State v. McAteer

Decision Date21 December 1998
Docket NumberNo. 2795.,2795.
Citation511 S.E.2d 79,333 S.C. 615
PartiesThe STATE, Respondent, v. James L. McATEER, Jr., Appellant.
CourtSouth Carolina Court of Appeals

Michael Langford Brown, of Rock Hill, for appellant.

Attorney General Charles Molony Condon, Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Charles H. Richardson, all of Columbia; and Solicitor Thomas E. Pope, of York, for respondent.



This case was originally heard by a panel of this Court, which issued an opinion affirming the Appellant's conviction. See State v. McAteer, Op. No. 2795 (S.C.Ct.App. filed February 17, 1998). The full Court voted to rehear the case en banc. S.C.Code Ann. § 14-8-90(b) (Supp.1997) provides that when this Court hears a case en banc, six votes are required to reverse the judgment below. The rehearing resulted in four judges voting to affirm the Appellant's conviction and five judges voting to reverse the conviction. Therefore, pursuant to section 14-8-90, the Appellant's conviction is hereby AFFIRMED. In view of the fact that the granting of the rehearing en banc effectively vacated the original panel opinion, the panel opinion is hereby withdrawn, and the opinions of the Court attached hereto are substituted therefor.


James L. McAteer appeals his conviction for driving under the influence, second offense. He argues his motion to exclude evidence obtained from his arrest was improperly denied by the trial judge. The dispositive question is whether a private citizen may arrest without a warrant for a misdemeanor involving a breach of the peace. We believe that such an arrest is valid and affirm.


On February 12, 1995, at approximately 6:00 a.m., City of Rock Hill police officer Randolph Thompson was driving down Vistawood Road in York County, approximately one-half mile outside the city limits of Rock Hill, when he observed a vehicle stopped in the middle of the road with its interior light on. Officer Thompson was still in uniform, having just gone off duty, but he was driving his personal vehicle. As Officer Thompson approached the vehicle from behind, he observed it move approximately 250 yards farther down the road and pull only halfway into a driveway. Officer Thompson stopped his vehicle and approached the other vehicle on foot to investigate. As the driver of the car, James L. McAteer, rolled down the window, Officer Thompson smelled an odor of alcohol coming from the vehicle. He also noticed several open alcoholic beverage containers lying in the front and back seats.

Officer Thompson then informed McAteer that he could not drive away, that although he was not under arrest, he could not leave until a York County deputy arrived. Within a few minutes, Trooper J.T. Suter of the South Carolina Highway Patrol arrived at the scene. After first talking with Officer Thompson, Trooper Suter performed several sobriety tests on McAteer and formally arrested him for driving under the influence of alcohol. Trooper Suter transported McAteer to the York County Detention Center, where McAteer registered a Datamaster breath test reading of .18.

At trial, McAteer sought to suppress all evidence resulting from his arrest. McAteer argued the arrest was illegal because Officer Thompson had no police authority to arrest outside the municipal boundaries of Rock Hill and no power to make a citizen's arrest under the circumstances presented. The trial court denied McAteer's motion, proceeded with the bench trial, and convicted McAteer.

Standard of Review

In reviewing criminal cases, this court may review errors of law only. State v. Cutter, 261 S.C. 140, 199 S.E.2d 61 (1973). Absent evidence to the contrary, the regularity and legality of the proceedings in general sessions court is presumed. Weathers v. State, 319 S.C. 59, 459 S.E.2d 838 (1995).

Validity of the Arrest

The parties stipulated that McAteer was "peacefully detained" by Thompson. Such a detention constitutes a seizure and is subject to the same protection under the Fourth and Fourteenth Amendments as an arrest. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)

; Sikes v. State, 323 S.C. 28, 448 S.E.2d 560 (1994). McAteer is correct that if such a detention is unlawful, any evidence stemming from the detention must be excluded as "fruit of the poisonous tree." Sikes, 323 S.C. at 32,

448 S.E.2d at 563. We, however, find the detention lawful because Officer Thompson had authority under the common law to detain McAteer for a misdemeanor involving a breach of the peace.

Because Officer Thompson was outside the jurisdictional limits of the City of Rock Hill when he first encountered McAteer, he had no police authority to detain McAteer. See S.C.Code Ann. § 17-13-40 (1985). An officer may, however, arrest outside his territorial jurisdiction if the arrest would be proper for an ordinary citizen. State v. Harris, 299 S.C. 157, 382 S.E.2d 925 (1989).

In 1712, South Carolina enacted the reception statute, incorporating the body of English common law into the jurisprudence of South Carolina. Huff v. Jennings, 319 S.C. 142, 459 S.E.2d 886 (Ct.App.1995). The reception statute provides: "All, and every part, of the common law of England, where it is not altered by the Code or inconsistent with the Constitution or laws of this State, is hereby continued in full force and effect in the same manner as before the adoption of this section." S.C.Code Ann. § 14-1-50 (1976).

