2021 Georgia Code
Title 17 - Criminal Procedure
Chapter 4 - Arrest of Persons
Article 2 - Arrest by Law Enforcement Officers Generally
§ 17-4-20. Authorization of Arrests With and Without Warrants Generally; Use of Deadly Force; Adoption or Promulgation of Conflicting Regulations, Policies, Ordinances, and Resolutions; Authority of Nuclear Power Facility Security Officer

1. 1. An arrest for a crime may be made by a law enforcement officer:
      1. Under a warrant; or
      2. Without a warrant if:
         1. The offense is committed in such officer's presence or within such officer's immediate knowledge;
         2. The offender is endeavoring to escape;
         3. The officer has probable cause to believe that an act of family violence, as defined in Code Section 19-13-1, has been committed;
         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. The officer has probable cause to believe that an offense involving physical abuse has been committed against a vulnerable adult, who shall be for the purposes of this subsection a person 18 years old or older who is unable to protect himself or herself from physical or mental abuse because of a physical or mental impairment; or
         6. For other cause there is likely to be failure of justice for want of a judicial officer to issue a warrant.
   2. Except where otherwise provided by law with respect to a law enforcement officer's jurisdictional duties and limitations, a law enforcement officer may make an arrest for an offense outside of the jurisdiction of the law enforcement agency by which he or she is employed without a warrant:
      1. If the offense is committed in such officer's presence or within such officer's immediate knowledge;
      2. When in immediate pursuit of an offender for an offense committed within the jurisdiction of the law enforcement agency that employs such law enforcement officer; or
      3. While aiding or assisting another law enforcement officer in the jurisdiction of the law enforcement agency employing such other law enforcement officer.
   3. Nothing in paragraph (2) of this subsection shall be construed as limiting sheriffs or deputy sheriffs in the performance of the duties and responsibilities imposed on them by the Constitution and laws of this state.
2. Sheriffs and peace officers who are appointed or employed in conformity with Chapter 8 of Title 35 may use deadly force to apprehend a suspected felon only when the officer reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others; or when there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm. Nothing in this Code section shall be construed so as to restrict such sheriffs or peace officers from the use of such reasonable nondeadly force as may be necessary to apprehend and arrest a suspected felon or misdemeanant.
3. Nothing in this Code section shall be construed so as to restrict the use of deadly force by employees of state and county correctional institutions, jails, and other places of lawful confinement or by peace officers of any agency in the State of Georgia when reasonably necessary to prevent escapes or apprehend escapees from such institutions.
4. No law enforcement agency of this state or of any political subdivision of this state shall adopt or promulgate any rule, regulation, or policy which prohibits a peace officer from using that degree of force to apprehend a suspected felon which is allowed by the statutory and case law of this state.
5. Each peace officer shall be provided with a copy of this Code section. Training regarding elder abuse, abuse of vulnerable adults, and the requirements of this Code section should be offered as part of at least one in-service training program each year conducted by or on behalf of each law enforcement department and agency in this state.
6. A nuclear power facility security officer, including a contract security officer, employed by a federally licensed nuclear power facility or licensee thereof for the purpose of securing that facility shall have the authority to:
   1. Threaten or use force against another in defense of a federally licensed nuclear power facility and the persons therein as provided for under Code Sections 16-3-21 and 16-3-23;
   2. Search any person on the premises of the nuclear power facility or the properties adjacent to the facility if the facility is under imminent threat or danger pursuant to a written agreement entered into with the local enforcement agency having jurisdiction over the facility for the purpose of determining if such person possesses unauthorized weapons, explosives, or other similarly prohibited material; provided, however, that if such person objects to any search, he or she shall be detained as provided in paragraph (3) of this subsection or shall be required to immediately vacate the premises. Any person refusing to submit to a search and refusing to vacate the premises of a facility upon the request of a security officer as provided for in this Code section shall be guilty of a misdemeanor; and
   3. In accordance with a nuclear security plan approved by the United States Nuclear Regulatory Commission or other federal agency authorized to regulate nuclear facility security, detain any person located on the premises of a nuclear power facility or on the properties adjacent thereto if the facility is under imminent threat or danger pursuant to a written agreement entered into with the local law enforcement agency having jurisdiction over the facility, where there is reasonable suspicion to believe that such person poses a threat to the security of the nuclear power facility, regardless of whether such prohibited act occurred in the officer's presence. In the event of such detention, the law enforcement agency having jurisdiction over the facility shall be immediately contacted. The detention shall not exceed the amount of time reasonably necessary to allow for law enforcement officers to arrive at the facility.

