IN THE COURT OF GENERAL SESSIONS INDICTMENT NUMBER: 2023GS4007440 STATE OF SOUTH CAROLINA. COUNTY OF RICHLAND. ‘THE STATE ORDER GRANTING DEFENDANT’S MOTION TO -vs- SUPPRESS SEARCHES CHIKEI RICK CHOW, Defendant. THIS MATTER is before the Court on Defendant’s Motion for an Emergency Hearing and to Suppress Searches, filed July 18, 2023. An in-person emergency hearing was held with the Solicitor, Defense counsel, and the Defendant on July 25, 2023. After review of the written submissions by the parties, applicable legal authority and oral argument of counsel at the emergency hearing, the Court GRANTS the Defendant's Motion to Suppress Searches. PROCEDURAL HISTORY On May 29, 2023, Chikei Rick Chow (“Defendant”) was charged with Murder for shooting Cynus Carmack-Belton. On July 7, 2023, investigators obtained search warrants for the Defendant’s business and home seeking “any and all employee files any files containing employee handbooks or policy ‘manuals. Also any computer hard drives, thumb drivers or portable hard drives that may contain any files that may contain any employee records or manuals. In some instances, these devices store data directly to the hardware allowing it to be saved and downloaded at a later date and time.” (See Ex. A, B) On July 11, 2023, the searches of both the business and the residence were executed. Various items of paperwork were seized from the business. Defendant’s wife provided Page 1 oftinvestigators executing the scarch with a box containing eleven (11) years of employee files, and ten (10) electronic devices ranging from laptops to hard drives that were also seized from the home. On July 18, 2023, Defendant filed a Motion for an Emergency Hearing and to Suppress Searches. An in-person emergency hearing was held on July 25, 2023 On July 31, 2023, the State filed a Memorandum in Support of Denial of Defendant's Motion to Suppress stating that this Court lacks jurisdiction to rule on Defendant's motion. (See State's Mem. Supp. Mot. Suppress. p. 2-3) In its Memorandum, the State cites Criminal Section (A)A4)(@) of the South Carolina Judicial Branch Summary Court Judges Bench Book arguing “any issues pertaining to with which prong of S.C. Code § 17-13-140 was met by the search of whether probable cause existed should have first been addressed to Judge Stroman by requesting a hearing to create an actual ruling on the record or during a Motion to Vacate before Judge Stroman.” (See 1d.) Yet, in the State’s Proposed Order Denying Defendant’s Motion to Suppress, the State abandons their jurisdiction argument stating “I find that this Court has jurisdiction to hear and rule on this matter.” (See State’s Proposed Order Den. Def. Mot. Suppress. p. 2) ANALYSIS. The Fourth Amendment of the U.S. Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, 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, and the persons or things to be seized." U.S. Const. Amend. IV. The South Carolina Constitution also provides a safeguard against unlawful searches and seizures. State v. Forrester, 343 8.C. 637, 541 S.E.2d 837 (2001) (citing S.C. Const. art. I. § 10). The relationship between the two constitutions is significant because “[s]tate courts may afford more expansive rights under state constitutional provisions than the Page 2 ‘ahrights which are conferred by the Federal Constitution.” /d, (quoting State v. Easler, 327 S.C. 121, 131, n. 13, 489 $.B.2d 617, 625, n. 13 (1997)). Therefore, this Court may interpret the state protection against unreasonable searches and seizures in such a way as to provide greater protection than the federal Constitution, /d. Pursuant to S.C. Code §17-13-140: “Any magistrate or recorder or city judge having the powers of magistrates, or any Judge of any court of record of the State having jurisdiction over the area where the property sought is located, may issue a search warrant to search for and seize (1) stolen or embezzled property; (2) property, the possession of which is unlawful; (3) property which is being used or has been used in the commission of a criminal offense or is possessed with the intent to be used as the means for committing a criminal offense or is concealed to prevent a criminal offense from being discovered; (4) property constituting evidence of erime or tending to show that a particular person committed a criminal offense; (5) any narcotic drugs, barbiturates, amphetamines or other drugs restricted to sale, possession, or use on prescription only, which are manufactured, possessed, controlled, sold, prescribed, administered, dispensed or compounded in violation of any of the laws of this State or of the United States. Narcotics, barbiturates or other drugs seized hereunder shall be disposed of as provided by Section 44-53-520. ‘The property described in this section, or any part thereof, may be seized from any place where such property may be located, or ffom the person, possession or control of any person who shall be found to have such property in his possession or under his control. ‘A warrant issued hercunder shall be issued only upon affidavit swom to before the magistrate, municipal judicial officer, or judge of a court of record establishing the grounds for the warrant. If the magistrate, municipal judge, or other judicial officer abovementioned is satisfied that the grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. In the case of a warrant issued by a magistrate or ajudge of a court of record, it shall be directed to any peace officer having jurisdiction in the county where issued, including members of the South Carolina Law Enforcement Division, and shall be returnable to the issuing magistrate. In case of a warrant issued by a judge of a court of record, it shall be returnable to a magistrate having jurisdiction of the area where the property is located or the person to be searched is found. If any warrant is issued by any municipal judicial officer to municipal police officers, the retum shall be made to the issuing municipal judicial officer, Any warrant issued shall command the officer to whom it is directed to forthwith search the person or place named for the property specified. Page 3 of 6 (Any warrant issued hereunder shall be executed and return made