2021 Georgia Code
Title 17 - Criminal Procedure
Chapter 4 - Arrest of Persons
Article 3 - Warrants for Arrest
§ 17-4-40. Persons Who May Issue Warrants for Arrest of Offenders Against Penal Laws; Warrants Requested by Others; Persons Who May Issue Warrants for Arrest of Peace or Law Enforcement Officers, Dfcs Case Managers, or School Teachers or Administrators

1. Any judge of a superior, city, state, or magistrate court or any municipal officer clothed by law with the powers of a magistrate may issue a warrant for the arrest of any offender against the penal laws, based on probable cause either on the judge's or officer's own knowledge or on the information of others given to the judge or officer under oath. Any retired judge or judge emeritus of a state court may likewise issue arrest warrants if authorized in writing to do so by an active judge of the state court of the county wherein the warrants are to be issued.
2. 1. If application is made for a warrant by a person other than a peace officer or law enforcement officer and the application alleges the commission of an offense against the penal laws, the judge or other officer shall schedule a warrant application hearing as provided in this subsection unless the person accused has been taken into custody by a peace officer or law enforcement officer or except as provided in paragraph (6) of this subsection; provided, however, that a warrant may be denied without the notice required in paragraph (2) of this subsection where the application form and any testimony from the affiant provided at the time of the application do not demonstrate probable cause for issuing a warrant.
   2. Except as otherwise provided in paragraph (6) of this subsection, a warrant application hearing shall be conducted only after attempting to notify the person whose arrest is sought by any means approved by the judge or other officer which is reasonably calculated to apprise such person of the date, time, and location of the hearing.
   3. If the person whose arrest is sought does not appear for the warrant application hearing, the judge or other officer shall proceed to hear the application and shall note on the warrant application that such person is not present.
   4. At the warrant application hearing, the rules of evidence at a commitment hearing shall apply as set forth in paragraph (1) of subsection (d) of Code Section 24-1-2. The person seeking the warrant shall have the customary rights of presentation of evidence and cross-examination of witnesses. The person whose arrest is sought may cross-examine the person or persons applying for the warrant and any other witnesses testifying in support of the application at the hearing. The person whose arrest is sought may present evidence that probable cause does not exist for his or her arrest. The judge or other officer shall have the right to limit the presentation of evidence and the cross-examination of witnesses to the issue of probable cause.
   5. At the warrant application hearing, a determination shall be made whether or not probable cause exists for the issuance of a warrant for the arrest of the person whose arrest is sought. If the judge or other officer finds that probable cause exists, the warrant may issue instanter.
   6. Nothing in this subsection shall be construed as prohibiting a judge or other officer from immediately issuing a warrant for the arrest of a person upon application of a person other than a peace officer or law enforcement officer if the judge or other officer determines from the application or other information available to the judge or other officer that:
      1. An immediate or continuing threat exists to the safety or well-being of the affiant or a third party;
      2. The person whose arrest is sought will attempt to evade arrest or otherwise obstruct justice if notice is given;
      3. The person whose arrest is sought is incarcerated or otherwise in the custody of a local, state, or federal law enforcement agency;
      4. The person whose arrest is sought is a fugitive from justice;
      5. The offense for which application for a warrant is made is deposit account fraud under Code Section 16-9-20, and the person whose arrest is sought has previously been served with the ten-day notice as provided in paragraph (2) of subsection (a) of Code Section 16-9-20; or
      6. The offense for which application for the warrant is made consists of an act of family violence as defined in Code Section 19-13-1.

         In the event that the judge or officer finds such circumstances justifying dispensing with the requirement of a warrant application hearing, the judge or officer shall note such circumstances on the face of the warrant application.

   7. No warrant shall be quashed nor evidence suppressed because of any irregularity in proceedings conducted pursuant to this subsection not affecting the substantial rights of the accused under the Constitution of this state or of the United States.
   8. Nothing contained in this subsection shall prohibit a judge from denying a warrant based upon the application and testimony heard at the time such application is made without requiring notice to the person whose arrest is sought.
3. Any warrant for the arrest of a peace officer, law enforcement officer, DFCS case manager, teacher, or school administrator for any offense alleged to have been committed while in the performance of his or her duties may be issued only by a judge of a superior court, a judge of a state court, or a judge of a probate court.

