State v. McAteer

511 S.E.2d 79, 333 S.C. 615, 1998 S.C. App. LEXIS 157

• Court: Court of Appeals of South Carolina
• Decided: December 21, 1998
• Docket: 2795
• Status: Published

Opinions

ORDER

PER CURIAM:

This case was originally heard by a panel of this Court, which issued an opinion affirming the Appellant’s conviction. See State v. McAteer, Op. No. 2795 (S.C.Ct.App. filed February 17, 1998). The full Court voted to rehear the case en banc. S.C.Code Ann. § 14-8-90(b) (Supp.1997) provides that when this Court hears a case en banc, six votes are required to reverse the judgment below. The rehearing resulted in four judges voting to affirm the Appellant’s conviction and five judges voting to reverse the conviction. Therefore, pursuant to section 14-8-90, the Appellant’s conviction is hereby AFFIRMED. In view of the fact that the granting of the rehearing en banc effectively vacated the original panel opinion, the panel opinion is hereby withdrawn, and the opinions of the Court attached hereto are substituted therefor.

GOOLSBY, Judge:

James L. McAteer appeals his conviction for driving under the influence, second offense. He argues his motion to exclude evidence obtained from his arrest was improperly denied by the trial judge. The dispositive question is whether a private citizen may arrest without a warrant for a misdemean- or involving a breach of the peace. We believe that such an arrest is valid and affirm.

FACTS

On February 12, 1995, at approximately 6:00 a.m., City of Rock Hill police officer Randolph Thompson was driving down Vistawood Road in York County, approximately one-half mile outside the city limits of Rock Hill, when he observed a vehicle stopped in the middle of the road with its interior light on. Officer Thompson was still in uniform, having just gone off duty, but he was driving his personal vehicle. As Officer Thompson approached the vehicle from behind, he observed it move approximately 250 yards farther down the road and pull only halfway into a driveway. Officer Thompson stopped his vehicle and approached the other vehicle on foot to investigate. As the driver of the car, James L. McAteer, rolled down the window, Officer Thompson smelled an odor of alcohol coming from the vehicle. He also noticed several open alcoholic beverage containers lying in the front and back seats.

Officer Thompson then informed McAteer that he could not drive away, that although he was not under arrest, he could not leave until a York County deputy arrived. Within a few minutes, Trooper J.T. Suter of the South Carolina Highway Patrol arrived at the scene. After first talking with Officer Thompson, Trooper Suter performed several sobriety tests on McAteer and formally arrested him for driving under the influence of alcohol. Trooper Suter transported McAteer to the York County Detention Center, where McAteer registered a Datamaster breath test reading of .18.

At trial, McAteer sought to suppress all evidence resulting from his arrest. McAteer argued the arrest was illegal because Officer Thompson had no police authority to arrest outside the municipal boundaries of Rock Hill and no power to make a citizen’s arrest under the circumstances presented. The trial court denied McAteer’s motion, proceeded with the bench trial, and convicted McAteer.

DISCUSSION

Standard of Review

In reviewing criminal cases, this court may review errors of law only. State v. Cutter, 261 S.C. 140, 199 S.E.2d 61 (1973). Absent evidence to the contrary, the regularity and legality of the proceedings in general sessions court is presumed. Weathers v. State, 319 S.C. 59, 459 S.E.2d 838 (1995).

Validity of the Arrest

The parties stipulated that McAteer was “peacefully detained” by Thompson. Such a detention constitutes a seizure and is subject to the same protection under the Fourth and Fourteenth Amendments as an arrest. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sikes v. State, 323 S.C. 28, 448 S.E.2d 560 (1994). McAteer is correct that if such a detention is unlawful, any evidence stemming from the detention must be excluded as “fruit of the poisonous tree.” Sikes, 323 S.C. at 32, 448 S.E.2d at 563. We, however, find the detention lawful because Officer Thompson had authority under the common law to detain McAteer for a misdemeanor involving a breach of the peace.

