2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 4 - Arrest of Persons
Article 4 - Arrest by Private Persons
§ 17-4-60. Grounds for Arrest

A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. If the offense is a felony and the offender is escaping or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.

(Orig. Code 1863, § 4604; Code 1868, § 4627; Code 1873, § 4724; Code 1882, § 4724; Penal Code 1895, § 900; Penal Code 1910, § 921; Code 1933, § 27-211.)

- Applicability of section to private detectives and private security agents, § 43-38-13.

- For survey article on criminal law, see 59 Mercer L. Rev. 89 (2007).

ANALYSIS

• General Consideration
• Offense Committed in Presence or Within Knowledge
• Escaped Felons

General Consideration

During emergency, citizen protected by law.

- Private citizen has quite as much power to arrest a fugitive felon, when the emergency calls for immediate action, as a public officer, and while so doing, is equally under the protection of the law. Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976).

- Private person has the right to arrest under certain circumstances in order to prevent a felony from being committed, which felony has not yet been attempted. Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976).

- When a felony has been committed, a private person acting upon a reasonable and probable ground of suspicion may apprehend a suspect without a warrant, but it is only for the purpose of taking the offender before a magistrate. The suspect may be taken and detained until the suspect can be committed to the custody of the law. Croker v. State, 114 Ga. App. 492, 151 S.E.2d 846 (1966).

Warrantless detention by a private person amounts to a false imprisonment unless the detention comes within certain specific exceptions listed in this section. McWilliams v. Interstate Bakeries, Inc., 439 F.2d 16 (5th Cir. 1971).

To avoid liability for false imprisonment, it must be shown not only that the arrest was valid but also that the arresting officer had probable cause to believe the charged offense had been committed. Amason v. Kroger Co., 204 Ga. App. 695, 420 S.E.2d 314 (1992).

In a false imprisonment case, the existence of probable cause standing alone is not a complete defense because, even if probable cause to believe a crime has been committed exists, a warrantless arrest would still be illegal unless the arrest was accomplished pursuant to one of the "exigent circumstances" applicable to law enforcement officers enumerated in O.C.G.A. § 17-4-20 or applicable to private persons as set forth in O.C.G.A. § 17-4-60. Arbee v. Collins, 219 Ga. App. 63, 463 S.E.2d 922 (1995).

- Trial evidence showed that the defendant confined the victim in the bedroom without lawful authority. In light of the defendant's testimony that the victim had not been confined at all, trial counsel was not ineffective in failing to pursue jury instructions based on an inconsistent theory that the defendant had in fact confined the victim, but was legally authorized to do so. Smith v. State, 314 Ga. App. 583, 724 S.E.2d 885 (2012).

- Private citizen who forcibly detained a man on the grounds that he had indecently exposed himself to the victim four days previously, when the arrest did not occur until four days after the alleged offense, was guilty of falsely imprisoning the plaintiff. McWilliams v. Interstate Bakeries, Inc., 439 F.2d 16 (5th Cir. 1971).

- Custody authorized by an order to apprehend a defendant for a mental health evaluation pursuant to O.C.G.A. §§ 37-3-41(a) and37-7-41(b) is plainly civil protective custody, not a criminal arrest, and a peace officer executing such an order does not thereby arrest the person to be examined such that a search incident to an arrest under O.C.G.A. § 17-5-1(a) is authorized; the common thread running through statutes addressing criminal arrests such as O.C.G.A. §§ 17-4-1,17-4-40, and17-4-60 is that authority to make a criminal arrest arises from a determination that there is probable cause to believe the person is an offender against the Georgia penal laws, and under Georgia's Mental Health Code, by contrast, taking a person into civil custody is not an arrest of a criminal offender based on probable cause. Lindsey v. State, 282 Ga. App. 644, 639 S.E.2d 584 (2006).

- Although a private person may make a citizen's arrest under O.C.G.A. § 17-4-60, only force that is reasonable under the circumstances may be used to restrain the individual arrested; an alleged assault of an individual with a baseball bat entailed unreasonable force and could not have been part of a legitimate citizen's arrest. Carter v. State, 269 Ga. 891, 506 S.E.2d 124 (1998).

In defendant's trial on a charge of felony murder, defense counsel was not ineffective for failing to request an instruction on citizen's arrest under O.C.G.A. § 17-4-60 as the defendant used more force than was reasonable in making such an arrest when the defendant shot an intruder through the wall of a storage building. Patel v. State, 279 Ga. 750, 620 S.E.2d 343 (2005).

