2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 4 - Arrest of Persons
Article 4 - Arrest by Private Persons
§ 17-4-62. Taking of Persons Arrested Before Judicial Officer Within 48 Hours of Arrest

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 as provided for in Code Section 17-4-40. No such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.

(Orig. Code 1863, § 4605; Code 1868, § 4628; Code 1873, § 4725; Code 1882, § 4725; Penal Code 1895, § 901; Penal Code 1910, § 922; Code 1933, § 27-212; Ga. L. 1956, p. 796, § 2.)

- Bail in magistrate court felony cases, Uniform Rules for the Magistrate Courts, Rule 23.2.

Initial appearance hearing in magistrate court, Uniform Rules for the Magistrate Courts, Rule 13.

- For article discussing preliminary hearings in felony cases as necessary to satisfy due process requirements, see 12 Ga. St. B.J. 207 (1976). For note, "Bail in Georgia: Elimination of 'Double Bonding' - A Partially Solved Problem," see 8 Ga. St. B.J. 220 (1971).

ANALYSIS

• General Consideration
• Improper Detention
• Delivery

General Consideration

Full adversarial hearing not required.

- O.C.G.A. § 17-4-62 does not require that a full adversarial hearing be held following a warrantless arrest, but merely seeks to ensure that an arrest and continuing detention of an accused is reviewed by a neutral factfinder and is satisfied when police obtain an arrest warrant within 48 hours of a valid warrantless arrest. Dean v. State, 250 Ga. 77, 295 S.E.2d 306 (1982); Ellison v. State, 242 Ga. App. 636, 530 S.E.2d 524 (2000).

Person who is arrested and released within the time prescribed by law on an appearance bond is not entitled to a commitment hearing. Watts v. Pitts, 253 Ga. 501, 322 S.E.2d 252 (1984).

- Defendant, who was arrested without a warrant, charged with, inter alia, possession of a controlled substance, and confined in the city jail, was deprived of liberty without due process after the defendant requested a lab analysis and, pursuant to the practice of the municipal court, the case was reset, delaying the determination of probable cause until over two months later. Lambert v. McFarland, 612 F. Supp. 1252 (N.D. Ga. 1984).

- This section allowed detention for a reasonable time of a person who had been arrested. It was a question for the jury whether the exigencies of the case authorized a temporary imprisonment of the accused. King v. State, 6 Ga. App. 332, 64 S.E. 1001 (1909).

- Appeal from an arrestee's pretrial habeas corpus petition was moot because the arrestee, who argued that the arrestee had not received a commitment hearing within 48 hours of arrest under O.C.G.A. § 17-4-62, had been indicted after filing an appeal; once an indictment had been returned against a defendant, the question of whether a commitment hearing should have been held became moot. Tidwell v. Paxton, 282 Ga. 641, 651 S.E.2d 714 (2007).

- Although the state failed to carry the state's burden of proving that the defendants knowingly and voluntarily waived the defendants' right to a first appearance hearing under O.C.G.A. § 17-4-62, the defendants were not entitled to immediate release on the defendants' own recognizance, regardless of whether the defendants had first appearance and bail hearings within the time allowed by law, because: (1) a magistrate issued arrest warrants for two of the defendants within 48 hours of their arrest, satisfying § 17-4-62; and (2) the state obtained valid arrest warrants for the remaining two defendants either within or outside of the 48 hours after those defendants were arrested, and the remedy for a violation was only available during the period of illegal detention, which ended when the state obtained valid arrest warrants from a neutral and detached magistrate. Capestany v. State, 289 Ga. App. 47, 656 S.E.2d 196 (2007).

Cited in Sanders v. State, 97 Ga. App. 158, 102 S.E.2d 635 (1958); Johnson v. Plunkett, 215 Ga. 353, 110 S.E.2d 745 (1959); Pistor v. State, 219 Ga. 161, 132 S.E.2d 183 (1963); McCranie v. Mullis, 221 Ga. 617, 146 S.E.2d 723 (1966); Kulyk v. United States, 414 F.2d 139 (5th Cir. 1969); Wilson v. State, 229 Ga. 395, 191 S.E.2d 783 (1972); Blair v. State, 230 Ga. 409, 197 S.E.2d 362 (1973); Gill v. Decatur County, 129 Ga. App. 697, 201 S.E.2d 21 (1973); Tomblin v. S.S. Kresge Co., 132 Ga. App. 212, 207 S.E.2d 693 (1974); McClure v. Hopper, 234 Ga. 45, 214 S.E.2d 503 (1975); Wheeler v. Stynchcombe, 234 Ga. 240, 215 S.E.2d 244 (1975); State v. Houston, 234 Ga. 721, 218 S.E.2d 13 (1975); Thompson v. State, 175 Ga. App. 645, 334 S.E.2d 312 (1985); Cherokee County v. North Cobb Surgical Assocs., P.C., 221 Ga. App. 496, 471 S.E.2d 561 (1996).