only within ten days after it is dated. ‘The officer executing the warrant shall make and deliver a signed inventory of any articles seized by virtue of the warrant, which shall be delivered to the judicial officer to whom the return is to be made, and if a copy of the inventory is demanded by the person from whose person ot premises the property is taken, a copy of the inventory shall be delivered to him, This section is not intended to and does not either modify or limit any statute or other law regulating search, seizure, and the issuance and execution of search warrants in circumstances for which special provision is made.” 8.C. Code §17-13- 140, “An appellate court reviewing the decision to issue a search warrant should decide whether the magistrate had a substantial basis for concluding probable cause existed.” State v. King, 349 S.C. 142, 561 S.E.2d 640 (Ct.App.2002). “This determination requires the magistrate to make a practical, common-sense decision of whether, given the totality of the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying the information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 644, “The affidavit must contain sufficient underlying facts and information upon which the ‘magistrate may make a determination of probable cause. The magistrate should determine probable cause based on all of the information available to the magistrate at the time the warrant was issued.” State v, Dupree, 354 S.C, 676, 684, 583 S.E.2d 437, 441 (Ct.App.2003). The State asserts the following as their probable cause in the affidavits attached to the search warrants executed on Defendant's business and home: “On June 20", 2023, during the interview with Ms. Alice Chow she stated that they had a policy manual that told employees what to do in certain situations to include shoplifting. Ms. Chow also stated that all employees signed that they knew the policies of the store and what to do in certain situations, During that interview Lt. Jordan asked if they would provide the documents to RCSD and her attomey stated they would provide the requested documents. To this date, the documents have not been tured over to law enforcement. During a previous search of the gas station investigators notices computer equipment that could be used to store employees records as well as paperwork throughout office area. The search of the business and residence is to locate the documents that Ms. Chow indicated that they have in their Page 4 of 6 apossession. The information of former and current employees is also important to the investigation so that we can determine what they understood the policies were at the time of their employment, The documents maybe located on any computer hard drives, portable digital storage devices or in any file cabinets owned and ‘operated by Alice and Rick Chow or other family members.” Ex. A, B. S.C. Code §17-13-140(1) allows judges to issue search warrants to allow law enforcement to search for and seize “stolen or embezzled property”. (See S.C. Code §17-13-140(1)). However, Mr. Chow's employee files, employee handbooks, policy manuals, computer hard drives, thumb drivers, and portable hard drives were not stolen or embezzled property. Subsection (2) provides for the issuance of a search warrant for “property, the possession of which is unlawful”. (See S.C. Code §17-13-140(2)). But, Mr. Chow lawfully possessed his employee files, employee handbooks, Policy manuals, computer hard drives, thumb drivers, and portable hard drives. Subsection (3) Provides for the issuance of a search warrant for “property which is being used or has been used in the commission of a criminal offense or is possessed with the intent to be used as the means for committing a criminal offense or is concealed to prevent a criminal offense from being discovered”. (See S.C. Code §1 7-13-140(3)). Yet, Mr. Chow did not use any of the items recovered in the scarch during the commission of the crime of which he his charged. Subsection (4) provides for the issuance of a search warrant for “property constituting evidence of crime or tending to show that a particular person committed a criminal offense.” (See $.C. Code §17-13-140(4)). But, the State has failed to prove the connection between the business’ employee policy manual and records and how that evidence would tend to prove that the Defendant committed the crime charged Subsection (5) provides for the issuance of a search warrant for “any narcotic drugs, barbiturates, amphetamines or other drugs restricted to sale, possession, or use on prescription only, which are ‘manufactured, possessed, controlled, sold, prescribed, administered, dispensed or compounded in Violation of any of the laws of this State or of the United States”. (See $.C. Code §17-13-140(5)). Page ufHowever, the items seized from Mr. Chow’s business and home were files, not narcotic drugs, barbiturates, amphetamines or other drugs restricted to sale, possession, or use on prescription only. Based on the totality of the circumstances, this Court holds the scarch warrant affidavits were insufficient to establish probable cause to search the Defendant's business and home. There is no information in the search warrants establishing probable cause that complies with S.C. Code §17-13-140. Further, the State admitted at the emergency hearing that no additional swom oral testimony was given before Judge Stroman. (“If the affidavit standing alone is insufficient to establish probable cause{,] it may be supplemented by sworn oral testimony before the magistrate.” State v. Wright, 416 8.C. 353, 366 (Ct. App. 2016.). CONCLUSION Therefore, the Court disagrees with the State that probable cause existed to execute search warrants on the Defendant's business and home. Without probable cause, there was no basis to execute the search warrants. Accordingly, the evidence obtained through the illegal search of the Defendant’s business and home must be suppressed and Defendant's Motion to Suppress is granted. THEREFORE, IT IS ORDERED that the Defendant’s Motion to ‘Suppress the search warrants is GRANTED. The Honorable Rdbert E, Hood Chicf Administrative Judge Fifth Judicial Cireuit Columbia, South Carolina Z) day of September, 2023 This Page 6 of 6