The third type of police citizen encounter is an arrest. An arrest must be based upon probable cause. The amount of evidence necessary to establish probable cause is much less than that level required to prove guilt beyond a reasonable doubt. “The test of probable cause requires merely a probability – less than a certainty but more than a mere suspicion or possibility.” Lewis v. State, A12A1118; State v. Burke, 298 Ga. App. 621 (2009). Probable cause “can rest upon the collective knowledge of the police when there is some degree of communication between them.” Burgeson v. State, 267 Ga. 102 (1996); Brown v. State, 151 Ga. App. 830 (1979).
Arrest Warrants
The determination of probable cause is made when the police officer obtains an arrest warrant from a magistrate judge. The police present an affidavit setting forth the facts they believe support the issuance of an arrest warrant. The judge signs the warrant giving the police the authority to arrest the suspect. O.C.G.A. § 17-4-40; O.C.G.A. § 17-4-41.
An arrest warrant is enough to enter a suspect's home to arrest the person. Almodovar v. State, 289 Ga. 494 (2011). However, the police may not enter a person's home to arrest him without a warrant even if they have probable cause. Carranza v. State, 266 Ga. 263 (1996); McCauley v. State, 222 Ga. App. 600 (1996). Even where probable cause exists, warrantless intrusion of a person's home is prohibited by the Fourth Amendment, absent consent or a showing of exigent (emergency) circumstances. Steagald v. United States, 451 U.S. 204 (1981). Exigent circumstances may exist when a warrantless entry is necessary for the police "to preserve public order, to maintain the peace, and to protect lives, persons, property, health, and morals. In these cases, police do not enter a residence for the purpose of arresting or seizing evidence against an occupant; rather, they enter in response to what they reasonably perceive as an emergency involving a threat to life or property." Staib v. State, 309 Ga. App. 785 (2011); Love v. State, 290 Ga. App. 486 (2008).
The police are entitled to briefly detain occupants of a house pending a search. Owens v. State, A15A0419. Such brief, legal detention does not require Miranda Warning. Tolliver v. State, 273 Ga. App. 785 (2001); Zachary v. State 262 Ga. App. 646 (2003). An officer can also enter a home to arrest a suspect when the officer has followed the suspect there in hot pursuit. State v. Nichols, 225 Ga. App. 609 (1997).
A law enforcement officer may not legally search for a person whom they have an arrest warrant for in the home of a third person. In order to go into the third person's home, the police must have a search warrant, the consent of the third person, or some emergency situation which justifies the officer going into the home. Looney v. State, 293 Ga. App. 639 (2008); Bowden v. State, 304 Ga. App. 896 (2010); O.C.G.A. § 17-4-3.
If an officer stops an individual outside his home, requests a computer check on the individual, and is told that there is an outstanding arrest warrant for the individual, the officer may lawfully arrest the individual and search him as part of the arrest, and any seized contraband will be admissible to support additional criminal charges against the individual, even if it is later discovered that no valid warrant existed at the time of the arrest. Coney v. State, 316 Ga. App. 303 (2012); State v. Edwards, 307 Ga. App. 267 (2010); Harvey v. State, 266 Ga. 671 (1996). However, an arrest based on a lookout issued in the absence of probable cause is unlawful. Whiteley v. Warden, 401 U.S. 560 (1971) (arrest made in reliance on radio bulletin issued by officer who had obtained arrest warrants for the defendant without establishing probable cause was unlawful); Delarosa v. State, 304 Ga. App. 4 (2010).
Warrantless Arrest
A police officer may arrest someone even without a warrant for their arrest. This is called a warrantless arrest. A warrantless arrest is valid if there is probable cause to arrest. Probable cause exists if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a reasonable person in believing that the accused had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89 (1964); Lawrence v. State, 300 Ga. App. 731 (2009); Shears v. State, A15A0076. The determination of whether probable cause existed at the time of arrest is made at a later judicial proceeding. Sacchinelli v. State, 161 Ga. App. 763 (1982). In determining whether probable cause existed, the totality of the circumstances must be considered. Morgan v. State, 309 Ga. App. 740 (2011). "Circumstantial evidence may give rise to probable cause as long as it is sufficient to warrant a prudent man in believing that the suspect had committed or was committing an offense." McKenzie v. State, 208 Ga. App. 683 (1993).
Flight (running from the police) plus other circumstances may be sufficient probable cause to uphold a warrantless arrest. Jones v. State, 195 Ga. App. 868 (1990). An officer may arrest a person without an arrest warrant if an offense was committed in the officer's presence. O.C.G.A. § 17-4-20.
The remedy for an illegal arrest is the exclusion of any evidence obtained as a result of that arrest not the dismissal of the case. Goodman v. State,313 Ga. App. 290 (2011); Austin v. State, 286 Ga. App. 149 (2007).
In resisting an unlawful arrest, one is justified in using force, but only such force as is reasonably necessary to prevent the arrest. Walker v. State, 314 Ga. App. 67 (2012); Brooks v. State, 144 Ga. App. 97 (1977). A person being unlawfully arrested is not justified in assaulting a police officer unless the officer has assaulted the person first. O'Neal v. State, 311 Ga. App. 102 (2011); Meadows v. State, 303 Ga. App. 40 (2010).
Citizen's Arrest
A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge. O.C.G.A. § 17-4-60. A private person who makes a citizen's arrest must without any unnecessary delay, take the person arrested before a judge or police officer. O.C.G.A. § 17-4-61 (a); O.C.G.A. § 17-4-62. Once the police arrest the person, a criminal case has begun. The person arrested becomes known as the defendant. The case is prosecuted on behalf of the State of Georgia, also referred to as the State.