Improper Detention

Release under O.C.G.A.

§ 17-4-62 is from custody, not trial. - Requirement that one arrested without a warrant and not conveyed before an officer authorized to issue warrants within 48 hours shall be released means that such person shall be released from imprisonment or custody until a warrant is obtained - not that the person shall be released from trial after the person has been indicted for a crime. Vaughn v. State, 248 Ga. 127, 281 S.E.2d 594 (1981); State v. Cade, 184 Ga. App. 347, 361 S.E.2d 494 (1987).

- Court declined to extend the exclusionary rule as a sanction to enforce O.C.G.A. § 17-4-62. Battle v. State, 254 Ga. 666, 333 S.E.2d 599 (1985).

Sanction for violating O.C.G.A. § 17-4-62 is that the defendant shall be released and does not require suppression of evidence gathered in the interim. Chisholm v. State, 231 Ga. App. 835, 500 S.E.2d 14 (1998).

- This section presupposed a legal arrest without a warrant and cannot be used as a basis for legitimatizing an otherwise illegal arrest. Raif v. State, 109 Ga. App. 354, 136 S.E.2d 169 (1964).

Escaped convict cannot be unreasonably detained. Harris v. City of Atlanta, 62 Ga. 290 (1879).

- Imprisonment or detention beyond the reasonable time not only renders the imprisonment or detention illegal, but makes the entire transaction, including the arrest, a trespass ab initio. Potter v. Swindle, 77 Ga. 419, 3 S.E. 94 (1886); Piedmont Hotel Co. v. Henderson, 9 Ga. App. 672, 72 S.E. 51 (1911); Great Am. Indem. Co. v. Beverly, 150 F. Supp. 134 (M.D. Ga. 1956).

- Requirement of taking arrested persons before a judicial officer without delay is in large measure prompted by the knowledge that "the seeds of coercion sprout readily in the earth of illegal detention." Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964).

- This section controlled time of captivity before a hearing; habeas corpus will lie if the time before a hearing exceeded 48 hours. Hyatt v. State, 134 Ga. App. 703, 215 S.E.2d 698 (1975).

- Although an arresting officer may be liable in damages for false arrest and imprisonment when the officer detains the defendant in an illegal manner, this is ordinarily immaterial so far as the jurisdiction of the court over the defendant is concerned after jurisdiction has been acquired by accusation or indictment, and appearance and pleading by the defendant, in a criminal case. French v. State, 99 Ga. App. 149, 107 S.E.2d 890 (1959).

- Provision of this section that a person arrested without a warrant and not conveyed before an officer authorized to issue a warrant within 48 hours "shall be released" means only that the person shall be released from imprisonment or custody until a warrant was obtained; it does not mean that an arrest legally made was rendered void ab initio. Peters v. State, 115 Ga. App. 743, 156 S.E.2d 195 (1967).

Defendant, an arresting deputy, could not assume plaintiff arrestee would make bail as the deputy had a duty under O.C.G.A. § 17-4-62 to seek an arrest warrant within 48 hours of arrest, and since it was clearly established at the time that a ten day detention without probable cause violated the Fourth Amendment, the deputy had no qualified immunity on the arrestee's Fourth Amendment claim. Young v. Graham, F. Supp. 2d (S.D. Ga. Aug. 11, 2005).

- This section does not automatically void the legality of the arrest itself in such manner as to render inadmissible the result of a "breathalyzer" test because the test was not a product of a "legal arrest." Hyatt v. State, 134 Ga. App. 703, 215 S.E.2d 698 (1975).

