State v. Brown , 815 S.E.2d 761 ( 2018 )

THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Lamar Sequan Brown, Petitioner.
Appellate Case No. 2015-002360
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal from Charleston County
J. C. Nicholson Jr., Circuit Court Judge
Opinion No. 27814
Heard March 28, 2018 – Filed June 13, 2018
AFFIRMED
Appellate Defender David Alexander, of Columbia, for
Petitioner.
Attorney General Alan McCrory Wilson, Assistant
Attorney General William M. Blitch Jr., both of Columbia;
and Solicitor Scarlett Anne Wilson, of Charleston; all for
Respondent.
JUSTICE FEW: In this appeal we address whether the digital information stored
on a cell phone may be abandoned such that its privacy is no longer protected by the
Fourth Amendment. The trial court determined the information on the cell phone in
this case had been abandoned, and admitted it into evidence. A divided panel of the
court of appeals affirmed. State v. Brown, 414 S.C. 14, 776 S.E.2d 917 (Ct. App.
2015). We affirm the court of appeals.
I. Facts and Procedural History
On December 22, 2011, one of the victims and his girlfriend returned from dinner to
his condominium on James Island in the city of Charleston. The victim testified they
went straight to the living room because "I had arranged all of her Christmas presents
. . . on the center coffee table." While she was opening the presents, he heard a
phone ringing down the hall toward the bedrooms. Initially, he assumed the phone
belonged to his roommate or her boyfriend. After the phone rang a few times, he
saw a light and feared it might be someone with a flashlight. He testified, "I got a
little nervous so I got up and told my girlfriend to stay in the living room and I
walked down the hall and [saw] the ringing phone . . . on my bedroom floor." When
he turned on his bedroom light, he realized his home had been burglarized. His
"window had been broken out" and there was "glass everywhere." The burglar stole
his television, his laptop computer, two of his roommate's laptops, and some of her
jewelry.
The victim called the police. The first officer on the scene took the cell phone to the
police station and secured it in a locker in the evidence room. Six days later,
Detective Jordan Lester retrieved the cell phone and was able to observe "a
background picture of a black male with dreadlocks." Considering the phone to be
"abandoned property," he guessed the code to unlock the screen—1-2-3-4—and
opened the phone without a warrant. Detective Lester looked through the "contacts"
stored on the phone and found a person listed as "Grandma." He entered
"Grandma's" phone number into a database called Accurint and identified a list of
her relatives, which included a man matching the age of the person pictured on the
background screen of the cell phone—Lamar Brown. Detective Lester then entered
Brown's name into the South Carolina Department of Motor Vehicles database and
looked at Brown's driver's license photograph. After comparing the photographs,
Detective Lester determined Brown was the man pictured on the screen of the cell
phone.
Detective Lester sent other officers to Brown's home to question him. The officers
showed Brown the cell phone and informed him it was found at the scene of a
burglary. Brown admitted the phone belonged to him, but claimed he lost it on
December 23rd—one day after the burglary occurred. Brown also admitted that no
one else could have had his cell phone on December 22nd. After questioning Brown,
the police charged him with burglary in the first degree.
At trial, Brown's counsel moved to suppress all evidence obtained from the cell
phone on the ground Detective Lester conducted an unreasonable search of the
phone in violation of Brown's Fourth Amendment rights. The trial court found
Brown had no reasonable expectation of privacy in the information stored on the
phone because he abandoned it. The jury convicted Brown of first-degree burglary,
and the trial court sentenced him to eighteen years in prison. We granted Brown's
petition for a writ of certiorari to review the court of appeals' opinion affirming his
conviction.
II. Analysis
The Fourth Amendment guarantees us the right to be free from unreasonable
searches and seizures. U.S. CONST. amend. IV; see also S.C. CONST. art. I, § 10.
"Abandoned property," however, "has no protection from either the search or seizure
provisions of the Fourth Amendment." State v. Dupree, 319 S.C. 454, 457, 462
S.E.2d 279, 281 (1995) (citing California v. Greenwood, 486 U.S. 35, 40-41, 108
S. Ct. 1625, 1628-29, 100 L. Ed. 2d 30, 36-37 (1988)). Under a standard
abandonment analysis, "the question is whether the defendant has, in discarding the
property, relinquished his reasonable expectation of privacy." Dupree, 319 S.C. at
457, 462 S.E.2d at 281 (quoting City of St. Paul v. Vaughn, 237 N.W.2d 365, 371
(Minn. 1975)). As the Fourth Circuit has described it, "When a person voluntarily
abandons his privacy interest in property, his subjective expectation of privacy
becomes unreasonable . . . ." United States v. Stevenson, 396 F.3d 538, 546 (4th Cir.
