What Are Your Rights If You’re Arrested Without a Warrant?
Sept. 16, 2025
Being arrested without a warrant can be a frightening and disorienting experience. In South Carolina, law enforcement has limited authority to take you into custody without first obtaining a judge’s approval. Knowing when this can legally happen, what steps officers must take afterward, and the rights you retain during the process is critical.
These protections exist to prevent abuse of power and to give you the opportunity to defend yourself effectively in court.
At the Jenkins Law Firm, I've dedicated my career to protecting the rights of individuals in Hilton Head, South Carolina. My criminal defense practice focuses on challenging improper arrests, unlawful searches, and violations of constitutional rights.
If you have been detained without a warrant in South Carolina, contact me today so I can begin building your defense immediately.
When Can Authorities Arrest You Without a Warrant?
In South Carolina, officers may arrest you without a warrant only under specific conditions allowed by state law. South Carolina Code Section 17-13-30 authorizes law enforcement to arrest any person caught violating criminal law in their presence or immediately afterward.
This is often called an “in-presence” arrest, and it’s one of the most straightforward warrant exceptions.
South Carolina Code Section 17-13-10 also allows any person—not just law enforcement—to arrest someone committing a felony or larceny, but this type of “citizen’s arrest” must still be brought before a magistrate quickly.
Section 16-25-70 adds another category: if officers have probable cause to believe a misdemeanor or felony involving domestic violence has just occurred, they may arrest without a warrant, even if they did not personally witness it. They can also enter a residence without a warrant if they reasonably believe it’s necessary to prevent injury to a household member.
Probable cause is essential in each of these situations. This legal standard requires a factual basis strong enough for a reasonable person to believe that a crime has been committed. Whether probable cause existed at the time of arrest is often a central issue in criminal defense cases.
What Must Law Enforcement Do After a Warrantless Arrest?
South Carolina law imposes certain obligations on law enforcement after an arrest without a warrant. Section 17-13-50 requires the arresting officer to truthfully state the reason for the arrest. Any refusal to explain or giving a false explanation violates the law and can have significant implications in a criminal defense strategy.
Federal protections also apply. The U.S. Supreme Court has determined that individuals arrested without a warrant are generally entitled to a probable-cause determination by a judge within 48 hours. This requirement confirms that the arrest was legally justified.
Any delay beyond this period, without exceptional circumstances, could result in evidence being excluded or charges being reduced or dismissed.
Core Rights You Retain Upon Warrantless Arrest
Your rights don't disappear simply because you’ve been arrested. In fact, they become even more important. The South Carolina Constitution and the U.S. Constitution both provide protections that apply immediately upon arrest. These include:
Right to remain silent – You're never required to answer questions about the incident beyond providing your basic identification information.
Right to an attorney – You have the right to request a lawyer before answering any questions. Once requested, interrogation must stop until your lawyer is present.
Limits on searches – Officers can only search you and the area within your immediate control during an arrest. Anything beyond that usually requires a warrant unless an exception applies.
Exigent circumstances exceptions – Officers may search or enter without a warrant only when urgent situations demand it, such as preventing the destruction of evidence, pursuing a fleeing suspect, or protecting someone from harm.
Right to challenge unlawful actions – If the arrest or search violated your rights, any evidence obtained may be excluded from trial under the exclusionary rule.
In criminal defense, protecting these rights starts the moment you're detained. The more quickly you assert them, the more tools your defense will have later.
How to Protect Yourself
Here is one recommended list of actions to take if arrested without a warrant:
State clearly that you're exercising your right to remain silent
Request a lawyer immediately, and don't answer further questions without them present
Politely ask the officer, “Am I free to leave?” to clarify whether you're being detained or arrested
Avoid physically resisting arrest, even if you believe it’s unlawful
Observe and remember details: officer names, badge numbers, times, and locations
Write down everything you recall as soon as possible after the incident
Contact a criminal defense attorney right away to begin challenging the arrest and any evidence obtained
Following these steps helps protect your legal rights and ensures you respond appropriately during an arrest without a warrant. Promptly consulting an attorney and carefully documenting the incident can make a significant difference in challenging the arrest and safeguarding your case.
Why Probable Cause Is Central in Criminal Defense
Probable cause is often the heart of the legal fight after a warrantless arrest. Officers must be able to point to clear facts, not just hunches, that led them to believe you committed a crime. In South Carolina, if probable cause is absent, the arrest is unlawful, and any evidence obtained afterward may be thrown out.
For example, if someone calls the police claiming they “think” you stole from a store, but no one saw you do it, and there’s no other evidence, probable cause may be lacking. On the other hand, if you’re found leaving the store with unpaid merchandise in your hands, probable cause is stronger.
The strength of the probable cause is frequently a deciding factor in the success of a criminal defense case. This underlines the importance of having a professional such as William G. Jenkins from Jenkins Law Firm.
The Booking Process and Your Rights
After arrest, you’ll be taken to a detention facility for booking. This process includes recording your personal information, taking fingerprints, and photographing you. Even here, your criminal defense rights matter. You don’t have to answer questions about the incident itself, and you can refuse to provide statements until your lawyer is present.
Officers may inventory your personal property, but they cannot conduct unrelated searches without a valid exception.
Following booking, you may have a bond hearing, often within 24 hours. This hearing determines whether you can be released while your case is pending and under what conditions. A strong criminal defense approach often starts right here, advocating for the lowest possible bond or for release on personal recognizance.
Challenging a Warrantless Arrest in Court
Once your case is in court, your criminal defense strategy may involve filing motions to suppress evidence obtained through the arrest. The grounds for such motions might include:
Lack of probable cause at the time of arrest
Failure to provide a timely probable-cause hearing
An illegal search or seizure without a valid exception
Violations of your Miranda rights
Use of excessive force during arrest
If the court agrees that your rights were violated, key evidence may be excluded, which can lead to a dismissal or reduction of charges. I've seen cases turn entirely on a successful motion to suppress, making this step critical in any criminal defense effort.
Common Warrantless Arrest Scenarios in South Carolina
Several scenarios frequently lead to arrests without a warrant:
Traffic stop leading to arrest – Discovery of illegal substances in plain view can result in immediate arrest. Legal challenges often focus on whether the stop itself was valid.
Domestic dispute – Visible injuries or credible statements may lead to an arrest. Defense efforts may focus on the source and timing of the injuries.
Public disturbance – Disorderly conduct observed by an officer may result in immediate custody. Defense strategies often question whether the conduct met the legal definition.
Each situation has unique factors that can affect the direction of the criminal defense.
Take Action to Protect Your Rights
If you were arrested without a warrant in Hilton Head, South Carolina, or in Beaufort or Jasper County, I'm prepared to stand by your side. At the Jenkins Law Firm, I aggressively challenge unlawful arrests, fight for your constitutional rights, and work to protect your future. Don't face this situation alone—contact me today for a confidential consultation so I can begin building a strong defense tailored to your circumstances.