There is a strong preference for searches to be conducted with a warrant. State v. Palmer, 285 Ga. 75 (2009). Search warrants are obtained when a police officer presents an affidavit under oath to a judge asking for a search warrant. The officer who submits and signs the affidavit is called the affiant. The affidavit can contain hearsay information from persons other than the affiant. In deciding whether an affidavit creates sufficient probable cause for the issuance of a warrant, the issuing judge must make a practical, common-sense decision whether given all the circumstances set forth in the affidavit before him, including the veracity or reliability and basis of knowledge of any persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Henson v. State, 314 Ga. App. 152 (2012). Probable cause cannot be based upon mere conclusions, stating only the affiant's belief that probable cause exists, without detailing the underlying circumstances upon which that belief is based. Willoughby v. State, 315 Ga. App. 401 (2012).
A search warrant may issue only upon facts sufficient to show probable cause that a crime is being committed or has been committed. O.C.G.A. § 17-5-21; Martinez v. State, 312 Ga. App. 638 (2012). The warrant cannot leave the determination of what articles fall within the description and are to be seized entirely to the judgment of the officer executing the warrant. However, the degree of specificity in the description is flexible and will vary with the circumstances involved. The particularity requirement only requires that the officer be able to identify the property sought with reasonable certainty. Womack v. State,317 Ga. App. 496 (2012); Reaves v. State, 284 Ga. 181 (2008).
The duty of the judge hearing the motion to suppress is simply to ensure that the judge who issued the search warrant had a substantial basis for concluding that probable cause existed. Martis v. State, 305 Ga. App. 17 (2010).
Probable cause to search may be provided by information from a reliable confidential informant. Hall v. State, 310 Ga. App. 397 (2011). Probable cause is determined by the totality of the circumstances surrounding (1) the basis of the informant's knowledge; and (2) the informant's veracity or reliability. James v. State, 312 Ga. App. 130 (2012); Wilson v. State, 249 Ga. App. 560 (2001). A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. The fact that the informant has a criminal history does not prevent a finding that the informant is reliable. Zorn v. State, 291 Ga. App. 613 (2008). The officer is not required to divulge the details regarding the prior cases to establish the informant's reliability. Butler v. State, 185 Ga. App. 478 (1988). However, compare Galgano v. State, 147 Ga. App. 284 (1978), concluding that a bare assertion that the informant had provided information in the past was insufficient to furnish a basis for determining his reliability.
Anonymous Tips
A tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity. However, if the tip is detailed enough to provide some basis for predicting future behavior of the suspect, reliability may be established if the details are corroborated by the observations of the police. Register v. State, 315 Ga. App. 776 (2012); State v. Dukes, 279 Ga. App. 247 (2006). The information corroborated will generally need to be a prediction of future behavior. Vonlinsome v. State, 213 Ga. App. 619 (1994). However, under certain circumstances an anonymous tip may have sufficient indicia of reliability to justify a stop. Britton v. State, 220 Ga. App. 120 (1996). The reliability of an anonymous source of unknown reliability must be corroborated. Hearsay information supplied by an identified citizen is not as suspect as information by an anonymous tipster. A law abiding citizen has built in credibility. Webb v. State, 313 Ga. App. 620 (2012); Manzione v. State, 312 Ga. App. 638 (2012).
An affidavit is presumed valid unless there is proof that it contained deliberate falsehoods, was made with reckless disregard of the truth, or that the affiant consciously omitted material facts. Carson v. State, 314 Ga. App. 515 (2012). If the judge determines that the affidavit contained material misrepresentations or omissions, the false statements must be deleted, the omitted truthful material included, and the affidavit must be re-examined to determine whether probable cause existed to issue the warrant. Jones v. State, 312 Ga. App. 130 (2012); Jefferson v. State, 312 Ga. App. 842 (2011).
The search warrant must state with specificity the place or persons to be searched and the things to be seized. O.C.G.A. § 17-5-21. The test for evaluating the particularity of a warrant's premises description is "whether the description is sufficient to enable a prudent officer executing the warrant to locate [the place to be searched] definitely and with reasonable certainty. "Furthermore, the degree of the description's specificity is flexible and will vary with the circumstances involved." "While a description of the place to be searched must be particular enough to guide the executing officer as to where the warrant is to be executed, there is in addition the requirement that the description be sufficiently narrow in the sense of not outrunning the probable cause showing." Under the particularity requirement of the Fourth Amendment, the general rule is that 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. There are, however, exceptions to this general rule. "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 129entire structure; or (3) the officers reasonably believed that the premises had only a single unit." Conrad v. State, 316 Ga. App. 146 (2012); Fair v. State, 284 Ga. 165 (2008). A search warrant that fails to state with sufficient specificity what items can be seized is a general warrant and unconstitutional. Carson v. State, 314 Ga. App. 515 (2012). If the warrant is issued based on probable cause to search only one residence at a described address, but other residences are also located at that address, the warrant must more specifically describe the property to be searched. State v. Capps, 252 Ga. 14 (1996).
