12 Search Warrants

12. SEARCH WARRANTS

12.1 ISSUANCE OF SEARCH WARRANT:

WARNING: Validity of search or suppression of evidence determined by trial court, not by a Magistrate at a preliminary hearing!

12.11 Sufficiency of Complaint (Affidavit)

CHECKLIST

1. Is affiant a Georgia-certified peace officer or designated employee of Department of Children and Youth Services seeking escaped juvenile? (see § 12.13A)

A search warrant may be issued only upon the application of an officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws. State v. Harber, 198 Ga. App. 170, 171, 401 S.E.2d 57, 58 (1990). OCGA § 17-5-20. Georgia law expressly precludes the issuance of a search warrant to a private citizen. OCGA § 17–5–20(b).

2. Is probable cause of crime stated? [OCGA 17-5-21].

When a magistrate makes a determination as to whether probable cause sufficient to issue a search warrant exists, the magistrate simply makes a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Gebhardt v. State, 307 Ga. 587, 596, 837 S.E.2d 318, 326 (2019), citing DeYoung v. State, 268 Ga. 780, 787 (7), 493 S.E.2d 157 (1997).

a. Reliability of evidence under Totality of circumstances (see 12.23)

b. Reliability of person providing information (see 12.23C)

c. Is there additional oral testimony which, when added to affidavit, supports finding of probable cause? ITuggle, 149 Ga.App. 844, 256 SE2d 104 (19791. Record supplemental information.

3. Is location of property to be searched in county of issuing court? [Lejune, 276 Ga. 179; 576 SE2d 888 (2003); Kirkland, 212 Ga.App. 672, 442 SE2d 491 (1994)] (see 12.15A).

4. Is place or person to be searched particularly described? (See 12.15C)

5. Is thing or person to be seized particularly described? (See 12.16)

6. Is it in writing, signed by attesting officer, under oath? [OCGA 17-5-21; Unless the complaint or affidavit is signed, it is invalid, and a search warrant cannot issue. Since the officer's signature determines the validity of the affidavit and the search warrant, its absence cannot be considered a mere technical irregularity. Henry v. State, 277 Ga. App. 302, 304, 626 S.E.2d 511, 513 (2006); see OCGA 17-5-21.1 for the variety of "signatures" allowable when search warrant is sought by video conference1.

7. Is time of occurrence set forth? [Windsor, 122 Ga.App. 767, 178 SE2d 751 (1970)].

8. Is date and time information obtained stated? Is it timely? (See 12.23D)

9. Is it dated (issuance date)? But typo as to date not fatal [Jones, 289 Ga.App. 767, 658 SE2d 386 (2008)1.

10. Is "No Knock" provision sought? (See 12.44)

12.12 Sufficiency of Search Warrant - CHECKLIST

A presumption of validity attaches to an affidavit supporting a search warrant. State v. Donaldson, 281 Ga. App. 51, 52, 635 S.E.2d 345, 346 (2006). Technical irregularities not affecting the substantial rights of the accused do not render a search warrant inadmissible. OCGA § 17-5-31. Sampson v. State, 165 Ga. App. 833, 833, 303 S.E.2d 77, 79–80 (1983).

WARNING: Validity of a search or suppression of evidence is an issue for the trial court, not a Magistrate at a preliminary hearing!

1. Is time and date of issuance set forth? [OCGA 17-5-22].

2. Is title and identity of judge set forth? [OCGA 17-5-22].

3. Is warrant recorded on warrant docket? Filing of warrants and affidavits suspended until warrant is executed or has been returned unexecuted. [OCGA 17-5-22].

4. Is warrant in duplicate? (Copy, including incorporated references (such as affidavits or exhibits referred to in warrant), to be left with person/place searched) [OCGA 17-5-24, -25; Groh v. Ramirez, 540 U.S. 551 (2004)].

5. Is it directed to all peace officers (may be directed to individual officer)? [OCGA 17-5-23, -24].

6. Does it require execution within ten days?

The search warrant shall be executed within ten days from the time of issuance. If the warrant is executed, the duplicate copy shall be left with any person from whom any instruments, articles, or things are seized; or, if no person is available, the copy shall be left in a conspicuous place on the premises from which the instruments, articles, or things were seized. Any search warrant not executed within ten days from the time of issuance shall be void and shall be returned to the court of the judicial officer issuing the same as "not executed. [OCGA 17-5-25].

7. Does it command a peace officer to conduct a search?

A search warrant commands the search and gives the executing officer the authority to conduct such. [OCGA 17-5-23].

