Could a South Carolina code enforcement officer detain a driver with an outstanding warrant until police arrived?

Plain-English summary

In 2000, a South Carolina senior assistant attorney general concluded that a county code enforcement officer, described in the request as a class 3 officer, lacked statutory authority to detain a suspect beyond the time needed to issue a citation while awaiting a regular officer. The code-enforcement statute gave these officers constable powers but expressly barred custodial arrests. The opinion treated an extended detention as a seizure with arrest-like constitutional consequences.

It then examined the separate authority any citizen might have to arrest someone. An outstanding misdemeanor warrant alone did not provide that authority in the circumstances discussed. The author thought a felony warrant might give the officer the “certain information” about a felony required for a citizen's arrest, but said South Carolina law on this point was unsettled and could not assure protection from liability. The opinion recommended notifying an appropriate law-enforcement officer of the suspect's location instead of making the arrest. It did not resolve a general power to use force in these circumstances.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could a code enforcement officer hold a driver until a regular officer arrived? A: The opinion said the code enforcement statute provided no authority for an extended detention beyond issuing a citation. It analyzed only narrow citizen-arrest possibilities separately.

Q: Was an outstanding misdemeanor warrant enough for a citizen's arrest? A: No. The author said he found no South Carolina common-law citizen-arrest power based solely on a warrant and rejected that basis for a misdemeanor warrant in the described situation.

Q: What about an outstanding felony warrant?
A: The author thought it might count as the statutory “certain information” that a felony had been committed, but warned that the question was unsettled and the officer would be acting only with an ordinary citizen's powers.

Q: Could an officer with full arrest authority rely on the cases cited here? A: The opinion distinguished cases involving regular officers with full custodial-arrest authority from a code enforcement officer who lacked it.

Background and legal framework

The sheriff's office asked about animal-control and litter-control officers who encountered a driver with a warrant or suspended license. The opinion quoted Section 4-9-145's ban on custodial arrests by county code enforcement officers, then described citizen-arrest authority under § 17-13-10 and Section 17-13-20 and the common-law rule for a misdemeanor breach of peace witnessed by a citizen. Its answer focused on detention after a warrant check and distinguished felony from misdemeanor warrants. The letter was an informal opinion.

Citations and references

• Section 4-9-145: code enforcement powers and custodial-arrest limit quoted in the opinion.
• § 17-13-10 and Section 17-13-20: citizen-arrest circumstances quoted in the opinion.
• Terry v. Ohio, State v. Shaw, and State v. Grate: seizure and regular-officer decisions discussed in the opinion.

Official title

On the authority of class 3 officers to detain suspects.

Requester

Sgt. Randall S. Creamer, Anderson County Sheriff’s Office

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/april-14-2000/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/00april-14-creamer.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATTORNEY GENERAL

April 14, 2000
Sgt. Randall S. Creamer
Anderson County Sheriff's Office
Training Division
573 7 Airport Road
Anderson, South Carolina 29626
Dear Sgt. Creamer,
Thank you for your letter requesting an opinion ofthis Office, which has been referred to me for a response. You have asked for an opinion on the authority of class 3 officers to detain suspects. By way of background you provide the following information: You have had questions arise concerning situations in which class 3 officers, such as litter control or animal control officers, stop a vehicle for a violation and find that the driver is wanted for a warrant or is driving under suspension. Specifically you wish to know whether the officer can detain the suspect until a class 1 officer, or regular law enforcement, arrives. You also wish to know whether the officer may use force to hold the suspect if he wishes to leave.

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South Carolina Code Annotated Section 4-9-145 authorizes the appointment of Code Enforcement Officers, or the class 3 officers to which you refer in your question. The Section provides: The governing body of a county may appoint and commission as many code enforcement officers as may be necessary for the proper security, general welfare, and convenience of the county. These officers are vested with all the powers and duties conferred by law upon constables in addition to duties imposed upon them by the governing body of the county. However, no code enforcement officer commissioned under this section may perform a custodial arrest. These code enforcement officers shall exercise their powers on all private and public property within the county. The governing body of the county may limit the scope of a code enforcement officer's authority or the geographic area for which he is authorized to exercise the authority granted.

