August 28, 1987
Major Tom Dravland
Assistant Superintendent
South Dakota Division of Highway Patrol
State Capitol
Pierre, SD 57501-5070
OFFICIAL OPINION NO. 87-28
Transportation of Arrestees
Dear Major Dravland:
You have requested an official opinion from this Office in regard to the following factual situation:
FACTS:
In the recent past, the Division of Highway Patrol has become aware that several sheriff's offices in state, due apparently to budgetary problems, have been requiring arresting officers to transport the persons they arrest to contractual jail facilities in other counties. There have also been occasions where the arresting officer was further required to provide transportation for the arrestee to and from all court proceedings. While the Division of Highway Patrol does not want to express any unwillingness to assist in these matters whenever possible, it is difficult for officers, whose territory covers a number of counties, to be asked to transport these arrestees themselves. This is especially so in the case of providing transportation to and from court proceedings.
Based upon the above facts, you have asked the following question:
QUESTION:
Is it the responsibility of the arresting officer to transport arrested persons from the county wherein the arrest was made to the contractual jail facility for that county or does that responsibility rest with the sheriff's office?
In responding to your question, I think it should be pointed out that it has long been the law in this State that it is the duty of each county to maintain a jail facility. Statute provides that a jail is to be established and maintained in every county, by authority of the Board of County Commissioners and at the expense of the county. SDCL 24‑11‑2. The term "jail" has been defined by statute to include:
. . . any building or place provided or used by any county, city, town or civil township for the detention of persons convicted or accused of the violation of any law of this state, any ordinance or bylaw of any city, town or civil township, or any rule or regulation of any board, commission or public officer having the effect of law.
SDCL 24-11-1. The sheriff or other officer designated by law or ordinance shall have charge of the jail of his county or municipality and of all persons by law confined therein. SDCL 24-11-3.
As you well know, however, there are many instances in which there is no jail in the county wherein the arrest was made or the jail that is maintained is crowded or otherwise unsafe. In those particular instances, statute provides that every judicial or executive officer of the county who has the power to order, sentence or deliver any person to the county jail may order, sentence or deliver such person to the jail of any near or adjoining county. SDCL 24-11-3. In the factual scenario presented, those counties which do not maintain their own jail have, pursuant to SDCL 24-11-4, entered into contractual agreements whereby they use the facilities of an adjoining county. Those counties have thus complied with statutory mandate that they maintain a jail facility.
Keeping the foregoing in mind, one may address the precise question at hand. An officer, in making an arrest, undertakes a duty to keep the arrestee safe until it is possible to deliver him before a committing magistrate. When circumstances do not allow the arrested person to be taken immediately before a magistrate, this duty usually entails the officer taking the arrestee to an appropriate detainment facility where he is to be held until such time as a hearing can be had before the magistrate. Under the facts that you have laid out, this would require that the arresting officer transport the arrested person from the county wherein the arrest was made to the contractual jail facility for that county.
The responsibility of the arresting officer ceases, however, when he delivers the prisoner to the appropriate jail facility. The sheriff thereafter assumes all responsibility for that prisoner, including transporting him to and from judicial proceedings. As set forth above, the sheriff shall have charge of the jail of his county and of all persons confined therein. See SDCL 24-11-13.
While recognizing that SDCL 23A-4-1 does provide that a law enforcement officer making an arrest shall, without unnecessary delay, take the person before the nearest available committing magistrate, I do not believe that the statute need be interpreted to require that, in all instances, it be the arresting officer who actually performs that function. To adopt such an interpretation would, in my opinion, produce impractical results. As is often the case, circumstances may require that someone other than the arresting officer take the arrestee before a magistrate. To always, without exception, place that responsibility on the arresting officer could very well result in the type of unnecessary delay the statute was intended to prevent.
The obvious purpose of these statutes is that the arrestee may swiftly be advised of his constitutional rights and the nature of the charge against him by an impartial judicial magistrate and to further ensure that his rights are not violated. Prompt arraignment prevents police officers from conducting secret interrogations intended to extract a confession. Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L.Ed.2d 1479 (1957); Upshaw v. United States, 335 U.S. 410, 65 S.Ct. 170, 93 L.Ed. 100 (1948). See also People v. Mallory, 365 N.W.2d 673 (Mich. 1984); State v. Ankey, 195 N.W.2d 547 (N.D. 1972). It therefore matters little which law enforcement officer brings the arrestee before the magistrate, so long as he is brought there without any unnecessary delay.
Finally, it is my belief that the "police team" concept employed by the court in Henry v. Commissioner of Public Safety, 357 N.W.2d 121 (Minn. App. 1984) is applicable to the case at hand. In Henry, the court was concerned with a statutory provision which provided that an officer could make a warrantless misdemeanor arrest only if the offense was committed in his presence. In concluding that the arresting officer need not have witnessed all of the elements of the misdemeanor offense, the court accepted that team theory of police work as a means of satisfying the in-presence requirements of state statute. See also State v. Jensen, 351 N.W.2d 29 (Minn. Ct. App. 1984); People v. Dixon, 222 N.W.2d 749 (Mich. 1974).
In conclusion, it is my opinion that the responsibility for the transportation or delivering an arrestee to the contractual jail facility for the county wherein the arrest occurred lies with the arresting officer. Thereafter, the sheriff assumes all responsibility for that prisoner. I must be careful to point out however, that the foregoing may not apply with regard to city or municipal prisoners. Under SDCL 9-29-24, the city can, with the consent of the Board of County Commissioners, use the county jail for confinement of persons charged with or convicted of the violation of any ordinance. It would seem that the Board of County Commissioners can consent to use of the jail conditional upon the city's willingness to agree to certain terms. In that regard, I would direct your attention to the decision rendered in Scovel v. Pennington County, 66 S.D. 311, 282 N.W. 524 (1938), wherein the court found that the Legislature, in not having made provision for payment to the county of any part of the expense incurred in maintaining a jail for use of municipal prisoners, left the question up to Board of County Commissioners whether consent to use of the jail by the municipality would be conditioned upon payment to the county. If the county has not imposed any such condition, I believe that the foregoing analysis would also apply to municipal prisoners.
Sincerely,
Roger Tellinghuisen
ATTORNEY GENERAL
