Did a South Carolina Class 3 officer have full custodial arrest powers in 2009?

Plain-English summary

Ehrhardt's police chief asked whether a Class 3 certified officer had full custodial arrest powers. The Attorney General concluded in 2009 that Class 3 officers had limited authority, not the full powers of Class 1 officers. The cited certification regulation described Class 3 officers as having limited arrest powers or special duties.

The letter used litter-control officers as a statutory example. It said a commissioned litter officer generally could not make a custodial arrest except within the statute's conditions; a certified officer's arrest authority was tied to litter enforcement and incidental violations. It also repeated an earlier opinion saying a Class 3 officer lacked authority to detain someone solely until a Class 1 officer arrived. The answer depended on the officer's particular statutory duties, rather than a general Class 3 power.

Currency note

This opinion was issued in 2009. 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 Class 3 certification confer the same arrest powers as Class 1 certification? A: No. The opinion contrasted full-power Class 1 certification with Class 3 certification for limited arrest powers or special duties.

Q: Could a certified litter-control officer arrest for any unrelated offense? A: The statute quoted in the opinion confined arrest authority to litter enforcement and incidental offenses, and barred an unrelated stop or arrest absent a litter violation.

Q: Could a Class 3 officer detain a suspect until another officer arrived? A: The letter cited an earlier Attorney General opinion saying a Class 3 officer lacked statutory authority for such a detention, which it treated as an arrest.

Background and statutory framework

The opinion relied on Department of Public Safety Regulation 38-007's certification classes and on S.C. Code Ann. §§ 56-5-170 and 4-9-145(A) concerning litter-control officers. It concluded that Class 3 arrest powers remained limited to duties and authority granted by regulation and statute.

Citations and references

Statutes: S.C. Code Ann. § 56-5-170; S.C. Code Ann. § 4-9-145(A). Regulation: Department of Public Safety Regulation 38-007, quoted in the opinion.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-6-2009-1/
• Original PDF: https://www.scag.gov/wp-content/uploads/2011/03/preacher-j-a-jr-os-8777-5-6-09-class-3-officer-arrest-powers.pdf

Original opinion text

HENRY MCMASTER
ATrORNEY GENERAL

May6, 2009

James A. Preacher, Jr., Chief of Police
Town of Ehrhardt
P. 0. Box 185
Ehrhardt, South Carolina 29081
Dear Chief Preacher:

In a letter to this office you questioned whether a Class 3 officer has "full police custodial arrest powers and would the arrest be legal?" You referenced a prior opinion of this office dated January 25, 2005 which commented that, generally, although these officers undergo training at the State Criminal Justice Academy, they are typically considered as having duties limited in scope, such as working at sporting events, crowd control, traffic at fairs and football games, and court room security. It was stated in the opinion that the duties of these officers are more limited than those duties of regular law enforcement officers, such as full-time deputies and State troopers. Such conclusion was in keeping with the determination ofthe powers of these officers by the Department of Public Safety which promulgated regulations regarding training requirements for basic law enforcement certification and, in particular, Department of Public Safety Regulation 38-007. The January, 2005 opinion commented that "[t]his office would defer to the Department's interpretation since they are the agency that generally oversees the training requirements for these officers." The 2005 opinion referenced DPS Regulation 38-007 which distinguishes between Class 1 ("law enforcement officers with full powers"), Class 2 ("jailers, correctional officers and juvenile correctional officers") and Class 3 certifications. As to Class 3 certifications, subsection (C) of such provision states that
[c]andidates for basic certification as law enforcement officers with limited powers ofarrest or special duties shall successfully complete a training program as approved by the Department and will be certified as Class 3-SLE. (emphasis added).

REMBER'.r

c. DENNIS B UILDING • POST OFPICE Box 11549 • COLUMBIA, SC 29211-1549 • TELEPHONE 803-734-3970 • FACSIMILE 803-253-6283

Chief Preacher
Page2
May6, 2009

As far as statutes referring to Class 3 officers, S.C. Code Ann. § 56-5-170 refers to "county government litter enforcement vehicles used by certified law enforcement Class 3 litter control officers." Therefore, litter control officers are generally considered as having Class 3 law enforcement certifications. S.C. Code Ann. § 4-9-145(A) provides for the appointment and commissioning of code enforcement officers as litter control officers. However, such provision further states that " ... no code enforcement officer commission under this section may perform a custodial arrest, except as provided in subsection (B)." Subsection (B)(2) states that (a) A litter control officer appointed and commissioned pursuant to subsection (A) may exercise the power of arrest with respect to his primary duties of enforcement oflitter control laws and ordinances and other state and local laws and ordinances as may arise incidental to the enforcement of his primary duties only ifthe officer has been certified as a law enforcement officer pursuant to Article 9, Chapter 6, Title 23 ... (now S.C. Code Ann.§§ 23-23-10 et seq.) ... (b) In the absence of an arrest for a violation of the litter control laws and ordinances, a litter control officer authorized to exercise the power of arrest pursuant to subitem (a) may not stop a person or make an incidental arrest of a person for a violation of other state and local laws and ordinances. (emphasis added). Similarly, an opinion of this office dated April 14, 2000 dealt with the question of whether a Class 3 officer could detain a suspect until a Class 1 officer arrives to take the suspect into custody. The opinion stated that
[t]he United States Supreme Court has held that such a detention constitutes an seizure and is, therefore, subject to the same protection under the Fourth Amendment as that of an arrest...Similarly, this office has advised that the detention of an individual longer than necessary to issue the citation by a code enforcement officer would be unlawful...Thus, a Class 3 officer, or an administrative code officer, is similarly without statutory authority to detain a suspect until another officer arrives because the detention, itself, is an arrest. Consistent with such restrictions on the powers of a Class 3 litter officer, in the opinion of this office, a Class 3 officer does not have full police custodial powers and is limited in his law enforcement authority with limited duties consistent with the Regulations and statutory authority cited above.

Chief Preacher
Page3
May6, 2009

With kind regards, I am,
Very truly yours,
Henry McMaster
Attorney General

cw-4~~
By:

REVIEWED AND APPROVED BY:

Deputy Attorney General

Charles H. Richardson
Senior Assistant Attorney General