(Orig. Code 1863, § 4595; Code 1868, § 4616; Code 1873, § 4713; Code 1882, § 4713; Penal Code 1895, § 882; Penal Code 1910, § 903; Code 1933, § 27-102; Ga. L. 1974, p. 1230, § 1; Ga. L. 1983, p. 884, § 3-17; Ga. L. 1985, p. 1105, § 1; Ga. L. 1990, p. 8, § 17; Ga. L. 2000, p. 1702, § 1; Ga. L. 2010, p. 313, § 1/HB 199; Ga. L. 2011, p. 99, § 28/HB 24; Ga. L. 2021, p. 132, § 1/HB 562.)

The 2021 amendment, effective May 3, 2021, inserted "DFCS case manager," near the beginning of subsection (c).

- Compliance with this Code section in violations of public records inspection provisions, § 50-18-74.

Dismissal and return of warrants in magistrate court, Uniform Rules for the Magistrate Courts, Rule 12.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

- For article, "Should Georgia Change Its Misdemeanor Arrest Laws to Authorize Issuing More Field Citations? Can Alternative Arrest Process Help Alleviate Georgia's Jail Overcrowding and Reduce the Time Arresting Officers Expend Processing Nontraffic Misdemeanor Offenses?," see 22 Ga. St. U.L. Rev. 313 (2005). For survey article on criminal law, see 59 Mercer L. Rev. 89 (2007). For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 21-102 are included in the annotations for this Code section.

- Before an alleged affidavit can become the basis of a legal proceeding it must appear that an oath was actually administered to the affiant, or that something was done by the affiant "signifying that he consciously took upon himself the obligation of an oath." J.C. Penney Co. v. Green, 108 Ga. App. 155, 132 S.E.2d 83 (1963).

- Often times affiant's knowledge of matters stated in the affidavit must, of necessity, rest upon information derived from others; and when this is the case it is generally sufficient if the affiant avers that such matters are true to the best of the affiant's knowledge and belief. Belief is to be considered an absolute term in this connection; hence to swear that one believes a thing to be true is equivalent to swearing that it is true, and perjury may be assigned on such affidavit. Hutto v. State, 116 Ga. App. 140, 156 S.E.2d 498 (1967).

- It was sufficiently clear that a reasonable officer would have understood that the affidavit or other statement that formed the basis for an arrest warrant had to be made under oath; therefore, summary judgment as to plaintiff's 42 U.S.C. § 1983 claims against the arresting officer in the arresting officer's individual capacity was denied. Perrin v. City of Elberton, F. Supp. 2d (M.D. Ga. July 1, 2005).

- Issuing of a criminal warrant by a justice of the peace is a judicial act, the beginning of a judicial proceeding, but it is not the act of a court. Ormond v. Ball, 120 Ga. 916, 48 S.E. 383 (1904).

Mayor may issue a warrant against an ordinance violator. Williams v. Sewell, 121 Ga. 665, 49 S.E. 732 (1905).

Judge of small claims court has power to issue criminal warrants for offenses committed in that county. Bush v. Wilcox, 223 Ga. 89, 153 S.E.2d 701 (1967).

Clerk of courts can issue a warrant upon receipt of an affidavit. Wadley v. McCommon, 154 Ga. 420, 114 S.E. 357 (1922).

Deputy clerk of a city court cannot issue a warrant, even upon receipt of an affidavit. Cox v. Perkins, 151 Ga. 632, 107 S.E. 863, 16 A.L.R. 918 (1921).

- Record supported a district court's decision granting summary judgment in favor of sheriff's deputies in an action an arrestee filed under 42 U.S.C. § 1983 alleging, inter alia, that the deputies violated the arrestee's constitutional rights by procuring an arrest warrant without probable cause and in violation of O.C.G.A. § 17-4-40, and using excessive force during an illegal arrest; because a deputy who obtained the arrest warrant was a law enforcement officer, the official who issued the warrant was not required to hold a preliminary warrant application hearing pursuant to § 17-4-40. Smith v. Mercer, 572 Fed. Appx. 676 (11th Cir. 2014)(Unpublished).

