Did a business employee’s warrant for misdemeanor shoplifting or a bad check require a courtesy summons?

Plain-English summary

The South Carolina Sheriffs’ Association asked whether a 2008 courtesy-summons requirement applied when a business sought a misdemeanor warrant for a fraudulent check or shoplifting. The Attorney General concluded that it did when a nonlaw-enforcement owner or employee signed the warrant. A business could not itself act as the sworn individual affiant, so acting on a business’s behalf did not change the signer’s status.

The opinion linked the new courtesy-summons rule to the existing summons statute, which allowed a judge to issue a summons rather than an arrest warrant on a qualifying sworn statement. Its answer concerned the misdemeanor cases and non-officer warrant signers described in the request.

Currency note

This opinion was issued in 2008. 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: Did a store employee count as a non-officer affiant when signing a misdemeanor warrant? A: The AG said yes. Acting in the business’s name did not make the business itself the affiant or turn the employee into law enforcement personnel.

Q: Could a business itself swear out an arrest warrant?
A: The AG relied on an earlier opinion saying an individual had to serve as affiant, and it knew of no authority for a business entity to do so.

Q: Did the courtesy-summons rule reach bad checks and shoplifting? A: The AG said it reached misdemeanor cases of those types when a warrant was signed by nonlaw-enforcement personnel, including a business owner or employee.

Background and statutory framework

The association asked whether a business-affiant distinction took fraudulent-check and shoplifting cases outside the new statute. The AG read the warrant and summons provisions together and concluded that an individual’s signature was what mattered for the non-officer condition.

Citations and references

Statutes: The opinion discussed S.C. Code Ann. § 22-5-110, S.C. Code Ann. § 22-5-115, and S.C. Code Ann. § 22-3-710.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/august-18-2008/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/05/moore-j-b-os-8626-8-18-08-courtesy-summons.pdf

Original opinion text

HENRY MCMASTER
ATTORNEY GENERAL

August 18, 2008
Jeffrey B. Moore, Executive Director
South Carolina Sheriffs’ Association
112 Westpark Boulevard
Columbia, South Carolina 29210-3856
Dear Mr. Moore:
In a letter to this office you referenced the recent legislation regarding the amendment to S.C. Code Ann. § 22-5-110 as set forth in Act No. 346 of 2008. Such provision adds subsection (B) to the statute and states that
[n]otwithstanding another provision of law, a person charged with any misdemeanor offense requiring a warrant signed by nonlaw enforcement personnel to ensure the arrest of a person must be given a courtesy summons. The referenced courtesy summons was created by Act No. 348 of 2002 which added S.C. Code Ann.
§ 22-5-115 which provides that:
[n]otwithstanding any other provision of law, a summary court or municipal judge may issue a summons to appear for trial instead of an arrest warrant, based upon a sworn statement of an affiant who is not a law enforcement officer investigating the case, if the sworn statement establishes probable cause that the alleged crime was committed. The summons must express adequately the charges against the defendant. If the defendant fails to appear before the court, he may be tried in his absence or a bench warrant may be issued for his arrest. The summons must be served personally upon the defendant. You have questioned whether the requirement for a courtesy summons applies to a business when the bad check itself represents prima facie evidence that a crime has been committed. You also questioned whether such requirement applies when an individual has been detained for shoplifting. You referenced that “[i]n each of these cases, it is not a private citizen who seeks the arrest warrant but a business that seeks the warrant through an employee or business owner in the name of and on behalf of the business effected.” S.C. Code Ann. § 22-3-710 states that “[a]ll proceedings before magistrates in criminal cases REMBERT C. DENNIS BUILDING ● POST OFFICE BOX 11549 ● COLUMBIA, SC 29211-1549 ● TELEPHONE 803-734-3970 ● FACSIMILE 803-253-6283

Mr. Moore
Page 2
August 18, 2008
shall be commenced on information under oath, plainly and substantially setting forth the offense charged, upon which, and only which, shall a warrant of arrest issue.” `As set forth in a prior opinion of this office dated March 18, 1980, “...an individual must serve as the affiant on an arrest warrant.” That opinion further stated that we were unaware of any authority permitting a business entity itself to serve as the affiant on an arrest warrant. See also: Op. Atty. Gen. dated January 11, 2001 (“an arrest warrant can be based on probable cause established by any citizen.”). Therefore, in the opinion of this office, as to your contention that in shoplifting and fraudulent check cases, it is not a private citizen who seeks an arrest warrant but, instead, it is a business that seeks the warrant through an employee or business owner “in the name of and on behalf of the business effected”, such would not change the determination that it is an individual who serves as the affiant on an arrest warrant. Any assertion that the individual would not be considered as seeking the warrant but instead would seek the warrant “in the name of and on behalf of the business affected” would not change the result. A business could not considered in any respect as serving as the affiant on an arrest warrant. Inasmuch as subsection (B) of Section 22-5-110 provides that “...a person charged with any misdemeanor offense requiring a warrant signed by nonlaw enforcement personnel to ensure the arrest of a person must be given a courtesy summons”, in the opinion of this office, a courtesy summons would be applicable in shoplifting and fraudulent check cases involving misdemeanor offenses where the warrant is signed by nonlaw enforcement personnel, including personnel associated with a business. This office has recently issued other opinions on the courtesy summons issue one of which also discusses the use of a courtesy summons in fraudulent check and shoplifting cases. I am enclosing copies of such opinions for your review. If there are any questions, please advise. Sincerely, Henry McMaster Attorney General

By:
Enclosures
REVIEWED AND APPROVED BY:

_______
Robert D. Cook
Assistant Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General