State v. Brannon affirmed - resisting arrest charge first requires an arrest
In State v. Brannon, decided August 9, 2010, the S.C. Supreme Court affirmed the Court of Appeals 2008 decision. Although the Supreme Court opinion says that they disagree with the Court of Appeals' rationale, the result is the same - there must be a valid arrest before a person can be charged with resisting arrest.
Whether or not the officer had probable cause to arrest Brannon is irrelevant - probable cause is an objective standard and resisting arrest turns on whether there was a subjective intent to arrest (the Court means on the part of the officer - it seems to me that whether someone is resisting arrest would turn instead on the defendant's subjective intent). Because 1) there was no evidence that the officers intended to arrest Brannon (in fact they testified that they intended to question him, not arrest him); and 2) there was no evidence that Brannon submitted to an arrest, the trial judge should have granted a directed verdict.
