Monitoring and the
Law
Jorge Rodriguez
jorgerodriguez@monitoringtimes.com
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
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