Virginia Jones was arrested and charged with driving under the influence. The municipal court dismissed the charge based upon an unlawful citizen’s arrest, and the circuit court affirmed. The Town of Mount Pleasant (the Town) appeals. We reverse and remand.
FACTUAL/PROCEDURAL BACKGROUND
On February 7, 1996, James Scarborough, a private detective and volunteer fireman, was traveling over the Cooper River Bridge towards Mount Pleasant. He noticed Virginia Jones driving erratically. Scarborough called 911 and informed the police department. After crossing the bridge, Scarborough turned on the emergency red flashing light used in his duties as a volunteer fireman. Jones pulled over to the side of the road because she believed an emergency vehicle was trying to pass. When Jones pulled over, Scarborough yelled at Jones to “stay there, remain in your car.” Scarborough held Jones on the side of thе road until police officers arrived. She did not feel she could leave safely because it was obvious Scarborough intended to detain her.
Within approximately five minutes, Officer Phipps, a Town of Mount Pleasant police officer, arrived on the scene. Officer Phipps conducted field sobriety tests and then arrested Jones for driving under the influence. Upon arrival at the police station, the officers cоnducted a breathalyzer test.
*297 Jones made a motion before the municipal court to dismiss the case or suppress evidence obtained from the arrest. 1 The judge did not reach the suppression issue. Rather, he found Jones was unlawfully “restrained and arrested by [a] private citizen, Mr. Scarborough.” 2 As a result, he dismissed Jones’s charge for driving under the influence. 3
The Town appealed to the circuit court. The Town argued the municipal court judge erred in dismissing the case because “the Fourth Amendment [proscription] against warrantless search[es] and seizures does not apply to actions by private citizens.... [Therefore], regardless of the actions of the private citizen, Mr. Scarborough’s actions, it does not affect the validity of [the officer’s actions once the officer arrived on the scene].” The Town asserted the officеr acted properly in lawfully arresting Jones when he arrived on the scene. Therefore, the invalidity of Scarborough’s initial detention was irrelevant. The judge “agree[d] ... that there was an improper arrest in this case” and affirmed the decision of the municipal court judge. He issued a form order affirming the municipal court judge’s decision. The Town appeals.
DISCUSSION
Recently, this Court considered the question of whether a privatе citizen has the authority to make a warrantless arrest of another person for driving under the influence.
State v. McAteer,
At trial, McAteer sought to suppress all evidence resulting from his arrest. He argued the arrest was illegal because the Rock Hill police officer had no police power to arrest outside his jurisdiction and no power to make a citizen’s arrest under the circumstances. The circuit court judge denied McAteer’s motion and subsequently convicted him in a bench trial.
In a split decision, the majority opinion of this Cоurt held the police officer had authority as a private citizen under the common law to detain McAteer for a misdemeanor involving a breach of the peace. At first blush McAteer appears dispositive of this case. However, the validity of Scarborough’s “citizen’s arrest” is not at issue in this case. 4
The municipal court judge found Jones was unlawfully restrained and arrested by Scarborough, a private citizen. Additionally, the circuit сourt judge agreed there was an improper arrest by Scarborough. The Town has not appealed the rulings concerning the invalidity of the citizen’s arrest. In fact, the Town argues the invalidity of the arrest is irrelevant to this appeal. The Town maintains whether an illegal citizen’s arrest had occurred is immaterial and merely serves as a red herring which affected the reasoning of the circuit court. Because the Town has fаiled to appeal the lower courts’ ruling that the citizen’s arrest was invalid, it is the law of this case that Scarborough’s detention of Jones was unlawful.
See ML-
*299
Lee Acquisition Fund, L.P. v. Deloitte & Touche,
On appeal, the Town argues the circuit court erred in dismissing the case bеcause the improper citizen’s arrest had no effect on the admissibility of evidence discovered by police authorities after their arrival at the scene.
As a threshold issue, the illegal citizen’s arrest imposed no jurisdictional bar to the subsequent prosecution of Jones. Our Supreme Court has repeatedly held an illegal arrest does not preclude the subsequent prosecution or conviction of the dеfendant for the offense charged.
See State v. Biehl,
The question thеn becomes whether the evidence obtained as a result of Jones’s unlawful citizen’s arrest must be suppressed. The Fourth Amendment to the United States Constitution provides the federal government shall not violate “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures .... ” U.S. Const, amend. IV. The United States Supreme Court extended the constitutionаl protection against
*300
unreasonable searches and seizures to those involving state action.
Elkins v. United States,
Fourth Amendment protection against unreasonablе searches and seizures, however, applies only to governmental action and not to action by private citizens acting in a private capacity.
Burdeau v. McDowell,
Accordingly, our Supreme Court has stated, “[t]he fourth amendment is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government and without the participation or knowledge of government officials.”
