Can Police Make a Warrantless Arrest for Domestic Violence in SC?
Can police make a warrantless arrest for domestic violence in SC?
Ordinarily, police must go to a magistrate and apply for an arrest warrant before they can take someone to jail – if the officer’s affidavit shows probable cause that a crime has been committed, the judge will sign the warrant and the officer can then arrest the person. But is that always the case?
If police are allowed to enter your home without a warrant and arrest you for domestic violence without a warrant, can they also search your home without a search warrant if they are there on a domestic violence call?
In most domestic violence cases, and in many other situations, police can arrest a person without first getting a warrant – below, I’ll discuss when police need an arrest warrant, when they can either arrest a person on a blue ticket or apply for the warrant after they have made an arrest, and whether police can search your home without a warrant if they are investigating a domestic violence complaint.
When Can Police Make a Warrantless Arrest for Domestic Violence?
If a responding officer has probable cause to believe that someone is 1) committing domestic violence or 2) has “freshly committed” domestic violence just before they arrived on the scene, they are authorized to arrest the suspect without a warrant:
(A) A law enforcement officer may arrest, with or without a warrant, a person at the person’s place of residence or elsewhere if the officer has probable cause to believe that the person is committing or has freshly committed a misdemeanor or felony pursuant to the provisions of Section 16-25-20, 16-25-65, or 16-25-125, even if the act did not take place in the presence of the officer.
It doesn’t matter if the alleged domestic violence was a misdemeanor or felony, it doesn’t matter if the officer saw it happen, and it doesn’t matter if it happened at your home or at the grocery store.
An officer is also authorized to make a warrantless arrest for domestic violence “if physical manifestations of injury to the alleged victim are present” and there is probable cause to believe the suspect is committing or has “freshly committed” domestic violence.
Does the Officer Need to Get a Warrant After the Arrest?
Although an officer is authorized to make a warrantless arrest for domestic violence, they must still present the case to a magistrate and seek an arrest warrant after the fact:
The investigation must be documented on an incident report form which must be maintained by the investigating agency. If an arrest warrant is sought, the law enforcement agency must present the results of the investigation and any other relevant evidence to a magistrate who may issue an arrest warrant if probable cause is established.
If they can make a warrantless arrest for domestic violence, can police enter your home without a warrant when they are responding to a domestic violence call? What if you meet them at the door and tell them they cannot enter without a warrant?
Can Police Enter Your Home Without a Warrant?
Police can enter your home without a warrant, to arrest you without a warrant, when:
- They have determined they are going to arrest you;
- It is necessary to enter your home to arrest you; and
- “The officer has probable cause to believe that the action is reasonably necessary to prevent physical harm or danger to a family or household member.”
This could be important if you were arrested by police and they seized evidence from your home…
Can Police Search Your Home Without a Warrant in a Domestic Violence Case?
The police come to your home in response to a domestic violence call. You meet them outside, your spouse is no longer at home, and they make a warrantless arrest for domestic violence in your front yard.
Can they now go into your house without permission and search for evidence of domestic violence without a search warrant?
Probably not, but there are many situations where they can enter your home andsearch for evidence of domestic violence without first getting a search warrant:
(H) Evidence discovered as a result of a warrantless search administered pursuant to a complaint filed under this article is admissible in a court of law:
(1) if it is found:
(a) in plain view of a law enforcement officer in a room in which the officer is interviewing, detaining, or pursuing a suspect; or
(b) pursuant to a search incident to a lawful arrest for a violation of this article or for a violation of Chapter 3, Title 16; or
(2) if it is evidence of a violation of this article.
An officer may arrest and file criminal charges against a suspect for any offense that arises from evidence discovered pursuant to this section.
If your spouse invites the officer in and gives them permission to search your home, there is probably not much that you can do about that. But, even if your spouse is not there or your spouse tells the officer to pound sand, the officer can enter your home to make an arrest.
When they are in your home, if they see evidence “in plain view” – that could include drugs, drug paraphernalia, or evidence of any crime including the domestic violence allegations – they are allowed to seize the evidence and charge you with crimes based on what they found.
When you are arrested, the officer can also search your person and the area immediately around you (your “grab area”) for weapons or evidence as a “search incident to arrest.”
When making an arrest, the officer can also make a “protective sweep” of the home if necessary, to look for other suspects or threats to the officer’s safety.
If the evidence they found was 1) in plain view, 2) on your person or in your “grab area,” 3) evidence of the domestic violence allegations, or 4) was covered by another valid exception to the Fourth Amendment, it will most likely be admissible in court.
When Can Police Make a Warrantless Arrest in Other Types of Cases?
Police can make warrantless arrests in other types of cases as well, including:
- When a crime is committed in the officer’s presence; and
- When SC law authorizes the use of a uniform traffic ticket (blue ticket) instead of an arrest warrant – if the alleged crime is not listed in SC Code Section 56-7-10, and the crime was not committed in the officer’s presence (or “freshly committed”), the officer must present the case to a magistrate and get an arrest warrant before arresting the person.
Domestic violence cannot be charged on a blue ticket because it is not listed in 56-7-10, although an officer can make a warrantless arrest for domestic violence (see above) and then seek a warrant after the person has been taken into custody.
Domestic Violence Defense Lawyer in Charleston, SC
Charleston criminal defense attorney Grant B. Smaldone represents persons who are accused of domestic violence in South Carolina. If you or your family member have been arrested for domestic violence, call now at (843) 808-2100 or email with our contact form to talk with a domestic violence defense attorney today.