In situations where a lawful arrest cannot be made without a warrant, the officer should have the warrant in his possession at the time of the arrest or so near at hand that it can be exhibited on demand.It has been said that an officer derives no authority or power from a warrant unless he has it with him and can display it.O.C.G.A. § 17-4-0 provides that an officer has a right to arrest with or without a warrant (1) if the offense was committed within his presence or within his immediate knowledge, or (2) if the offender is endeavoring to escape, or (3) if the officer has probable cause to believe an act of family violence has been committed, or (4) for other cause if there is likely to be a failure of justice from the want of a duly authorized officer to issue a warrant, or (5) if the officer has probable cause to believe that an offense involving physical abuse has been committed against a vulnerable adult who is defined as being a person 18 years old or older who is unable to protect himself or herself from physical or mental abuse.
In the absence of one of the five instances above, an officer generally has no right to arrest for a violation of a municipal ordinanceor a misdemeanorunless the officer has a warrant in his possession at the time of the attempted arrest.This is said to be true because the officer is bound to have the warrant ready to be produced if asked for. For example, in Croker v. State,the court said that where the offense involved was a misdemeanor not committed in the presence of the officer and flight was not involved, the officer had no authority to arrest the defendant even though a warrant had been issued because the warrant was not accessible to the officer at the time. In the case of a felony, it is not necessary for the officer to have the warrant in his possession in order to make a valid arrest. Also, an officer may arrest without a warrant pursuant to O.C.G.A. § 17-4-20(a) or with probable cause.See section infra. However, under Georgia law it has been held that if the officer wishes to arrest the defendant without a warrant, he should do so promptly.Without a warrant and in the absence of exigent circumstances, there is no right to make an arrest in a person's home.Moreover, even when an officer has an arrest warrant, the general rule requires that the officer knock and announce his presence before entering.See section infra, on arrest warrants.
While it is provided by Georgia statute that where an officer has a warrant he may “break open the door of any house where the offender is concealed,” and it is recognized that an officer may use such force as is reasonably necessary to arrest, nevertheless, he is not authorized to use any more force than is reasonably necessary.But see section supra, on place of arrest. It has also been recognized that an officer may use more force to accomplish an arrest for a felony than for a misdemeanor.
In Tennessee v. Garner, the United States Supreme Court held a statute violative of the Fourth Amendment which permitted officers to use deadly force to prevent the escape of a suspected felon. The Court said that deadly force may not be used unless necessary to prevent escape and the officer has probable cause to believe that the suspect poses a significant threat of death or grave injury to the officer or others. In the case of a misdemeanor, an officer has no right to shoot merely to prevent his escape.This rule applies equally to an arrest for a violation of a municipal ordinance.However, even in the case of a misdemeanor, “in order to overcome declared, open and armed resistance to [the] execution of … [a warrant, an officer may] use such force as may be reasonably necessary to effect the arrest.”
In 1986, Georgia added to O.C.G.A. § 17-4-20 a provision stating that an officer “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.”
Unless the person to be arrested knows that the person attempting to arrest him is an officer, the officer should notify him of his authority. Likewise, the person to be taken into custody should be notified of the offense with which he is being charged. If the officer has an arrest warrant, he should tell the suspect by what authority he is being arrested or should display the warrant to the accused. However, if a suspect knows he is being lawfully arrested by an officer, it is the duty of the suspect to submit quietly.
In the case of any offense involving a violation of any law or ordinance involving the operation, licensing, registration, maintenance or inspection of a motor vehicle, the officer may arrest by issuance of a citation if the offense was committed in the presence of the officer. If the offense results in an accident, an investigating officer may issue a citation regardless of whether the offense occurred in his presence. Also, a citation may be issued if the offense occurred before another officer. Any citation issued “shall enumerate the specific charges against the person and the date upon which the person is to appear and answer the charges.” If the offense occurred before another officer, “the citation shall list the name of each officer and each must be present when the charges against the accused person are heard.”
In Atwater v. City of Lago Vista, the United States Supreme Court held that an officer in Texas may, under the federal constitution, arrest the driver of an automobile for not wearing a seat belt even though the failure to utilize a seat belt is a non-jailable misdemeanor punishable only by a fine of not less than $25.00 or more than $50.00. Although the law permits officers to issue citations in lieu of arrest, the court pointed out that “the standard of probable cause ‘applie[s] to all arrests, without the need to ‘balance' the interests and circumstances involved in particular situations.' ”