Because Officer Thompson was outside the jurisdictional limits of the City of Rock Hill when he first encountered McAteer, he had no police authority to detain McAteer. See S.C.Code Ann. § 17-13-40 (1985). An officer may, however, arrest outside his territorial jurisdiction if the arrest would be proper for an ordinary citizen. State v. Harris, 299 S.C. 157, 382 S.E.2d 925 (1989).

In 1712, South Carolina enacted the reception statute, incorporating the body of English common law into the jurisprudence of South Carolina. Huff v. Jennings, 319 S.C. 142, 459 S.E.2d 886 (Ct.App.1995). The reception statute provides:. “All, and every part, of the common law of England, where it is not altered by the Code or inconsistent with the Constitution or laws of this State, is hereby continued in full force and effect in the same manner as before the adoption of this section.” S.C.Code Ann. § 14-1-50 (1976).

At common law, a private citizen could lawfully arrest, without a warrant, one whom he saw commit a misdemeanor involving a breach of the peace. See Carroll v. United States, 267 U.S. 132,157, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (“[A] peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.” (emphasis added) (quoting 9 Halsbury’s Laws of England 612)); see also State v. Nall, 304 S.C. 332, 339 n. 7, 404 S.E.2d 202, 206-07 n. 7 (Ct.App.1991) (stating that the common-law rule “permits a private person to arrest for a misdemeanor committed in his presence, if it constitutes a breach of the peace” (citing Price v. Seely, 10 Cl. & Fin. 28, 8 Eng.Rep. 651 (1843); Timothy v. Simpson, 1 Cr.M. & R. 787, 149 Eng.Rep. 1285 (1835); 2 Hawk P.C., c. 12, s. 20, at 120 (8th ed. 1824)));¹ Knot v. Gay, 1 Root 66 (Conn.Super.1789) (holding that during an affray, any person may, without a warrant from a magistrate, restrain any of the offenders, in order to preserve the peace); Winn v. Hobson, 54 N.Y.Super.Ct. (22 Jones & S.) 330 (N.Y.Super.1887) (holding that a private person has no power to arrest another for a breach of the peace, or for disorderly conduct, except at the time when the offense is committed (emphasis added)); In re Wallace, (Gen.Sess.) 4 City H.Rec. 111 (N.Y.1819) (finding that in case of a breach of the peace, it is the right and duty of every citizen, without a warrant, to use all lawful means to arrest the offender); Phillips v. Trull, 11 Johns. 486 (N.Y.1814) (holding that if an affray amounts to a breach of the peace, any private person may, without a warrant, restrain any of the offenders in order to preserve the peace). See generally William A. Schroeder, “Warrantless Misdemeanor Arrests and the Fourth Amendment,” 58 Mo. L.Rev. 771, 788 (1993) (discussing the common-law rule on warrantless misdemeanor arrests).

McAteer argues that S.C.Code Ann. section 17-13-10 sets out the complete law of citizen’s arrest in South Carolina. The statute provides:

Circumstances where any person may arrest a felon or thief.

Upon (a) view of a felony committed, (b) certain information that a felony has been committed or (c) view of a larceny committed, any person may arrest the felon or thief and take him to a judge or magistrate, to be dealt with according to law.

S.C.Code Ann. § 17-13-10 (1985).

The history of this statute reveals that it was not intended to abrogate' the common-law rule permitting a warrantless citizen’s arrest upon view of a misdemeanor involving a breach of the peace. As originally enacted, the section merely expanded the common-law rule that a private person who views a felony can arrest the felon without a warrant to also allow a warrantless arrest of a felon upon certain information that a felony has been committed. Nall, 304 S.C. at 340, 404 S.E.2d at 207. Subsection (b) expanded the common law by abrogating the restriction that a private person’s arrest would be unlawful if it ultimately turns out that no felony was actually committed, even if the arresting party had good information that one had been committed. See id. The legislature, therefore, initially intended to address only the rule bn warrantless arrests of felons.

