Investigation of Illegal Alien Status

  1. Law
  2. Georgia Code
  3. Criminal Procedure
  4. Searches and Seizures
  5. Immigrants
  6. Investigation of Illegal Alien Status

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  1. As used in this Code section, the term:
    1. "Criminal violation" means a violation of state or federal criminal law but shall not include a violation of a county or municipal law, regulation, or ordinance.
    2. "Illegal alien" means a person who is verified by the federal government to be present in the United States in violation of federal immigration law.
  2. Except as provided in subsection (f) of this Code section, during any investigation of a criminal suspect by a peace officer, when such officer has probable cause to believe that a suspect has committed a criminal violation, the officer shall be authorized to seek to verify such suspect's immigration status when the suspect is unable to provide one of the following:
    1. A secure and verifiable document as defined in Code Section 50-36-2;
    2. A valid Georgia driver's license;
    3. A valid Georgia identification card issued by the Department of Driver Services;
    4. If the entity requires proof of legal presence in the United States before issuance, any valid driver's license from a state or district of the United States or any valid identification document issued by the United States federal government;
    5. A document used in compliance with paragraph (2) of subsection (a) of Code Section 40-5-21; or
    6. Other information as to the suspect's identity that is sufficient to allow the peace officer to independently identify the suspect.
  3. When attempting to determine the immigration status of a suspect pursuant to subsection (b) of this Code section, a peace officer shall be authorized to use any reasonable means available to determine the immigration status of the suspect, including:
    1. Use of any authorized federal identification data base;
    2. Identification methods authorized by federal law, including those authorized by 8 U.S.C.A. Section 1373(c) and 8 U.S.C.A. Section 1644;
    3. Use of electronic fingerprint readers or similar devices; or
    4. Contacting an appropriate federal agency.
  4. A peace officer shall not consider race, color, or national origin in implementing the requirements of this Code section except to the extent permitted by the Constitutions of Georgia and of the United States.
  5. If during the course of the investigation into such suspect's identity, a peace officer receives verification that such suspect is an illegal alien, then such peace officer may take any action authorized by state and federal law, including, but not limited to, detaining such suspected illegal alien, securely transporting such suspect to any authorized federal or state detention facility, or notifying the United States Department of Homeland Security or successor agency. Nothing in this Code section shall be construed to hinder or prevent a peace officer or law enforcement agency from arresting or detaining any criminal suspect on other criminal charges.
  6. No person who in good faith contacts or has contact with a state or local peace officer or prosecuting attorney or member of the staff of a prosecuting attorney for the purpose of acting as a witness to a crime, to report criminal activity, or to seek assistance as a victim to a crime shall have his or her immigration status investigated based on such contact or based on information arising from such contact.
  7. A peace officer, prosecuting attorney, or government official or employee, acting in good faith to carry out any provision of this Code section, shall have immunity from damages or liability from such actions.

(Code 1981, §17-5-100, enacted by Ga. L. 2011, p. 794, § 8/HB 87; Ga. L. 2012, p. 775, § 17/HB 942.)

Law reviews.

- For article, "State Government: Illegal Immigration Reform and Enforcement Act of 2011," see 28 Ga. St. U.L. Rev. 51 (2011). For comment, "Aliens in a Foreign Field: Examining Whether States have the Authority to Pass Legislation in the Field of Immigration Law," see 63 Mercer L. Rev. 1077 (2012).

JUDICIAL DECISIONS

Standing.

- In a pre-enforcement constitutional challenge to sections 7 and 8 of Georgia House Bill 87, the Illegal Immigration Reform and Enforcement Act of 2011, in which Georgia officials appealed a district court's entry of a preliminary injunction enjoining enforcement of those two sections, an undocumented immigrant currently classified under deferred action status had standing to challenge section 8. Such an alien remained permissibly in the United States but had not acquired the requisite documentation to stave off the investigatory detention permitted by section 8, and such an alien faced a credible threat of detention under section 8 as the alien possessed none of the listed documentation to prove that the alien had permission to remain temporarily in the United States. Ga. Latino Alliance for Human Rights v. Governor of Ga., 691 F.3d 1250 (11th Cir. 2012).