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Sgt. Creamer
Page 2of3
April 14, 2000
Although you inform us that these officers carry firearms and handcuffs, the statute expressly states that "no code enforcement officer ... may perform a custodial arrest.,.

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You ask whether the class 3 officer may detain the suspect until a class 1 officer arrives to take the suspect into custody. The United States Supreme Court has held that such a detention constitutes a seizure and is, therefore, subject to the same protection under the Fourth Amendment as that of an arrest. See Terry v. Ohio, 392 U.S. I (1968). Similarly, this Office has advised that the detention of an individual longer than necessary to issue the citation by a code enforcement officer would be unlawful. See Op. Attv. Gen. July 19, 1996. Thus, a class 3 officer, or an administrative code officer, is similarly without statutory authority to detain a suspect until another officer arrives because the detention, itself, is an arrest. Although the administrative code officer has no statutory authority to perform an arrest, an officer may perform an arrest outside his authority if the arrest would be proper for any ordinary citizen. South Carolina Code Ann. § 17-13-10 outlines the circumstances under which 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. Section 17-13-20 adds to these circumstances: A citizen may arrest a person in the nighttime by efficient means as the darkness and the probability of escape render necessary, even if the life of the person should be taken, when the person: (a) has committed a felony; (b) has entered a dwelling house without express or implied permission; (c) has broken or is breaking into an outhouse with a view to plunder; (d) has in his possession stolen property; or (e) being under circumstances which raise just suspicion of his design to steal or to commit some felony. flees when he is hailed. South Carolina courts have also recognized the common law authority of a warrantless citizen's arrest upon view ofa misdemeanor involving a breach of peace. State v. McAteer, 333 S.C. 615. 511 S.E.2d 79 (1998) (per curiam) (holding driving under the influence a misdemeanor breach of the peace). However, we have been unable to locate any common law authority in South Carolina for a citizen to perform an arrest solely because of the existence of a warrant. Thus. a code enforcement officer may detain a suspect, effectively performing a citizen ·s arrest,

Sgt. Creamer
Page 3of3
April 14, 2000
only under certain circumstances. The officer must actually view the misdemeanor breach of peace, felony, or larceny. In the absence of viewing these crimes, or in the absence of the circumstances required by S. C. Code§ 17-13-20, the officer must have certain information that a felony has been committed.

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In the circumstances you describe, in which an officer learns the suspect has a warrant out for his arrest, the basis for the arrest warrant is critical. If the warrant is for a misdemeanor, the officer would have no common law authority to perform the citizen's arrest. If the warrant if for a felony charge, it is the opinion ofthis Office that the officer would have "certain information" that a felony has been committed and may detain the suspect. We are unaware of any case law in South Carolina that has addressed this question. In State v. Shaw, 109 S.C. 359, 89 S.E. 359 (1916), the Supreme Court of South Carolina upheld an officer's arrest of a suspect for a misdemeanor even though the officer did not have the warrant in hand. Similarly, in State v. Grate, 310 S.C. 240, 423 S.E.2d 119 (1992), the Court held that an officer's arrest of the suspect after radioing in and learning of an outstanding misdemeanor warrant was lawful. In both of these cases, however, the officers had full custodial arrest authority and are easily distinguishable from a code enforcement officer. Because the law is unsettled in this area, we cannot opine, with any high degree of confidence, that a detention by a code enforcement officer based on an outstanding warrant for a felony would absolutely insulate the officer from liability. The code enforcement officer has no statutory authority to detain the suspect. His actions would only be protected as that of an ordinary citizen performing a citizen's arrest. As a matter of precaution, we would generally recommend against an administrative code officer's performing an arrest. A preferable course of action would be to notify immediately an appropriate law enforcement officer of the suspect's location to enable that officer to perform the arrest.

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This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General not officially published in the manner of a formal opinion. With kind regards, I remain

Assistant Deputy Attorney General