Your criminal defense attorney at Coastal Law will review the evidence against you, including any video, audio, police reports, and potential witness testimony, to determine whether your constitutional rights have been violated, including your right to privacy under the SC Constitution.
If you have been arrested and charged with a crime in the Myrtle Beach, SC area, call the Horry County criminal defense attorneys at Coastal Law now at (843) 488-5000 or send an email to set up a free consultation to discuss your case.