Could police use a bench warrant to enter the defendant’s home or a third party’s home to make an arrest?

Plain-English summary

The South Carolina Attorney General's office explained in 1999 how officers could enter a dwelling to serve a judicial bench warrant. It treated a bench warrant, used to return a defendant to a court that already had jurisdiction, as carrying the same Fourth Amendment protections as an arrest warrant. For the defendant's own home, the letter said officers could enter when the warrant identified the address and they reasonably believed the defendant was inside.

The rule was different for another person's home. The opinion said officers generally needed the bench warrant, a reasonable belief that the defendant was present, and a search warrant for that particular dwelling. Without the search warrant, they needed a recognized exception, such as valid consent or exigent circumstances. The letter gave hot pursuit or a justified fear of injury if arrest was delayed as examples of exigency.

Currency note

This opinion was issued in 1999. 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 officers enter the defendant's own home to serve a bench warrant? A: The opinion said yes when the warrant listed that address and officers had reason to believe the defendant was there, applying the arrest-warrant home-entry rule.

Q: Was the bench warrant alone enough to enter a third party's home? A: No. The letter said a search warrant for that premises was generally also needed unless consent or another warrant exception applied.

Q: What exceptions did the opinion identify for a third party's dwelling? A: It mentioned consent from a resident or someone reasonably believed to be a resident, and exigent circumstances such as hot pursuit or justified concern about injury from delay.

Q: Did the opinion treat a bench warrant as the start of a new criminal case? A: No. It described a bench warrant as process returning a defendant to a court that had already established jurisdiction over a particular charge.

Background and statutory framework

A sheriff's captain asked about serving bench warrants at the defendant's and others' homes. The office drew on Fourth Amendment cases applying arrest-warrant principles to bench warrants. It distinguished the suspect's residence from a third party's premises, where a search warrant or exception protected the resident's separate interest. This was an informal opinion by the signing assistant deputy attorney general.

Citations and references

• Defendant's home: The letter cites a Supreme Court arrest-warrant decision for limited authority to enter the suspect's dwelling when officers reasonably believe the suspect is inside; the case name is garbled in the extracted text.
• Third party's home: Wallace v. King, 626 F.2d 1157, 1161 (4th Cir. 1980), cited for the search-warrant requirement and its exceptions.
• Consent: Illinois v. Rodriguez, 497 U.S. 177, 186 (1990), cited on consent from a resident or apparent resident.

Official title

Asking for clarification on the service of judicial bench warrants, particularly regarding a police officer’s entry into a home of the defendant, or the home of a third party, to serve the bench warrant.

Requester

Captain Al Eargle, Richland County Sheriff’s Department

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/march-29-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99march29eargle.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES M. CONDON
ATIORNEY GENERAL

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March 29, 1999
Captain Al Eargle
Richland County Sheriffs Department
5623 Two Notch Road
Columbia, South Carolina, 29223

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Dear Captain Eargle,
Thank you for your letter ofNovember 18, 1998, requesting an opinion of the Attorney General's Office. You ask for clarification on the service of judicial bench warrants, particularly regarding a police officer's entry into the home of the defendant, or the home of a third party, to serve the bench warrant.

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A bench warrant is a form of process issued "from the bench" for the attachment or arrest of a person. Bench Book for Magistrates and Municipal Courts, III-16. A bench warrant is used to bring the defendant back to the issuing court for a specific purpose after the court has established jurisdiction over the defendant on a particular charge. Bench Book. III-16. A bench warrant, differing from an arrest warrant, may not be used to initiate criminal action. It is the opinion of this Office, however, that the bench warrant "may issue in the same way and pursuant to the same procedure as an arrest warrant." Op. Atty. Gen. Oct. 21, 1996. Therefore, in the service of a judicial bench warrant, the defendant is entitled to the same Fourth Amendment protections against unreasonable searches and seizures. Generally, the Fourth Amendment to the United States Constitution prohibits the warrantless entry of a person's home, either to make an arrest or to search for specific objects. Pavton v. New York, 445 U.S. 573 (1980). But an arrest warrant, issued upon probable cause, "implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." Payton U.S. at 603. This holding has also been applied to the service of bench warrants issued for failure to appear on a misdemeanor charge. Smith v. Tollev. 960 F. Supp. 977 (E.D. Va. 1997), U.S. v. Spencer, 684 F.2d 220 (2"d Cir. 1982). The entry oflaw enforcement into the defendant's dwelling to search for the defendant and serve a bench warrant has been upheld as constitutionally valid because the entry was pursuant to an order of a detached neutral magistrate. Smith v. Tollev. 960 F. Supp. 977,

991. When the magistrate has determined that some probable cause exists to issue the bench

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warrant, and the police have reason to believe the suspect is at home, the suspect's Fourth Amendment rights are not violated by the entry into his home.

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When there is reason to believe the suspect is not located at his home but in the dwelling of a third party, the Fourth Amendment requires more than a bench warrant and reasonable belief that the suspect is on the premises. Generally, the officers must be armed with the bench warrant, reasonable belief of the suspect's presence, and a search warrant for the particular premises. In the absence of a search warrant, there must exist "an appropriate exception to the warrant requirement, e.g., the consent of the owner or occupier of a dwelling unit or exigent circumstances." Wallace v. King, 626 F.2d 1157, 1161 (4th Cir. 1980). The police may obtain consent to search by a resident of the premises (or one whom the police reasonably believe is a resident of the premises). Illinois v. Rodriguez, 497 U.S. 177, 186 (1990). Exigent circumstances may include, for example, "hot pursuit or justifiable fear of injury to persons or property if the arrest is delayed." Wall ace at 1161. In conclusion, when the police serve a bench warrant they must preserve the same Fourth Amendment protections as if serving an arrest warrant. If the warrant lists the address of the _ defendant then the police may go to the defendant's home, and upon reasonable belief that the suspect is present, enter the dwelling to serve the warrant. If the police have a reasonable belief that the suspect is on the premises of a third party, they must either obtain a search warrant for the premises, obtain the owner's consent, or satisfy some other warrant requirement exception to enter the dwelling to serve the bench warrant.

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. With kind regards, I am

Very truly yours,

Robert D. Cook
Assistant Deputy Attorney General