Could a city police officer refuse to serve a magistrate’s arrest warrant that appeared valid?

Plain-English summary

A legislator asked whether a municipal police officer had to execute a magistrate’s arrest warrant presented for service, assuming the warrant was valid on its face. The Assistant Deputy AG answered yes. He read Section 5-7-110 to give city police the duties of constables, whom the cited authority treated as peace officers. Earlier AG guidance had said a city officer could serve a magistrate’s warrant within the municipality.

The author drew on Rogers v. Marlboro County to explain why an executing officer could not reassess whether the underlying prosecution was well founded. The role was ministerial: when proper authority supplied a facially valid warrant, the officer had to execute it or attempt to do so without delay. He concluded that refusal could potentially lead to contempt. This was an informal opinion addressing the stated assumption of facial validity, not a decision on any particular warrant’s validity.

Currency note

This opinion was issued in 1997. 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 the officer investigate whether the charge was well founded before serving the warrant? A: The opinion said no. Under the cited rule, the executing officer did not decide the prosecution’s merits or correct the issuing court’s proceedings.

Q: Did the author give police discretion to decline a valid warrant? A: No. He concluded there was no discretion to refuse service and execution when the arrest warrant was valid on its face.

Q: Did the letter say contempt was automatic?
A: No. It said refusal might potentially subject the officer to contempt of court.

Background and statutory framework

Section 5-7-110 gave municipal police officers the powers and duties of constables. The opinion used State v. Luster to identify constables as peace officers and quoted Rogers v. Marlboro County on the duty to execute a warrant without examining the prosecution’s merits.

Citations and references

Statute discussed: Section 5-7-110. Cases discussed: State v. Luster; Rogers v. Marlboro County.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-11-1997/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/97july11knotts.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

July 11, 1997

The Honorable John Milton Knotts, Jr.
Member, House of Representatives
500 West Dunbar Road
West Columbia, South Carolina 29169
Re: Informal Opinion
Dear Representative Knotts:
You have asked whether a municipal police officer is required to execute an arrest warrant issued by a magistrate and presented to him for service. Apparently, such warrant is valid on its face. This Office has opined on numerous occasions concerning the duty of a peace officer to execute any warrant of arrest which is valid upon its face. Section 5-7-110 of S.C. Code Ann. gives municipal police officers all of the powers and duties "conferred by law upon constables." A constable is a peace officer. State v. Luster, 178 S.C. 199, 204, 182 S.E. 427 (1935). Therefore, it is clear that "[a]n arrest warrant or search warrant issued by a magistrate, directed to any peace officer, may be served and execution thereon by a city policeman within the municipality." Op. Atty. Gen., Op. No. 1800 (February 16, 1965). The law is well settled that where a peace officer is presented with an arrest warrant valid upon its face, he serve and execute it without delay. For example, in Malone v. Carey, 17 Cal.App.2d 505, 62 P.2d 166 (1936), it was stated that it is the duty of a police officer "to make the arrest, having received a warrant valid on its face." The Court went on to say that "[w]here a warrant is valid in form and issued by a court of competent jurisdiction is placed in the hands of ... [a police] officer for execution, it is his duty without delay to carry out its commands."

REMBERT

c. DENNIS B UILDI NG

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POST OFFICE Box 11549

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COLUMBIA,

s.c. 29211-1549

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TELEPHONE:

803-734-3970

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FACSIMILE: 803-253-6283

The Honorable John Milton Knotts, Jr.
Page 2
July 11, 1997
The Supreme Court of South Carolina, as well as this office have repeatedly recognized that a law enforcement officer may not look behind a warrant when it is presented to him for service and execution. For example, in Rogers v. Marlboro County, 32 S.C. 555, 558, 11 S.E. 383 (1890), our Supreme Court stated with respect to the Sheriff the general rule which must be followed by peace officers. There, the Court emphatically stated:

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[w]hen a warrant is placed in his hands by proper authority, his duty is to execute it, or attempt to do so. It is no part of his duty to inquire whether the prosecution is well founded, either in law or fact, and it would be impertinent in him to do so .... The sheriff is a ministerial officer. He is neither judge nor lawyer. It is not his duty to supervise and correct judicial proceedings; but being an officer of court, ministerial in character, he cannot impugn its authority or inquire into the regularity of its proceedings. His duty is to obey. This principle applies alike to him, whether the execution issues from a court of general or limited jurisdiction. Thus, applying this authority, we have concluded that "generally a law enforcement officer acts as a ministerial officer in executing a warrant valid on its face." Op. Atty. Gen., December 18, 1990 (citing, Bennett v. City of Grand Prairie, 883 F.2d 400 (5th Cir. 1990). And in 80 C.J.S., Sheriffs and Constables, § 42, it is stated that
[a]t common law and under statutes declaratory thereof, sheriffs and deputy sheriffs and undersheriffs are peace
. officers. The duties of a sheriff are in large measure the same as are imposed on police officers .... (emphasis added). Accordingly, presuming an arrest warrant is valid on its face, a police officer possesses no discretion to refuse to serve and execute the warrant, and such refusal may potentially subject the officer to contempt of court. This letter is an informal opinion only. It has been written by a designated Assistant Deputy Attorney General and represents the position of the undersigned attorney as to the specific questions asked. It has not, however, been personally scrutinized by the Attorney General nor officially published in the manner of a formal opinion.

The Honorable John Milton Knotts, Jr.
Page 3
July 11, 1997
With kind regards, I am
Very truly yours,

Robert D. Cook
Assistant Deputy Attorney General

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