2005); see also id. ("'[T]he proper test for abandonment is . . . whether the
complaining party retains a reasonable expectation of privacy in the [property]
alleged to be abandoned.'" (quoting United States v. Haynie, 637 F.2d 227, 237 (4th
Cir. 1980))). In any Fourth Amendment challenge, "defendants must show that they
have a legitimate expectation of privacy in the place searched." State v. Missouri,
361 S.C. 107, 112, 603 S.E.2d 594, 596 (2004) (citing Rakas v. Illinois, 439 U.S.
128, 143, 99 S. Ct. 421, 430, 58 L. Ed. 2d 387, 401 (1978)). When the reasonable
expectation of privacy is relinquished through abandonment, the property is no
longer protected by the Fourth Amendment. Dupree, 319 S.C. at 457, 462 S.E.2d at
281.
Brown contends, however, the reasoning of the Supreme Court of the United States
in Riley v. California, 573 U.S. ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014),
fundamentally alters the abandonment analysis when the property in question is the
digital information stored on a cell phone. In Riley, the Supreme Court described in
extensive detail the manner in which "[c]ell phones differ in both a quantitative and
a qualitative sense from other objects that might be kept on an arrestee's person."
573 U.S. at ___, 134 S. Ct. at 2489, 189 L. Ed. 2d at 446. Among the many
observations the Court made to explain these differences, the Court stated, "many of
the more than 90% of American adults who own a cell phone keep on their person a
digital record of nearly every aspect of their lives—from the mundane to the
intimate," 573 U.S. at ___, 134 S. Ct. at 2490, 189 L. Ed. 2d at 447, "Data on a cell
phone can also reveal where a person has been[,] . . . and can reconstruct someone's
specific movements down to the minute, . . . within a particular building," 573 U.S.
at ___, 134 S. Ct. at 2490, 189 L. Ed. 2d at 448, and "a cell phone search would
typically expose to the government far more than the most exhaustive search of a
house," 573 U.S. at ___, 134 S. Ct. at 2491, 189 L. Ed. 2d at 448. The Court
concluded, "Modern cell phones are not just another technological convenience.
With all they contain and all they may reveal, they hold for many Americans 'the
privacies of life.'" 573 U.S. at ___, 134 S. Ct. at 2494-95, 189 L. Ed. 2d at 452(quoting Boyd v. United States, 116 U.S. 616, 630, 6 S. Ct. 524, 532, 29 L. Ed. 746,
751 (1886)).
We certainly agree with Brown that the reasoning of Riley is important to the Fourth
Amendment analysis any time the police conduct a warrantless search of the digital
information on a cell phone. We find, however, that Riley does not alter the standard
abandonment analysis.1 Rather, the unique character of cell phones described in
Riley is one factor a trial court should consider when determining whether the owner
has relinquished his expectation of privacy.
Turning to the abandonment analysis the trial court conducted in this case, we review
the trial court's decision for clear error. State v. Moore, 415 S.C. 245, 251, 781
1
Other courts have considered whether the digital information stored on a cell phone
may be abandoned for purposes of the Fourth Amendment and found that it had been
abandoned. See United States v. Crumble, 878 F.3d 656, 659-60 (8th Cir. 2018)
(holding the warrantless search of a cell phone did not violate the Fourth Amendment
because the defendant abandoned it); United States v. Sparks, 806 F.3d 1323, 1347
(11th Cir. 2015) (same); State v. Samalia, 375 P.3d 1082, 1089 (Wash. 2016) (same);
but see State v. K.C., 207 So. 3d 951, 956 (Fla. Dist. Ct. App. 2016) (holding that "a
categorical rule permitting warrantless searches of abandoned cell phones, the
contents of which are password protected, is . . . unconstitutional" (relying on
Brown, 414 S.C. at 32, 776 S.E.2d at 927 (Konduros, J., dissenting))).
S.E.2d 897, 900 (2016). This means we "must affirm if there is any evidence to
support the trial court's [factual] ruling," 415 S.C. at 251, 781 S.E.2d at 900, but we
"review[] questions of law de novo," State v. Adams, 409 S.C. 641, 647, 763 S.E.2d
341, 344 (2014).