- Fact that a person is arrested without a warrant and is not conveyed before an officer authorized to issue a warrant within a reasonable time allowed for the purpose, as required by this section, does not of itself render the person's confession, voluntarily given during the person's unlawful detention, inadmissible in evidence. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964); Dollar v. State, 161 Ga. App. 428, 288 S.E.2d 689 (1982).

Fact that O.C.G.A. § 17-4-62 is not complied with does not of itself render an otherwise voluntary confession inadmissible. McCorquodale v. Balkcom, 525 F. Supp. 408 (N.D. Ga. 1981), aff'd, 721 F.2d 1493 (11th Cir. 1983), cert. denied, 466 U.S. 954, 104 S. Ct. 2161, 80 L. Ed. 2d 546 (1984).

- Admissibility of a voluntary confession obtained during an unlawful detention in a state judicial proceeding remains a matter for state determination. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964).

- Investigation by police officers at the scene on the officers' arrival, and the defendant's statements to the police, not being tainted by the overtones of coercion incident to prolonged illegal detention, are not objectionable although the defendant may not at that time have had counsel. Dukes v. State, 109 Ga. App. 825, 137 S.E.2d 532 (1964).

- Provision of this section that a person arrested without a warrant and not conveyed before an officer authorized to issue warrants within 48 hours "shall be released," means that such person shall be released from imprisonment or custody until a warrant is obtained; not that the person shall be released from trial after the person has been indicted for a crime. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964).

- This section did not require that a prisoner be released after the prisoner had been indicted or after the prisoner has been convicted, despite delaying longer than 48 hours in bringing the accused before an officer for the issuance of a warrant. Donlavey v. Smith, 426 F.2d 800 (5th Cir. 1970).

Failure to hold a commitment hearing within 48 hours as required by this section did not render a conviction invalid nor require the exclusion of evidence. Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975), cert. denied, 425 U.S. 976, 96 S. Ct. 2177, 48 L. Ed. 2d 800 (1976); Dollar v. State, 161 Ga. App. 428, 288 S.E.2d 689 (1982); Chiasson v. State, 250 Ga. App. 63, 549 S.E.2d 503 (2001).

- While the law requires a hearing within 48 hours, nevertheless, a detention or imprisonment beyond a reasonable time does not render the verdict of a jury after indictment illegal or void. Furman v. State, 225 Ga. 253, 167 S.E.2d 628 (1969), rev'd on other grounds, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, vacated in part on other grounds, 229 Ga. 731, 194 S.E.2d 410 (1972).

- This section commented that application for a warrant be made without delay, and makes illegal any imprisonment beyond a reasonable time necessary to obtain a warrant. Whether imprisonment was protracted for an unreasonable time under that section was a question of fact. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964).

- What is a reasonable time is a question of fact and it may well be less than 48 hours, the statutory outer limit of reasonableness. Dukes v. State, 109 Ga. App. 825, 137 S.E.2d 532 (1964).

Detention overnight is not illegal. Johnson v. Mayor of Americus, 46 Ga. 80 (1872).

Delivery to a police officer is insufficient. Ocean S.S. Co. v. Williams, 69 Ga. 251 (1882).

Fugitive from another state must be carried to an officer who can issue a warrant. Lavina v. State, 63 Ga. 513 (1879).

Person arrested on authority of sheriff of another county should be delivered to that sheriff. Manning v. Mitchell, 73 Ga. 660 (1884).

OPINIONS OF THE ATTORNEY GENERAL

Warrant needed for all state penal law violations.

- Laws of Georgia envision that a warrant be issued in all cases involving a violation of the penal laws of the state. 1960-61 Att'y Gen. p. 92.

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.

Magistrate court may, sua sponte, order the release of arrestees who have been arrested without a warrant and when no warrant has been procured as required by O.C.G.A. § 17-4-26, and also when an individual has been arrested with a warrant, but has not been afforded a first appearance hearing within 72 hours of arrest as required by O.C.G.A. § 17-4-62. 1988 Op. Att'y Gen. No. U88-14.

- If a probation violator is arrested without a warrant, it would be incumbent upon the probation supervisor or other arresting officer to procure a warrant within the 48-hour period of time specified in O.C.G.A. § 17-4-62. 1988 Op. Att'y Gen. No. U88-14.

