S 0380 General Bill, By Hayes
 A BILL TO AMEND SECTION 16-25-70, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA,
 1976, RELATING TO EFFECTING AN ARREST OR SEARCH WITH OR WITHOUT A WARRANT, THE
 HANDLING OF A DOMESTIC OR FAMILY VIOLENCE COMPLAINT OR CRIME BY A LAW
 ENFORCEMENT OFFICER OR A COURT, AND A LAW ENFORCEMENT OFFICER'S LIABILITY FOR
 AN ACT, OMISSION, OR EXERCISE OF DISCRETION, SO AS TO DELETE A PROVISION WHICH
 REQUIRES THAT ONLY EVIDENCE OF VIOLATIONS OF CERTAIN CRIMINAL DOMESTIC
 VIOLENCE PROVISIONS ARE ADMISSIBLE IN A COURT OF LAW AS A RESULT OF A
 WARRANTLESS SEARCH AND TO PROVIDE THAT EVIDENCE OF ANOTHER CRIME FOUND DURING
 A SEARCH INCIDENT TO A LAWFUL ARREST UNDER CERTAIN CIRCUMSTANCES MAY BE SEIZED
 BY A LAW ENFORCEMENT OFFICER WHO MAY ARREST AND FILE CRIMINAL CHARGES AGAINST
 A PERSON IMPLICATED BY THE EVIDENCE.

   02/27/01  Senate Introduced and read first time SJ-11
   02/27/01  Senate Referred to Committee on Judiciary SJ-11
   04/25/01  Senate Committee report: Favorable with amendment
                     Judiciary SJ-23
   04/26/01  Senate Amended SJ-73
   04/26/01  Senate Read second time SJ-73
   04/26/01  Senate Unanimous consent for third reading on next
                     legislative day SJ-73
   04/27/01  Senate Read third time and sent to House SJ-10
   05/01/01  House  Introduced and read first time HJ-23
   05/01/01  House  Referred to Committee on Judiciary HJ-23

Indicates New Matter

COMMITTEE AMENDMENT ADOPTED

April 26, 2001

    S. 380

S. Printed 4/26/01--S.

Read the first time February 27, 2001.

TO AMEND SECTION 16-25-70, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO EFFECTING AN ARREST OR SEARCH WITH OR WITHOUT A WARRANT, THE HANDLING OF A DOMESTIC OR FAMILY VIOLENCE COMPLAINT OR CRIME BY A LAW ENFORCEMENT OFFICER OR A COURT, AND A LAW ENFORCEMENT OFFICER'S LIABILITY FOR AN ACT, OMISSION, OR EXERCISE OF DISCRETION, SO AS TO DELETE A PROVISION WHICH REQUIRES THAT ONLY EVIDENCE OF VIOLATIONS OF CERTAIN CRIMINAL DOMESTIC VIOLENCE PROVISIONS ARE ADMISSIBLE IN A COURT OF LAW AS A RESULT OF A WARRANTLESS SEARCH AND TO PROVIDE THAT EVIDENCE OF ANOTHER CRIME FOUND DURING A SEARCH INCIDENT TO A LAWFUL ARREST UNDER CERTAIN CIRCUMSTANCES MAY BE SEIZED BY A LAW ENFORCEMENT OFFICER WHO MAY ARREST AND FILE CRIMINAL CHARGES AGAINST A PERSON IMPLICATED BY THE EVIDENCE.

    Amend Title To Conform

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Section 16-25-70 of the 1976 Code is amended to read:

    "Section 16-25-70.    (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 under the provisions of Section 16-25-20, 16-25-50, or 16-25-65 even if the act did not take place in the presence of the officer. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate police department law enforcement agency.

    (B)    A law enforcement officer must arrest, with or without a warrant, a person at the person's place of residence or elsewhere if physical manifestations of injury to the alleged victim are present and the officer has probable cause to believe that the person is committing or has freshly committed a misdemeanor or felony under the provisions of Section 16-25-20, 16-25-50, or 16-25-65 even if the act did not take place in the presence of the officer. The officer may, if necessary, verify the existence of an order of protection by telephone or radio communication with the appropriate police department law enforcement agency.

    (C)    In effecting a warrantless arrest under this section, a law enforcement officer may enter the residence of the person to be arrested in order to effect the arrest where 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.

    (D)    If a law enforcement officer receives conflicting complaints of domestic or family violence from two or more household members involving an incident of domestic or family violence, the officer shall must evaluate each complaint separately to determine who was the primary aggressor. If the officer determines that one person was the primary physical aggressor, the officer must not arrest the other person accused of having committed domestic or family violence. In determining whether a person is the primary aggressor, the officer shall must consider:

        (1)    prior complaints of domestic or family violence;

        (2)    the relative severity of the injuries inflicted on each person taking into account injuries alleged which may not be easily visible at the time of the investigation;

        (3)    the likelihood of future injury to each person;

        (4)    whether one of the persons acted in self-defense; and

        (5)    household member accounts regarding the history of domestic violence.

    (E)    A law enforcement officer must not threaten, suggest, or otherwise indicate the possible arrest of all parties to discourage a party's requests for intervention by law enforcement by a party.

    (F)    A law enforcement officer who arrests two or more persons for a crime involving domestic or family violence must include the grounds for arresting both parties in the written incident report and must include a statement in the report that the officer attempted to determine which party was the primary aggressor pursuant to this section and was unable to make a determination based upon the evidence available at the time of the arrest.

    (G)    When two or more household members are charged with a crime involving domestic or family violence arising from the same incident and the court finds that one party was the primary aggressor pursuant to this section, the court, if appropriate, may dismiss charges against the other party or parties.

    (H)    No evidence other than evidence of violations of this article found as a result of a warrantless search is admissible in a court of law. 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.

    Unless otherwise provided for in this section, no evidence of a crime found as a result of a warrantless search administered pursuant to a complaint filed under this article is admissible in any court of law.

    (I)    In addition to the protections granted to the law enforcement officer and law enforcement agency under the South Carolina Tort Claims Act, a law enforcement officer is not liable for an act, omission, or exercise of discretion under this section unless the act, omission, or exercise of discretion constitutes gross negligence, recklessness, wilfulness, or wantonness."

SECTION    2.    This act takes effect upon approval by the Governor.