Request By:
Mr. Lloyd Spaulding
Chief of Police
Falmouth Police Department
212 Main Street
Falmouth, Kentucky 41040
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The question you raise for our opinion is:
When a local arrest is made, is the county jailer required to accept the person arrested, even though his maximum capacity has been reached and the contract jail is also full?"
The local fiscal court is responsible for determining the prisoner capacity of the jail, since under KRS 441.006 the local fiscal court must either provide a local sufficient jail or contract with another county or a city for detention facilities to take care of all or an excess (excess of local jail capacity) of prisoners.
Thus any of your city police staff may take an arrested person, where the local courts are not open or available for an appearance, to the local jailer, which jailer must accept the prisoner for housing in the local jail, or in the contract jail where no space is available in the local jail, until the court magistrate becomes available. When the magistrate becomes available, the arresting officer must take the defendant out of jail and before the magistrate. See 32 Am.Jur.2d, False Imprisonment, § 25, p.p. 78-80. The local jailer must transport such prisoner (who is to be tried locally) to the contract jail, except where otherwise agreed by contract. KRS 441.500, as amended in 1982 (Ch. 385, § 47).
The jailer is required by KRS 71.040 to "receive and keep in the jail all persons who are lawfully committed thereto . . ." (Emphasis added). See KRS 71.020.
Garvin v. Muir, Ky., 306 S.W.2d 256 (1957), holds in effect that as jail custodian the jailer, to avoid a claim of false imprisonment, must have a written order from the court of jurisdiction authorizing the detention of the prisoner. Where the prisoner is arrested and brought to the jailer, and where the courts are not open or available for the defendant's appearance, the jailer may detain the defendant in jail during a reasonable time for procuring such court authority for detention.
RCr 3.02 requires that an officer making an arrest, with or without a warrant, take the arrested person without unnecessary delay before a "magistrate", i.e., a judge of the circuit or a judge or trial commissioner of the district court. In connection with an arrest without a warrant, RCr 3.02(2) provides that only in exceptional cases should delay exceed twelve (12) hours (delay in taking arrested person before a magistrate).