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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.
  • SDCL § 23A-3-2
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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.

  • SDCL § 23A-3-2
  • SDCL § 23A-3-4

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.

  • SDCL § 23A-3-5

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.

  • SDCL § 23A-4-1
  • 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.
  • SDCL § 23A-3-4
  • SDCL § 23A-3-5
  • SDCL § 23A-4-1

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.

  • Miranda v. Arizona
  • County of Riverside v. McLaughlin
  • Riley v. California

Whether a particular arrest was lawful is a question for a licensed South Dakota attorney.

  • SDCL § 23A-3-2
Sources for this section (7)
  1. SDCL § 23A-3-2 — Law enforcement officer's power to arrest without warrant
  2. SDCL § 23A-3-4 — Advice as to authority and cause of arrest without warrant
  3. SDCL § 23A-3-5 — Manner of making arrest; Physical restraint; Weapons and contraband property; Breaking structure to make arrest
  4. SDCL § 23A-4-1 — Arrested person taken before magistrate; Complaint filed on arrest without warrant
  5. Miranda v. Arizona, 384 U.S. 436 (1966) — Right to remain silent and to counsel during custodial interrogation
  6. County of Riverside v. McLaughlin, 500 U.S. 44 (1991) — Probable cause review generally within 48 hours of a warrantless arrest
  7. 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.

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