Senate Bill 2544

AN ACT TO AMEND SECTION 99-3-28, MISSISSIPPI CODE OF 1972, TO REQUIRE A PROBABLE CAUSE HEARING UPON A CRIMINAL AFFIDAVIT PRIOR TO ISSUANCE OF ANY ARREST WARRANT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 99-3-28, Mississippi Code of 1972, is amended as follows:

99-3-28. (1) (a) (i) Except as provided in subsection (2) of this section, before an arrest warrant shall be issued against any teacher who is a licensed public school employee as defined in Section 37-9-1, a certified jail officer as defined in Section 45-4-9, a counselor at an adolescent offender program created under Section 43-27-201 et seq., or a sworn law enforcement officer within this state as defined in Section 45-6-3 for a criminal act, whether misdemeanor or felony, which is alleged to have occurred while the teacher, jail officer, counselor at an adolescent offender program or law enforcement officer was in the performance of official duties, a probable cause hearing shall be held before a circuit court judge. The purpose of the hearing shall be to determine if adequate probable cause exists for the issuance of a warrant. All parties testifying in these proceedings shall do so under oath. The accused shall have the right to enter an appearance at the hearing, represented by legal counsel at his own expense, to hear the accusations and evidence against him; he may present evidence or testify in his own behalf.

(ii) The authority receiving any such charge or complaint against a teacher, jail officer, counselor at an adolescent offender program or law enforcement officer shall immediately present same to the county prosecuting attorney having jurisdiction who shall immediately present the charge or complaint to a circuit judge in the judicial district where the action arose for disposition pursuant to this section.

(b) Except as provided in paragraph (a) of this subsection, before an arrest warrant based on the criminal complaint of a person who is not a law enforcement officer acting in the officer's official capacity shall be issued against any person not covered under paragraph (a), whether misdemeanor or felony, the appropriate judge shall make a determination as to whether the affidavit clearly alleges probable cause to believe that the offense complained of has been committed, with or without hearing, at the discretion of the court. If the judge elects to hold a probable cause hearing, parties testifying shall do so under oath and the accused shall have the right to enter an appearance, represented by legal counsel at his own expense, to hear the accusations and evidence against him, and may present evidence or testify in his own behalf.

(2) Nothing in this section shall prohibit the issuance of an arrest warrant by a circuit court judge upon presentation of probable cause, without the holding of a probable cause hearing, if adequate evidence is presented to satisfy the court that there is a significant risk that the accused will flee the court's jurisdiction or that the accused poses a threat to the safety or wellbeing of the public.

(3) Nothing in this section shall prohibit a law enforcement officer from arresting any person under circumstances in which the law enforcement officer would not be required to seek a warrant from a court.

SECTION 2. This act shall take effect and be in force from and after July 1, 2010.