State v. McAteer, 25134.

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: FINNEY, Chief Justice
• Citation: 340 S.C. 644,532 S.E.2d 865
• Parties: The STATE, Respondent, v. James L. McATEER, Jr., Petitioner.
• Docket Number: No. 25134.,25134.
• Decision Date: 30 May 2000

340 S.C. 644
532 S.E.2d 865

The STATE, Respondent,
v.
James L. McATEER, Jr., Petitioner

No. 25134.

Supreme Court of South Carolina.

Heard March 21, 2000.

Decided May 30, 2000.

340 S.C. 645

Michael L. Brown, Jr. and Gary C. Lemel, both of Rock Hill, for petitioner

Attorney General Charles M. 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.

340 S.C. 646

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 recognizes no common law right² of a citizen to arrest, without a warrant, for a misdemeanor. Further, we vacate those portions of the Court of Appeals' opinions which discuss whether Driving Under the Influence (DUI) is a breach of the peace.

The facts are undisputed. An off-duty (but still uniformed) municipal police officer observed petitioner drive his automobile approximately 250 yards on a dirt road outside the municipality's city limits. The officer approached the car, and petitioner rolled down the window. The officer smelled alcohol and observed open alcoholic beverage containers in the car, and detained petitioner until a Highway patrolman arrived. The patrolman administered several field sobriety tests to petitioner, then formally arrested him and transported him to the York County Detention Center where petitioner blew a.18 on the breathalyzer.

Since the officer was outside the municipality's city limits when he first observed petitioner, he had no police authority to detain him. See S.C.Code Ann. § 17-13-40 (1985). He was authorized to arrest petitioner, however, if a private citizen could have done so. State v. Harris, 299 S.C. 157, 382 S.E.2d 925 (1989). Under S.C.Code Ann. § 17-13-10 (1985), any person may arrest without a warrant:

Upon (a) view of a felony committed, (b) certain information that a felony has been committed or (c) view of a larceny

340 S.C. 647

committed, any person may arrest the felon or thief and take him to a judge or magistrate, to be dealt with according to law.

A second statute permits other warrantless "citizen's arrests" for events occurring in the nighttime. S.C.Code Ann. § 17-13-20 (Supp.1999). It is undisputed that petitioner's citizen's arrest occurred in the daytime and involved a misdemeanor, not a felony.

At common law, a citizen could arrest for a misdemeanor committed in his presence if the misdemeanor involved a breach of the peace. We agree with the Connor opinion that, by 1833, South Carolina had limited the right of citizens to arrest to felony situations only.

The analysis of the issues presented here must begin with State v. Anderson, 19 S.C.L. (1 Hill) 327 (1833). Anderson killed a man in Georgia, and was hiding out in South Carolina. A party of South Carolina citizens went to arrest Anderson, who resisted. Anderson and Berry fired at each other, and Berry was mortally wounded. Anderson was subsequently captured and convicted of Berry's murder. One of the issues on appeal was the lawfulness of Berry's attempted arrest, and the Court held that a citizen may arrest a fugitive charged with a felony in a different state. Anderson at p. 138 (*341). Further, the Court held more generally that "private persons are permitted to arrest, where a felony has been committed, and there are reasonable grounds to suspect the party arrested to be the felon." Id. at p. 141 (*349).

The full meaning of Anderson does not appear on the face of the opinion. Later cases relying on Anderson make clear that, at least by 1833 when it was decided, South Carolina had eliminated the common law right of a citizen to make a warrantless arrest for a misdemeanor involving a breach of the peace committed in the citizen's presence.³ In State v. Davis, 50 S.C. 405, 27 S.E. 905 (1897) (Davis I), the victim observed the defendant stealing money from the cash drawer at the victim's store. The victim chased the defendant from the store, and they scuffled. The defendant then shot

340 S.C. 648

the victim, who died the next day.⁴ At issue on appeal was the lawfulness of the victim's attempted citizen's arrest, for "[w]hile it may be murder, under certain circumstances to kill in resisting an unlawful arrest, generally it is manslaughter only...." Davis I, 29 S.E. at 913. The Court reiterated the rule that "at common law a private person had the right to arrest, without warrant, any person who committed or attempted to commit a felony in his...