Could officers arrest someone attending a South Carolina court, and did the type of court matter?

Plain-English summary

A sheriff's captain asked whether people appearing in civil or criminal court could be arrested there and whether the answer depended on the court. In a July 2002 informal opinion, the AG quoted a statute protecting people attending, going to, or returning from any court as a party, witness, or by court order. The statute excepted treason, felonies, and breaches of the peace, and permitted service of process without an actual arrest.

The AG said “any court” covered magistrate, family, General Sessions, and Common Pleas courts alike. It noted that breach of the peace had no exact definition and could cover varied conduct. The letter also distinguished arrest validity from a later case: an unlawful arrest alone would not prevent prosecution or conviction, though evidence obtained through it might be suppressed.

Currency note

This opinion was issued in 2002. 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 the attendance rule protect people in every kind of court? A: The AG said yes; the statute's “any court” language did not distinguish among the named court types.

Q: Could officers still arrest a court attendee for a felony? A: Yes. Felonies, treason, and breaches of the peace were express exceptions in the quoted statute.

Q: Would an illegal courthouse arrest automatically end the prosecution? A: No. The opinion said the arrest alone would not bar later prosecution or conviction, although it could affect evidence obtained through the arrest.

Background and statutory framework

The letter applied §17-13-60's arrest rule. It cited Thompson v. Ford Motor Co. while discussing breach of the peace and State v. Biehl for the effect of an unlawful arrest on a later prosecution. It also explained that § 15-17-10, which the requester had mentioned, did not concern service of an arrest warrant in court.

Citations and references

• §17-13-60: arrest while attending, going to, or returning from court.
• § 15-17-10: provision the opinion distinguished.
• Thompson v. Ford Motor Co.: breach-of-peace discussion.
• State v. Biehl: effect of an unlawful arrest on prosecution.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/july-19-2002/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/04/02july-19-cunningham.pdf

Original opinion text

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  The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATTORNEY GENERAL

July 19, 2002
Captain C. W. Cunningham
Greenville County Sheriffs Office
4 McGee Street
Greenville, SC 29601

Re: Your Letter of March 21, 2002
Arrest of Persons While Appearing in Court
Dear Captain Cunningham:
In your above referenced letter, you ask that this Office answer the following questions:

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1.

What provisions does the law offer regarding the arrest of persons while they are actually appearing in criminal and civil court (i.e. , while appearing in court on tickets, subpoenas, or appearing on summons for jury duty)?

2.

Is there any distinction between the arrest of persons appearing in Magistrate' s Court, Family Court, General Sessions Court or Common Pleas Court?

S.C. Code Ann. §17-13-60 relates to the circumstances where persons are not to be arrested and provides as follows: No person shall be arrested while actually engaged in or attending military or militia duty or going to or returning from such duty, nor while attending, going to or returning from any court, as party or witness or by order of the court, except for treason, felony or breach of the peace. But in any such case, process may be served without actual arrest of body or goods. Obviously, a warrant charging treason or a felony can be served on a person while they are appearing in court or traveling to or from court. A warrant charging crimes of breach of the peace can be served on a person appearing in court or traveling to and from court as well, but what constitutes a crime of breach of the peace is not susceptible to an exact definition.

REMBERT

c. D ENN IS BUILDING

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POST OFFICE Box I 1549

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COLUMBIA, S.C. 292 11 - 1549

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T ELEPHONE : 803-734-3970

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FACSIMILE : 803-253-6283

Captain Cunningham
Page 2
July 19, 2002
The District Court of South Carolina interpreted what constituted a breach of the peace in Thompson v. Ford Motor Co., 324 F.Supp. 108 (DCSC 1971). There, the Court stated the following: In general terms, a breach of the peace is a violation of public order, a disturbance of public tranquility, by any act or conduct inciting to violence. By peace is meant the tranquility which is enjoyed by the citizens of a community, where good order reigns among its members, which is the right of all persons in political society .... 324 F. Supp. at 115.

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Furthermore, it is generally accepted that a breach of the peace, unless so restricted by statute, may occur in a privately-owned place, such as a home or hotel-motel room, as well as in a public place. Am. Jur. 2d, Breach of Peace, S.6; See OP. ATTY. GEN. Dated October 25, 1967. Thus, while the term "breach of the peace" is not susceptible to an exact definition, it is clear that it encompasses a great variety of conduct, including various crimes that, although they may not constitute felonies, may nonetheless be classified as a breach of the peace and subject to arrest. In fact, there is .virtual unanimous agreement among the courts that treason, felony, and breach of the peace encompasse all crimes, whatever their technical classification. See OP. ATTY. GEN. Dated December 21, 1979. In any event, assuming arguendo that the arrest is deemed illegal, our Supreme Court has repeatedly held that an illegal arrest does not preclude the subsequent prosecution or conviction of the defendant. See State v. Biehl, 271 S.C. 201, 246 S.E.2d 859 (1978) (The illegality of an initial arrest does not bar a defendants 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.) Accordingly, while an illegal arrest is not a bar to the subsequent prosecution or conviction of the defendant, it may however suppress evidence obtained as a result of the illegal arrest. As to your second question, there is no distinction between the arrest of persons appearing in Magistrate's Court, Family Court, General Sessions Court or Common Pleas Court. The cardinal rule of statutory interpretation is to ascertain and give effect to the intent of the legislature. State v. Martin, 293 S.C. 46, 358 S.E.2d 697 (1987). Most often, intent is determined by applying the words used in their usual and ordinary significance. Martin v. Nationwide Mut. Ins. Co., 256 S.C. 577, 183 S.E.2d 451 (1971 ). The words of a statute must be given their plain and ordinary meaning without resort to subtle or forced construction to limit or expand the statute's operation. Bryant v. City of Charleston, 295 S.C. 408, 368 S.E.2d 899

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Captain Cunningham
Page 3
July 19, 2002
(1988). Finally, Courts must apply the clear and unambiguous terms of a statute according to their literal meaning. State v. Blackmon, 304 S.C. 270, 403 S.E.2d 660 (1991).

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The language of S.C. Code Ann. § 17-13-60 is clear and unambiguous as the statute specifically says "no person shall be arrested while actually engaged in or attending military or militia duty or going to or returning from such duty, nor while attending, going to or returning from any court. . . ." Thus, the literal interpretation of the term "any court" would include all courts of the unified judicial system as provided for by Article V, § 4 of the South Carolina Constitution and S.C. Code Ann. §14-1-70. Finally, you reference in your letter S.C. Code Ann. §14-1-140 and S.C. Code Ann. §1517-10. While this opinion is applicable to S.C. Code Ann. §14-1-140, it appears that this opinion is not applicable to S.C. Code Ann. § 15-17-10 as that statute is not related to serving an arrest warrant on an individual in court. I hope the information provided herein proves helpful. This letter is an informal opinion only. It has been written by a designated 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 and not officially published in the manner of a formal opinion.

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David K. Avant
Assistant Attorney General
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