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.
(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.)
Cross references.- 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.
Editor's notes.- 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.
Law reviews.- 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.
Oath needed to make affidavit basis of trial.
- 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).
Affiant's belief equivalent to swearing of facts.
- 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).
Signatures.- 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).
Justice of peace issuing warrant judicial act, but not act of court.
- 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).
Warrant application hearing not required.
- 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 supported by probable cause.
- 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).
Any citizen may procure warrant.
- 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 accusing other woman of adultery with husband.
- 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 accusing other man of adultery with wife.
- 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).
Civil protective custody did not constitute a criminal arrest.
- 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).
Challenge to arrest warrant unwarranted.
- 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).
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.
Justice of the peace may issue warrants.
- 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.
Special small claims court judges and mayors may issue warrants.- 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.
Arrest warrants for persons under 17 years.- Magistrate may issue arrest warrants for persons under the age of 17. 1984 Op. Att'y Gen. No. U84-30.
Dismissal of warrant.- 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.
C.J.S.- 22 C.J.S., Criminal Procedure and Rights of the Accused, § 47 et seq.