- While it is possible for an individual to waive the individual's statutory right to a "first appearance," in writing, it would be necessary in every instance for a court to ensure that such a waiver is intelligently and competently made, and that the court's findings be made a part of the record of the case. 1988 Op. Att'y Gen. No. U88-14.

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Arrest, § 75 et seq.

- 22 C.J.S., Criminal Procedure and Rights of the Accused, §§ 97, 109. 35 C.J.S., False Imprisonment, § 35 et seq.

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

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

Official immunity of national guard members, 52 A.L.R.4th 1095.

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

• 17-5-1. Search pursuant to lawful arrest authorized.
• 17-5-2. Inventory of items seized without search warrant to be given to person arrested and judicial officer before whom person arrested taken; return of items.

• 17-5-20. Requirements for issuance of search warrant generally.
• 17-5-21. Grounds for issuance of search warrant; scope of search pursuant to search warrant; issuance by retired judge or judge emeritus.
• 17-5-21.1. Issuance of search warrants by video conference.
• 17-5-22. Issuance of search warrants by judicial officers generally; maintenance of docket record of warrants issued.
• 17-5-23. Command of search warrant.
• 17-5-24. Officers authorized to execute search warrants.
• 17-5-25. Execution of search warrant generally.
• 17-5-26. When search warrant may be executed.
• 17-5-27. Use of force in execution of search warrant.
• 17-5-28. Detention and search of persons on premises.
• 17-5-29. Written return of items seized; filing and signing of inventory; delivery of copies of inventory.
• 17-5-30. Motion to suppress evidence illegally seized generally.
• 17-5-31. Quashing warrant or suppressing evidence because of technical irregularity not affecting substantial rights of accused.
• 17-5-32. Search and seizure of documentary evidence in possession of attorney; exclusion of illegally obtained evidence.

• 17-5-50. Property unlawfully obtained; rights of owner; hearing; admissibility of photographs in lieu of original property; representation of unknown or absent defendants; statements made by defendant or agent at trial.
• 17-5-51. Civil forfeiture of weapons used in commission of crime, possession of which constitutes crime or delinquent act, or illegal concealment generally.
• 17-5-52. Disposition of weapons used in commission of crime or delinquent act involving possession; civil forfeiture.
• 17-5-52.1. Disposal of forfeited or abandoned firearms; innocent owners; auctions; record keeping; liability of government entities [Repealed].
• 17-5-53. Disposition of devices with historical or instructional value.
• 17-5-54. Definitions; disposition of personal property in custody of law enforcement agency.
• 17-5-55. Designation of custodian for introduced evidence; evidence log; storage, maintenance, and disposal of evidence.
• 17-5-56. Maintenance of physical evidence containing biological material.

• 17-5-70. Definitions.
• 17-5-71. Preservation of evidence.
• 17-5-72. Right to free forensic medical examination.
• 17-5-73. Victim's right to refuse request for polygraph examinations or other truth-telling devices.

• 17-5-100. Investigation of illegal alien status.

- Procedure for use of electronic devices by law enforcement officers to intercept wire or oral transmissions, § 16-11-64.

Emergency situations; application for an investigative warrant, § 16-11-64.3.

Display of identification in electronic format is not consent to search, § 40-5-106

- Search and seizure, Federal Rules of Criminal Procedure, Rule 41.

- For article discussing past and present trends in the admissibility of illegally obtained evidence in Georgia criminal trials and advocating a state exclusionary rule, see 11 Ga. L. Rev. 105 (1976). For annual survey of criminal law and procedure, see 35 Mercer L. Rev. 103 (1983).

JUDICIAL DECISIONS

Warrant issued only for authorized searches.

- Search warrant may be issued only for searches authorized at common law or by statute. Johnson v. State, 111 Ga. App. 298, 141 S.E.2d 574 (1965).

- While U.S. Const., amend. 4 protects reasonable expectations of privacy, and while the use of deception by a government agent to gain access to a protected area may certainly result in an unlawful invasion of that privacy, the Constitution does not protect persons who engage in criminal transactions from the risk that those with whom they choose to do business may be government agents or informants. Shuman v. State, 155 Ga. App. 300, 271 S.E.2d 18 (1980).

When the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if the business were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant. Shuman v. State, 155 Ga. App. 300, 271 S.E.2d 18 (1980).

