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)

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

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; Barnett, 136 Ga.App. 122, 220 SE2d 730 (1975); Henry, 277 Ga.App. 302, 626 SE2d 511 (2006) (signature must match officer in text of affidavit); 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

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? [OCGA 17-5-25].

7. Does it command a peace officer to conduct a search? [OCGA 17-5-23].

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)? [OCGA 17-5-20].

12. Has judge made independent determination of probable cause? [Reid, 129 Ga.App. 660, 200 SE2d 456 (1973)].

13. Is it to be executed in county where judge then sitting? [OCGA 15-6-23; Allison, 129 Ga.App. 364, 199 SE2d 587 (1973)].

14. If "No Knock" warrant requested, does warrant specifically allow or deny? [See Jones, 127 Ga.App. 137, 193 SE2d 38 (1972)].

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; Holstein, 183 Ga.App. 610, 359 SE2d 360 (1987)]; 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];

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 (1990)(campus police off campus); Bruce, 183 Ga.App. 653, 359 SE2d 736 (1987) (municipal/adjacent county)].

12.14 Probable Cause (see 12.2)

12.15 Location of property to be searched

A. Magistrate courts and other courts of inquiry may issue search warrants [O.C.G.A. § 17-5-21], even after indictment or accusation, not withstanding Uniform Rule provisions concerning assignment of related cases [Lejune, 276 Ga. 179; 576 SE2d 888 (2003)].

B. Venue - Location of property to be searched must be in county of issuing court [Lejune, 276 Ga. 179; 576 SE2d 888 (2003); Kirkland, 212 Ga.App. 672, 442 SE2d 491 (1994); see also OCGA 17-5-21.1 (judge may videoconference from elsewhere in state)].

C. Link to crime - There must be a link between the suspected crime and the locality to be searched [Staley, 249 Ga.App. 207, 548 SE2d 26 (2001)].

Suspect"s Home - Where there is probable cause to link a suspect to a crime there is normally probable cause to search suspect"s residence. [Reeves, 197 Ga.App. 107, 397 SE2d 601 (1990) (Probable cause to believe Defendant has stored non-contraband items at home despite long lapse of time (11 months) and no special evidence indicating that items are there); see also Tedford, 195 Ga.App. 372, 393 SE2d 502 (1990)].

Sex offender profile - Defendants prior conviction for sex offense and present evidence of molestation at other locations insufficient to search Defendants apartment for pornographic materials without evidence linking molestation to apartment or computer or evidence that pornographic materials were shown to victim [Staley, 249 Ga.App. 207, 548 SE2d 26 (2001)].

Multiple Addresses - Search warrant obtained for 2 houses and van. Drugs found at one house and van with lease showing third address also in van. Presence of lease with drugs plus evidence defendant used multiple stash houses sufficient to search third location. [Baez, 217 Ga.App. 511, 458 SE2d 658 (1995)].

D. Description of premises to be searched - must be sufficient to enable prudent officer to locate premises with reasonable certainty [Minter, 206 Ga.App. 692, 693, 426 SE2d 169 (1992); Hardin, 174 Ga.App. 83, 329 SE2d 172 (1985)].

1. Not all errors in address preclude reasonable certainty of location [Price, 303 Ga.App. 867, 694 SE2d 712 (2010) (normally address errors are fatal, but detailed description of location of mobile home established only one location met warrant description - two related warrants read in conjunction); Fuller, 295 Ga.App. 439, 672 S.E.2d 438 (2009) (wrong county listed, but address, travel directions and issuing court were all correct); Lester, 278 Ga.App. 247, 628 SE2d 674 (2006) (transposed digits but defendants actual address verified with landlord); Chambless, 165 Ga.App. 194, 300 SE2d 201 (1983) (incorrect mobile home lot, but name of occupant and other information showed correct lot); McNeal, 133 Ga.App. 225, 211 SE2d 173 (1974) (involved description of apartment in multiple occupancy structure )].

2. Missing address element on search warrant may not be fatal defect if in affidavit [Franks, 240 Ga.App. 685, 524 SE2d 545 (1999) (Exhibit incorporated by reference in search warrant, available to executing officer, and left at premises); Wells, 196 Ga.App. 133, 395 SE2d 296 (1990); Cuevas, 151 Ga.App. 605, 260 SE2d 737 (1979)1; however affidavit would have to be specifically incorporated by reference in the warrant, present with the officer executing the search, and a copy may have to be served upon the occupant [see Vaughn, 141 Ga.App. 453, 233 SE2d 848 (1977)1. Caution - language in Wells suggesting it does not matter if officers executing the warrant had the referenced description is inconsistent with Groh v. Ramirez, 540 U.S. 551 (2004).

3. Curtilage

a. "Defined as 'the yards and grounds of a particular address, its gardens, barns, and buildings.'" [Thomas, 300 Ga.App. 265,684 SE2d 391 (2009), quoting McConville, 228 Ga.App. 463, 467(2), 491 S.E.2d 900 (1997)]. Central question is 'whether the area in question is so intimately tied to the home itself that it should be placed under the home's "umbrella" of Fourth Amendment protection.' [United States v. Dunn, 480 U.S. 294, 301, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987)].

b. 'A warrant which authorizes the search of a particular dwelling extends by implication to areas within the curtilage of the dwelling. [Thomas, 300 Ga.App. 265,684 SE2d 391 (2009), quoting McConville, 228 Ga.App. 463, 467(2), 491 S.E.2d 900 (1997)]; Likewise, probable cause for search of dwelling extends to curtilage [Thomas].

4. Multi-unit dwellings - "a search warrant for an apartment house or hotel or other multiple-occupancy building will usually be held invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude a search of one or more subunits indiscriminately." [Fletcher,284 Ga. 653, 655, 670 S.E.2d 411, 413 (2008), quoting 2 LaFave, Search & Seizure, § 4.5(b) at p. 479 (4th ed. 2004)].

a. Search of multiple units - "'The warrant of a multi-unit structure will be valid where (1) there is probable cause to search each unit; (2) the targets of the investigation have access to the entire structure; or (3) the officers reasonably believed that the premises had only a single unit'" [Fletcher (evidence that likely perpetrator of assault lived in a house with victim in basement apartment creates probable cause for evidence in both living spaces), quoting United States v. Perez, 484 F.3d 735, 741 (5th Cir., 2007)1...

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