11 Arrest

11 Arrest

11. ARREST

NOTE - Illegality of arrest does not bar prosecution for conduct leading to arrest [Glazner, 170 Ga. App. 810, 318 S.E.2d 233 (1984)]. Suppression of evidence issues arising out of alleged improper arrest are for court conducting trial, not committing court.

11.1 IMMUNITIES FROM ARREST - CHECKLIST:

1. Members of General Assembly when in session (except for treason, felony or breach of peace) [GA. CONST. Art. 3, §4, 1J2].

2. Military personnel (except for treason, felony or breach of peace) - on active duty or meeting, and traveling to or from meeting or active duty [OCGA 17-4-2].

3. Members of Congress during session and in going and returning from session [U.S. CONST. Art. I, §6].

4. Foreign diplomats, and families and staffs of same [22 USC 254(d)].

5. Peace officers and law enforcement officers - offenses committed in course of duty - magistrate may NOT issue warrant. Superior, State or Probate judge may [OCGA 17-4-40(c)].

6. Teachers and school administrators - offenses committed in course of duty - magistrate may NOT issue warrant. Superior, State or Probate judge may [OCGA 17-4-40(c)].

NOTE - Nothing in the language limits this restriction to public school teachers and administrators or to age of students, grade, or nature of education.

11.2 WARRANTLESS ARREST

11.21 Requirements for Warrantless Arrest - CHECKLIST MUST ALWAYS HAVE PROBABLE CAUSE PLUS

A. For Arrest By Officer [OCGA 17-4-20]:

1. Offense committed in his/her presence or within his/her immediate knowledge;

2. Offender trying to escape;

3. Officer has probable cause to believe an act of family violence [OCGA 19-1.3-1] committed (includes meretricious relationships);

4. The officer has probable cause to believe that the offender has violated a criminal family violence order, as defined in Code Section 16-5-95; provided, however, that such officer shall not have any prior or current familial relationship with the alleged victim or the offender;

5. Officer has probable cause to believe that an offense of physical abuse has been committed against an adult unable to protect self against from mental or physical abuse due to physical or mental impairment;

6. Will be failure of justice.

NOTE - May be broader powers of arrest with probable cause and without warrant than above listed as case law adopted federal arrest rules stating that generally if there is probable cause, an officer may arrest [see Durden,250 Ga. 325, 297 SE2d 237 (1982); see also Battle, 254 Ga. 666, 333 SE2d 599 (1985)], allowing police officer to arrest for probation violation without warrant if there is probable cause]. In any event, don't dismiss case due to improper warrantless arrest unless there is a lack of probable cause. Any remedy would be in trial court.

For limitation on location of warrantless arrest (see 11.24).

B. For Arrest By Private Citizen [OCGA 17-4-60]:

1. Offense committed in his/her presence or within immediate knowledge. If misdemeanor, must make arrest immediately [Detega, 109 Ga. 518, 35 S.E. 105 (1900)];

2. Offender attempting to escape and offense is felony.

NOTE - Private detectives and security guards have only powers of arrest of a private citizen unless they are also certified police officers.

NOTE - Probable Cause Review by Judge - When a Defendant is arrested without a warrant there must be judicial approval of the probable cause for extended pretrial detention [Riverside County v. McLaughlin, 500 U.S. 44 (1991)]. Such probable cause determination must be made as soon as possible, but in any event must be made within 48 hours, barring a bona fide emergency or other extraordinary circumstance (see 11.22 below). ]

The factual standards for probable cause determinations are essentially the same for all searches and seizures, including arrests - see 12.2.

11.22 Fourth Amendment Requires Judicial Review after Warrantless Arrest

A. Scope of Police Officer's Determination - Officer's determination of probable cause provides legal justification only for arresting the suspect and for brief administrative detention [Watts v. Pitts, 253 Ga. 501, 322 SE2d 252 (1984); Gerstein v. Pugh, 420 U.S. 103, 114 (1975)].

B. Circumstances Requiring Judicial Approval of Probable Cause - Probable Cause must be determined by detached judgment of neutral magistrate where:

1. Pretrial detention is extended;

2. Conditional bonds requiring more than appearance at trial are set [Gerstein v. Pugh, 420 U.S. 103, 114-15 (1975)].

NOTE - Although a Uniform Traffic Citation or an accusation is sufficient in many cases to form the sole basis of prosecution, they do not satisfy the requirements of the Fourth Amendment for an extended pre-trial restraint of liberty [Gerstein v. Pugh, 420 U.S. 103 (1975)].