The warrant delineates the scope of the search and directs the execution within such boundaries. OCGA § 17–5–24.” State v. Rocco, 255 Ga.App. 565(1), 566 S.E.2d 365 (2002). Absent appropriate exigent circumstances, evidence seized from premises without a proper warrant may be inadmissible at trial. Teal v. State, 282 Ga. 319, 326(2), 647 S.E.2d 15 (2007).

8. Is place or person to be searched particularly described ?

9. Is thing or person to be seized particularly described? [Groh v. Ramirez, 540 U.S. 551 (2004)].

10. Does it require an immediate written return and inventory? [OCGA 17-5-29].

11. Is the applicant a peace officer (See 12.13)?

A search warrant may be issued only upon the application of an officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws. State v. Harber, 198 Ga. App. 170, 171, 401 S.E.2d 57, 58 (1990). [OCGA 17-5-20].

Georgia law expressly precludes the issuance of a search warrant to a private citizen. OCGA § 17–5–20(b).

12. Has judge made independent determination of probable cause?

When a magistrate makes a determination as to whether probable cause sufficient to issue a search warrant exists, the magistrate simply makes a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Gebhardt v. State, 307 Ga. 587, 596, 837 S.E.2d 318, 326 (2019), citing DeYoung v. State, 268 Ga. 780, 787 (7), 493 S.E.2d 157 (1997).

13. Is it to be executed in county where judge then sitting?

Judicial officer who is authorized to hold a court of inquiry and to issue a search warrant is authorized to do so in any county of his circuit. Allison v. State, 1973, 129 Ga.App. 364, 199 S.E.2d 587 (1973), certiorari denied 94 S.Ct. 899, 414 U.S. 1145, 39 L.Ed.2d 101 (July 12, 1973).

14. If "No Knock" warrant requested, does warrant specifically allow or deny?

In order to meet the reasonableness standard for a no-knock entry, the circumstances must have been such as would have led the officers to conclude that if they announced their authority and purpose, they could be harmed or evidence could be destroyed. Smithson v. State, 275 Ga.App. 591, 596(3), 621 S.E.2d 783 (2005). Whether exigent circumstances existed at the time of the warrant's execution is a question of fact, and the Court reviews police actions from the standpoint of a “reasonable officer” and “must measure those actions from the foresight of an officer acting in a quickly developing situation and not from the hindsight of which judges have benefit. Bolton v. State, 258 Ga.App. 217, 219, 573 S.E.2d 479 (2002). Fair v. State, 284 Ga. 165, 172–73, 664 S.E.2d 227, 234–35 (2008).

15. Warrant need not be under seal [OCGA 17-5-22].

12.13 Persons Authorized to Seek Search Warrants A.

Person seeking search warrant must be:

1. Georgia-certified peace officer [OCGA 17-5-20; A search warrant may be issued only upon the application of an officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws. State v. Harber, 198 Ga. App. 170, 171, 401 S.E.2d 57, 58 (1990). Absent exigent circumstances, officers searching a house without a valid warrant are trespassers conducting an illegal search. Teal, 282 Ga. at 326(2), 647 S.E.2d 15 (2007).; OR

2. Designated investigative employee of the Department of Children and Youth Services may also obtain a search warrant for the purpose of locating and apprehending children who have escaped from an institution or facility or have broken the conditions of their supervision [OCGA 494A-8];

3. The search warrant shall be issued in duplicate and shall be directed for execution to all peace officers of this state. However, the judicial officer may direct the search warrant to be executed by any peace officer named specially therein. OCGA § 17-5-24.

4. An officer undertaking to execute a search warrant should have the warrant in his possession or so immediately at hand that it may be exhibited as authority for making the search, and a warrant is not in the officer's possession when it is “some distance from the scene of the arrest.” Shafer, 193 Ga. at 755(2), 20 S.E.2d 34; State v. Rocco, 255 Ga.App. at 565, 566 S.E.2d 365 (2002).

B. Examples of persons who may not obtain search warrants:

1. Federal law enforcement officer [Williams, 171 Ga.App. 807, 321 SE2d 386 (1987) (DEA agent not qualified)];

2. Juvenile officer not peace officer [Huff v. Walker, 125 Ga.App. 251, 187 SE2d 343 (1972)].

3. Private citizens - search warrant may not issue upon application of private citizen or for aid in enforcement of personal, civil, or property rights [OCGA 17-5-20].

C. Qualified officers may seek search warrants from courts outside their own jurisdiction but should execute the warrant only jointly with officers of jurisdiction [Harber, 198 Ga.App. 170, 401 SE2d 57...