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AGO 1958 No. 196 - May 26, 1958
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John J. O'Connell | 1957-1968 | Attorney General of Washington

ARREST ‑- WITHOUT WARRANT ‑- PROBATION VIOLATOR ‑- DETENTION PENDING HEARING.

CUSTODIAN OF JAIL ‑- RIGHT TO DETAIN PROBATION VIOLATOR ARRESTED BY PROBATION OFFICER.

JAILS ‑- RIGHT TO DETAIN PROBATIONER ARRESTED WITHOUT WARRANT.

A state probation officer may arrest a probation violator without a warrant, but it is his duty to take him with reasonable promptness before the court granting the probation for disposition; and if for any reason he cannot be disposed of by the court at that time, his right to further detention is dependent upon the issuance of a warrant.  The sheriff, as custodian of the jail, may, but is not required to, detain a probationer arrested without a warrant by a state probation officer for a parole violation.

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                                                                   May 26, 1958

Honorable James D. Skaggs
Chairman
Board of Prison Terms & Paroles
201 Institutions Building
Olympia, Washington                                                                   Cite as:  AGO 57-58 No. 196

Dear Sir:

            In a letter, previously acknowledged, you have asked the opinion of this office on the following question:

            Where a parole officer has arrested a probationer for violating the terms of his probation, is the sheriff required to hold the probationer without a warrant pending the court's hearing on revocation?

            We answer your question in the negative.

                                                                     ANALYSIS

            The statute governing violation of probation and authorizing rearrest is found in  [[Orig. Op. Page 2]] RCW 9.95.220, which in so far as pertinent to your inquiry provides:

            "Whenever the state parole officer or other officer under whose supervision the probationer has been placed shall have reason to believe such probationer is violating the terms of his probation, or engaging in criminal practices, or is abandoned to improper associates, or living a vicious life, he shall cause the probationer to be brought before the court wherein the probation was granted.  For this purpose any peace officer or state parole officer may rearrest any such person without warrant or other process.  The court may thereupon in its discretion without notice revoke and terminate such probation. . . ."

            This statute authorizes the arrest of any probationer by any peace officer, as well as a state probation officer, without a warrant, for the purpose of causing him to be brought "before the court" when there is "reason to believe" he is violating his probation.  This contemplates a hearing where the defendant can be heard even though the statute permits the court to revoke and terminate the probation "without notice."  (Cf.State v. O'Neal (1928), 147 Wash. 169, involving the revocation of a suspended sentence under RRS 2280, now RCW 9.92.060.)

            The question resolves itself into the procedure which should be followed in the interim between the arrest and the time he is brought before the court for a hearing.  Obviously, since an arrest without a warrant is authorized, some detention prior to the hearing must be contemplated.

            Where an officer makes an arrest without a warrant, the applicable general rule requires that the prisoner be taken with reasonable promptness before the magistrate having jurisdiction for a hearing in connection with the matters bringing about his arrest; and that the officer's authority to detain him continues only for such time as may reasonably be necessary to procure a warrant or bring him before the court.  (4 Am. Jur., Arrest, § 70.)  When the officer acts without undue delay, he may confine the prisoner in jail pending his production in court, or the issuance of a warrant authorizing his continued custody pending the hearing.  (6 C.J.S., Arrest, § 17a.)

            By statute in this state, the sheriff is custodian of the county jail and the prisoners therein confined.  (RCW 36.63.020;Association Collectors, Inc. v. King County (1938), 194 Wash. 25.)  However, although it is his duty to receive and keep  [[Orig. Op. Page 3]] safely in jail all prisoners committed, he apparently is under no obligation to receive a prisoner from another arresting agency without written evidence of authority to receive and hold him.  (72 C.J.S., Prisons, § 18b.)  As custodian of the jail, the sheriff is required to receive and keep a prisoner pursuant to a warrant, and may, if he sees fit, receive such prisoner arrested without a warrant until he can, with reasonable promptness, be taken before the court, or a warrant issued authorizing his further detention.  It follows, therefore, that even though the probation officer has a right to arrest a probationer without a warrant and to detain him until he can with reasonable promptness take him before the court, or obtain a warrant authorizing his further detention, the sheriff may, but is not required to, hold him during the same period for the same purposes.  The solution of your problem would seem to be an administrative one between the various public officials involved whereby some agreement is reached as to the manner in which such prisoners be detained pending the hearing by the court.  This could be accomplished by the probation officer, after making his arrest, either immediately taking his prisoner before the court for disposition or securing a warrant for his further detention, during which period the sheriff would detain him in jail with the knowledge and understanding that the detention is only for so long as will reasonably enable the probation officer to take the prisoner into court or enable him to obtain a warrant authorizing the prisoner's further detention by the sheriff.  It might be pointed out that when the sheriff accepts the custody of the prisoner under such circumstances, he is authorized to take him before the court if he sees fit in order that the hearing may be had or a warrant issued authorizing his continued detention.  (Alexander, The Law of Arrest, § 150.)

            Based on the foregoing, we conclude that a probation officer has the authority to arrest a probationer without a warrant for a probation violation; that it is his duty thereupon to take him with reasonable promptness before the court granting the probation for disposition; that if for any reason a hearing cannot be had thereon at that time, his right to further detention is dependent upon the issuance of a warrant therefor; and that pending the probationer being brought before the court; the sheriff, as custodian of the jail, may, but is not required to, detain the probationer without a warrant, and that he may so detain the probationer without a warrant only for so long as will be necessary to take him promptly before the court.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MITCHELL DOUMIT
Assistant Attorney General

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