Probation Officers’ Arrest Authority in Deferral Cases

Can a probation officer arrest a person being supervised pursuant to a deferred prosecution agreement or G.S. 90-96 judgment? I’ve been asked that question a lot lately. I suspect it is coming up more often now that G.S. 90-96 is mandatory for consenting defendants. The short answer, in my opinion, is that when a probation officer has the power to supervise, he or she also has the power to arrest.

Probation officers’ arrest authority is grounded in G.S. 15-205. That statute says that a “probation officer shall have, in the execution of his duties, the power[] of arrest . . . as is now given, or that may hereafter be given by law, to the sheriffs of this State.” Thus, when executing their duties, probation officers have the arrest powers of a sheriff. Another statute, G.S. 15A-1345(a), states that a probationer is subject to arrest by a probation officer for a violation of his or her conditions of supervision.

The real question, then, when evaluating an officer’s authority to arrest in deferral situations is whether supervision pursuant to a deferred prosecution or G.S. 90-96 is “probation” within the meaning of the statutes cited above. If it is, then the officer would appear to have the arrest power of a sheriff in the supervision of the case.

With respect to deferred prosecutions, I think there is a sound basis to say they involve Probation with a capital P.  G.S. 15A-1341(a1) says that eligible defendants may be “placed on probation as provided in this Article”—that is, Article 82 of G.S. Chapter 15A. If the supervision of the deferral is “as provided in this Article,” it would appear to include the arrest provision in G.S. 15A-1345(a). To be clear, I’m only talking about true statutory deferred prosecutions of eligible misdemeanants and Class H or I felons, and deferrals in drug treatment court cases under G.S. 15A-1341(a2). Other informal deferral programs are permissible in the discretion of the district attorney, but it’s fairly clear to me that those should not involve the services of probation officers in the first place. See State v. Gravette, 327 N.C. 144 (1990) (holding that a judge does not have authority to order a probation officer to supervise a defendant who has not been convicted or placed on “formal deferred prosecution” under G.S. 15A-1341).

Regarding G.S. 90-96, it merely says that a court shall place an eligible defendant “on probation.” There is no reference to Article 82, but we know from case law that “[i]n the absence of a provision to the contrary, and except where specifically excluded, the general probation provisions found in Article 82 of Chapter 15A apply to probation imposed under [G.S.] 90-96.” State v. Burns, 171 N.C. App. 759 (2005). In fact, the record in the Burns case itself included an order for arrest issued for a violation of the defendant’s G.S. 90-96 probation, which the court of appeals discussed without disapproval (although its underlying validity was not the issue in the case).

I suppose the General Assembly could limit officers’ authority to arrest by statute, as it has for law enforcement officers in the context of infractions. See G.S. 15A-1113. But I don’t see any place where it has. And that makes sense to me as a policy matter—a probation officer’s effectiveness as a supervisor would arguably be diminished if he or she lacked the power to arrest.

Community Corrections policy states that in general, deferred prosecution and G.S. 90-96 probationers will be supervised like other offenders. In light of the authorities cited above, that general guidance would appear to extend to the arrest protocols applicable to ordinary sentenced probationers.