- Whoever arrests a person without a warrant is guilty of a tort, unless the person can justify under one of the exceptions prescribed by law; and the burden of proof that the case lies within the exception rests upon the person making the arrest. Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672, 72 S.E. 51 (1911).

- Private citizen, who in arresting a person, kills an innocent bystander, is guilty of a tort, unless the arresting party can justify actions under one of the exceptions prescribed by law; and the burden of proof that the case lies within the exception rests upon the person making the arrest. Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672, 72 S.E. 51 (1911).

Arrest for murder three years after its commission, see Snelling v. State, 87 Ga. 50, 13 S.E. 154 (1891).

- Mere possession of a warrant does not authorize a private person to arrest the person named therein. Coleman v. State, 121 Ga. 594, 49 S.E. 716 (1905).

- When the petitioners seek mandamus to compel the mayor, aldermanic board, and sheriff to enforce laws regulating sale of liquor, mandamus is an improper remedy since the law provides for a citizen's arrest of the offenders or for the issuance of a warrant upon complaint by the citizen for the arrest of the violators. Mandamus will not lie if there is an adequate legal remedy. Solomon v. Brown, 218 Ga. 508, 128 S.E.2d 735 (1962).

- See Williams v. State, 148 Ga. 310, 96 S.E. 385 (1918).

- See Drew v. State, 136 Ga. 658, 71 S.E. 1108 (1911).

- Sheriff may seize unlawfully kept property without a warrant for search, seizure, or arrest of the offender when the sheriff lawfully enters a place of business open to the sheriff as well as other members of the public under an implied invitation to enter, and finds "slot machines" illegally kept by the owner or operator of such place of business. But these powers would not authorize search of private premises of the owner to find slot machines, in the absence of a warrant. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942).

Failure of officer to disclose the officer's position places the officer in the same position as a private person when attempting an arrest. Franklin v. Amerson, 118 Ga. 860, 45 S.E. 698 (1903).

- See Delegal v. State, 109 Ga. 518, 35 S.E. 105 (1900).

- Defendant's admission that the defendant was driving in violation of the law was sufficient to justify an officer, then outside the officer's jurisdiction, to act as a private person and effect a citizen's arrest. Glazner v. State, 170 Ga. App. 810, 318 S.E.2d 233 (1984), but see Zilke v. State, 2016 Ga. LEXIS 422 (Ga. 2016).

- Off-duty officer was treatable as a private citizen vested with the authority to make a citizen's arrest for a battery committed in the officer's presence. Wells v. State, 206 Ga. App. 513, 426 S.E.2d 231 (1992), overruled on other grounds by State v. Burns, 829 S.E.2d 367, 2019 Ga. LEXIS 400 (Ga. 2019).

- If the arrest was made without a warrant, and the only basis for the arrest without a warrant was that the crime was being committed in the presence of the person making the arrest, whether the defendant acted as an officer or as a private citizen was immaterial, since the officer's authority as either was the same; therefore, the charge injecting this issue in the case could not have been confusing to the jury or harmful to the defendant. Atlantic Coast Line R.R. v. Wegner, 90 Ga. App. 267, 83 S.E.2d 58 (1954).

- What are reasonable and probable grounds for suspicion is for the determination of the jury as is whether the circumstantial evidence was sufficient to establish the commission of a burglary. Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976).

- There was no evidence that the defendant, who murdered the victim with a rifle, was attempting to effect a valid citizen's arrest and, hence, the defendant was not entitled to an involuntary manslaughter charge. It was not reasonable for the defendant to attempt an arrest with a semi-automatic weapon which the defendant was not licensed to carry as deadly force in effecting an arrest is limited to self-defense or to a situation in which it is necessary to prevent a forcible felony. Hayes v. State, 261 Ga. 439, 405 S.E.2d 660 (1991).

