The arresting officer shall take the arrested person before the most convenient and accessible judicial officer authorized to hear the case unless the arrested person requests otherwise, in which case, if there is no suspicion of improper motive, the arresting officer shall take him before some other judicial officer. An arrested person has no right to select the judicial officer before whom he shall be tried.
(Orig. Code 1863, § 4599; Code 1868, § 4621; Code 1873, § 4718; Code 1882, § 4718; Penal Code 1895, § 897; Penal Code 1910, § 918; Code 1933, § 27-208.)
Cross references.- Delivery of mentally ill persons, alcoholics, and others to emergency receiving facilities upon apprehension by peace officer, §§ 37-3-41,37-3-42,37-7-41,37-7-42.
Initial appearance hearing in magistrate court, Uniform Rules for the Magistrate Courts, Rule 13.
JUDICIAL DECISIONS
Duty of custodians.
- Although the plain language of O.C.G.A. §§ 17-4-21 and17-4-26 directs the "arresting" officer to bring the detainee before a judicial officer, but omits any similar directive for custodians or third party entities entrusted with incarcerating the arrestee, the court was unwilling to allow Burke County, Georgia, to hide behind a technicality. However, whether the county's inaction amounted to a constitutional violation could not be resolved until the facts surrounding the agreement between the City of Midville and Burke County and the relationship between the Midville Police Department and the Burke County Sheriff's Department were more fully developed. Bunyon v. Burke County, 306 F. Supp. 2d 1240 (S.D. Ga. 2004).
Discretion of arresting officer.
- Arresting officer has discretion to take arrested person before most convenient and accessible judicial officer authorized to hear the cause. Gill v. Decatur County, 129 Ga. 697, 201 S.E.2d 21 (1973).
Justice of peace cannot become a court when the warrant was not returnable to that justice of the peace. Ormond v. Ball, 120 Ga. 916, 48 S.E. 383 (1904).
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 the 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 Fox v. State, 34 Ga. App. 74, 128 S.E. 222 (1925); Harris v. Norris, 188 Ga. 610, 4 S.E.2d 840 (1939).
OPINIONS OF THE ATTORNEY GENERAL
Justice of peace cannot order commitment hearing when police officer set bond.
- Since a justice of the peace cannot issue a special warrant for arrest returnable only to the justice, it follows that the justice cannot order a commitment hearing when the arresting officer has purported to personally set bond. 1970 Op. Att'y Gen. No. U70-152.
RESEARCH REFERENCES
Am. Jur. 2d.
- 5 Am. Jur. 2d, Arrest, § 8 et seq.
ALR.
- Unlawfulness of arrest as affecting jurisdiction or power of court to proceed in criminal case, 96 A.L.R. 982.