O.C.G.A. § 17-4-62 (2019)

Annotations

Cross references. - 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. Law reviews. - 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).

JUDICIAL DECISIONS 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). Delay due to defendant’s request for lab analysis. - 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). Justification for temporary imprisonment question for jury. - 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 moot. - 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). Rights not violated. - 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.

Improper Detention (Cont’d) 347, 361 S.E.2d 494 (1987). Exclusionary rule inapplicable. - 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). Section cannot justify illegal warrantless arrest. - 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). Unreasonable detention makes entire transaction trespass. - 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). Reason for requiring speedy appearance before judge. - 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). Habeas corpus if delay over 48 hours. - 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). Illegal detention does not void court’s jurisdiction. - 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). Illegal detention does not void arrest ab initio. - 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, No. CV 304-066, 2005 U.S. Dist. LEXIS 20882 (S.D. Ga. Aug. 11, 2005). Breath test not rendered inadmissible. - 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). Voluntary confession not rendered inadmissible. - 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). Confession admissibility state question. - 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). Statements at scene admissible even though made without attorney. - 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). Delay in warrant does not require release after indictment. - 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). Conviction not void after delay. - 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). Effect on verdict. - 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). Reasonableness of time is question of fact. - 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). Time may be unreasonable although under 48 hours. - 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 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. Probation violators. - 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. Waiver. - 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. C.J.S. - 22 C.J.S., Criminal Procedure and Rights of the Accused, §§ 97, 109. 35 C.J.S., False Imprisonment, § 35 et seq. ALR. - Right to arrest without a warrant for unlawful possession or transportation of intoxicating liquor, 44 A.L.R. 132. Liability, for false arrest or imprison-

ment, 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.

CHAPTER 5 SEARCHES AND SEIZURES Sec.

Article 1

sion of attorney; exclusion of illegally obtained evidence.

Searches Without Warrants Sec.

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

Article 2 Searches With Warrants

Requirements for issuance of search warrant generally.