Must a South Carolina magistrate issue an arrest warrant when a victim files a sworn crime affidavit?

Plain-English summary

A police chief asked whether a magistrate could refuse an arrest warrant even when a victim had supplied a sworn affidavit, officers had prepared a report and an investigation indicated a crime. The 2000 informal opinion said the decision remained with the magistrate. The magistrate had to independently determine whether information from witnesses under oath showed probable cause.

The AG cited the statute requiring criminal proceedings before magistrates to begin with sworn information plainly and substantially setting out the charged offense. The statute described sworn information as the basis on which a warrant could issue; the letter did not treat the victim's affidavit or the police investigation as a command to issue one.

Currency note

This opinion was issued in 2000. 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: Does a sworn complaint guarantee an arrest warrant?
A: No. The opinion said the magistrate must decide independently whether probable cause has been shown.

Q: Does a police investigation replace the magistrate's review?
A: No. The chief described a police report and investigation, but the AG still placed the probable-cause decision with the magistrate.

Q: What information did the opinion say a magistrate should evaluate?
A: Information provided by witnesses under oath, measured against the requirement that the sworn information plainly and substantially state the charged offense.

Background and statutory framework

The opinion addressed who decides whether to issue a warrant, not whether the particular complaint actually established probable cause. It cited Section 22-3-710 and the South Carolina Bench Book for the magistrate's independent judicial role.

Citations and references

• Section 22-3-710, the sworn-information requirement for criminal proceedings before magistrates.

Official title

Questioned whether a magistrate may refuse to issue a warrant in a situation where a victim has provided a sworn affidavit alleging that a crime has been committed.

Requester

James A. Preacher, Chief of Police, Norway Police Department

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/september-13-2000/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/00sept13preacher.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CHARLIE CONDON
ATIORNEY GENERAL

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September 13, 2000

James A. Preacher, Chief of Police
Nonvay Police Department
Post Office Box 127
Nonvay, South Carolina 29113
Dear Chief Preacher:
In a letter to this office you questioned whether a magistrate may refuse to issue a warrant in a situation where a victim has provided a sworn affidavit alleging that a crime has been committed. You further indicated that in such situation there is also a police report and an investigation has been made indicating a crime has been committed. Any decision as to whether or not to issue a warrant rests in the discretion of the magistrate considering the matter who must make a decision as to whether probable cause has been shown. See: S.C. Bench Book, Section III. The magistrate must make an independent judicial determination as to probable cause based upon the information provided by any witnesses under oath. Such is consistent with S.C. Code Ann. Section 22-3-710 (1989) which states that "(a)ll proceedings before magistrates in criminal cases shall be commenced on information under oath, plainly and substantially setting forth the offense charged, upon which, and only which, shall a warrant of arrest issue." This letter is an informal opinion only. It has been written by a designated Assistant Attorney General and represents no position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General .nor officially published in the matter of a formal opinion. With kind regards, I am,

&J:ilii!d2Charles H. Richardson
Senior Assistant Attorney General

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