           THE STATE OF SOUTH CAROLINA 

                In The Supreme Court 


   The State, Respondent,

   v.

   Darryl L. Drayton, Petitioner.

   Appellate Case No. 2015-000814



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



              Appeal From Charleston County 

    The Honorable J. C. Nicholson, Jr., Circuit Court Judge 



                   Opinion No. 27599 

   Submitted December 7, 2015 – Filed December 23, 2015 



        VACATED IN PART, AFFIRMED IN RESULT


   Appellate Defender Susan Barber Hackett, of Columbia,
   for Petitioner.

   Attorney General Alan McCrory Wilson, Chief Deputy
   Attorney General John W. McIntosh, Senior Assistant
   Deputy Attorney General Donald J. Zelenka, Senior
   Assistant Attorney General W. Edgar Salter, III, all of
   Columbia, and Solicitor Scarlett Anne Wilson, of
   Charleston, all for Respondent.
PER CURIAM: Petitioner seeks a writ of certiorari to review the Court of
Appeals' opinion in State v. Drayton, 411 S.C. 533, 769 S.E.2d 254 (Ct. App.
2015). We grant the petition as to Questions I and II, dispense with further
briefing, vacate the portion of the Court of Appeals' opinion addressing petitioner's
expectation of privacy in his historical cell site location data (HCSLD), and affirm
in result. We deny the petition as to Question III.

Petitioner was convicted of murder and sentenced to life without parole. Prior to
trial, petitioner moved to suppress evidence of his HCSLD on the ground that the
affidavits in support of the search warrants did not establish probable cause.
During the hearing on the motion, arguments were presented as to whether
petitioner had a privacy interest in the information obtained. The State argued no
search occurred, but, regardless, petitioner did not have a privacy interest in the
records.

The trial judge denied the motion to suppress, finding, in relevant part, that
petitioner did not have a privacy interest in the records. The judge applied the
Federal Stored Communications Act (SCA), 18 U.S.C.A. 2703 (2015) by analogy,
construed the warrants as court orders, found the orders were supported by
"reasonable grounds," and determined probable cause was not required. Based on
his ruling, the judge did not address whether the affidavits in support of the search
warrants established probable cause.

The Court of Appeals affirmed the denial of the motion to suppress, finding, as a
matter of first impression, petitioner did not have an expectation of privacy in the
records pursuant to the Fourth Amendment because the SCA does not require
probable cause and the federal courts have not found that the SCA implicates the
Fourth Amendment.

The Court of Appeals further found, as a matter of first impression, petitioner did
not have an expectation of privacy in the records under the South Carolina
Constitution because the evidence sought in this case was not obtained via
electronic surveillance, but was sought as a business record. The court relied on
"federal precedent" to determine petitioner did not have a reasonable expectation
of privacy in his HCSLD because he voluntarily contracted with Verizon, thereby
conveying his HCSLD to Verizon which created records in the ordinary course of
business. The court concluded the trial judge properly construed the warrant as a
court order and applied a "reasonable grounds" test. Because the court's findings
regarding privacy were dispositive, the court did not address whether the affidavits
in support of the warrants established probable cause.
We find the Court of Appeals erred in reaching the novel issue of whether
petitioner had an expectation of privacy in his HCSLD because, in view of the
totality of the circumstances, the affidavits in support of the warrants established
probable cause for the search. See S.C. Code Ann. § 17-13-140 (2014) (stating, in
part, a search warrant may be issued to search for and seize property tending to
show that a particular person committed a criminal offense); State v. Jones, 342
S.C. 121, 126, 536 S.E.2d 675, 678 (2000) ("When reviewing a magistrate's
decision to issue a search warrant, we must consider the totality of the
circumstances."). Accordingly, we vacate that portion of the Court of Appeals'
opinion.

Further, any error in the issuance of the warrants was harmless because petitioner's
guilt was conclusively established by other competent evidence at trial, such that
no other rational conclusion could have been reached. See State v. Livingston, 282
S.C. 1, 6, 317 S.E.2d 129, 132 (1984); ("[W]here guilt is conclusively proven by
competent evidence and no rational conclusion can be reached other than the
accused is guilty, a conviction will not be set aside because of insubstantial errors
not affecting the result."); see also State v. Baccus, 367 S.C. 41, 625 S.E.2d 216
(2006) (employing a harmless error analysis in the case of a defective search
warrant). Accordingly, we affirm petitioner's conviction and sentence.

VACATED IN PART, AFFIRMED IN RESULT

TOAL, C.J., PLEICONES, BEATTY, KITTREDGE and HEARN, JJ.,
concur.