At common law, a private citizen could lawfully arrest, without a warrant, one whom he saw commit a misdemeanor involving a breach of the peace. See Carroll v. United States, 267 U.S. 132, 157, 45 S.Ct. 280, 69 L.Ed. 543 (1925)

("[A] peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence." (emphasis added) (quoting 9 Halsbury's Laws of England 612)); see also State v. Nall, 304 S.C. 332, 339 n. 7, 404 S.E.2d 202, 206-07 n. 7 (Ct.App.1991) (stating that the common-law rule "permits a private person to arrest for a misdemeanor committed in his presence, if it constitutes a breach of the peace" (citing Price v. Seely, 10 Cl. & Fin. 28, 8 Eng.Rep. 651 (1843); Timothy v. Simpson, 1 Cr.M. & R. 787, 149 Eng.Rep. 1285 (1835); 2 Hawk P.C., c. 12, s. 20, at 120 (8th ed. 1824)));1

Knot v. Gay, 1 Root 66 (Conn.Super.1789) (holding that during an affray, any person may, without a warrant from a magistrate, restrain any of the offenders, in order to preserve the peace); Winn v. Hobson, 54 N.Y.Super.Ct. (22 Jones & S.) 330 (N.Y.Super.1887) (holding that a private person has no power to arrest another for a breach of the peace, or for disorderly conduct, except at the time when the offense is committed (emphasis added)); In re Wallace, (Gen.Sess.) 4 City H.Rec. 111 (N.Y. 1819) (finding that in case of a breach of the peace, it is the right and duty of every citizen, without a warrant, to use all lawful means to arrest the offender); Phillips v. Trull, 11 Johns. 486 (N.Y.1814) (holding that if an affray amounts to a breach of the peace, any private person may, without a warrant, restrain any of the offenders in order to preserve the peace). See generally William A. Schroeder, "Warrantless Misdemeanor Arrests and the Fourth Amendment," 58 Mo. L.Rev. 771, 788 (1993) (discussing the common-law rule on warrantless misdemeanor arrests).

McAteer argues that S.C.Code Ann. section 17-13-10 sets out the complete law of citizen's arrest in South Carolina. The statute provides:

Circumstances where any person may arrest a felon or thief.
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 (1985).

The history of this statute reveals that it was not intended to abrogate the common-law rule permitting a warrantless citizen's arrest upon view of a misdemeanor involving a breach of the peace. As originally enacted, the section merely expanded the common-law rule that a private person who views a felony can arrest the felon without a warrant to also allow a warrantless arrest of a felon upon certain information that a felony has been committed. Nall, 304 S.C. at 340,404 S.E.2d at 207. Subsection (b) expanded the common law by abrogating the restriction that a private person's arrest would be unlawful if it ultimately turns out that no felony was actually committed, even if the arresting party had good information that one had been committed. See id. The legislature, therefore, initially intended to address only the rule on warrantless arrests of felons.

Subsection (c) was not enacted until 1898. The prior year, the South Carolina Supreme Court, in State v. Davis, 50 S.C. 405, 427, 27 S.E. 905, 913 (1897), employed the original statute to determine that "[f]or a simple petit larceny, a private person has no right to arrest without warrant." This analysis yielded the result that one who kills another in resisting an illegal arrest can be convicted of manslaughter only, not murder. The next year, 1898, the legislature amended this statute to allow a warrantless citizen's arrest upon view of a larceny committed. See An Act to Amend Section 1 of the Criminal Statutes of South Carolina, 22 Stat. At Large of South Carolina 809 (1898), cited in Nall, 304 S.C. at 340 n. 15,

404 S.E.2d at 207 n. 15.

The Davis court did not discuss the "misdemeanor rule" because petit larceny was not a misdemeanor involving a breach of the peace.2See Sir Matthew Hale, Pleas of the Crown: A Methodical Summary 136 (167...

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4 cases
  • Town of Mount Pleasant v. Jones, 2982.
    • United States
    • South Carolina Court of Appeals
    • April 26, 1999
    ...citizen has the authority to make a warrantless arrest of another person for driving under the influence. State v. McAteer, 333 S.C. 615, 511 S.E.2d 79 (Ct.App.1998) (en banc). In McAteer, an off-duty Rock Hill police officer was driving his personal vehicle in York County, outside of his t......
  • State v. McAteer
    • United States
    • South Carolina Supreme Court
    • May 30, 2000
    ...respondent. FINNEY, Chief Justice: We granted certiorari to review the en banc decision of the Court of Appeals in State v. McAteer, 333 S.C. 615, 511 S.E.2d 79 (Ct.App.1999). We reverse and remand, and hold, consistent with the opinion authored by Judge Connor,1 that South Carolina recogni......
  • Baker v. Wolfe, 2919.
    • United States
    • South Carolina Court of Appeals
    • December 21, 1998
    ... ... The Grandmother alleged the Mother had threatened to take the children out of state and had attempted to remove them from their school. At the hearing on the Grandmother's motion, the Grandmother submitted affidavits and ... ...
  • Williamson v. Middleton
    • United States
    • South Carolina Supreme Court
    • July 27, 2009
    ...SCACR (2007) (defining term "lower court" as "the circuit court ... from which the appeal is taken"); State v. McAteer, 333 S.C. 615, 616, 511 S.E.2d 79, 80 (Ct.App.1998), overruled on other grounds, 340 S.C. 644, 532 S.E.2d 865 (2000) (granting of rehearing banc by the Court of Appeals eff......

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