State v. Brannon - resisting arrest first requires

"No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891).

In State v. Brannon, the S.C. Court of Appeals held that for a person to be convicted of resisting arrest, there must first be an arrest. Seems like common sense, but there are many scenarios where people are charged with resisting arrest despite no valid arrest having occurred. In Brannon, police walked up to the defendant who they suspected was breaking into cars, said "stop, police," and the defendant ran. Officers gave chase and caught him, but once he was physically caught he did resist.

It is not against the law in South Carolina to "resist" an investigatory detention - for an individual to be considered under arrest they must be "physically touched for the purpose of restraint," or have "submitted to a show of authority at the time of . . . flight."

The Court of Appeals relies on U.S. Supreme Court cases which hold that an arrest for Fourth Amendment purposes requires an application of force or submission to a show of authority. In California v. Hodari D., 499 U.S. 621 (1991), for example, Hodari ran when he saw the police and, just before he was tackled and handcuffed, tossed a rock of crack cocaine. The USSCT held that the evidence was not the product of an illegal seizure and therefore was admissible in court, because Hodari was not seized until the moment he was tackled by the police.

In County of Sacramento v. Lewis, 523 U.S. 833 (1998), a fleeing motorcycle crashed and a pursuing police car ran over one of the riders, killing him. The USSCT held that, because the contact of the police car with the motorcycle rider was accidental, there was no Fourth Amendment seizure (and therefore no police liability to the dead riders' estate). The pursuit itself was not a seizure.

More recently, in Brendlin v. California, 551 U.S. , 127 S. Ct. 2400 (2007), the USSCT held that 1) a passenger in a car has standing under the Fourth Amendment; and 2) that a person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.

To say that "stop, police" constitutes an arrest for purposes of the resisting arrest statute, which is how some lower courts have been treating this statute, but does not constitute an arrest for purposes of excluding drugs that were tossed or for purposes of police liability, is inconsistent and defies the plain language of the statute. S.C. Code Sec. 16-9-320(A) says:

It is unlawful for a person knowingly and wilfully to oppose or resist a law enforcement officer in serving, executing, or attempting to serve or execute a legal writ or process or to resist an arrest being made by one whom the person knows or reasonably should know is a law enforcement officer, whether under process or not. A person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction, must be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned not more than one year, or both.

And an "arrest" is defined by Black's Law Dictionary as:

1. A seizure or forcible restraint. 2. The taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge.” Black’s Law Dictionary 104 (7th ed. 1999).

Applying this analysis to Brannon's facts, he was not placed under arrest until he was physically touched by the officer, at which point he did not resist. Running from the officer's commands to "stop" amounted only to avoidance of the officers, not resisting arrest.

Brannon was also convicted and sentenced for breaking into a motor vehicle, and, although the opinion is not clear on this, it appears there was independent proof of that charge. What often happens is law enforcement will approach an individual who then runs, the police chase and eventually tackle them, place them under arrest for "resisting arrest," and then find drugs during the search incident to arrest. The cop is then good and pissed off, and the person is charged with resisting arrest, possession of drugs, assaulting an officer (because the officer scraped his knee while tackling the person), and anything else that the officer can think of.

There are now two main things to look for in resisting arrest cases. First, although I don't recommend it to anyone, it is well established that you have the right to resist an unlawful arrest. If the initial arrest was unlawful, you can resist the arrest and, if the court agrees with you, anything that is found on your person after the arrest may be excluded from evidence as the product of an unlawful seizure.

Second, under Brannon, always consider the possibility that there was no arrest to begin with. If a person runs from the police, they have not submitted to the officer's show of authority and until such time as there is physical contact by the police officer, there has been no arrest. The police cannot bootstrap themselves into making a case by charging someone with resisting arrest and then searching incident to the arrest for resisting arrest. There must be a valid reason to arrest the person, and then there must be an actual arrest.