An actual touching of a person with a hand is not essential to constitute a valid arrest. If the person voluntarily submits to being considered under arrest or yields on condition of being allowed his freedom of locomotion, under the discretion of the officer, the arrest is complete.
(Orig. Code 1863, § 4609; Code 1968, § 4631; Code 1873, § 4728; Code 1882, § 4728; Penal Code 1895, § 893; Penal Code 1910, § 914; Code 1933, § 27-201.)
Law reviews.- For survey article on criminal law, see 59 Mercer L. Rev. 89 (2007).
JUDICIAL DECISIONS
Defendant not under arrest for constitutional purposes.
- Miranda played no part in the admissibility of field sobriety test results, notwithstanding the definition of arrest contained in O.C.G.A. § 17-4-1, as the defendant was not under arrest for constitutional purposes when the defendant failed to show any restraints comparable to those associated with formal arrest, the defendant's statement that the defendant knew the officer was going to "take her in" demonstrated the defendant's apprehension, not the fact of an arrest, the defendant was not informed that the defendant's detention would not be temporary, and the defendant's performance on the field sobriety tests did not support a claim that the defendant was exposed to custodial interrogation at the scene. Evans v. State, 267 Ga. App. 706, 600 S.E.2d 671 (2004).
Arrest occurs with any restraint of liberty.
- Arrest is accomplished whenever the liberty of a person to come and go as the person pleases is restrained, no matter how slight such restraint may be. Clements v. State, 226 Ga. 66, 172 S.E.2d 600 (1970); United States v. Jones, 352 F. Supp. 369 (S.D. Ga. 1972), aff'd, 481 F.2d 1402 (5th Cir. 1973); Department of Natural Resources v. Joyner, 143 Ga. App. 868, 240 S.E.2d 114 (1977), rev'd on other grounds, 241 Ga. 390, 245 S.E.2d 644 (1978); Bowers v. State, 151 Ga. App. 46, 258 S.E.2d 623 (1979); Collier v. State, 244 Ga. 553, 261 S.E. 364 (1979); Tolbert v. Hicks, 158 Ga. App. 642, 281 S.E.2d 368 (1981); Paxton v. State, 160 Ga. App. 19, 285 S.E.2d 741 (1981); Lee v. State, 222 Ga. App. 389, 474 S.E.2d 281 (1996).
Whenever a police officer accosts an individual and restrains the individual's freedom to walk away, the official has "seized" that person. Rogers v. State, 131 Ga. App. 136, 205 S.E.2d 901 (1974).
Arrest is complete whenever the liberty of a person to come and go as the person pleases is restrained, even though the arresting officer does not expressly inform the person that the person is under arrest. Williams v. State, 166 Ga. App. 798, 305 S.E.2d 489 (1983).
Advising that a person was under arrest without proceeding with any questioning or investigation, but while holding the person, is a restraint of freedom to leave constituting an arrest. McKenzie v. State, 208 Ga. App. 683, 431 S.E.2d 715 (1993).
Defendant may complete arrest by accepting other's control.
- If an arresting officer, known to be such, takes charge of a person who reasonably thinks, from the conduct of the officer, that the person is under arrest, an arrest is made. Courtoy v. Dozier, 20 Ga. 369 (1856); Hines v. Adams, 27 Ga. App. 157, 107 S.E. 618 (1921).
If the person arrested understands that the person is in the power of the one arresting and submits in consequence thereof, it is sufficient to constitute an arrest. United States v. Jones, 352 F. Supp. 369 (S.D. Ga. 1972), aff'd, 481 F.2d 1402 (5th Cir. 1973).
When no force used.
- Defendant may voluntarily submit to being considered under arrest without any actual touching or show of force, and the arrest is complete. Clements v. State, 226 Ga. 66, 172 S.E.2d 600 (1970); Department of Natural Resources v. Joyner, 143 Ga. App. 868, 240 S.E.2d 114 (1977), rev'd on other grounds, 241 Ga. 390, 245 S.E.2d 644 (1978); Bowers v. State, 151 Ga. App. 46, 258 S.E.2d 623 (1979), aff'd, 245 Ga. 367, 265 S.E.2d 57 (1980).
Informing defendant of arrest.
- Even if the officer does not expressly inform the defendant that the defendant is under arrest nor state to the defendant the specific charges against the defendant, a defendant can recognize that the defendant is not free to depart the scene and is consequently in custodia legis. Rogers v. State, 131 Ga. App. 136, 205 S.E.2d 901 (1974).
Removal of and search of defendant at gunpoint.
- Arrest is complete from the moment police officers approach the automobile which the defendant is driving and cause the defendant to alight therefrom under force and restraint of drawn guns and subject the defendant to a search even if the officer testifies that the arrest was made after the search. Clements v. State, 226 Ga. 66, 172 S.E.2d 600 (1970).
Formal arrest.
- Formal arrest or statement to that effect is not a necessary element of an arrest. An arrest is accomplished whenever the liberty of another to come and go as the person pleases is restrained, no matter how slight such restraint may be. Tolbert v. Hicks, 158 Ga. App. 642, 281 S.E.2d 368 (1981).
Arrest occurs following consensual search when incriminating evidence found.
- When a person granted a police officer's request to enter and search the person's home and the search revealed certain evidence relating to a recent offense, at which point the officer officially placed the person under arrest, the arrest occurred upon the discovery of the evidence and was lawful, despite the officer's testimony at a suppression hearing that the officer probably would not have allowed the defendant to have left the premises as the officer conducted the search, and when there was no evidence of the officer exercising, verbally or physically, any control over the defendant's freedom, or of the defendant submitting to being under arrest, until the search revealed the evidence. Dawson v. State, 166 Ga. App. 199, 303 S.E.2d 532 (1983).
Handcuffed prisoner was "under arrest."
- Defendant, who was handcuffed and transported to the county jail in a sheriff's vehicle, led handcuffed into the jail, and left there behind locked doors, was "under arrest". State v. Nelson, 261 Ga. 246, 404 S.E.2d 112 (1991).
Cited in Barron v. State, 109 Ga. App. 786, 137 S.E.2d 690 (1964); Nicholson v. United States, 355 F.2d 80 (5th Cir. 1966); Davidson v. State, 125 Ga. App. 502, 188 S.E.2d 124 (1972); Cash v. State, 136 Ga. App. 149, 221 S.E.2d 63 (1975); Rose v. State, 249 Ga. 628, 292 S.E.2d 678 (1982); City of Marietta v. Kelly, 175 Ga. App. 416, 334 S.E.2d 6 (1985).
OPINIONS OF THE ATTORNEY GENERALSheriffs are not immune to arrest, and may be treated as private citizens when implicated in criminal matters. 1973 Op. Att'y Gen. No. 73-93.
RESEARCH REFERENCES
Am. Jur. 2d.
- 5 Am. Jur. 2d, Arrest, § 1 et seq.
C.J.S.- 22 C.J.S., Criminal Procedure and Rights of the Accused, §§ 44 et seq., 47 et seq.
ALR.
- Degree of force that may be employed in arresting one charged with a misdemeanor, 42 A.L.R. 1200.
Liability, for false arrest or imprisonment, of private person detaining child, 20 A.L.R.3d 1441.