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State v. McAteer12/21/1998
The South Carolina Court of Appeals
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that the granting of the rehearing en banc effectively vacated the original panel opinion, the panel opinion is hereby withdrawn, and the opinions of the Court attached hereto are substituted therefor.
Columbia, South Carolina
December 21,1998
The State, Respondent, v. James L. McAteer, Jr., Appellant.
Appeal From York County Frank P. McGowan, Jr., Circuit Court Judge
Heard September 1, 1998
AFFIRMED
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 misdemeanor 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
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