We begin our review of the trial court's finding that Brown abandoned his phone
with the factual premise of Riley, that cell phones hold "the privacies of life." 573
U.S. at ___, 134 S. Ct. at 2494-95, 189 L. Ed. 2d at 452. Brown's expectation that
this privacy would be honored—at least initially—is supported by the fact he put a
lock on the screen of the phone. As the court of appeals in this case stated, "the act
of locking the container . . . demonstrates to a law enforcement officer that the owner
of the container started out with an expectation of privacy in the container's
contents." 414 S.C. at 27, 776 S.E.2d at 924. At least until the time of the burglary,
therefore, Brown enjoyed Fourth Amendment protection for the digital information
stored on his phone.
Additionally, we can presume Brown did not intentionally leave his cell phone at the
scene of the crime, for he must have known that doing so would lead to the discovery
that he was the burglar. Thus, it is unlikely a police officer would believe the mere
act of leaving the phone at the scene of the crime was an intentional relinquishment
of his privacy. For at least a short period of time after the crime, therefore, the phone
might not yet have been abandoned. However, when a person loses something of
value—whether valuable because it is worth money or because it holds privacies—
the person who lost it will normally begin to look for the item. In this case, the
phone sat in the evidence locker at the police station for six days. The record
contains no evidence Brown did anything during this time to try to recover his phone.
While Brown might have taken action to protect his privacy before he left it at the
victim's condominium, there is no evidence he did anything after that to retain the
privacy he previously had in the phone's digital contents. There is no evidence he
tried to call the phone to see if someone would answer. There is no evidence he
attempted to text the phone in hopes the text would show on the screen, perhaps with
an alternate number where Brown could be reached, or perhaps even with a message
that he did not relinquish his privacy in the contents of the phone.2 There is no
evidence he attempted to contact the service provider for information on the
whereabouts of the phone. Instead, he contacted his service provider and canceled
2
Brown's phone received numerous calls and texts after Brown left it at the scene of
the burglary. However, there is no evidence Brown made or initiated any of those
calls or texts.
his cellular service to the phone. And there is certainly no evidence he went back to
the scene of the crime to look for it, or that he attempted to call the police to see if
they had it.
We would expect that a person who lost a cell phone that has value because of the
privacies it holds would look for the phone in one or more of the ways described
above. On the other hand, the reason a burglar would not look too hard to find a
phone he lost during a burglary is obvious. Brown put himself in the difficult
position of having to balance the risk that finding the phone would incriminate him
against the benefit of retrieving the private digital information stored in it. Looking
at these facts objectively, any police officer would assume after six days of no efforts
by the owner to recover this phone—especially under the circumstance that the
owner left the phone at the scene of a burglary—that the owner had decided it was
too risky to try to recover it. Brown's decision not to attempt to recover the phone
equates to the abandonment of the phone.
"A legitimate expectation of privacy is both subjective and objective in nature: the
defendant must show (1) he had a subjective expectation of not being discovered,
and (2) the expectation is one that society recognizes as reasonable." Missouri, 361
S.C. at 112, 603 S.E.2d at 596 (citing Oliver v. United States, 466 U.S. 170, 177,
104 S. Ct. 1735, 1741, 80 L. Ed. 2d 214, 223 (1984)). As to the first point, Brown's
decision to forego looking for his phone demonstrates he did not expect to maintain
his privacy in the information stored on his phone. In addition—although it is not
clear Detective Lester knew this when he opened the phone—Brown told the officer
who first interviewed him that he canceled cellular service to the phone when he
realized "someone has [my] phone."3 Considering these facts, Brown clearly had no
"subjective expectation" that his privacy in the digital information on the phone
would be preserved.
Brown even more clearly fails on the second point. Here, we pause to consider the
reasoning of Judge Konduros—the dissenting judge at the court of appeals. Judge
Konduros correctly points out that Riley "recognized the unique nature of modern
cell phones, their capacity for storage of vast amounts of personal information on
devices easily carried, and the resulting privacy concerns triggered," and "the
decision provides guidance on the protection of privacy interests under the Fourth
Amendment given substantial advancements in technology." 414 S.C. at 30, 776
3
Brown's statement is inconsistent with the records of his cell phone provider, which
indicate the service was not officially canceled until later.
