How soon after arrest did a South Carolina defendant have to receive a bond hearing in 2007?

Plain-English summary

In 2007, the South Carolina Attorney General concluded that a defendant charged with a bailable offense had to receive a bond hearing within twenty-four hours after arrest under the statute then in force. He rejected the suggestion that the time limit concerned magistrates alone; law enforcement also had to observe it.

The opinion separately addressed detention following a warrantless arrest. Quoting earlier AG opinions and a U.S. Supreme Court decision, it said probable cause review must occur promptly and an arrestee should be brought before a magistrate without unreasonable delay. The AG referred the requester to an enclosed earlier opinion for fuller discussion of that issue.

Currency note

This opinion was issued in 2007. 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 bond hearing clock start at arrest?
A: Yes. The AG read S.C. Code Ann. § 22-5-510(B) as requiring a hearing within twenty-four hours after arrest for a person charged with a bailable offense.

Q: Did the deadline bind the police department as well as the magistrate? A: The opinion said both law enforcement and magistrates had to observe the time limit.

Q: Could police delay obtaining a warrant after a warrantless arrest for an ongoing investigation? A: The AG pointed to a separate rule requiring a warrantless arrestee to be taken before a magistrate without unreasonable delay and said there should not be a considerable lag before a warrant was issued.

Background and statutory framework

S.C. Code Ann. § 22-5-510(B) supplied the bond-hearing time limit, and a November 28, 2000 chief justice order reiterated it. On warrantless arrests, the opinion referred to section 22-5-200, earlier AG opinions, and Riverside v. McLaughlin for prompt judicial probable cause review.

Citations and references

Statutes: S.C. Code Ann. § 22-5-510(B); S.C. Code Ann. § 22-5-200.

Case: Riverside v. McLaughlin, 500 U.S. 44 (1991).

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-28-2007-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/preacher-j-a-jr-3-28-07-os-8352-bond-hearings.pdf

Original opinion text

March 28, 2007

James A. Preacher, Jr., Chief of Police
Norway Police Department
P. O. Box 127
Norway, South Carolina 29113
Dear Chief Preacher:
In a letter to this office you raised several questions regarding bond hearings. You essentially asked how soon must a bond hearing be held after a defendant has been arrested. S.C. Code Ann. § 22-5-510(B) states that
[a] person charged with a bailable offense must have a bond hearing within twentyfour hours of his arrest and must be released within a reasonable time, not to exceed four hours, after the bond is delivered to the incarcerating facility. Chief Justice Toal in an order dated November 28, 2000 also reiterated that “[a]ll persons incarcerated, booked, and charged with a bailable offense must have a bond hearing within twentyfour hours of their arrest as required by S.C. Code Ann. § 22-5-510.” Therefore, a defendant must have a bond hearing within twenty-four hours of his arrest. As to your statement that the 24 hour rule “is for magistrates not police departments”, again, state statute and the Order of the Chief Justice mandates a bond hearing within twenty-four hours of arrest. Such time limitation must be observed by magistrates and law enforcement. You also questioned “how long can a police department hold a person legally for an investigation before a charge is made, if it is an on going investigation and there is probable cause to believe a crime has been committed by the subject.?” Since you indicated that there is probable cause to believe that a crime has been committed, it is my assumption that the individual referred to by you has been arrested. A prior opinion of this office dated July 10, 1995 referenced generally that
...the Fourth Amendment requires a “prompt” determination of probable cause by a judicial official as a prerequisite to any extended pretrial detention following a warrantless arrest.

Chief Preacher
Page 2
March 28, 2007
That opinion was referenced in another opinion of this office dated October 12, 1998, a copy of which is enclosed, which discusses generally the holding of a defendant after a warrantless arrest. Reference was also made in the opinion to S.C. Code Ann. § 22-5-200 which requires that “[w]hen an arrest is made by a deputy sheriff without a warrant...the person so arrested should be forthwith carried before a magistrate and a warrant of arrest procured and disposed of as the magistrate should direct.” Also referred to in the opinion was the decision by the United States Supreme Court in Riverside v. McLaughlin, 500 U.S. 44 (1991) which generally provides a forty-eight hour rule within which an arrested defendant must be formally charged. The opinion concluded that
[p]robable cause determinations for arrest without warrant are still controlled by 225-200's mandate that a person arrested without a warrant “...should be forthwith carried before a magistrate and a warrant of arrest procured and disposed of as the magistrate should direct.” We have consistently read the “forthwith” requirement as being within a reasonable period of time. The Riverside case establishes that the 4th Amendment sets 48 hours as the general constitutional parameter to be followed for a probable cause determination. Additionally, a prior opinion of this office dated January 9, 1992 quoted the South Carolina Bench Book for Magistrates and Municipal Court Judges which stated
[i]f an arrest is made without a warrant, the arresting officer should take the person to a magistrate or municipal court judge without reasonable delay so that the judge may investigate the circumstances of the arrest and if proper, issue an arrest warrant. Therefore, as to situations where an arrest is made without a warrant, there should not be any considerable lag between the time of arrest and the time a warrant is issued. I would refer you to the enclosed opinion for a fuller discussion of this issue. With kind regards, I am, Sincerely, Henry McMaster Attorney General

By:
REVIEWED AND APPROVED BY:

______
Robert D. Cook
Assistant Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General