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 [...]