Could Seneca police serve a warrant at the Oconee County jail in Walhalla, and did Walhalla officers have to execute probate commitment orders?

Official title

Regarding the processing and service of warrants at the Oconee County Detention Center.

Requester

Chief Broadus E. Albertson, Walhalla Police Department

Plain-English summary

The 1995 South Carolina Attorney General letter answered two questions from Walhalla's police chief. First, the county detention center's location inside Walhalla did not mean Seneca officers could serve a Seneca warrant there: the earlier opinion discussed in the letter said Seneca officers lacked jurisdiction outside their municipality. It pointed to the statutory endorsement procedure, under which a sheriff's deputy or magistrate's constable could execute the warrant, and identified Walhalla officers and sheriff's deputies as other officers empowered to serve warrants at that location.

Second, the letter read the mental-health commitment provisions to include municipal police within “state or local law enforcement officer.” It said a municipal officer directed to execute a probate court order or physician certificate had a mandatory, ministerial duty to do so. In discussing custody under a commitment order, the letter said the officer could use force reasonably necessary under the circumstances. It referred separately to an enclosed informal opinion on forced home entry; this letter did not reproduce that separate analysis.

Currency note

This opinion was issued in 1995. 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 a Seneca officer personally serve a warrant at the Walhalla jail? A: The letter relied on an earlier opinion concluding that Seneca police lacked territorial jurisdiction there. It described a statutory endorsement procedure under which a sheriff's deputy or magistrate's constable could serve the warrant.

Q: Were Walhalla police the only officers who could serve warrants at the jail? A: No. The letter also identified sheriff's deputies and, with a qualification, county detention officers as possible servers. It suggested a cooperative arrangement among the authorized agencies.

Q: Did municipal police count as local officers under the commitment provisions? A: Yes. The letter said the change from “officer of the peace” to “state or local law enforcement officer” did not alter an earlier conclusion that municipal police must carry out directed probate orders and physician certificates.

Q: How much force did the letter say an officer could use for a commitment order? A: It described force reasonably necessary to perform the officer's duty under the circumstances. A separate enclosed opinion addressed forced entry into a dwelling.

Background and statutory framework

The police chief asked about warrant service at a county jail within Walhalla city limits and about municipal police duties under mental-health commitment statutes. The letter drew on prior AG opinions and statutory rules for warrants issued outside an officer's territorial jurisdiction, probate orders, and physician certificates.

Citations and references

• S.C. Code Ann. Section 22-5-190, Section 44-17-430, and Section 44-17-440
• Manley v. Manley

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-18-1995/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/12/1995oct18albertson.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLES MOLONY CONDON
ATIORNEY GENERAL

October 18, 1995

Chief Broadus E. Albertson
Walhalla Police Department
P. 0. Box 1099
Walhalla, South Carolina 29691
Dear Chief Albertson:
You have asked for our opinion regarding the processing and service of warrants at the Oconee County Detention Center. You have stated the following:
[a]s its name implies, this is the only detention center in the county and is located within the city limits of Walhalla. All the municipalities, the sheriffs department and the· state agencies utilize this facility. Regardless of whether a warrant is issued by the Seneca, Westminister, or the Sheriffs Department, this police department is called to serve all warrants at the Detention Center.

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The stock answer when questioned is that the Detention Center is within the Walhalla City limits. I am requesting a ruling determining whether the other agencies can serve their own warrants at this county detention facility; especially in view of the fact that officers from those agencies have driven to the facility with the warrants in hand. I am enclosing copies of previous opinions of this Office which address various aspects of your question. The first opinion, dated October 18, 1994, responds to the question of the authority of detention officers to serve warrants pursuant to S. C. Code Ann. Sec. 23-1-145 and may be helpful to you in solving your problem. RDIBERT c. Dr' 'IS Bl !LDl'G

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POST OFFICE Box 11549

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COLD!BIA. S.C. 29211-1549

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TELEPHONE:

803-734-3970

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FACSIMILE: 803-253-6283

Chief Broadus E. Albertson
Page 2
October 18, 1995
Also enclosed is an op1mon, dated May 12, 1983, regarding the exact same question which you pose. There, we addressed the specific question of whether a Seneca police officer could serve a warrant for an offense committed in Seneca upon an inmate in the County Detention Facility of Walhalla. We recognized that Seneca police officers would have no jurisdiction to serve warrants at that facility because it was beyond their jurisdiction. However, we referenced Section 22-5-190 which provides for the procedure when an arrest warrant is issued by a municipal judge and the defendant is not within the municipality but is within the state. That section provides as follows:

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...the officer issuing such warrant may send it to the magistrate having jurisdiction over the area in which such person may be found, which magistrate may endorse the warrant which shall then be executed by the magistrate's constable or the sheriff of the county of the endorsing magistrate. The 1983 opinion thus concludes that
.. .it would appear that from the facts you presented, since the jail is located outside of the territorial jurisdiction of the city of Seneca, a deputy sheriff or magistrate's constable would have to serve the warrant.