(Orig. Code 1863, § 4603; Code 1868, § 4626; Code 1873, § 4723; Code 1882, § 4723; Penal Code 1895, § 896; Penal Code 1910, § 917; Code 1933, § 27-207; Ga. L. 1975, p. 1209, § 1; Ga. L. 1981, p. 880, § 6; Ga. L. 1981, p. 1393, § 1; Ga. L. 1986, p. 490, § 1; Ga. L. 1986, p. 657, § 1; Ga. L. 1988, p. 1251, § 1; Ga. L. 1991, p. 624, § 1; Ga. L. 1997, p. 700, § 1; Ga. L. 2006, p. 812, § 3/SB 532; Ga. L. 2013, p. 667, § 2/SB 86; Ga. L. 2021, p. 625, § 1/HB 479.)

The 2021 amendment, effective May 10, 2021, redesignated the existing provisions of subsection (a) as paragraph (a)(1) and made related redesignations; and added paragraphs (a)(2) and (a)(3). See Editor's notes for applicability.

- Pursuant to Code Section 28-9-5, in 1997, "18" was substituted for "eighteen" in subsection (a).

- Ga. L. 2021, p. 625, § 8/HB479, not codified by the General Assembly, provides, in part, that: "This Act shall not apply to rights and duties that matured, penalties that were incurred, or proceedings that were begun before the effective date of this Act." This Act became effective May 10, 2021.

- Uniform Crime Reporting, Official Compilation of the Rules and Regulations of the State of Georgia, Georgia Crime Information Center Council, Practice and Procedure, Rule 140-2-.12.

- For article, "Constitutional Criminal Litigation," see 32 Mercer L. Rev. 993 (1981). For article surveying developments in Georgia juvenile court practice and procedure from mid-1980 through mid-1981, see 33 Mercer L. Rev. 167 (1981). For annual survey of criminal law and procedure, see 35 Mercer L. Rev. 103 (1983). For article, "Gender and Justice in the Courts: A Report to the Supreme Court of Georgia by the Commission on Gender Bias in the Judicial System," see 8 Ga. St. U.L. Rev. 539 (1992). For survey of 1995 Eleventh Circuit cases on constitutional criminal procedure, see 47 Mercer L. Rev. 765 (1996). For article, "Symposium Protect and Serve: Perspectives on 21st Century Policing January 20, 2017: State Labor Law and Federal Police Reform," see 51 Ga. L. Rev. 1209 (2017). For article, "Missing Police Body Camera Videos: Remedies, Evidentiary Fairness, and Automatic Activation," see 52 Ga. L. Rev. 57 (2017). For article, "Symposium Protect and Serve: Perspectives on 21st Century Policing January 20, 2017: Youth/Police Encounters on Chicago's South Side: Acknowledging the Realities," see 51 Ga. L. Rev. 1079 (2017). For article, "Symposium Protect and Serve: Perspectives on 21st Century Policing January 20, 2017: Commodifying Policing: A Recipe for Community-Police Tensions," see 51 Ga. L. Rev. 1047 (2017). For article, "Symposium Protect and Serve: Perspectives on 21st Century Policing January 20, 2017: The Problematic Prosecution of an Asian American Police Officer: Notes: From a Participant in People v. Peter Liang," see 51 Ga. L. Rev. 1023 (2017). For article, "Symposium Protect and Serve: Perspectives on 21st Century Policing January 20, 2017: Keynote Address," see 51 Ga. L. Rev. 981 (2017). For article, "Police Pursuits: A Comprehensive Look at the Broad Spectrum of Police Pursuit Liability and Law," see 57 Mercer L. Rev. 511 (2006). For survey article on criminal law, see 59 Mercer L. Rev. 89 (2007).

ANALYSIS

• General Consideration
• Grounds for Warrantless Arrest
• Authority of Local Officers
• Jury Instructions

This section applied to both state and local officers. 1972 Op. Att'y Gen. No. U72-127.

- Sheriff, as a law enforcement officer, may effect an arrest either under a warrant, or without a warrant if the offense is committed in the sheriff's presence, or the offender is endeavoring to escape, or for other cause when there is likely to be a failure of justice for want of an officer to issue a warrant. 1972 Op. Att'y Gen. No. 72-24.

- City police officer has authority to arrest without a warrant one who violates a state statute in the officer's presence, or to arrest within the city one who violates a city ordinance in the officer's presence. 1958-59 Op. Att'y Gen. p. 74.

Police officer of a city, in making an arrest for an offense against state law, or for a violation of an ordinance of the municipality committed in the city limits, falls within the protection of this section; thus, a city police officer has authority to arrest without a warrant one who violates a state statute in the officer's presence, or to arrest within the city one who violates a city ordinance in the officer's presence. 1960-61 Op. Att'y Gen. p. 581.

Municipal arresting officer has authority to arrest person, including even the sheriff of the county, within the corporate limits of the city, on a charge of violation of city ordinances, including the charge of public drunkenness. 1962 Op. Att'y Gen. p. 335.

- Any warrantless arrest made for violation of a city ordinance would have to be within the corporate limits of the city. 1958-59 Op. Att'y Gen. p. 74.

City police officer may not make arrests outside city limits without warrant. 1958-59 Op. Att'y Gen. p. 74.

