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Criminal Practice – Search & Seizure – Sex Offender – Failure to Register – Automatic Electronic Monitoring

By: Teresa Bruno, Opinions Editor//June 14, 2018

Criminal Practice – Search & Seizure – Sex Offender – Failure to Register – Automatic Electronic Monitoring

By: Teresa Bruno, Opinions Editor//June 14, 2018

Where the circumstances leading up to the imposition of electronic monitoring pursuant to S.C. Code Ann. § 23-3-540(E) will vary widely on a case-by-case basis, electronic monitoring under § 23-3-540(E) “must be ordered by the court” only after the court finds electronic monitoring would not be an unreasonable search based on the totality of the circumstances presented in an individual case.

The circuit court’s order imposing electronic monitoring on defendant is reversed. We remand for further proceedings.

Defendant was no longer under the jurisdiction of the sentencing court when he was ordered to be placed on electronic monitoring for his failure to register as a sex offender. In fact, defendant was ordered to be placed on electronic monitoring 36 years after his conviction and at least 29 years after he completed serving his punishment for that crime. He has not been convicted of any sexual offense since 1979.

Given the wide variety of circumstances that may lead to the requirement of electronic monitoring under § 23-3-540(E), we find a review of only the program itself is not an adequate review for reasonableness under the Fourth Amendment.

However, we reject defendant’s argument that the mandatory language in § 23-3-540(E) – “must be ordered by the court” – renders the subsection itself unconstitutional, thus prohibiting even the individualized consideration of reasonableness in his case. Such an interpretation would be contrary to the General Assembly’s expression of intent § 23-3-400 that “these provisions are not intended to violate the guaranteed constitutional rights of those who have violated our nation’s laws.” In light of this clear statement of intent, we find it necessary to overlay the protections of the Fourth Amendment onto the provisions of § 23-3-540(E).

Reversed and remanded.

State v. Ross (Lawyers Weekly No. 010-066-18, 10 pp.) (John Few, J.) (Donald Beatty, C.J., concurring in the result only without separate opinion) Appealed from the Circuit Court in Greenville County (Robin Stilwell, J.) LaNelle Cantey DuRant for Appellant; Matthew Buchanan for Respondent. S.C. S. Ct.

 

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