F. Citizen's Arrest

• Library: The Criminal Law of South Carolina (SCBar) (2014 Ed.)

F. Citizen's Arrest

Two statutes authorize arrest by private citizens. S.C. Code Ann. §§ 17-13-10 and -20 (2003). The former provides:

Upon (a) view of a felony committed, (b) certain information that a felony has been committed or (c) view of a larceny committed, any person may arrest the felon or thief and take him to a judge or magistrate, to be dealt with according to law.

S.C. Code Ann. § 17-13-10 (2003).

The Supreme Court of South Carolina has unequivocally ruled that there is no common law authority for a citizen, without a warrant, to arrest for a misdemeanor, resolving considerable confusion about that issue. State v McAteer, 340 S.C. 644, 532 S.E.2d 865 (2000), rev'g 333 S.C. 615, 511 S.E.2d 79 (Ct. App. 1998). The Court traced the somewhat tortured history of the common law right of citizen's arrest, noting that as of 1833 there was no common law right for a citizen to arrest for a misdemeanor and that a statute in 1866 abrogated all common law citizens' arrests. The only statutory authority for a misdemeanor arrest in the daytime is on "view of a larceny committed" in the above quoted statute. McAteer, 340 S.C. at 650, 532 S.E.2d at 867-68.

The earlier confusion stemmed from the Court of Appeals resolution of the came case, in which a "majority" of that court held that the statute authorizes such an arrest for any misdemeanor involving a breach of the peace, if seen by the citizen. State v. McAteer, 333 S.C. 615, 511 S.E.2d 79 (Ct. App. 1998), rev'd by 340 S.C. 644, 532 S.E.2d 865 (2000). The Court of Appeals had affirmed McAteer's DUI conviction following his detention by an off-duty police officer who was beyond his jurisdiction, concluding that the officer made a valid citizen's arrest. Quotation marks are placed around "majority" because the majority...