- Parent's joint access and unhindered control over the room authorized the trial court to conclude that the parent had common authority over the room searched by the officers and a sufficient relationship to the premises to consent to the search. Smith v. State, 264 Ga. 87, 441 S.E.2d 241 (1994).

RESEARCH REFERENCES

Am. Jur. 2d.

- 68 Am. Jur. 2d, Searches and Seizures, § 1 et seq.

- 79 C.J.S., Searches and Seizures, § 1 et seq.

- Constitutional guarantees against unreasonable searches and seizures as applied to search for or seizure of intoxicating liquor, 3 A.L.R. 1514; 13 A.L.R. 1316; 27 A.L.R. 709; 39 A.L.R. 811; 41 A.L.R. 1539; 74 A.L.R. 1418.

Federal Constitution as a limitation upon the powers of the states in respect to search and seizure, 19 A.L.R. 644.

Civil liability for improper issuance of search warrant or proceedings thereunder, 45 A.L.R. 605.

Right of search and seizure incident to lawful arrest, without a search warrant, 51 A.L.R. 424; 74 A.L.R. 1387; 82 A.L.R. 782.

Search of automobile without a warrant by officers relying on description of persons suspected of a crime, 60 A.L.R. 299.

Right to search or seize vehicle containing contraband as affected by the fact that it was stationary at the time, 61 A.L.R. 1002.

Admissibility of evidence obtained by illegal search and seizure, 134 A.L.R. 819; 150 A.L.R. 566; 50 A.L.R.2d 531.

Previous illegal search for or seizure of property as affecting validity of subsequent search warrant or seizure thereunder, 143 A.L.R. 135.

Sufficiency of affidavit for search warrant based on affiant's belief, based in turn on information, investigation, etc., by one whose name is not disclosed, 14 A.L.R.2d 605.

Propriety and legality of issuing only one search warrant to search more than one place or premises occupied by same person, 31 A.L.R.2d 864.

Authority to consent for another to search or seizure, 31 A.L.R.2d 1078.

Opening, search, and seizure of mail, 61 A.L.R.2d 1282.

Nature of interest in, or connection with, premises searched as affecting standing to attack legality of search, 78 A.L.R.2d 246.

Censorship and evidentiary use of unconvicted prisoners' mail, 52 A.L.R.3d 548.

Effect of abolition of capital punishment on procedural rules governing crimes punishable by death - post-Furman decisions, 71 A.L.R.3d 453.

Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's spouse (resident or nonresident) - state cases, 1 A.L.R.4th 673.

Adequacy of defense counsel's representation of criminal client regarding search and seizure issues, 12 A.L.R.4th 318.

Sufficiency of showing of reasonable belief of danger to officers or others excusing compliance with "knock and announce" requirement - state criminal cases, 17 A.L.R.4th 301.

Use, in attorney or physician disciplinary proceeding, of evidence obtained by wrongful police action, 20 A.L.R.4th 546.

Searches and seizures: reasonable expectation of privacy in contents of garbage or trash receptacle, 28 A.L.R.4th 1219.

Searches and seizures: validity of searches conducted as condition of entering public premises - state cases, 28 A.L.R.4th 1250.

Validity of, and admissibility of evidence discovered in, search authorized by judge over telephone, 38 A.L.R.4th 1145.

Propriety of state or local government health officer's warrantless search - post Camara cases, 53 A.L.R.4th 1168.

Books, documents, or other papers: seizure under search warrant not describing such items, 54 A.L.R.4th 391.

Sufficiency of description in warrant of person to be searched, 43 A.L.R.5th 1.

Admissibility of evidence discovered in search of adult defendant's property or residence authorized by defendant's minor child - state cases, 51 A.L.R.5th 425.

Admissibility of evidence discovered in search of defendant's property or residence authorized by defendant's adult relative other than spouse - state cases, 55 A.L.R.5th 125.

ARTICLE 1 SEARCHES WITHOUT WARRANTS

Law reviews.

- For note, "To Deceive or Not to Deceive: Law Enforcement Officers Gain Broader Approval to Use Deceptive Tactics to Obtain Voluntary Consent," see 69 Mercer L. Rev. 627 (2018).

Third Party's Lack of Authority to Consent to Search of Premises or Effects, 18 POF2d 681.

Consent to Search Given Under Coercive Circumstances, 26 POF2d 465.