Being Arrested
SDCL § 23A-3-2 — when an officer may arrest without a warrant, being told why, and a magistrate without unnecessary delay
- For a public offense, other than a petty offense, committed or attempted in the officer's presence.
- On probable cause that a felony or Class 1 misdemeanor was committed and the person committed it, even out of the officer's presence.
Those are when an officer may arrest without a warrant. The person making the arrest informs the person of their authority and the cause of the arrest, unless the person is caught in the act or pursued right after it.
No arrested person is subjected to more physical restraint than is reasonably necessary. An officer may break into a dwelling to arrest only after reasonable notice and refusal, and only with an arrest warrant or exigent circumstances.
Before a magistrate. An officer takes the arrested person before the nearest available committing magistrate without unnecessary delay. A complaint is filed forthwith when the arrest was made without a warrant.
- The person making an arrest without a warrant states their authority and the cause of the arrest.
- No arrested person is subjected to more physical restraint than is reasonably necessary.
- An officer takes the arrested person before the nearest available committing magistrate without unnecessary delay.
Several rules about an arrest come from the Supreme Court of the United States rather than from this state's code. It has held that before questioning a person in custody, officers must warn that the person may remain silent, that anything said can be used against them, and that they have a right to a lawyer, appointed if they cannot afford one; that a person arrested without a warrant is entitled to a prompt decision by a judge on whether there was probable cause; and that officers generally need a warrant to search the data on a phone taken from a person they arrested. Those holdings are a floor: a state's own constitution and statutes can give more protection than they do, never less.
Whether a particular arrest was lawful is a question for a licensed South Dakota attorney.
Sources for this section (7)
- SDCL § 23A-3-2 — Law enforcement officer's power to arrest without warrant
- SDCL § 23A-3-4 — Advice as to authority and cause of arrest without warrant
- SDCL § 23A-3-5 — Manner of making arrest; Physical restraint; Weapons and contraband property; Breaking structure to make arrest
- SDCL § 23A-4-1 — Arrested person taken before magistrate; Complaint filed on arrest without warrant
- Miranda v. Arizona, 384 U.S. 436 (1966) — Right to remain silent and to counsel during custodial interrogation
- County of Riverside v. McLaughlin, 500 U.S. 44 (1991) — Probable cause review generally within 48 hours of a warrantless arrest
- Riley v. California, 573 U.S. 373 (2014) — Police need a warrant to search a phone seized during an arrest
Legal information, not legal advice. Verified as of October 2026. Applying it to a particular situation is the work of a licensed South Dakota attorney.