C. Time Limits for Judicial Determination - 48 Hour Rule [Riverside County v. McLaughlin, 500 U.S. 44 (1991)].

1. Every effort should be made to minimize the time presumptively innocent Defendants remain in jail and local jurisdictions must provide probable cause determinations as soon as reasonably feasible.

2. Judge must find probable cause within 48 hours of arrest to continue restriction on Defendant's liberties:

a. Only exceptions for bona fide emergencies and extraordinary circumstances;

b. No exception for weekends or holidays, scheduling delays in combining with other procedures or other normal administrative problems.

NOTE - This rule is in addition to rule requiring First Appearance Hearing (as described in URMC § 25.1) within 48 hours of arrest (compare 13.11 Note). A First Appearance Hearing that does not examine the probable cause for the arrest does not satisfy the Fourth Amendment [Gerstein v. Pugh, 420 U.S. 103 (1975)]. When no procedure is provided guaranteeing probable cause evaluations by judge within 48 hours, responsible parties are subject to class action lawsuit under 42 USC 1983.

3. Delays less than 48 hours may be improper depending on the individual circumstances; however, such delays will not be subject to systemic challenges such as class action lawsuits.

a. Delays less than 48 hours motivated by ill will or without good reason violate Fourth Amendment - determination may not be delayed to obtain additional evidence to justify arrest.

b. Valid reasons for delay not exceeding 48 hours include matters such as:

$ Transportation problems between facilities,

$ Handling late-night bookings where no magistrate is readily available,

$ Unavailability of police officer due to processing other suspects,

$ Securing premises of arrest,

$ Scheduling delays due to combining with other procedures. D.

Who Is Responsible for Wrongful Detention?

1. Arresting officers and detaining facility (sheriff) are primarily responsible for seeing that probable cause determination is made in timely fashion [see Riverside County v. McLaughlin, 500 U.S. 44 (1991) (decision speaks in terms of police responsibility - sheriff and county governing authority were held liable in lawsuit)].

2. However, if court practices and procedures contribute to unconstitutionally holding suspects, magistrate may be subject to federal suit; however, there is no liability for attorneys fees for judicial actions unless they are clearly in excess of the courts' jurisdiction [42 U.S.C. 1288(b)].

EXAMPLES - The following might be considered unacceptable practices by the magistrate:

(1) Regularly refusing requests for signature bonds on offenses bondable by the magistrate where no probable cause had been shown after more than 48 hours [see OCGA 17-4-62; Peters, 115 App. 743, 156 SE2d 195 (1967)];

(2) Regularly having no judge available to make probable cause determinations for periods over 24 hours, such as over holidays and weekends;

(3) Having no procedure by which the police or sheriff can obtain such a post-arrest determination.

11.23 Procedure for Probable Cause Determination after Warrantless Arrest

A. Officer Must Obtain Warrant within 48 Hours [Dean, 250 Ga. 77, 80(2b), 295 SE2d 306 (1982); Op. Atty. Gen. U88-14].

1. Comparison between OCGA 17-4-62 and 17-4-26: OCGA 17-4-62 (the first appearance statute after warrantless arrests) provides that: "In every case of an arrest without a warrant, the person arresting shall, without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant In contrast,

OCGA 17-4-26 (first appearance after arrest on warrant) provides that the arresting officer "shall exercise reasonable diligence in bringing the person arrested before the judicial officer authorized to examine, commit, or receive bail...." Additionally, the remedy for failure to comply with OCGA 17-4-62 is to release the Defendant until a warrant is obtained [Blake 109 Ga.App. 636, 137 SE2d 49 (1964); Peters, 115 Ga.App. 743, 156 SE2d 195 (1967); Cade, 184 Ga.App. 347, 361 SE2d 494 (1987)].

2. Form of order and avoiding re-execution - Use of a standard arrest warrant (see 11.33B) has been approved [Dean,250 Ga. 77, 80(2b), 295 SE2d 306 (1982); Op. Atty. Gen. U88-14] and has been used without challenge in many metro counties. Some magistrates have pointed out that use of the standard arrest warrant risks a possibility of double arrests and double entries on GCIC and does not clearly reflect what the order is doing (i.e., finding probable cause for an arrest that has already taken place and approving continued detention). Whether one wishes to vary the wording of the standard arrest warrant for these circumstances or mark the warrant as executed will be left to the judgment of the individual magistrate, but the court should certainly take measures to ensure against re-arrest of defendants upon the same charges.

B. Should the Application for a Post-Arrest Warrant be 1) Conducted out of the Presence of Defendant or 2) Combined with the First Appearance Hearing:

1. Separate application outside presence of Defendant

Advantages:

$ Described as traditional approach in Riverside dissent and was apparently approved by the majority as a...