CHAPTER 6 BONDS AND RECOGNIZANCES Article 1 General Provisions.
  • 17-6-1. (For effective date, see note.) When offenses bailable; procedure; schedule of bails; appeal bonds.
  • 17-6-1.1. Electronic pretrial release and monitoring program for defendants; requirements; procedures; fees.
  • 17-6-2. Acceptance of bail in misdemeanor cases; posting driver's license as collateral for bail.
  • 17-6-3. Acceptance of recognizance bonds for military personnel.
  • 17-6-4. (For effective date, see note.) Authorization of posting of cash bonds generally; furnishing of receipt to person posting bond; recordation of receipt of bond on docket; disposal of unclaimed bonds.
  • 17-6-5. Acceptance of cash bonds for certain offenses; authorization.
  • 17-6-6. Clerk of court or judge to provide cash receipt book; furnishing of copies of receipt; disposition of original receipt and bond.
  • 17-6-7. Liability of arresting officer for failure to account for cash receipts and bonds.
  • 17-6-8. Proceedings upon failure of person arrested to appear; forfeiture of bond not a bar to subsequent prosecution.
  • 17-6-9. Acceptance of cash bonds in lieu of statutory bond or recognizance by officers or officials authorized to enforce "Comprehensive Litter Prevention and Abatement Act of 2006."
  • 17-6-10. Acceptance of cash bonds for violations of ordinances or other offenses against municipalities; issuance of receipt; designated officials; effect of failure to appear in court; applicability to municipalities having similar provisions.
  • 17-6-11. Display of driver's license for violation of certain traffic related laws; notice of failure to appear; suspension of license; arrest; seizure of license.
  • 17-6-12. (For effective date, see note.) Unsecured judicial release; requirement; effect of failure of person charged to appear for trial.
  • 17-6-13. First bail for offense permitted as matter of right; subsequent bails to be in discretion of court.
  • 17-6-14. Use of bail bond posted for preliminary hearing for trial appearance; applicability to federal proceedings; proceedings in county other than where commitment hearing held; effect where bail bond required is less than bond originally posted.
  • 17-6-15. Necessity for commitment where bail tendered and accepted; opportunity for bail; receipt of bail after commitment and imprisonment; imprisonment of person who offers bond for amount of bail set; effect upon common-law authority of court.
  • 17-6-16. Entry of memorandum on warrant after waiver of commitment hearing and tender of bail.
  • 17-6-17. Bond or recognizance to be conditioned on appearance of person accused of crime at arraignment; proceedings upon failure of accused to appear.
  • 17-6-18. Amendment of bonds and giving of new security.
Article 2 Sureties. Part 1 GENERAL PROVISIONS.
  • 17-6-30. Fees of sureties.
  • 17-6-31. Surrender of principal by surety; forfeiture of bond; death of principal.
Part 2 PROFESSIONAL BONDSMEN.
  • 17-6-50. Persons deemed professional bondsmen; criminal background investigation information to be provided to clerk of court.
  • 17-6-50.1. Continuing education programs for professional bondsmen; fee; annual requirement; certificate of completion.
  • 17-6-51. Suggesting employment of attorneys during negotiations regarding signing of bond or any time subsequent thereto.
  • 17-6-52. Soliciting business or loitering around jails or courts to solicit business; giving of advice by law enforcement officers as to services of professional bondsmen.
  • 17-6-53. Giving advice or directions to defendants who are principals in bonds regarding defense or disposition of cases.
  • 17-6-54. No further compensation after becoming surety; when sum received to be returned to defendant; right to surrender defendant and to keep sum paid when defendant forfeits.
  • 17-6-55. Penalty for violation of part.
  • 17-6-56. Bail recovery agents; requirements; registration.
  • 17-6-56.1. Continuing education programs for bail recovery agents; fee; annual requirement; certificate of completion.
  • 17-6-57. Bail recovery agents; notification to local police; out-of-state agents; identification card.
  • 17-6-58. Penalty for violation; liability.
Article 3 Proceedings for Forfeiture of Bonds or Recognizances.
  • 17-6-70. When forfeiture occurs.
  • 17-6-70.1. Proceedings for forfeiture of bonds or recognizances generally [Repealed].
  • 17-6-71. Execution hearing on failure of principal to appear.
  • 17-6-72. Conditions not warranting forfeiture of bond for failure to appear; remission of forfeiture.
  • 17-6-73. Address of principal and surety on bond or recognizance.
Article 4 Bonds for Good Behavior and to Keep the Peace. Part 1

B

ONDS FOR GOOD BEHAVIOR

  • 17-6-90. Issuance of notice to appear for show cause hearing; requirement of bond; hearing; payment of court costs by affiant; issuance of order of arrest.
  • 17-6-91. Extension of bond by court; right of sureties to surrender principal.
  • 17-6-92. Violation of bond; contempt of court.
  • 17-6-93. Redesignated.
  • 17-6-94. Redesignated.
Part 2 BONDS TO KEEP THE PEACE.
  • 17-6-110. Issuance of warrant; requirement of bond; hearing; payment of costs by affiant.
  • 17-6-111. Right of person to require bond against spouse.
  • 17-6-112. Actions constituting violations of bond; right of action for breach of bond generally; imposition of additional penalty for contempt of court; finding of prosecuting witness in contempt.
  • 17-6-113. Effect of provoking breach of bond.
  • 17-6-114. Discharge or extension of bond by court.
Cross references.

