Town of Mount Pleasant v. Jones, 2982.

Citation516 S.E.2d 468,335 S.C. 295
Decision Date26 April 1999
Docket NumberNo. 2982.,2982.
CourtCourt of Appeals of South Carolina
PartiesTOWN OF MOUNT PLEASANT, Appellant, v. Virginia D. JONES, Respondent.

P. Steven Barkowitz, of Charleston, for appellant.

Lon H. Shull, III, of Andrews & Shull, of Mt. Pleasant, for respondent.

CONNOR, Judge:

Virginia Jones was arrested and charged with driving under the influence. The municipal court dismissed the charge based upon an unlawful citizen's arrest, and the circuit court affirmed. The Town of Mount Pleasant (the Town) appeals. We reverse and remand.

FACTUAL/PROCEDURAL BACKGROUND

On February 7, 1996, James Scarborough, a private detective and volunteer fireman, was traveling over the Cooper River Bridge towards Mount Pleasant. He noticed Virginia Jones driving erratically. Scarborough called 911 and informed the police department. After crossing the bridge, Scarborough turned on the emergency red flashing light used in his duties as a volunteer fireman. Jones pulled over to the side of the road because she believed an emergency vehicle was trying to pass. When Jones pulled over, Scarborough yelled at Jones to "stay there, remain in your car." Scarborough held Jones on the side of the road until police officers arrived. She did not feel she could leave safely because it was obvious Scarborough intended to detain her.

Within approximately five minutes, Officer Phipps, a Town of Mount Pleasant police officer, arrived on the scene. Officer Phipps conducted field sobriety tests and then arrested Jones for driving under the influence. Upon arrival at the police station, the officers conducted a breathalyzer test. Jones made a motion before the municipal court to dismiss the case or suppress evidence obtained from the arrest.1 The judge did not reach the suppression issue. Rather, he found Jones was unlawfully "restrained and arrested by [a] private citizen, Mr. Scarborough."2 As a result, he dismissed Jones's charge for driving under the influence.3

The Town appealed to the circuit court. The Town argued the municipal court judge erred in dismissing the case because "the Fourth Amendment [proscription] against warrantless search[es] and seizures does not apply to actions by private citizens.... [Therefore], regardless of the actions of the private citizen, Mr. Scarborough's actions, it does not affect the validity of [the officer's actions once the officer arrived on the scene]." The Town asserted the officer acted properly in lawfully arresting Jones when he arrived on the scene. Therefore, the invalidity of Scarborough's initial detention was irrelevant. The judge "agree[d] ... that there was an improper arrest in this case" and affirmed the decision of the municipal court judge. He issued a form order affirming the municipal court judge's decision. The Town appeals.

DISCUSSION

Recently, this Court considered the question of whether a private 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 territorial jurisdiction, when he observed a vehicle stopped in the middle of the road with its interior light on. The officer stopped his vehicle and approached the other vehicle on foot to investigate. As McAteer rolled down the window, the officer smelled alcohol coming from the vehicle. He also noticed several open alcoholic beverage containers lying in the front and back seats. The officer detained McAteer until a trooper with the South Carolina Highway Patrol arrived. After administering several field sobriety tests, the trooper arrested McAteer for driving under the influence of alcohol. Subsequently, McAteer registered a reading of .18 on the Datamaster breath test.

At trial, McAteer sought to suppress all evidence resulting from his arrest. He argued the arrest was illegal because the Rock Hill police officer had no police power to arrest outside his jurisdiction and no power to make a citizen's arrest under the circumstances. The circuit court judge denied McAteer's motion and subsequently convicted him in a bench trial.

