Do police need an arrest warrant before arresting someone in SC?
If you are handcuffed, taken to jail, fingerprinted, and charged with a crime, don’t police need an arrest warrant to show that a judge found probable cause and so you know exactly what you are charged with?
If police didn’t get an arrest warrant signed before arresting you, can you get your case dismissed?
You may be asking these questions if you have been arrested and charged with a misdemeanor offense on a blue uniform traffic ticket (UTT), or if an arrest warrant was served on you after your arrest.
In this article, we will answer these questions and more, including:
- When police need an arrest warrant,
- When police do not need an arrest warrant,
- Whether there is an arrest warrant requirement in the Constitution,
- Whether police must tell you why you are being arrested, and
- The difference between an arrest warrant and a uniform traffic ticket in SC.
When Police Need an Arrest Warrant in SC
The general rule is that police must get an arrest warrant signed by a judge before arresting you. But is it a constitutional requirement? If so, why are so many arrests made with first getting an arrest warrant?
Most arrests in SC are made without a signed arrest warrant, and it is perfectly legal…
Is There an Arrest Warrant Requirement?
Technically, there is no arrest warrant requirement in the Constitution.
The Fourth Amendment to the US Constitution says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment is usually understood to require an arrest warrant, based on probable cause, containing a description of the probable cause and the person to be seized that is sworn to under oath.
But that’s not what it says, is it?
It doesn’t say, “No person shall be arrested unless a warrant is issued based on probable cause…”
It does say that no warrant shall be issued unless there is probable cause, and no one shall be unreasonably seized. This leaves plenty enough wiggle room for the legislature and the courts to find exceptions where the court can later review an officer’s decision that there was probable cause.
Do Police Have to Tell You Why You are Being Arrested?
SC Code Section 17-13-50 requires officers to tell a person why they are being arrested. It is a felony offense punishable by up to ten years in prison for an officer to refuse to tell a person why they are being arrested or to lie to a person about why they are being arrested.
Of course, an officer’s failure to tell you why you’re being arrested is not grounds for dismissal, and I’ve never seen an officer prosecuted under this code section. Have you?
Who’s going to arrest a police officer because you say they didn’t tell you why you were being arrested? His fellow officers? SLED?
Who would prosecute the case?
When Police Don’t Need an Arrest Warrant in SC
A police officer needs an arrest warrant, containing the probable cause for the arrest and a description of the person to be arrested, signed by a judge, before making an arrest in every case except the ones listed below – as you will see, the exceptions swallow the rule, and most arrests are made without first getting a warrant.
In many cases, officers are authorized to make arrests using only a uniform traffic ticket – with no judicial finding of probable cause. In other cases, officers are authorized to make arrests and then get a warrant after the fact.
A police officer – or any person – can make an arrest under SC Code Section 17-13-10 if they witnessed 1) a felony or 2) larceny being committed.
If any person has the right to make a citizen’s arrest without first seeking an arrest warrant, so does a police officer…
When an officer makes an arrest without first seeking a warrant, and it is not an offense that can be written on a uniform traffic ticket, however, they need to go get a warrant immediately after the arrest and serve it on the person.
If they don’t, there is no charging document that justifies holding or prosecuting the person – it could take months or years before a person is indicted by the grand jury. Also, getting the arrest warrant protects the officer against the (hypothetical) risk of being charged under 17-30-50 for not informing the defendant of their charges.
While any person, including a police officer, can make an arrest for a felony or for larceny committed in their presence, SC Code Section 17-13-30 also authorizes police officers (it specifically says “sheriffs and deputy sheriffs”) to make arrests for any crime committed in their presence, including misdemeanor offenses.
As with felony offenses, the officer needs to get an arrest warrant signed immediately after the arrest if it is not a crime that can be charged on a uniform traffic ticket.
Uniform Traffic Tickets
A uniform traffic ticket (UTT), when permitted, allows an officer to arrest and charge a person without any pre-arrest judicial review – the officer does not have to present his or her probable cause to a magistrate, and no judge signs the UTT.
SC Code Section 56-7-10 and 56-7-15 permit the use of UTTs in three situations:
- For any traffic offense (including DUI, DUS, and other “serious” violations that are found in the traffic code),
- Offenses that are specifically listed in 56-7-10, and
- Offenses that are 1) committed in the officer’s presence or “freshly committed” and 2) within the jurisdiction of the magistrate or municipal court.
Common offenses that are listed in 56-7-10 that can be charged using a UTT include:
- Indecent exposure,
- Public disorderly conduct,
- Open container,
- Minor in possession of alcohol,
- Malicious injury to personal property,
- Domestic violence 2nd or 3rd degree, and
For example, if an officer sees a person smashing a bottle over someone’s head, causing an obviously severe injury, the officer can arrest that person, take them to jail, and then get an arrest warrant signed for assault and battery 1st degree because a felony was committed in their presence.
If an officer sees a person shove someone, the officer can arrest the person and write a uniform traffic ticket because it was an offense committed in their presence that is within the jurisdiction of the magistrate court.
If an officer responds to a domestic violence call, they can arrest a person and charge them on a UTT (if second or third-degree domestic violence) because that is an offense specifically listed in 56-7-10.
If an officer arrives at a murder scene and a witness tells the officer that he witnessed John Smith committing the murder, the officer must get an arrest warrant signed by a judge before arresting John Smith because there is no exception that would allow a warrantless arrest.
Criminal Defense Lawyers in Myrtle Beach, SC
If you have been charged with a crime in SC or believe that you are under investigation, call the Myrtle Beach criminal defense lawyers at Coastal Law immediately to find out how we can help.
Call Coastal Law now to schedule a free case consultation by calling (843) 488-5000 or by contacting us through our website.