- Prohibition against excessive bail, U.S. Const., amend. 8 and Ga. Const. 1983, Art. I, Sec. I, Para. XVII.

Witness bonds in the event of commitment by court, §§ 17-7-26,17-7-27.

Bonds and first appearance, Uniform State Court Rules, Rule 26.1.

Bond hearings in Juvenile Court, Uniform Rules for the Juvenile Courts of Georgia, Rules 9.1 and 9.2.

U.S. Code.

- Release from custody, Federal Rules of Criminal Procedure, Rule 46.

Law reviews.

- For article, "Injustice Under Law: Perpetuating and Criminalizing Poverty Through the Courts," see 33 Ga. St. U.L. Rev. 695 (2017). For article, "Bail and Mass Incarceration," see 53 Ga. L. Rev. 238 (2018).

JUDICIAL DECISIONS

Cited in Sunrise Bonding Co. v. Busbee, 165 Ga. App. 83, 299 S.E.2d 153 (1983).

RESEARCH REFERENCES

Excessive Bail, 18 POF2d 149.

ALR.

- Surrender of principal by sureties on bail bond, 3 A.L.R. 180; 73 A.L.R. 1369.

Bail: imposition of life sentence as affecting capital character of offense, 3 A.L.R. 970.

Induction of principal into military or naval service as exonerating his bail for nonappearance, 8 A.L.R. 371; 147 A.L.R. 1428; 148 A.L.R. 1400; 150 A.L.R. 1447; 151 A.L.R. 1462; 152 A.L.R. 1459; 153 A.L.R. 1431; 154 A.L.R. 1456; 156 A.L.R. 1457; 157 A.L.R. 1456.

Right to give bail in civil action or proceeding, 15 A.L.R. 1079.

Constitutional right to bail pending appeal from conviction, 19 A.L.R. 807; 77 A.L.R. 1235.

Disciplinary power of court in respect of suretyship in judicial proceedings, 91 A.L.R. 889.

Necessity of reference in bail bond to specific crime, 103 A.L.R. 535.

Rape as bailable offense, 118 A.L.R. 1115.

Right of surety on recognizance or bail bond to indemnity or contribution, 170 A.L.R. 1161.

Insanity of accused as affecting right to bail in criminal case, 11 A.L.R.3d 1385.

Validity, construction, and application of statutes regulating bail bond business, 13 A.L.R.3d 618.

Dismissal or vacation of indictment as terminating liability or obligation of surety on bail bond, 18 A.L.R.3d 1354.

Application of state statutes establishing pretrial release of accused on personal recognizance as presumptive form of release, 78 A.L.R.3d 780.

Promise by one other than principal to indemnify on agreeing to become surety or guarantor as within statute of frauds, 13 A.L.R.4th 1153.

Liability of surety on bail bond taken without authority, 27 A.L.R.4th 246.

Right of defendant in state court to bail pending appeal from conviction - modern cases, 28 A.L.R.4th 227.

Bail: duration of surety's liability on pretrial bond, 32 A.L.R.4th 504.

Bail: duration of surety's liability on post-trial bail bond, 32 A.L.R.4th 575.

Bail: effect on liability of bail bond surety of state's delay in obtaining indictment or bringing defendant to trial, 32 A.L.R.4th 600.

Bail: effect on surety's liability under bail bond of principal's incarceration in other jurisdiction, 33 A.L.R.4th 663.

State statutes making default on bail a separate offense, 63 A.L.R.4th 1064.

Forfeiture of bail for breach of conditions of release other than that of appearance, 68 A.L.R.4th 1082.

Propriety of applying cash bail to payment of fine, 42 A.L.R.5th 547.

Failure of person, released pursuant to provisions of Federal Bail Reform Act of 1966 (18 USCS § 3141 et seq.), to make appearance as subjecting person to penalty provided for by 18 USCS § 3150, 66 A.L.R. Fed. 668.

ARTICLE 1 GENERAL PROVISIONS

Law reviews.

- For note, "Pretrial Detention of Indigents: A Standard Analysis of Due Process and Equal Protection Claims," see 54 Ga. L. Rev. 707 (2020).

JUDICIAL DECISIONS

Applicability in federal proceeding.

- Habeas corpus plaintiff, protesting conditions of the plaintiff's detention for a state criminal violation, had to look to state law for any rights the plaintiff might have regarding bond. Datz v. Hutson, 806 F. Supp. 982 (N.D. Ga. 1992), aff'd, 14 F.3d 58 (11th Cir. 1994).

RESEARCH REFERENCES

C.J.S.

- 8 C.J.S., Bail; Release and Detention Pending Proceedings, §§ 25 et seq., 34 et seq., 57 et seq., 66 et seq., 153 et seq.


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