Cited in Taylor v. State, 44 Ga. App. 64, 160 S.E. 667 (1931); Walker v. State, 46 Ga. App. 824, 169 S.E. 315 (1933); Conoly v. Imperial Tobacco Co., 63 Ga. App. 880, 12 S.E.2d 398 (1940); Mullis v. State, 196 Ga. 569, 27 S.E.2d 91 (1943); Goodwin v. Allen, 89 Ga. App. 187, 78 S.E.2d 804 (1953); Raif v. State, 219 Ga. 649, 135 S.E.2d 375 (1964); O'Neal v. United States, 411 F.2d 131 (5th Cir. 1969); Traylor v. State, 127 Ga. App. 409, 193 S.E.2d 876 (1972); Luke v. State, 131 Ga. App. 799, 207 S.E.2d 213 (1974); Tomblin v. S.S. Kresge Co., 132 Ga. App. 212, 207 S.E.2d 693 (1974); Cash v. State, 136 Ga. App. 149, 221 S.E.2d 63 (1975); Diamond v. Marland, 395 F. Supp. 432 (S.D. Ga. 1975); Nunnally v. Revco Disct. Drug Ctrs. of Ga., Inc., 170 Ga. App. 320, 316 S.E.2d 608 (1984); De La Gonzalez v. Krystal Co., 173 Ga. App. 574, 327 S.E.2d 546 (1985); City of Marietta v. Kelly, 175 Ga. App. 416, 334 S.E.2d 6 (1985); Thompson v. State, 175 Ga. App. 645, 334 S.E.2d 312 (1985); Winn-Dixie Stores, Inc. v. Nichols, 205 Ga. App. 308, 422 S.E.2d 209 (1992); Adams v. Carlisle, 278 Ga. App. 777, 630 S.E.2d 529 (2006); Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008).

Offense Committed in Presence or Within Knowledge

Citizen's duty to arrest during or after crime.

- It is not only the right but the duty of a private citizen when a felony is committed to apprehend the felon; and, after a felony is committed, any private person may arrest the felon upon reasonable and probable ground of suspicion of a felon's guilt. Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976).

- Offense is within the presence of the arresting party when, although the arresting party cannot be cognizant of the offense by means of the arresting party's senses, the defendant actually admits that the offense is in fact being so committed. Moore v. State, 128 Ga. App. 20, 195 S.E.2d 275 (1973).

Admission of an offense by an accused to the arresting party is tantamount to the commission of the offense in the presence of the party making the arrest. Young v. State, 238 Ga. 548, 233 S.E.2d 750 (1977).

- Words "in his presence" in former Code 1933, § 27-207 (see O.C.G.A. § 17-4-20) and "within his immediate knowledge" as used in the former provisions (see O.C.G.A. § 17-4-60) were synonymous. Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672, 72 S.E. 51 (1911); Novak v. State, 130 Ga. App. 780, 204 S.E.2d 491 (1974); Forehand v. State, 130 Ga. App. 801, 204 S.E.2d 516 (1974).

- Phrases "in his presence" and "within his immediate knowledge" are synonymous and a crime is committed in one's presence if by the exercise of any of the person's senses the person has knowledge of the crime's commission. Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976).

- Whether an arrest by a private citizen is lawful depends on whether the offense was committed in the person's presence or within the person's immediate knowledge. Walker v. State, 144 Ga. App. 838, 242 S.E.2d 753 (1978).

- Private person may make an arrest for a misdemeanor offense only when that offense occurs in the person's presence and, moreover, the arrest must occur immediately after the perpetration of the offense. McWilliams v. Interstate Bakeries, Inc., 439 F.2d 16 (5th Cir. 1971); Williams v. State, 171 Ga. App. 807, 321 S.E.2d 386 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 966, 83 L. Ed. 2d 970 (1985).

- Since former Penal Code 1910, § 921 (see O.C.G.A. § 17-4-60) was a codification of preexisting law, that statute did not authorize a private person to arrest another for a violation of a municipal ordinance committed in the person's presence when the act does not constitute a felony or a misdemeanor. Graham v. State, 143 Ga. 440, 85 S.E. 328, 1917A Ann. Cas. 595 (1915).

- Like other police officers or private persons, a sheriff has the power to arrest an offender without a warrant if the offense is committed in the sheriff's presence. Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622 (1942).

- Private detective may arrest offenders who commit crimes in the detective's presence. DuPre v. State, 153 Ga. 798, 113 S.E. 428 (1922).

- A night watchman of a railroad may arrest offenders who commit crimes in the watchman's presence. Hickman v. State, 142 Ga. 630, 83 S.E. 508 (1914).

- Officer of a railroad with probable cause may arrest a person to prevent the person from stealing a ride and use reasonable means to prevent the person's escape. Summers v. Southern Ry., 118 Ga. 174, 45 S.E. 27 (1903).