Subsection (c) was not enacted until 1898. The prior year, the South Carolina Supreme Court, in State v. Davis, 50 S.C. 405, 427, 27 S.E. 905, 913 (1897), employed the original statute to determine that “[f]or a simple petit larceny, a private person has no right to arrest without warrant.” This analysis yielded the result that one who kills another in resisting an illegal arrest can be convicted of manslaughter only, not murder. The next year, 1898, the legislature amended this statute to allow a warrantless citizen’s arrest upon view of a larceny committed. See An Act to Amend Section 1 of the Criminal Statutes of South Carolina, 22 Stat. At Large of South Carolina 809 (1898), cited in Nall, 304 S.C. at 340 n. 15, 404 S.E.2d at 207 n. 15.

The Davis court did not discuss the “misdemeanor rule” because petit larceny was not a misdemeanor involving a breach of the peace.² See Sir Matthew Hale, Pleas of the Crown: A Methodical Summary 136 (1678) (listing misdemeanors that constituted a breach of the peace to include affrays, riots, forcible entries and detainers, barretries (defaming, spreading false rumors, and starting fights), and riding armed); 4 Sir William Blackstone, Commentaries on the Laws of England 142 (J.B. Lippencott & Co. ed. 1858) (listing similar breach of the peace crimes); see also State v. Sundberg, 611 P.2d 44, 47 (Alaska 1980) (quoting a law review article as follows: “Historically, the right to use force in preventing crimes was limited to situations ... [involving] a felony or a breach of the peace. Consequently, the threatened commission of a non-violent misdemeanor, such as pet[it] larceny, provided no basis for the use of preventive force.” (emphasis added)); Gortarez v. Smitty’s Super Valu, Inc., 140 Ariz. 97, 680 P.2d 807, 812 (Ariz.1984) (“In the case of misdemeanors such as shoplifting, there is no breach of the peace, and no common law privilege to arrest.”); cf. 5 Am.Jur.2d Arrest § 59 (1995) (stating “[ajrrest by private citizens for shoplifting is not lawful, but a shopkeepers’ exception is developing,” especially to overcome the “in view” requirement of the felony rule). But see Nall, 304 S.C. at 340 n. 15, 404 S.E.2d at 207 n. 15 (stating, in dicta, “at common law ... pet[it] larceny is a breach of the peace”).

We believe the legislature intended by its 1898 amendment only to change the result of cases like Davis so that one who sees a petit larceny may lawfully arrest the thief.³

Furthermore, , a central canon of statutory construction provides that “[t]he common law remains in full force and effect in South Carolina unless changed by clear and unambiguous legislative enactment.” Singleton v. State, 318 S.C. 75, 83, 437 S.E.2d 53, 58 (1993). “[I]t is presumed that no change in common law is intended unless the Legislature explicitly indicates such an intention by language in the statute.” State v. Prince, 316 S.C. 57, 66, 447 S.E.2d 177, 182 (1993); see also 73 Am.Jur.2d Statutes § 185 (1974)'(“The fact that a statute contains a partial codification of a particular rule or principle of the common law does not necessarily abrogate the remainder of the common-law rule; should the courts hold that when any rule or principle of the common law is by the legislature partially incorporated into a statute, the remainder of the rule is thereby repealed or annulled, endless trouble and confusion would result, necessitating in all cases a complete codification of the subject dealt with by the statute.” (footnotes omitted)). There is no language in S.C.Code Ann., title 17, chapter 13 indicating an intent to change the common law not codified therein. Moreover, in light of the history of this statute, we hold that section 17-13-10 merely expands on the common law and in no way restricts it. Thus, the common-law rule permitting a warrantless citizen’s arrest upon view of a misdemeanor involving a breach of the peace remains applicable today.

DU I as a Breach of the Peace

South Carolina courts have defined “breach of the peace” as embracing a great variety of conduct destroying or menacing public order and tranquility. In general terms, it is a violation of public order, a disturbance of public tranquility, by any act or conduct inciting to violence. Although it includes acts likely to produce violence in others, actual violence is not an element of breach of peace.... “[It] may be generally defined as such a violation of public order as amounts to a disturbance of the public tranquility, by act or conduct either directly having this effect, or by inciting or tending to incite such a disturbance of the public tranquility. Under this general definition, therefore, in laying the foundation for a prosecution for the offense of breach of the peace it is not necessary that the peace actually be broken; commission of an unlawful and unjustifiable act, tending with sufficient directness to breach the peace, is sufficient.”