S.E.2d at 926 (Konduros, J., dissenting). With this reasoning, Judge Konduros
properly brings our focus back to the factual premise of Riley—cell phones hold "the
privacies of life." 573 U.S. at ___, 134 S. Ct. at 2494-95, 189 L. Ed. 2d at 452. From
this premise, Judge Konduros correctly concludes "the Court's language indicates
law enforcement must obtain warrants to search cell phones, even in cases when a
person's expectation of privacy is diminished." 414 S.C. at 32, 776 S.E.2d at 927
(Konduros, J., dissenting).
In our abandonment analysis, however, the question is not whether Brown's
expectation of privacy was "diminished." Rather, the question before us is whether
Brown could reasonably expect to maintain any privacy interest in his phone after
he chose to cancel cellular service and stop looking for it. More specifically, the
question on this second point from Missouri is whether society will recognize as
reasonable that a burglar who leaves his cell phone in a home he just robbed, and
thereafter cancels service to the phone and makes no effort to recover it, nevertheless
maintains a privacy interest under the Fourth Amendment in the digital information
stored on the phone. Viewing the question in this posture, even considering the valid
reasoning of Judge Konduros, the answer to the question is clearly, "No." The idea
that a burglar may leave his cell phone at the scene of his crime, do nothing to recover
the phone for six days, cancel cellular service to the phone, and then expect that law
enforcement officers will not attempt to access the contents of the phone to
determine who committed the burglary is not an idea that society will accept as
reasonable.
To summarize, we turn to the majority opinion from the court of appeals, which we
believe correctly concludes the abandonment analysis,
When Detective Lester made the decision to unlock the
phone several days later, he was aware of these
circumstances, all of which, when considered together,
provided sufficient objective facts to support his belief that
any expectation of privacy in the phone and its data had
been abandoned.
414 S.C. at 26, 776 S.E.2d at 924.
III. Conclusion
Modern cell phones are not just another item of property, and the extent to which
they "differ in both a quantitative and a qualitative sense from other objects" is an
important factor to be considered in any abandonment analysis. Nevertheless, the
standard abandonment analysis applies to cell phones. There is evidence in the
record to support the trial court's finding that Brown abandoned his cell phone. The
decision of the court of appeals is AFFIRMED.
KITTREDGE, HEARN and JAMES, JJ., concur. BEATTY, C.J., dissenting in
a separate opinion.
CHIEF JUSTICE BEATTY: I respectfully dissent. I would reverse the decision
of the Court of Appeals and find, as did Judge Konduros in her well-reasoned
dissent, Brown did not abandon his expectation of privacy in the contents of his cell
phone. Accordingly, I would conclude that law enforcement's warrantless search of
Brown's cell phone violated the Fourth Amendment.
The Fourth Amendment to the United States Constitution protects a person's
right to be free from unreasonable searches and seizures. U.S. Const. amend. IV.
"Warrantless searches and seizures are unreasonable absent a recognized exception
to the warrant requirement." State v. Brown, 401 S.C. 82, 89, 736 S.E.2d 263, 266
(2012) (citation omitted). The State bears the burden of establishing "the existence
of circumstances constituting an exception to the general prohibition against
warrantless searches and seizures." State v. Gamble, 405 S.C. 409, 416, 747 S.E.2d
784, 787 (2013).
We have recognized the doctrine of abandonment as an exception to the
Fourth Amendment warrant requirement. State v. Dupree, 319 S.C. 454, 457, 462
S.E.2d 279, 281 (1995). In determining whether the defendant abandoned property
for Fourth Amendment search and seizure purposes,
the question is whether the defendant has, in discarding the property,
relinquished his reasonable expectation of privacy so that its seizure
and search is reasonable within the limits of the Fourth Amendment. In
essence, what is abandoned is not necessarily the defendant's property,
but his reasonable expectation of privacy therein.
Id. (citation omitted). To answer this question, a court "must determine from an
objective viewpoint whether property has been abandoned." 79 C.J.S. Searches §
43, at 70 (2017). "[A]bandonment is a question of intent and exists only if property
has been voluntarily discarded under circumstances indicating no future expectation
of privacy with regard to it." 68 Am. Jur. 2d Searches and Seizures § 23, at 135
(2010). Intent in this context is "inferred from words, acts, and other objective
facts." 79 C.J.S. Searches § 43, at 70 (2017).
