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Monitoring and the Law

Jorge Rodriguez

South Dakota PD Wants Your Scanner

              The Aberdeen, South Dakota, visitors and convention bureau describes Aberdeen as a city which emerged with the coming of the railroads, flourished into a strong agricultural economy, and has diversified into a manufacturing and service center. They say it is a city of Midwestern hospitality mixed with metropolitan progressiveness; a community where the quality of life is exceptional and its residents are willing to share. And, from recent reports, the Aberdeen Police Department wants you to share your scanner if you don’t have a permit.

            Aberdeen Police Sergeant Jay Tobin explained to ABC affiliate KSFY they are not just cracking down for the fun of it. "It's a safety issue to help us do our job so people can't leave the scene before we get there." He pointed out that anyone can have a scanner, but it's where and how they use it that matters. "We've been seeing more in vehicles lately and we're letting people know that there is a state law that says they can be confiscated if we find them in a vehicle without a permit."

            The law to which Sergeant Tobin refers is South Dakota Codified law §23-4-5 which states:

 The possession of any receiving set or converter described in §23-4-2 in any vehicle or business establishment, without permission pursuant to § 3-4-3, will constitute prima facie evidence of possession for unlawful purposes, and such receiving set shall be confiscated by any peace officer of this state and delivered to the attorney general for disposition.

             Under South Dakota Codified Law, Chapter 23-4 titled Safeguard of Law Enforcement Radio Communications states:

 §23-4-2 No person who has been convicted of a felony in this state or elsewhere within the past ten years shall posses any frequency modulation receiving equipment capable of being so adjusted or tuned as to receive messages or signals on frequencies assigned by the federal communications commission to local or state law enforcement officers, or to the state or any of its agencies. Any person who violates this section is guilty of a Class 2 misdemeanor. Nothing in this section shall be constructed to affect any radio station licensed by the federal communications system.

             This is a common definition of a scanner and is an often seen restriction of convicted criminals possession of scanners.

            Although Aberdeen police suggest obtaining a permit to monitor in a vehicle is possible, the South Dakota law on permits for scanners deals only with fixed monitors in authorized places or business. No mention is made in the law of permits for vehicles. The statute specifically reads:


             §23-4-3 At the discretion of the attorney general or the legal licensee of each county or municipality, a permit to monitor said assigned frequencies may be issued. Such permit will apply to fixed monitors in authorized places of business. Application for such permit will be made in writing to the attorney general for frequencies assigned to the state of South Dakota and to the sheriff or fire chief for frequencies assigned to various counties and to the chief of police and fire chief of the various municipalities.


            Since the “chapter [scanner laws] does not apply to any holders of a valid amateur radio operator or station license issued by the federal communications commission,” it appears that having a valid FCC license or some locally created permit not envisioned by the state law would be the only legal way to possess a scanner in your vehicle in South Dakota.

            What can happen if you’re caught with a scanner in your vehicle? The law is clear on this point. Your scanner will be confiscated and is to be given to the attorney general for disposal. Codified at §23-4-5 under the title "Unlawful possession of receiving set or converter without permission -- Seizure by peace officer,” the law states that:


            The possession of any receiving set or converter described in §23-4-2 in any vehicle or business establishment [even a business that sells and repairs radios], without permission pursuant to § 23-4-3, will constitute prima facie evidence of possession for unlawful purposes, and such receiving set shall be deemed contraband and shall be confiscated by any peace officer of this state and delivered to the attorney general for disposition.


            What does "prima facie" and all this mean? Prima Facie means standing alone or on its face and means that mere possession and nothing else is enough for the police to prove that possession is for unlawful purposes. Although we could find no challenges to the South Dakota law, a comparison of this final and most serious seizure provision seem to raise serious issue of constitutionality.

            Even in these times of expanding civil forfeiture for suspected criminals, especially in regards to drug assets, certain minimal procedures must be in place and followed. Although the standard of proof can be much lower in a forfeiture case than a companion criminal case where the standard of proof is beyond a reasonable doubt, the basic tenets of our justice system should still be followed. At a minimum those include a fair and unbiased decision maker, and notice and opportunity to be heard. Since the South Dakota law allowing seizure of scanners seems void of both, it is prime for a constitutional challenge.

            MT contacted the Aberdeen Police Department for comment, but our calls were not returned.


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Disclaimer: Information in this column is provided for its news and educational content only. Nothing here should be construed as giving specific legal advice. Persons desiring legal advice about their specific situation should consult an attorney licensed in their jurisdiction.