State v. Peer, 320 S.C. 546, 552, 466 S.E.2d 375, 379 (Ct.App. 1996) (citations omitted) (quoting 12 Am.Jur.2d Breach of Peace § 4 (1964)).

The offense of driving under the influence, we hold, is a misdemeanor involving a breach of the peace.⁴ See State v. Hart, 669 N.E.2d 762 (Ind.Ct.App.1996); State v. Rue, 72 N.M. 212, 382 P.2d 697 (N.M.1963); State v. Jennings, 112 Ohio App. 455, 176 N.E.2d 304 (Ohio Ct.App.1959); Romo v. State, 577 S.W.2d 251 (Tex.Crim.App.1979); see also 11 C.J.S. Breach of the Peace § 5 at 265 (1995) (“While intoxication alone does not ordinarily constitute a breach of the peace, the operation of a motor vehicle while intoxicated is an activity which threatens the public security and involves violence, and as such, it amounts to a breach of the peace.” (footnote omitted) (citing City of Waukesha v. Gorz, 166 Wis.2d 243, 479 N.W.2d 221 (Wis.Ct.App.1991), review denied, 482 N.W.2d 107 (Wis.1992))).

We, therefore, find Officer Thompson’s citizen’s arrest of McAteer was a legal arrest for a misdemeanor involving a breach of the peace and affirm. See, e.g., Edwards v. State, 462 So.2d 581 (Fla.Dist.Ct.App.1985) (holding off-duty police officer, outside of his jurisdiction, made a valid citizen’s arrest of an intoxicated driver); City of Waukesha v. Gorz, 166 Wis.2d 243, 479 N.W.2d 221 (Wis.Ct.App.1991); review denied, 482 N.W.2d 107 (Wis.1992) (holding driving while intoxicated is a breach of the peace, an offense for which a police officer, acting outside his jurisdiction, may make a valid citizen’s arrest).

AFFIRMED.

HUFF and STILWELL, JJ., concur.

1 . The dissent asserts that State v. Anderson, 19 S.C.Law (1 Hill) 327 (1833), held "an arrest by a private person was only justified if the proof showed a legal [sic] felony was committed, and the prisoner was the perpetrator." (Emphasis added.) We do not think Anderson says that. The case simply held a private citizen could arrest without a warrant a person shown to be a felon and a fugitive from justice. Anderson, 19 S.C.Law (1 Hill) at 341. The issue before the Anderson court was the requisite proof of a felony to justify private arrest when the underlying felony was committed in a foreign state or country because the citizen’s arrest would be invalid if no felony actually had been committed or if the citizen had no reasonable basis for believing that the one arrested perpetrated the felony. The case does not address at all the issue of whether a private citizen can arrest another person without a warrant for a breach of the peace committed in the private citizen's presence. Anderson, therefore, should not be read as an exhaustive statement of all aspects of the common law on private arrest.

The dissent also asserts that State v. Griffin, 74 S.C. 412, 54 S.E. 603 (1906), is applicable to the discussion. The question in Griffin was whether the defendant was justifiably resisting an unlawful arrest, because the common law held that if a private citizen arrests upon information of a felony and it later appears that a felony was not in fact committed, then the arrest was unlawful. Thus, like Anderson, the "misdemeanor rule” was wholly irrelevant to the issues in Griffin.

The dissent also cites Percival v. Bailey, 70 S.C. 72, 49 S.E. 7 (1904), stating that the court upheld a finding of liability for false imprisonment when the "offense charged was only a misdemeanor and was not committed in the presence of [a police] officer [because] the arrest was illegal and [a citizen’s] giving over the plaintiff to the policeman was illegal." This case too is irrelevant to the issue before us because the court did not address the validity of any private arrest. The opinion focuses only on the officer’s actions and does not make clear whether the citizen actually effected an arrest or simply called the police and made the allegedly false accusations. In any case, the issue of warrant-less arrest for a breach of the peace misdemeanor was not before the Percival court. The court agreed that "the whole matter tum[ed] on whether or not a policeman can legally arrest one charged with an offense less than felony without a warrant, where the offense charged is not committed in the presence of the officer.” Id. at 73-74, 49 S.E. at 7 (emphasis added). Furthermore, we would point out that the court tellingly stated: "Peace officers have at common law the right to arrest upon view, without warrant, all persons who are guilty of a breach of the peace or other violation of the criminal laws." Id. at 74, 49 S.E. at 7.

