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HB 259 - Arrest warrants; issuance; amend provisions

Randall, William (Billy) C (127th)	Martin, Jim (47th)	Allen, Ben (117th)
Jones, Vernon A (71st)	Smith, Larry (109th)

Status Summary	HC:	SJudy	SC:	S Judy	FR:	01/27/99	LA:	01/10/00	S - Read 3rd Time (CSFA ) (Am )

First Reader Summary

A BILL to amend Article 3 of Chapter 4 of Title 17 of the Official Code of Georgia Annotated, relating to warrants for arrest, so as to change provisions relating to issuance of warrants for arrest; to require probable cause; to allow issuance of a warrant based upon information from persons other than peace officers after notice and hearing; and for other purposes.

Code Sections - 17-4-40

HB 259                                            HB 259/CSFA 
 
      H. B. No. 259 (COMMITTEE SUBSTITUTE) (AM) 
      By:  Representatives Randall of the 127th, Martin of the 
      47th, Allen of the 117th, Jones of the 71st and Smith of the 
      109th 
 
                        A BILL TO BE ENTITLED 
                               AN ACT 
 
 
  1- 1  To amend Article 3 of Chapter 4 of Title 17 of the Official 
  1- 2  Code of Georgia Annotated, relating to warrants for arrest, 
  1- 3  so as to change provisions relating to issuance of warrants 
  1- 4  for arrest; to provide for issuance of a warrant based upon 
  1- 5  information from persons other than peace officers or law 
  1- 6  enforcement officers after attempted notice and hearing; to 
  1- 7  provide for exceptions; to provide for procedures and rules 
  1- 8  regarding evidence and cross-examination at the warrant 
  1- 9  application hearing; to provide that a warrant shall not be 
  1-10  quashed and evidence shall not be suppressed in certain 
  1-11  circumstances; to provide for an effective date; to repeal 
  1-12  conflicting laws; and for other purposes. 
 
  1-13       BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: 
 
  1-14                           SECTION 1. 
 
  1-15  Article 3 of Chapter 4 of Title 17 of the Official Code of 
  1-16  Georgia Annotated, relating to warrants for arrest, is 
  1-17  amended by striking in its entirety Code Section 17-4-40, 
  1-18  relating to persons who may issue warrants for the arrest of 
  1-19  offenders against penal laws and for the arrest of peace 
  1-20  officers, and inserting in its place the following: 
 
  1-21    "17-4-40. 
 
  1-22    (a) Any judge of a superior, city, state, or magistrate 
  1-23    court or any municipal officer clothed by law with the 
  1-24    powers of a magistrate may issue his a warrant for the 
  1-25    arrest of any offender against the penal laws, based on 
  1-26    probable cause either on his the judge's or officer's own 
  1-27    knowledge or on the information of others given to him the 
  1-28    judge or officer under oath.  Any retired judge or judge 
  1-29    emeritus of a state court may likewise issue arrest 
  1-30    warrants if authorized in writing to do so by an active 
  1-31    judge of the state court of the county wherein the 
  1-32    warrants are to be issued. 
 
  1-33      (b)(1) If application is made for a warrant by a person 
  1-34      other than a peace officer or law enforcement officer 
 
 
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  2- 1      and the application alleges the commission of an offense 
  2- 2      against the penal laws, the judge or other officer shall 
  2- 3      schedule a warrant application hearing as provided in 
  2- 4      this subsection unless the person accused has been taken 
  2- 5      into custody by a peace officer or law enforcement 
  2- 6      officer or except as provided in paragraph (6) of this 
  2- 7      subsection. 
 
  2- 8      (2) Except as otherwise provided in paragraph (6) of 
  2- 9      this subsection, a warrant application hearing shall be 
  2-10      conducted only after attempting to notify the person 
  2-11      whose arrest is sought by any means approved by the 
  2-12      judge or other officer which is reasonably calculated to 
  2-13      apprise such person of the date, time, and location of 
  2-14      the hearing. 
 
  2-15      (3) If the person whose arrest is sought does not appear 
  2-16      for the warrant application hearing, the judge or other 
  2-17      officer shall proceed to hear the application and shall 
  2-18      note on the warrant application that such person is not 
  2-19      present. 
 
  2-20      (4) At the warrant application hearing, the rules 
  2-21      regarding admission of evidence at a commitment hearing 
  2-22      shall apply.  The person seeking the warrant shall have 
  2-23      the customary rights of presentation of evidence and 
  2-24      cross-examination of witnesses.  The person whose arrest 
  2-25      is sought may cross-examine the person or persons 
  2-26      applying for the warrant and any other witnesses 
  2-27      testifying in support of the application at the hearing. 
  2-28      The person whose arrest is sought may present evidence 
  2-29      that probable cause does not exist for his or her 
  2-30      arrest.  The judge or other officer shall have the right 
  2-31      to limit the presentation of evidence and the 
  2-32      cross-examination of witnesses to the issue of probable 
  2-33      cause. 
 
  2-34      (5) At the warrant application hearing, a determination 
  2-35      shall be made whether or not probable cause exists for 
  2-36      the issuance of a warrant for the arrest of the person 
  2-37      whose arrest is sought. If the judge or other officer 
  2-38      finds that probable cause exists, the warrant may issue 
  2-39      instanter. 
 
  2-40      (6) Nothing in this subsection shall be construed as 
  2-41      prohibiting a judge or other officer from immediately 
  2-42      issuing a warrant for the arrest of a person upon 
  2-43      application of a person other than a peace officer or 
 
 
 
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  3- 1      law enforcement officer if the judge or other officer 
  3- 2      determines from the application or other information 
  3- 3      available to the judge or other officer that: 
 
  3- 4        (A) An immediate or continuing threat exists to the 
  3- 5        safety or well-being of the affiant or a third party; 
 
  3- 6        (B) The person whose arrest is sought will attempt to 
  3- 7        evade arrest or otherwise obstruct justice if notice 
  3- 8        is given; 
 
  3- 9        (C) The person whose arrest is sought is incarcerated 
  3-10        or otherwise in the custody of a local, state, or 
  3-11        federal law enforcement agency; 
 
  3-12        (D) The person whose arrest is sought is a fugitive 
  3-13        from justice; or 
 
  3-14        (E) The offense for which application for a warrant is 
  3-15        made is deposit account fraud under Code Section 
  3-16        16-9-20, and the person whose arrest is sought has 
  3-17        previously been served with the ten-day notice as 
  3-18        provided in paragraph (2) of subsection (a) of Code 
  3-19        Section 16-9-20.  
 
  3-20      In the event that the judge or officer finds such 
  3-21      circumstances justifying dispensing with the requirement 
  3-22      of a warrant application hearing, the judge or officer 
  3-23      shall note such circumstances on the face of the warrant 
  3-24      application. 
 
  3-25      (7) No warrant shall be quashed nor evidence suppressed 
  3-26      because of any irregularity in proceedings conducted 
  3-27      pursuant to this subsection not affecting the 
  3-28      substantial rights of the accused under the Constitution 
  3-29      of this state or of the United States. 
 
  3-30    (c) Any warrant for the arrest of a peace officer or law 
  3-31    enforcement officer for any offense alleged to have been 
  3-32    committed while in the performance of his or her duties 
  3-33    may be issued only by a judge of a superior court, a judge 
  3-34    of a state court, or a judge of a probate court." 
 
  3-35                           SECTION 2. 
 
  3-36  This Act shall become effective July 1, 1999. 
 
  3-37                           SECTION 3. 
 
  3-38  All laws and parts of laws in conflict with this Act are 
  3-39  repealed. 
 
 
 
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