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State v. McAteer5/30/2000
en property, or being under circumstances which raise just suspicion of his design to steal or to commit some felony, flees when he is hailed. [now § 17-13-20] .
In 1866, the Legislature enacted 1866 Act No. 4802 titled An Act to Alter the [1865 Act] which repealed the 1865 Act as it related to warrantless arrests for daytime misdemeanors, and reenacted those provisions providing for warrantless daytime felony arrests now codified at § 17-13-10(a) and (b), and the nighttime provisions found at § 17-13-20.
Like the Connor opinion, we conclude the 1865 Act evinces a legislative intent to regulate all warrantless arrests by private citizens, and thus to supplant the common law in this field. "The common law remains in full force and effect in South Carolina unless changed by clear and unambiguous legislative enactment." Singletary v. State, 313 S.C. 75, 83, 437 S.E.2d 53, 58 (1993). With the enactment of 1865 Act No. 4731, the General Assembly clearly and unambiguously supplanted South Carolina's common law in the area of citizen's arrests by altering the felony rules and by instituting misdemeanor rules. See Branchville Motor Co. v. Adden, 158 S.C. 90, 155 S.E. 277 (1930). The fact that this Act was altered the next year to eliminate all references to misdemeanor arrests (except those in the nighttime as now found in § 17-13-20) effectively restored the status quo ante 1865: no misdemeanor warrantless citizen's arrests.
The law changed again in 1898 when, in response to Davis I, the Legislature enacted what is now § 17-13-10(c), permitting warrantless misdemeanor arrests for any "view of a larceny committed." 1898 Act No. 508. The Connor opinion concludes this statute is the only circumstance when a citizen can make a daytime misdemeanor arrest. We agree. Compare Percival v. Bailey, 70 S.C. 72, 49 S.E. 7 (1904) (upholding false imprisonment verdict against private citizen who detained plaintiff for a misdemeanor); Loggins v. Southern Ry Co., 64 S.C. 321, 42 S.E. 163 (1902)(citing statute giving train conductors common law power of constables to make arrest). In Prosser v. Parsons, 245 S.C. 493, 141 S.E.2d 342 (1965), the Court in holding a game warden had statutory authority to arrest without a warrant for any offense committed in his presence, noted that "at common law sheriffs, constables, and other peace officers had the power and authority to arrest without warrant felons or persons reasonably suspected of having committed a felony and also those who had committed a misdemeanor in his presence which amounted to a breach of the peace." Prosser v. Parson, 141 S.E.2d at 345. These references to the common law authority of officers to arrest for misdemeanors involving a breach of the peace committed in their presence is more evidence that no such authority was vested in private citizens.
We hold there is no common law right to make warrantless citizen's arrests of any kind and that such rights as exist are created by statute in South Carolina. Accordingly, petitioner's arrest was unlawful, and his conviction is reversed and the matter remanded. Our disposition of the arrest issue makes it unnecessary to decide whether DUI involves a breach of the peace, and accordingly we vacate those portions of the Court of Appeals' opinions which discuss this issue.
REVERSED AND REMANDED.
TOAL, MOORE, WALLER and BURNETT, JJ., concur.
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