Finally, the dissent refers to Loggins v. Southern Ry., 64 S.C. 321, 42 S.E. 163 (1902), stating that "[i]f the conductor in Loggins had been authorized to arrest as a private person for a breach of the peace misdemeanor, the court would not have had to rely on the statute.” Nothing in the Loggins opinion indicates that the common-law rule was raised on appeal. The statute was clear that the conductor had authority to arrest for a breach of the peace; therefore, the court did not need to address the common-law rule with which we are concerned.

2 . The dissent criticizes our analysis of Davis, saying that we hold "a larceny which directly led to a public affray and, ultimately, the murder of the property owner, was not the 'commission of an unlawful and unjustifiable act, tending with sufficient directness to breach the peace.’ " We would point out that in Davis the larceny itself did not create the breach of the peace; instead, the attempted private arrest led to the gun battle in the streets.

Furthermore, the issue in Davis was whether the trial judge’s charge was proper. The charge complained of was, "Now, I charge you, as matter of law, that if you see a party stealing your property, if you see a party committing a larceny, you have a right to arrest that party.” Davis, 50 S.C. at 411, 27 S.E. at 907 (emphasis added).- The charge reviewed in Davis, therefore, expressly addressed only the right of private arrest for petit larceny and did not at all concern the right to privately arrest a thief who commits "physical violence of the person of another trying to effect detention, arrest, or recovery.” Dag E. Ytrebert. Annotation, Larceny as Within Disorderly Conduct Statute or Ordinance, 71 A.L.R.3d 1156 (1976) (cited by the dissent).

3 . Act No. 508 of 1898, 22 S.C.Stat. 809, now codified as S.C.Code Ann. § 17-13-10(c) (1985), took effect February 19, 1898.

That same month, Henry Davis, the defendant in State v. Davis, 50 S.C. 405, 27 S.E. 905 (1897), following remand, was again convicted of murder. He thereafter appealed. On September 7, 1898, the supreme court once more overturned his conviction. In doing so, the supreme court seemingly reversed its earlier view regarding the right of a private citizen to arrest another for petit larceny of the private citizen’s own property. Mr. Justice Pope, writing for the court, stated.

It seems idle to say that if the goods stolen shall amount in value to $20 or more, that such being a felony, the thief may be arrested without a warrant for such arrest; but that if the goods be of the value of $19 or less, stolen from the owner in his presence, the owner will not be justified in arresting the thief and recovering his property---- I would be understood upon this matter, for we mean only to hold that when a thief is caught in the act of stealing from the person, or the house, or the premises, the owner, in such a case, is authorized to arrest the thief and regain his property at that moment in the possession of the thief.

State v. Davis, 53 S.C. 150, 154, 31 S.E. 62, 63 (1898). Mr. Justice Pope nowhere mentioned the 1898 Act (which, of course, was not effective at the time Davis allegedly committed the murder) or any other statute, and he did not distinguish between petit and grand larceny. We glean from this that the supreme court recognizes that there are circumstances, not covered by statute, that permit a warrant-less arrest by a private citizen. See State v. Byrd, 72 S.C. 104, 110, 51 S.E. 542 (1905) (stating that at common law, a warrantless arrest could not be made for any offense less than a felony except for a breach of the peace); cf. State v. Nall, 304 S.C. 332, 339, 404 S.E.2d 202, 206 (Ct.App.1991) ("Finally, the law permits a private person to arrest for a misdemeanor committed in his presence, if it constitutes a breach of the peace.”).

4 . DUI is a significant cause of deaths on America’s highways. See Matthew L. Wald, Safety Group Reports Rise in Fatalities on Highways, N.Y. Times, Oct. 10, 1996, at A24 (stating that alcohol-related traffic fatalities in 1995 totalled 17,274, up four percent from 1994).