In my view, this case presents the Court with an opportunity to consider the
continued validity of the doctrine of abandonment with respect to passcode-
protected digital information in a post-Riley era. In Riley, the Supreme Court of the
United States consolidated two cases to determine "whether the police may, without
a warrant, search digital information on a cell phone seized from an individual who
has been arrested." Riley v. California, 134 S. Ct. 2473, 2480 (2014). In a
unanimous decision authored by Chief Justice Roberts, the Court answered this
question in the negative. Id. at 2485. More specifically, the Court concluded "[o]ur
answer to the question of what police must do before searching a cell phone seized
incident to an arrest is accordingly simple—get a warrant." Id. at 2495 (emphasis
added).
In reaching this conclusion, the Court prefaced its analysis by stating:
Absent more precise guidance from the founding era, we
generally determine whether to exempt a given type of search from the
warrant requirement "by assessing, on the one hand, the degree to
which it intrudes upon an individual's privacy and, on the other, the
degree to which it is needed for the promotion of legitimate
governmental interests." Wyoming v. Houghton, 526 U.S. 295, 300,
119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999).
Id. at 2484. Using this analytical framework, the Court reasoned that:
while Robinson's[4] categorical rule strikes the appropriate balance in
the context of physical objects, neither of its rationales has much force
with respect to digital content on cell phones. On the government
interest side, Robinson concluded that the two risks identified in
Chimel[5]—harm to officers and destruction of evidence—are present
4
United States v. Robinson, 414 U.S. 218 (1973) (concluding that, following a
custodial arrest, the warrantless search of defendant's person, the inspection of a
crumpled cigarette package found on defendant's person, and the seizure of heroin
capsules found in the package were permissible under the Fourth Amendment).
5
Chimel v. California, 395 U.S. 752, 763 (1969) (holding that a search incident to
an arrest may only include "the arrestee's person and the area 'within his immediate
control'–construing that phrase to mean the area from within which he might gain
possession of a weapon or destructible evidence"), abrogated by Arizona v. Gant,
556 U.S. 332 (2009) (concluding search of defendant's vehicle, while defendant was
handcuffed and locked in the back of a patrol car following an arrest for driving
with a suspended license, did not fall within the search incident to arrest exception
to the Fourth Amendment's warrant requirement as the safety and evidentiary
justifications underlying Chimel's reaching-distance rule were not present).
in all custodial arrests. There are no comparable risks when the search
is of digital data. In addition, Robinson regarded any privacy interests
retained by an individual after arrest as significantly diminished by the
fact of the arrest itself. Cell phones, however, place vast quantities of
personal information literally in the hands of individuals. A search of
the information on a cell phone bears little resemblance to the type of
brief physical search considered in Robinson.
We therefore decline to extend Robinson to searches of data on cell
phones, and hold instead that officers must generally secure a warrant
before conducting such a search.
Id. at 2484–85 (emphasis added).
Although the Court issued this categorical rule, it noted that "other case-
specific exceptions," primarily the exigent circumstances exception, "may still
justify a warrantless search of a particular phone." Id. at 2494. The Court explained,
"[t]he critical point is that, unlike the search incident to arrest exception, the exigent
circumstances exception requires a court to examine whether an emergency justified
a warrantless search in each particular case." Id.
In my view, the majority fails to appreciate the full import of the Riley
decision. While the majority discusses Riley, it concludes that "Riley does not alter
the standard abandonment analysis." By narrowly construing the holding, the
majority finds "the unique character of cell phones described in Riley is one factor a
trial court should consider when determining whether the owner has relinquished his
expectation of privacy."
In contrast to the majority, I believe Riley creates a categorical rule that, absent
exigent circumstances, law enforcement must procure a search warrant before
searching the data contents of a cell phone. Even though the decision in Riley arose
out of a search incident to an arrest, I discern no reason why the Supreme Court's
rationale is not equally applicable with respect to the abandonment exception to the
Fourth Amendment. I believe the defendant's expectation of privacy in the digital
contents of a cell phone remains the same in either context.
As one legal scholar explained:
the logic behind the Supreme Court's need to protect cell phones during
arrests applies just as convincingly to cell phones left behind by their
users. Categorically, the Supreme Court clearly identified that cell
phones "implicate privacy concerns far beyond those implicated by the
search" of any other nondigital physical item or container because of
cell phones' immense storage capacity and variety of detailed
information. The same invasion of privacy occurs during a warrantless
search of a cell phone, regardless of whether that phone is found during
an arrest or left behind by its owner. In light of the modern
developments of personal technological devices and the Court's
analysis in Riley, courts should develop a carve-out for cell phones from
the abandonment exception to the Fourth Amendment and require
police officers to obtain a search warrant before searching cell phones
left behind by their owners.
