19 Extradition

19. EXTRADITION

19.1 ARREST WARRANT PRIOR TO OUT-OF-STATE REQUISITION - CHECKLIST

1. A judge shall issue a warrant for the arrest of an accused whenever any credible individual, on oath, alleges that such person:

a. Has committed a crime in another state:

$ Affidavit from officer in this state could presumably be based upon hearsay from officers in demanding state that there was an arrest warrant or indictment (each implying a finding of probable cause) in the demanding state [see Whiteley v. Warden, 401 U.S. 560 (1971); Batton v. Griffin, 240 Ga. 450, 241 SE2d 201 (1978)], or upon hearsay about actual crime [Goodman,255 Ga. 226, 229, 336 SE2d 757 (1985)], but in that case affiant must be aware of facts supporting reliability of underlying hearsay and relate them to magistrate [Griffin, 154 Ga.App. 361, 268 SE2d 412 (1980)];

b. Has fled from justice (see note below);

c. Has been convicted of a crime in that state, and

$ Escaped from confinement; OR

$ Broken the terms of bail, probation or parole [OCGA 17-13-33].

2. A judge shall issue a warrant for the arrest of an accused whenever a complaint supported by an affidavit of a credible person in another state alleges that:

a. A crime has been committed in the other state;

b. The accused has been charged with the crime;

c. The accused has fled from justice (see note below) or has been convicted of a crime in that state;

d. The accused has escaped from confinement or broken the terms of bail, probation or parole; and

e. The accused is believed to be in this state [OCGA 17-13-33; Batton v. Griffin,240 GA. 638, 235 SE2d 15 (1977)].

3. The warrant shall:

a. Be directed to any peace officer in the state;

b. Direct the apprehension of the accused;

c. Direct that accused be brought to this or any convenient court;

d. Have attached thereto a copy of the sworn charge or the complaint and affidavit.

NOTE - OCGA 17-13-35 requires the magistrate to determine that the defendant is a fugitive from justice. Case law indicates that the term "fugitive from justice" does not require more than that the defendant is accused of committing a crime in one jurisdiction [Hogan v. O'Neill, 255 U.S. 52, 41 S. Ct. 222, 65 L.Ed. 497 (1920). There is no requirement that the state show that the defendant has fled the demanding jurisdiction [Marini v. Gibson, 267 Ga. 398, 478 S.E.2d 767 (1996) (accidental release); Whaley, 254 Ga. 275, 328 SE2d 720 (1985)]; however, one is not a "fugitive" if the defendant was not in the demanding State on the day of the commission of the alleged crime [Sellers v. Griffin, 226 Ga. 565, 566, 176 S.E.2d 75 (1970); St. Lawrence v. Bartley, 269 Ga. 94 (1998)], including when the crime in the demanding state is alleged to have been committed through acts outside the demanding state [Jenkins v. Garrison, 265 Ga. 42, 453 S.E.2d 698 (1995) (concurrence explains difference between OCGA 17-13-23 and 17-13-25 (discretionary) extraditions)]. Defendant's status as a "fugitive" as an issue which is a possible defense when advising prisoners of their rights.

CAUTION - Holding someone in custody pending extradition requires an independent determination of probable cause just as any other arrest [Batton v. Griffin, 240 Ga. 450, 241 SE2d 201 (1978)], triggering the concerns of [Riverside County v. McLaughlin, 500 U.S. 44 (1991)] (see 11.22). The probable cause determination may be made in the demanding state, as evidenced by an indictment or arrest warrant but not an accusation, or may be a determination in this state pursuant to OCGA 17-13-33 [Batton v. Griffin, 240 Ga. 450, 241 SE2d 201 (1978)].

4. Police officer or private person may make warrantless arrest for crime punishable by death or imprisonment more than a year (a felony); however, accused must be brought before magistrate with all practicable speed and affidavit executed as in 1 or 2 above [OCGA 17-13-34].

5. The judge shall hold a hearing for an accused arrested without or pursuant to a warrant, and if it appears that the person arrested is:

a. The accused; and

b. Has fled from justice (see...