- Arrest warrant for murder was supported by probable cause as the record clearly showed that the magistrate issuing the warrant was provided the officer's affidavit and was informed by the same officer that a surviving victim had identified the appellant from a photographic line-up as one of the shooters and the appellant's identification and use of a gun during the shooting were corroborated by the facts and circumstances officers had gathered from witnesses and evidence at the scene of the shooting. Williams v. State, 298 Ga. 538, 783 S.E.2d 594 (2016).

Mandamus would not lie to compel a magistrate to issue an arrest warrant against an individual for false swearing in a notary public application when no abuse of discretion was shown. Chisholm v. Cofer, 264 Ga. 512, 448 S.E.2d 369 (1994).

When a city council member issued a warrant for a citizen's arrest for a state criminal offense the warrant was void because issuance was an unauthorized application of a city ordinance. Kelly v. City of Marietta, 253 Ga. 579, 322 S.E.2d 885 (1984).

- Procurement of an arrest warrant is not peculiar to the official duties of a peace officer. Any private citizen may do so and the procedure followed is the same. Cleland v. U.S. Fid. & Guar. Ins. Co., 99 Ga. App. 130, 107 S.E.2d 904 (1959) (decided under former Code 1933, § 21-102).

- Wife cannot make out an affidavit, or sign an accusation, which furnishes the basis for a warrant charging another woman with adultery committed with the complainant's husband. Smith v. State, 14 Ga. App. 614, 81 S.E. 912 (1914).

- Husband is not competent to make out an affidavit to support an accusation charging another man with adultery with the first man's wife. Batchelor v. State, 41 Ga. App. 843, 155 S.E. 58 (1930).

- 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).

- Defendant failed to show trial counsel's performance was deficient for failing to challenge the arrest warrant on the basis that it was not properly sworn because the record showed that the defendant was taken into custody and arrested before the warrant was issued and there was a valid, warrantless arrest of defendant, making the later-issued warrant superfluous; thus, any defect in the arrest warrant was moot, and a challenge to the arrest warrant would have been futile. Williams v. State, 326 Ga. App. 784, 757 S.E.2d 448 (2014).

Cited in Creamer v. State, 150 Ga. App. 458, 258 S.E.2d 212 (1979); Scott v. Dixon, 720 F.2d 1542 (11th Cir. 1983); City of Marietta v. Kelly, 169 Ga. App. 927, 315 S.E.2d 659 (1984); Sheffield v. Futch, 354 Ga. App. 661, 839 S.E.2d 294 (2020), cert. denied, No. S20C1090, 2020 Ga. LEXIS 807 (Ga. 2020).

OPINIONS OF THE ATTORNEY GENERAL

Judges who may issue warrants to arrest peace officer.

- Warrant for the arrest of a peace officer may be issued by a judge of the superior court, a judge of the state court, or a judge of the probate court, in the alternative, and the power of a probate judge to issue such a warrant is not dependent upon the absence of the superior court and state court judges from the county where the offense is alleged to have occurred. 1975 Op. Att'y Gen. No. U75-48.

Probate judges may issue arrest warrants only in certain traffic cases and for peace officers accused of any offense in the performance of the officers' duties. 1983 Op. Att'y Gen. No. U83-13.

- Under former Code 1933, § 27-102 (see O.C.G.A. § 17-4-40), the power of ex officio justice of the peace includes the authority to issue warrants for the arrest of offenders against the penal laws of this state. 1960-61 Op. Att'y Gen. p. 96.

- Both a judge of the small claims court created under a special Act and a mayor who has the duty of seeing that the ordinances of the town are faithfully executed have the power to issue warrants for arrest. 1969 Op. Att'y Gen. No. 69-198.

- Magistrate may issue arrest warrants for persons under the age of 17. 1984 Op. Att'y Gen. No. U84-30.

- Arrest warrant may be dismissed by the issuing judicial officer at the request of the prosecutor prior to the warrant's execution, and need not be dismissed by the court having jurisdiction over the trial of the case. 1985 Op. Att'y Gen. No. U85-27.

RESEARCH REFERENCES

Am. Jur. 2d.

- 5 Am. Jur. 2d, Arrest, § 13.

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