Abigail Hoverman, Note, Riley and Abandonment: Expanding Fourth Amendment
Protection of Cell Phones, 111 Nw. U. L. Rev. 517, 543 (2017) (footnote omitted).
I agree with this assessment and believe that any interpretation limiting the
holding in Riley effectively negates its precedential value. See State v. K.C., 207
So. 3d 951, 956 (Fla. Dist. Ct. App. 2016) (analyzing Riley and holding that "a
categorical rule permitting warrantless searches of abandoned cell phones, the
contents of which are password protected, is . . . unconstitutional (relying on Brown,
414 S.C. at 32, 776 S.E.2d at 927 (Konduros, J., dissenting) and State v. Samalia,
375 P.3d 1082, 1091-96 (Wash. 2016) (en banc) (Yu, J., dissenting))).
However, even accepting the majority's narrow interpretation of Riley, I
would find the State failed to establish the abandonment exception to the Fourth
Amendment warrant requirement.
As the majority recognizes, Brown did not voluntarily discard his cell phone.
Brown also placed a passcode on his cell phone to protect his personal information
from unauthorized access. See K.C., 207 So. 3d at 955 (concluding that contents of
defendant's cell phone, which was left in a stolen vehicle, were still protected by a
password given "the password protection that most cell phone users place on their
devices is designed specifically to prevent unauthorized access to the vast store of
personal information which a cell phone can hold when the phone is out of the
owner's possession"). Brown never relinquished this passcode.
Further, unlike the majority, I believe there is evidence that Brown attempted
to locate his phone. Notably, the victim was drawn to the bedroom by the sound of
the ringing cell phone. During his testimony, the victim stated that the phone rang
"over and over and over." The cell phone records reflect that these calls and text
messages were initiated by individuals known to Brown as they were identified in
the contact list stored on his cell phone. The cell phone records also reflect that the
phone received calls and text messages from the evening of December 22, 2011,
until at least January 3, 2012. Without evidence to the contrary, one can only infer
that Brown initiated these contacts in order to find his cell phone. Additionally, on
January 22, 2012, Brown contacted the cell phone service provider to discontinue
service on the cell phone. By discontinuing cell phone service, Brown deactivated
the lost cell phone to prevent the use of and access to the phone. Also, when
questioned by law enforcement, Brown never disclaimed ownership of the cell
phone.
In my view, these objective facts demonstrate Brown's intent to retain his
expectation of privacy in the contents of his cell phone. See 79 C.J.S. Searches §
43, at 70 (2017) (noting that a court, when determining whether property has been
abandoned in the context of search and seizure analysis, must look at the "totality of
the circumstances, paying particular attention to explicit denials of ownership and to
any physical relinquishment of the property"). Because there were no exigent
circumstances presented, I would find law enforcement was required to obtain a
warrant prior to the search of Brown's cell phone.
This decision in no way limits the ability of law enforcement to access the
data contents of a cell phone that is unintentionally discarded near or at the scene of
a crime. Rather, as explained by Chief Justice Roberts in Riley, it "is not that the
information on a cell phone is immune from search; it is instead that a warrant is
generally required before such a search, even when a cell phone is seized incident to
arrest." Riley, 134 S. Ct. at 2493.
Finally, I believe my conclusion effectuates the intent of Riley, but, even more
importantly, ensures the heightened level of protection afforded by the express right
to privacy found in the South Carolina Constitution. See S.C. Const. art. I, § 10
("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 . . . ."); State v. Weaver, 374 S.C. 313, 322, 649 S.E.2d 479, 483
(2007) ("By articulating a specific prohibition against 'unreasonable invasions of
privacy,' the people of South Carolina have indicated that searches and seizures that
do not offend the federal Constitution may still offend the South Carolina
Constitution. Accordingly, the South Carolina Constitution favors an interpretation
offering a higher level of privacy protection than the Fourth Amendment." (citation
omitted)).
Based on the foregoing, I would find the trial court erred in denying Brown's
motion to suppress as law enforcement's warrantless search violated the Fourth
Amendment. Accordingly, I would reverse the decision of the Court of Appeals.