- When the defendant's shoplifting offense was committed in the presence of the food manager, and within the immediate knowledge of the store manager, both were authorized by law to arrest the defendant, and the trial court did not err in refusing to give requested jury instructions regarding the unlawful arrest by a private person and defendant's alleged right to use force to resist the attempted arrest. Merneigh v. State, 242 Ga. App. 735, 531 S.E.2d 152 (2000).

- When the arrest was made without a warrant, and the only basis for the arrest without a warrant was that the crime was being committed in the presence of the person making the arrest, whether the defendant acted as an officer or as a private citizen was immaterial, since the person's authority as either was the same; therefore, the charge injecting this issue in the case could not have been confusing to the jury or harmful to the defendant. Atlantic C.L.R.R. v. Wegner, 90 Ga. App. 267, 83 S.E.2d 58 (1954).

Escaped Felons

Citizen may arrest escaped felon on suspicion.

- Private person may arrest an escaped felon on probable ground of suspicion without a warrant. Harper v. State, 129 Ga. 770, 59 S.E. 792 (1907).

OPINIONS OF THE ATTORNEY GENERAL

Officials subject to citizen's arrest.

- Any citizen may arrest another person, including sheriffs but not electors, members of the General Assembly, and militiamen, and a coroner, as a private citizen, would be allowed to arrest a sheriff. 1973 Op. Att'y Gen. No. 73-93.

- While it is true that a private citizen may effect an arrest under this section, only a peace officer has the authority to make an arrest by serving a warrant. 1973 Op. Att'y Gen. No. 73-93.

- Private security officer (not deputized) has the same arrest powers of any private citizens as set forth in this section. 1972 Op. Att'y Gen. No. U72-127.

- Power of a public officer to make arrests under former Code 1933, § 27-207 (see O.C.G.A. § 17-4-20) can be conferred solely by law and the State Board of Education was not possessed of any lawful power to make its security guards "officers" within the meaning of that section, or to otherwise confer upon a security guard the arrest powers of a peace officer; the only power to arrest which a security guard employed by the State Board of Education would or could possess under law would be that limited power possessed by a private citizen under former Code 1933, § 27-211. 1978 Op. Att'y Gen. No. 78-3.

- Drug inspectors do not have official authority to make arrests nor to carry weapons in the performance of the inspectors' duties; inspectors would not be considered arresting officers. 1962 Op. Att'y Gen. p. 413.

- Municipal police officer may make an arrest upon property under the jurisdiction of the Board of Regents in the officer's private capacity as an individual citizen. 1970 Op. Att'y Gen. No. 70-69.

- An officer from another state may proceed across the state line into Georgia in hot pursuit of an offender, but when the officer does so the officer assumes the character of a private individual and the officer is not clothed with the authority to make arrests for infractions of municipal ordinances. 1958-59 Op. Att'y Gen. p. 72.

- Police intelligence unit should provide that members of emergency squads be qualified as de jure deputy sheriffs in all counties in which the squads intend to operate. 1969 Op. Att'y Gen. No. 69-473.

- Multi-government emergency squads may combat common disaster, civil disorder, riot, and other emergency situations. 1969 Op. Att'y Gen. No. 69-473.

District attorney possesses no greater powers than those possessed by ordinary citizen in making an arrest. 1980 Op. Att'y Gen. No. U80-33.

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Arrest, §§ 8 et seq., 30 et seq.

- 22 C.J.S., Criminal Procedure and Rights of the Accused, § 47 et seq.

- Constitutionality of statute or ordinance authorizing an arrest without a warrant, 1 A.L.R. 585.

Degree of force that may be employed in arresting one charged with a misdemeanor, 42 A.L.R. 1200.

Right to arrest without a warrant for unlawful possession or transportation of intoxicating liquor, 44 A.L.R. 132.

Information, belief, or suspicion as to commission of felony, as justification for arrest by private person without warrant, 133 A.L.R. 608.

Liability, for false imprisonment or arrest, of a private person answering call of known or asserted peace or police officer to assist in making arrest which turns out to be unlawful, 29 A.L.R.2d 825.

Liability, for false arrest or imprisonment, of private person detaining child, 20 A.L.R.3d 1441.

Private person's authority, in making arrest for felony, to shoot or kill alleged felon, 32 A.L.R.3d 1078.

Escape from custody of private person as criminal offense, 69 A.L.R.3d 664.

Search and seizure: reasonable expectation of privacy in driveways, 60 A.L.R.5th 1.

Power of private citizen to institute criminal proceedings without authorization or approval by prosecuting attorney, 90 A.L.R.6th 385.