Background
On January 1, 2022, Nevelle Eberhart robbed the victim at gunpoint at an ATM near King and Devine Streets in Columbia, arriving on a black moped. After the victim fled to a nearby gas station, bank surveillance video captured the moped’s tag number; the next day, the moped was reported stolen but was found parked at Nicole Goodwin’s house. When Investigator Gilliam went to Goodwin’s address, Eberhart came out of the house. Gilliam photographed Eberhart’s identification.
Without obtaining a warrant, Gilliam then contacted BadBoyz Bail Bonding—a private company that had been monitoring Eberhart’s location via GPS ankle monitor as a condition of his bond on an unrelated pending charge—and obtained location data placing Eberhart on the 2400 block of Devine Street at the time of the robbery. The bond agreement between Eberhart and BadBoyz was never introduced into evidence. The trial court denied Eberhart’s motion to suppress the GPS data, finding he had no legitimate expectation of privacy because he had “voluntarily submitted to GPS monitoring” and “enter[ed] into the agreement with the bond[] company, knowing that the bond[] company could share the information with law enforcement.” The victim identified Eberhart at trial as the perpetrator, and the victim’s debit card was found on Eberhart at arrest. Eberhart was convicted of armed robbery and possession of a weapon during a violent crime and sentenced to fifteen years.
On appeal Eberhart raised two issues: (1) the warrantless acquisition of his GPS data from BadBoyz violated the Fourth Amendment and South Carolina Constitution Article I, Section 10; and (2) admission of the officer’s body-camera recording of the victim’s initial police interview violated the Confrontation Clause and the hearsay rule.
The Court’s Holding
The Court of Appeals (Thomas, J.) affirmed the conviction. On the GPS issue, the panel found the trial court erred in admitting the data, but held that error harmless. Applying the two-part Katz test and South Carolina’s independent constitutional privacy provision—which expressly prohibits “unreasonable invasions of privacy”—the court held Eberhart retained a reasonable expectation of privacy in his GPS location data. Because the bond agreement was not in the record, there was no evidence Eberhart had consented to government access, and BadBoyz had no demonstrated authority to share his data with law enforcement. Drawing on Carpenter v. United States, 585 U.S. 296 (2018), and noting that South Carolina requires a warrant for cell-site location information absent recognized exceptions, the court found the warrantless acquisition of bond-company GPS data violated both the federal and state constitutions.
The constitutional violation did not require reversal, however. The victim positively identified Eberhart in court, the bank video showed the moped’s tag number, the moped was recovered at the home where Eberhart was present, Investigator Gilliam independently compared the bank video to Eberhart and concluded it showed the same person, and the victim’s debit card was found on Eberhart at arrest. The court also noted that even under the exclusionary rule, the evidence linking Eberhart to the crime would have been discovered through those lawful means independent of the GPS data. The court separately upheld admission of the body-camera recording: the victim testified at trial and was subject to cross-examination (no Confrontation Clause violation), and the statements were made within thirty minutes of the robbery and qualified as both present sense impressions under Rule 803(1), SCRE, and excited utterances under Rule 803(2), SCRE.
Judge McDonald concurred in result only, writing separately to express agreement with the trial court that a defendant who voluntarily submits to GPS monitoring by a private bond company has neither a subjective nor an objectively reasonable expectation of privacy in the resulting location data—because the purpose of bond monitoring is to allow the bond company (and potentially law enforcement and the court) to locate the defendant. Judge McDonald found persuasive the Colorado Court of Appeals’ reasoning in People v. Campbell, 425 P.3d 1163 (Colo. App. 2018), and would have reached the same affirmance on the threshold privacy question rather than through harmless error.
Key Takeaways
- A South Carolina criminal defendant wearing a private-bond-company GPS ankle monitor retains a Fourth Amendment reasonable expectation of privacy in that location data when the bond agreement is not in evidence and the record does not establish consent to share location with law enforcement; investigators must obtain a warrant before accessing that data.
- South Carolina’s express constitutional prohibition against “unreasonable invasions of privacy” (Art. I, § 10) independently reinforces the warrant requirement for warrantless acquisition of electronic location data from third-party bond companies, even if the claim could otherwise rest solely on federal Fourth Amendment doctrine.
- Fourth Amendment violations in the admission of electronic location evidence are subject to harmless-error review; where the victim identifies the defendant at trial, video evidence independently ties the defendant to the scene, and physical evidence is recovered from the defendant at arrest, admission of GPS data does not compel reversal.
- Victim statements made within thirty minutes of an armed robbery qualify as present sense impressions (Rule 803(1), SCRE) and excited utterances (Rule 803(2), SCRE), and their admission on a body-camera recording does not violate the Confrontation Clause when the victim testifies and is cross-examined at trial.
- The majority and concurrence stake out opposing positions on the threshold privacy question—signaling that South Carolina courts will have to resolve whether voluntary submission to private-bond-company GPS monitoring categorically eliminates any expectation of privacy.
Why It Matters
Private-company GPS ankle monitoring has become a routine feature of South Carolina’s pretrial release landscape, and until now no published South Carolina appellate decision had addressed whether law enforcement can tap into that data without a warrant. Eberhart fills that gap by holding—albeit in a harmless-error affirmance that lets the conviction stand—that the Fourth Amendment is implicated when bond-company location data is obtained without a warrant and without a record showing the defendant consented to share with the government. Practitioners defending clients who are subject to private-bond GPS monitoring should scrutinize the monitoring agreement and, where it does not clearly authorize government access, move to suppress any location data obtained without a warrant.
For the State, the practical lesson is the one the court borrowed from State v. Moore: “get a warrant.” In addition to being the safest litigation strategy, a warrant application that documents the basis for accessing bond-company GPS data would eliminate the privacy-expectation dispute entirely. The split between the majority and Judge McDonald’s concurrence also signals that the issue is ripe for resolution by the South Carolina Supreme Court, and practitioners on both sides should preserve the argument carefully in pending cases.