In a split decision, the majority opinion of this Court held the police officer had authority as a private citizen under the common law to detain McAteer for a misdemeanor involving a breach of the peace. At first blush McAteer appears dispositive of this case. However, the validity of Scarborough's "citizen's arrest" is not at issue in this case.4

The municipal court judge found Jones was unlawfully restrained and arrested by Scarborough, a private citizen. Additionally, the circuit court judge agreed there was an improper arrest by Scarborough. The Town has not appealed the rulings concerning the invalidity of the citizen's arrest. In fact, the Town argues the invalidity of the arrest is irrelevant to this appeal. The Town maintains whether an illegal citizen's arrest had occurred is immaterial and merely serves as a red herring which affected the reasoning of the circuit court. Because the Town has failed to appeal the lower courts' ruling that the citizen's arrest was invalid, it is the law of this case that Scarborough's detention of Jones was unlawful. See ML-Lee Acquisition Fund, L.P. v. Deloitte & Touche, 327 S.C. 238, 489 S.E.2d 470 (1997) (an unchallenged ruling, right or wrong, is the law of the case); Continental Ins. Co. v. Shives, 328 S.C. 470, 492 S.E.2d 808 (Ct.App.1997) (a lower court's unappealed ruling becomes the law of the case, and the appellate court must assume the ruling was correct).

On appeal, the Town argues the circuit court erred in dismissing the case because the improper citizen's arrest had no effect on the admissibility of evidence discovered by police authorities after their arrival at the scene.

As a threshold issue, the illegal citizen's arrest imposed no jurisdictional bar to the subsequent prosecution of Jones. Our Supreme Court has repeatedly held an illegal arrest does not preclude the subsequent prosecution or conviction of the defendant for the offense charged. See State v. Biehl, 271 S.C. 201, 246 S.E.2d 859 (1978)

(The illegality of an initial arrest does not bar a defendant's subsequent prosecution and conviction of the offense charged.); State v. McCoy, 255 S.C. 170, 177 S.E.2d 601 (1970) (The fact that an initial arrest may have been unlawful does not bar prosecution of the defendant based on a subsequent indictment by which the court acquires jurisdiction.); State v. Holliday, 255 S.C. 142, 177 S.E.2d 541 (1970) (An unlawful arrest does not preclude the prosecution of the defendant and does not require reversal of the subsequent conviction where all other elements necessary to give a court jurisdiction are present.); Wayne R. LaFave, 1 Search and Seizure: A Treatise on the Fourth Amendment § 1.9 (3d ed. 1996) ("[A]n illegal arrest does not divest the trial court of jurisdiction over the defendant or otherwise preclude his trial."). Accordingly, Jones's charge for driving under the influence should not have been dismissed because of an illegal citizen's arrest.

The question then becomes whether the evidence obtained as a result of Jones's unlawful citizen's arrest must be suppressed. The Fourth Amendment to the United States Constitution provides the federal government shall not violate "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." U.S. Const. amend. IV. The United States Supreme Court extended the constitutional protection against unreasonable searches and seizures to those involving state action. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). The exclusionary rule, a sanction to enforce the protection of the Fourth Amendment, is applicable to state action through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) ("[A]ll evidence obtained by searches and seizures in violation of the Constitution is ... inadmissible in a state court.").

Fourth Amendment protection against unreasonable searches and seizures, however, applies only to governmental action and not to action by private citizens acting in a private capacity. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921). In interpreting the Fourth Amendment, the United States Supreme Court has stated the Fourth Amendment's "origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies...." Id. at 475, 41 S.Ct. 574.

Accordingly, our Supreme Court has stated, "[t]he fourth amendment is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government and without the participation or knowledge of government officials." State v. McSwain, 292 S.C. 206, 207, 355 S.E.2d 540, 541 (1987); see State v. Copeland, 321 S.C. 318, 468 S.E.2d 620 (1996)

(The "fruit of the poisonous tree" doctrine holds that where evidence would not have come to light but for the illegal actions of the police, and the evidence has been obtained by the exploitation of the illegality, the evidence must be excluded.). Our Supreme Court has consistently followed this interpretation. See State v. Cooney, 320 S.C. 107, 463 S.E.2d 597 (1995) (The Fourth Amendment proscription against warrantless searches and seizures does not apply to searches or seizures by private individuals not acting as agents of the State.); State v. Cohen, 305 S.C. 432, 409 S.E.2d 383 (1991) (The Fourth Amendment does not bar a search or seizure by a private party.); Peters v. State, 302 S.C. 59, 393 S.E.2d 387 (1990) (The Fourth Amendment's constitutional proscription against warrantless searches...

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