- If a person is driving an automobile while under the influence of intoxicating drink or at a greater speed than 55 miles per hour in the presence of a city police officer, the police officer would be authorized to pursue the person beyond the city limits and make the arrest for violating a state law; a city police officer would have no authority to go beyond the city limits and arrest a person for the violation of a city ordinance. 1952-53 Op. Att'y Gen. p. 48.

- 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 arrest for infractions of municipal ordinances. 1958-59 Op. Att'y Gen. p. 72.

- When a bondsman from another state requested a Georgia law enforcement officer to aid the bondsman in capturing the bond jumper from that foreign state, such a request would not meet any of the requirements of this section, which gave the sheriff the authority to arrest. 1972 Op. Att'y Gen. No. 72-24.

- 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 is not possessed of any lawful power to make its security guards "officers" within the meaning of that section, or to otherwise confer upon them 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 (see O.C.G.A. § 17-4-60). 1978 Op. Att'y Gen. No. 78-3.

- Constable was grouped with other "officers" as to arrest powers under former Code 1933, § 27-207 (see O.C.G.A. § 17-4-20) and was required to execute all warrants directed to the constable by lawful authority under former Code 1933, § 24-817 (see O.C.G.A. § 15-10-102); logically, the constable would be authorized to use such force as is necessary to carry out duties to the same extent as are other officers when serving arrest warrants or lawfully making an arrest without a warrant, but the constable does not possess general police powers, and may carry a pistol only if licensed to do so by the procedure set forth in former Code 1933, §§ 26-2901, 26-2902, 26-2903, and 26-2906 (see O.C.G.A. §§ 16-11-126 and16-11-127). 1978 Op. Att'y Gen. No. U78-30.

- While it is true that a private citizen may effect an arrest under former Code 1933, § 27-211 (see O.C.G.A. § 17-4-60), only a peace officer has the authority to make an arrest by serving a warrant. 1973 Op. Att'y Gen. No. 73-93.

- Under former Code 1933, § 27-207 (see O.C.G.A. § 17-4-20), a peace officer could arrest a sheriff with or without a warrant; however, coroners did not fall within the aegis of "peace officers," under former Code 1933, § 21-101 et seq. (see O.C.G.A. § 16-1-3) and, consequently, cannot arrest a sheriff in circumstances when a peace officer would be able to, but a private citizen would not. 1973 Op. Att'y Gen. No. 73-93.

- Lack of sufficient time to obtain a warrant fell within the "likely to be failure of justice" language of this section. 1978 Op. Att'y Gen. No. U78-30.

- Warrantless arrests may be legally effectuated by law enforcement officers under one of the exceptions to O.C.G.A. § 17-4-20 or when arresting officers have probable cause to believe that a crime has been, is being, or is about to be committed; however, an illegal arrest alone will not be sufficient cause to vacate an otherwise valid conviction, and will not result in suppression of evidence absent a judicial determination that the arresting officer lacked probable cause in making the arrest. 1982 Op. Att'y Gen. No. U82-34.

- If the sheriff, in the sheriff's capacity as a law enforcement officer, undertakes to arrest an individual under circumstances which do not give the sheriff the authority to make arrests, it is an illegal arrest and as such may subject the sheriff to liability for false imprisonment. 1972 Op. Att'y Gen. No. 72-24.

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Arrest, § 13 et seq.

Police Officer's Use of Excessive Force in Making Arrest, 9 POF2d 363.

Lack of Probable Cause for Warrantless Arrest, 44 POF2d 229.

- 22 C.J.S., Criminal Procedure and Rights of the Accused, § 53 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, 3 A.L.R. 1170; 42 A.L.R. 1200.

Necessity of showing warrant upon making arrest under warrant, 40 A.L.R. 62.

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

Arrest, or search and seizure, without warrant on suspicion or information as to unlawful possession of weapons, 92 A.L.R. 490.

Peace officer's delay in making arrest without a warrant for misdemeanor or breach of peace, 58 A.L.R.2d 1056.

Police officer's power to enter private house or enclosure to make arrest, without a warrant, for a suspected misdemeanor, 76 A.L.R.2d 1432.

Modern status of rules as to right to forcefully resist illegal arrest, 44 A.L.R.3d 1078.

What amounts to violation of drunken-driving statute in officer's "presence" or "view" so as to permit warrantless arrest, 74 A.L.R.3d 1138.

Concern for possible victim (rescue doctrine) as justifying violation of Miranda requirements, 9 A.L.R.4th 595.

Validity, in state criminal trial, of arrest without warrant by identified peace officer outside of jurisdiction, when not in fresh pursuit, 34 A.L.R.4th 328.

Validity of arrest made in reliance upon outdated warrant list or similar police records, 45 A.L.R.4th 550.

Application of "fireman's rule" to preclude recovery by peace officer for injuries inflicted by defendant in resisting arrest, 25 A.L.R.5th 97.

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

Propriety of police action involving application of choke hold, constriction of throat, or the like to prevent accused from swallowing evidence - state cases, 64 A.L.R.5th 741.