Miss. R. Crim. P. 5.1

As amended through March 21, 2024

Rule 5.1 - Procedure upon Arrest

(a)Telephone Call. Any person under arrest shall be afforded a reasonable opportunity to make a telephone call to, or otherwise make effective communication with, any person the accused may choose.

(b)On Arrest without a Warrant. A person arrested without a warrant:

(1) may, unless prohibited by law, be released upon the defendant's personal recognizance after being notified in writing to appear at a specified time and place; or

(2) shall be released upon execution of an appearance bond set according to Rule 8, unless the charge upon which the person was arrested is not a bailable offense, and directed to appear at a specified time and place; or

(3) if not released pursuant to subsections (b)(1) or (b)(2), the accused shall be taken without unnecessary delay, and in no event later than forty-eight (48) hours after arrest, before a judge for an initial appearance. If the person arrested is not taken before a judge as so required then, unless the offense for which the person was arrested is not a bailable offense, the person shall be released upon execution of an appearance bond in the amount of the minimum bail specified in Rule 8, and shall be directed to appear at a specified time and place.

In the event the defendant is released on the minimum amount provided in the bail schedule, the prosecuting attorney may file a motion with the court to reconsider the bond amount and the conditions of release, and the procedures thereafter shall be in accordance with Rule 8.

(c)On Arrest with a Warrant.

(1) If provision for bail or personal recognizance has been made by the judge issuing the arrest warrant, a person arrested with a warrant shall be released and directed to appear at a specified time and place.

(2) If the person arrested cannot meet the conditions of release provided in the warrant, or if no such conditions are prescribed:

(A) if such person was arrested pursuant to a warrant issued on a charging affidavit, the accused shall be taken without unnecessary delay, and in no event later than forty-eight (48) hours after arrest, before a judge for an initial appearance. If the person arrested has not been taken before a judge as required herein, unless the charge upon which the person was arrested is not a bailable offense, such person shall be released upon execution of an appearance bond in the amount of the minimum bail specified in Rule 8, and shall be notified in writing to appear at a specified time and place; or

(B) if such person was arrested pursuant to a capias issued upon an indictment, the accused shall be taken without unnecessary delay before a judge, who shall proceed as provided in Rule 8.

(3) The defendant shall be given a copy of the charging document.

Miss. R. Crim. P. 5.1

Adopted eff. 7/1/2017.

Comment

Rule 5.1(a) gives official sanction to common existing practice. The opportunity to make a telephone call represents the minimum requirement and use of other appropriate means of communication, electronic or otherwise, may be allowed. Fundamental fairness dictates that a person who has been taken into custody be allowed to communicate to another that the accused is being held by the police and charged with a crime. Rule 5.1(a) thus serves to protect an accused's state and federal constitutional rights to bail, counsel, and due process.

Rule 5.1(b) lists the options available to law enforcement officers in the case of warrantless arrests. An officer may: (1) release the offender on personal recognizance and issue a notice requiring the person to appear at a specified time and place; (2) release the offender on execution of an appearance bond set according to Rule 8 and direct the person to appear at a specified time and place; or (3) take the offender into custody and provide the person with an opportunity to make bail. A person may not be released on personal recognizance where prohibited by law. See, e.g., Miss. Code Ann. § 99-5-37 (regarding arrest for listed domestic violence offenses).

Under Rule 5.1(b)(3), if a person is taken into custody, the person shall be taken without unnecessary delay, and in no event later than forty-eight (48) hours after arrest, before a judge who shall proceed with an initial appearance. If the person arrested is not taken before a judge within forty-eight (48) hours, the person detained shall be released on execution of an appearance bond in the minimum amount set pursuant to Rule 8 and directed to appear at a specified time and place. Rule 5.1(b)(3) conforms to the United States Supreme Court's holdings in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975), and County of Riverside v. McLaughlin, 500 U.S. 44, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991).