State v. McSwain,
*301 In this case, Jones has never specifically argued Scarborough’s illegal arrest involved state action. The municipal court judge concluded Scarborough, as a private citizen, illegally arrested Jones. On appeal to the circuit court, the Town argued the Fourth Amendment proscription against warrant-less searches and seizures did not apply to the actions of private citizens. It further alleged, the actions of Scarborough, a private citizen, did not invalidate the actions of Officer Phipps, an agent of the State, when he arrived at the scene. In response, Jones did not dispute the conclusion Sсarborough acted as a private citizen. Instead, she asserted the citizen’s arrest was invalid, and, alternatively, Officer Phipps lacked probable cause to arrest Jones for driving under the influence.
On appeal, Jones does not refute the Town’s argument that the illegal citizen’s arrest did not affect the admissibility of the evidence because the Fourth Amendment protections applied only to the action оf Officer Phipps, as an agent of the State, and not to Scarborough, as a private citizen. Instead, Jones dismisses the Town’s exclusionary rule arguments as inapplicable to this case. At oral argument, Jones did allude to Scarborough’s use of his red emergency light as constituting an indicia of state authority; however, she never specifically argued Scarborough’s actions constituted state action sufficient to invoke thе exclusionary rule. Moreover, she admitted Scarborough was not directly an agent of the State.
Because Jones has not specifically appealed the trial courts’ holding that Scarborough’s actions were that of a private citizen, the law of this case is that the initial arrest did not involve state action.
5
See Resolution Trust Corp. v. Eagle Lake & Golf Condominiums,
Therefore, Scarborough’s actions were that of a purely private citizen and, as a result, the exclusionary rule is inapplicable. Thus, any evidence obtained as a result of Scarborough’s arrest should not be excluded аt Jones’s trial. 6
Other jurisdictions considering similar circumstances have reached the same result. For example, in
State v. Hart,
[e]ven if the citizen’s arrest of Hart had been unlawful, the evidence discovered as a result of the arrest would not have been еxcluded at his trial. The constitutional protection against unreasonable searches and seizures does not apply to actions of private persons when they are not acting as agents of police authorities. The rationale for the rule is that the Fourth Amendment was historically directed at governmental law enforcement conduct, and the exclusionary rule, which is aimed at governmental law enforсement misconduct, would serve no useful purpose when applied to private persons. Here, if the citizen’s arrest had been unlawful, [the citizen] might have incurred liability for damages, but the evidence would not have been suppressed.
Id. at 765-66 (citations omitted).
The Supreme Court of Nebraska considered a similar scenario.
State v. Houlton,
Houlton asserted all of the evidence should have been suppressed because his initial arrest by the trooper was unlawful. The Nebraska Supreme Court assumed, without deciding, the trooper’s arrest of Houlton was unlawful. Id. at 589. The Court went on to consider the question of whether the evidence obtained as a result of the trooper’s unlawful citizen’s arrest had to be suppressed. The Court held the exclusionary rule did not apply to a citizen’s arrest unless such an arrest wаs a part of the action taken by the State. Id. at 590. Applying that decision to the facts of the case, the Court concluded all of the evidence was properly admitted. The Court reasoned that no state action was involved in the arrest by the trooper because he was an off-duty police officer acting as a private citizen. The trooper as a private citizen then told police whаt he observed. The police, acting on the probable cause provided by the citizen’s description, developed additional cumulative evidence. Id.
Our research reveals relatively few cases from other jurisdictions considering the precise question of whether the exclusionary rule applies to an unlawful citizen’s arrest precipitating a subsequent arrest for driving under the influence. Because the еxclusionary rule is not an offense-specific concept, we need not restrict our review of other jurisdictions to its application in the limited context of driving under the influence. We are able to find additional support for our decision in cases where courts in other jurisdictions have considered this question when it arose in the context of other criminal offenses.
See, e.g., Smith v. State,
Although the evidence obtained from Scarborough’s arrest of Jones should not be excluded at trial, we express no opinion concerning whether the Town of Mount Pleasant officer had sufficient probable cause to arrest Jones for driving under the influence. Because the municipal court judge and the circuit court judge specifically declined to rule on this issue, it is not properly before us for appellate review.
See State v. Byram,
Accordingly, the decision of the circuit court is
REVERSED AND REMANDED.
Notes
. The parties did not make oral arguments before the municipal court judge. The parties presented memoranda of law to the judge who then issued his ruling on the record. The memoranda of law are not a part of the record on appeal. Therefore, we do not know the precise arguments made to the municipal court judge.
. The ruling was based on S.C.Code Ann. §§ 17-13-10 and 17-13-20 (1985 & Supp.1998) and
State
v.
Nall,
. The municipal court judge declined to rule on the issue of probable cause to arrest once the police officers arrived on the scene. He did, however, mention on the record that he thought the appropriate charge would have been public drunkenness. The circuit court judge also indicated he believed the appropriate chаrge was for public drunkenness.
. We note the result of this case would be the same if the decision in McAteer were applicable. Based on the prevailing view in McAteer, Scarborough's arrest of Jones would have been lawful. As such, any evidence obtained as a result of the lawful arrest would have been admissible at trial.
. However, at least one state court has found actions similar to those of Scarborough did not constitute state action.
State v. Andrews,
. In
McAteer,
the majority stated, "McAteer is correct that if such a detention is unlawful, any evidence stemming from the detention must be excluded as ‘fruit of the poisonous tree.’ ”
State v. McAteer,