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See also, Op. Atty. Gen., May 14, 1980 (copy enclosed). Of course, aside from the procedure authorized by Section 22-5-190, Walhalla police officers would be empowered to serve the warrants, as would sheriffs deputies, and as noted above, arguably, county detention officers. Therefore, I can only suggest some form of cooperative arrangement between your ·agency and those officers empowered by law to serve warrants in the town of Walhalla. You have also asked whether municipal police officers are included within the term "local law enforcement official" as employed in S. C. Code Ann. Secs. 44-17-430 and 4417-440. Section 44-17-430 provides in pertinent part:
[i]f a person believed to be mentally ill and because of this condition likely to cause serious harm if not immediately hospitalized cannot be examined by at least one licensed physician pursuant to Section 44-17-410 because the person's whereabouts are unknown or for any other reason, the petitioner seeking commitment pursuant to Section 44-17-410

Chief Broadus E. Albertson
Page 3
October 18, 1995
shall execute an affidavit stating a belief that the individual is mentally ill and because of this condition likely to cause serious harm if not hospitalized, the ground for this belief and that the usual procedure for examination cannot be followed and the reason why. Upon presentation of an affidavit, the judge of probate for the county in which the individual is present may require a state or local law enforcement officer to take the individual into custody for a period not exceeding twenty-four hours during which detention the person must be examined by at least one licensed physician as provided for in Section 44-17-410(2). Section 44-17-440 states:
[t]he certificate required by Section 44-17-410 must authorize and require a state or local law enforcement officer, preferably in civilian clothes, to take into custody and transport the person to the hospital designated by the certificate. Enclosed is a copy of an opinion, dated October 13, 1978, which interprets the predecessor to Section 44-17-430. Prior to amendment in 1992, the statute (as well as Section 44-17-440) required service by any "officer of the peace". In that regard, we addressed the question whether such language included municipal pQlice officers and we concluded that it did. We stated:
.. .it is the opinion of this Office that it is the duty of any officer of [the] peace, including a municipal police officer to execute such orders issued by the probate judge when directed to do so by the probate judge. However, as you are aware, the general law with respect to sheriffs imposes on the sheriff the ultimate responsibility to "serve, execute and return every process, rule, order or notice issued by any court of record in this State... " (Section 23-15-40 of the 1976 Code of Law). Also, by Section 14-23-440 of the 1976 Code of Laws it is provided that any sheriff or constable shall execute the orders of a probate court. (emphasis added). While the language of Sections 44-17-430 and -440 has been altered slightly to its present "state or local law enforcement officer", I do not believe this is a change which alters our earlier opinion. It is thus my opinion that the 1978 opinion still governs and a municipal

Chief Broadus E. Albertson
Page 4
October 18, 1995
police officer is required to serve and execute the orders referenced in Section 44-17-430 and the certificate referenced in Section 44-17-440. You have also asked "which powers may be used by law enforcement officers to take these individuals into custody. " Clearly, when acting pursuant to Section 44-17-430, a law enforcement officer is acting under court order or pursuant to process. As. was stated by the Court of Appeals of South Carolina in Manley v. Manley, 291 S.C. 325, 353 S.E.2d 312 (1987),

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[t]he actual taking into custody of appellant was performed by a peace officer by order of the probate judge in accordance with the provisions of Section 44-17-430, Code of Laws of South Carolina, 1976. We therefore hold that an action for false imprisonment cannot be maintained against the respondent. 353 S.E.2d at 314-315. See also Section 44-17-440 (providing immunity from civil liability for an officer acting in accord with this article). And, as we noted in Op. Atty.
~' March 19, 1981, "[b]oth Sec. 44-17-430 and 44-17-440 place certain duties upon officers of the peace regarding hospitalization under this article." We stated in that opinion that the duties thereunder were mandatory even though the patient might be a resident of another county. Moreover, it is well-recognized that
[t]he duty of an officer in executing the mandate of a judicial order in the nature of a commitment is purely ministerial and his power with respect thereto is limited and restricted to compliance with its terms. Op. Atty. Gen., March 27, 1995, citing 60 Am.Jur.2d Penal and Correctional Institutions, Sec. 22: See also, Rogers v Marlboro Co., 32 S.C. 555, 558, 1I S.E. 383 (1890) [when process is placed in hands of officer by proper authority, his duty is to execute it, not question it]. Failure to properly execute orders of court or to serve process is punishable by contempt. As our Supreme Court recognized in State v. Brantley, 279 S.C. 215, 305 S.E.2d 234 (1983),
[t]he power to punish for contempt is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments,

Chief Broadus E. Albertson
Page 5
October 18, 1995
order and writs of the courts; and consequently to the due administration of justice. 279 S.C. at 217. In Brantley, the Court held a sheriff in contempt for failure to carry out an order of the court to which the sheriff had verbal notice even though the sheriff was sheriff of a county other than the one where court was being held. Said the Court,
[t]he court's order was valid, was directed to appellant in his official capacity as an officer of the court, and his wilful failure to comply constituted a constructive contempt of court

kL. Thus, if the order or process is placed in the hands of a municipal police officer, pursuant to Sections 44-17-430 and -440, it is that officer's ministerial duty to carry out the order to the best of his ability.

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In that regard, I am enclosing a copy of an opinion dated March 24, 1976, which discusses the officer's specific duties in carrying out an order pursuant to Section 44-17430. Therein, we noted that officers into whose custody a mentally ill person is taken have "a duty implied by their office to insure that such individuals do not indeed cause serious harm to themselves or others." Thus, the officer is authorized to use such force as is reasonably necessary to carry out this duty. This, of course, is a matter within the discretion of the officer so long as the force used is reasonable under the circumstances.
~. 6A C.J.S. Arrest, § 49. I am enclosing an informal opinion recently issued by me regarding a police officer's authority to use force to enter a dwelling in order to seize a person suspected of being mentally ill, where that officer is acting by virtue of an order issued pursuant to Section 44-17-430. 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.

Chief Broadus E. Albertson
Page 6
October 18, 1995
With kind regards, I am
Very truly yours,

Robert D. Cook
Assistant Deputy Attorney General
RDC/ph
Enclosures

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