O.C.G.A. § 17-5-30 establishes a procedure for the return of lawful property seized and the suppression of evidence obtained by unlawful search and seizure. It specifically provides that a motion to suppress evidence illegally seized “shall be in writing and state facts showing that the search and seizure were unlawful.” Nelson v. State, 305 Ga. App. 65 (2010); Young v. State, 282 Ga. 735 (2007). A motion to suppress deals only with the suppression of tangible/physical evidence. Walker v. State, 314 Ga. App. 67 (2012). Motions seeking to keep out testimony are called motions in limine and are made prior to trial.
Once a motion to suppress is filed the judge must conduct a hearing outside the presence of the jury. Gray v. State, 145 Ga. App. 293 (1978). Hearsay testimony is admissible at a motion to suppress hearing. McDaniel v. State, 263 Ga. App. 625 (2003). The burden of proof is on the State to prove the lawfulness of the search and seizure. Davis v. State, 266 Ga. 212 (1996); Pope v. State, 134 Ga. App. 455 (1975). A defendant may testify at the motion to suppress hearing, and the testimony may not be admitted during the trial unless the defendant testifies during the trial. Smith v. State, 236 Ga. 12 (1976).
To challenge a search, a defendant must show he had an expectation of privacy in the place that was searched. English v. State, 288 Ga. App. 436 (2007). A person who has an expectation of privacy is said to have “standing” to contest the search. Bowling v. State, 289 Ga. 881 (2011). A defendant may move to suppress evidence obtained through an illegal search and seizure only when his own rights were violated. A person who is harmed by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's home has not had any of his Fourth Amendment rights violated.
There is no reasonable expectation of privacy in information that has been voluntarily conveyed to another (for example bank records and phone numbers) and then maintained in the business records of the other. Hatcher v. State, 314 Ga. App. 836 (2012). The mere presence of papers bearing a defendant's name, without further evidence connecting a defendant to a residence does not establish that the defendant had a reasonable expectation of privacy. Brown v. State, 295 Ga. 695 (2014).
The defendant must also show that an agent of the government searched the item in which he had an expectation of privacy. Hatcher v. State, 314 Ga. App. 836 (2012).
In challenging a judge's denial of a motion to suppress, a defendant may not argue on appeal grounds that he did not argue and obtain a ruling on from the judge. Richardson v. State, 328 Ga. App. 519 (2014).
Fruit Of The Poisonous Tree
The fruits of an illegal search or arrest should be suppressed when they bear a significantly close relationship to the underlying illegality. State v. Driggers, 306 Ga. App. 849 (2010); State v. Boppell, 277 Ga. 595 (2004). When examining whether evidence is the fruit of illegal activity the question is whether the evidence was obtained by exploiting the illegal activity. Walker v. State, 314 Ga. App. 67 (2012).
Home
The physical entry into a person's home is the chief evil against which the wording of the Fourth Amendment is directed. The main way to protect against police intrusions into a person's home is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. Liles v. State, 311 Ga. App. 355 (2011). The law says that even where probable cause exists, warrantless entry into a person's home is prohibited by the Fourth Amendment, absent consent or a showing of exigent circumstances. Welchel v. State, 255 Ga. App. 556 (2002).
Hotels
An individual has a reasonable expectation of privacy in a hotel room only if he: (1) is a registered guest of the room in question; or (2) is staying at least overnight in the room, at the invitation of the registered guest. Snider v. State, 292 Ga. App. 180 (2008). A visitor to a hotel room has no reasonable expectation of privacy in the room. Watkins v. State, 285 Ga. 107 (2009); Smith v. State, 284 Ga. 17 (2008); State v. Carter, 299 Ga. App. 3 (2009).
Although registered guests of a hotel room can have an expectation of privacy in their room, Smith v. State, 284 Ga. 17 (2008), one who obtains a room by fraud can have no reasonable expectation of privacy in the room. This rule is similar to the one that a person who is driving a stolen vehicle has no expectation of privacy in the vehicle. Thomas v. State, 274 Ga. 156 (2001).