The search warrant must be executed within ten days of its signing. O.C.G.A. § 17-5-25. 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. O.C.G.A. § 17-5-24. Further, private citizens, acting under the supervision of the police, can participate in the execution of the warrant. Twiggs v. State, 315 Ga. App. 191 (2012).
The police must make a good faith attempt to verbally announce their authority and purpose before entering to execute a search warrant. State v. Cash, 316 Ga. App. 324 (2012). The warrant can authorize a “no-knock” entry where the police demonstrate a reasonable suspicion that knocking and announcing their presence would be dangerous or futile, or that it would allow the destruction of evidence. The “noknock” provision must be based on the facts and circumstances of the case and not the generalized experiences of the officers. State v. Barnett, 314 Ga. App. 17 (2012); State v. Williams, 275 Ga. App. 612 (2005).
When a search 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." O.C.G.A. § 17-5-24; O.C.G.A. § 17-5-25. However, similar to other statutory warrant requirements, a violation of OCGA § 17-5-25 "does not necessarily authorize evidence suppression." State v. Stafford, 277 Ga. App. 852 (2006). On the contrary, OCGA § 17-5-31 provides that "no search warrant shall be quashed or evidence suppressed because of a technical irregularity not affecting the substantial rights of the accused." Carson v. State, 314 Ga. App. 515 (2012). Therefore, "absent some showing of prejudice by the defendant," the failure to leave a signed and dated copy of the warrant is an omission that is "technical in nature and not grounds for suppression." Brundige v. State, 310 Ga. App. 900 (2011). Verbal notice should be given prior to using force to enter the property. O.C.G.A. § 17-5-27. The police may detain any person on the premises to be searched. O.C.G.A. § 17-5-28. A written return of everything seized must be filed and a person from whom items were seized can get a list of those items from the court. O.C.G.A. § 17-5-29.
Where a search was conducted lawfully, it does not become invalid simply because the warrant was overbroad. Jones v. State, 313 Ga. App. 590 (2012); Butler v. State, 130 Ga. App. 469 (1973).
The State can obtain the private medical records of a defendant through a search warrant without notice to the defendant or a hearing on the request. Jones v. State, 313 Ga. App. 590 (2012); King v. State, 276 Ga. 126 (2003). A defendant is not entitled to notice and an opportunity to be heard prior to issuing a search warrant. Bowling v. State, 289 Ga. 881 (2011).
Staleness
The mere passage of time does not equate with staleness. Carson v. State, 314 Ga. App. 515 (2012). To determine if the information in the warrant is current or stale the judge must view the circumstances for indicators that the conditions referenced in the affidavit would continue to exist at the time of the warrant. Newton v. State, 313 Ga. App. 889 (2012); Shivers v. State, 258 Ga. App. 253 (2002).
Wiretaps
The evidence must have been obtained in a manner not inconsistent with the requirements of both federal and state law. O.C.G.A. § 16-11-64.
Exceptions To The Warrant Requirement
Searches conducted without prior approval of a judge are per se unreasonable under the Fourth Amendment subject to a few exceptions. Hawkins v. State, 290 Ga. 785 (2012). The State bears the burden of showing circumstances constituting an exception to the prohibition against warrantless searches and seizures. State v. Mason, 273 Ga. App. 596 (2005).
Even where probable cause exists warrantless intrusion of a person's home is prohibited by the Fourth Amendment, absent consent or a showing of exigent circumstances. Steagald v. United States, 451 U.S. 204 (1981); Welchel v. State, 255 Ga. App. 556 (2002).
Consent
A warrantless search of a residence may be authorized by the consent of any person who possesses common authority over or a sufficient relationship to the premises to be inspected. Payton v. State, 326 Ga. App. 846 (2014); Pike v. State, 265 Ga. App. 575 (2004). When consent is offered as an exception to the warrant requirement, the State bears the burden of showing that the consent was voluntarily given and not the result of duress or coercion or an illegal detention. Berry v. State, 313 Ga. App. 516 (2012); Pledger v. State, 257 Ga. App. 794 (2002); Code v. State, 234 Ga. 90 (1975); Gray v. State, 296 Ga. App. 878 (2009). Voluntariness is a question of fact to be determined by the judge from all of the circumstances. Maloy v. State, 293 Ga. App. 648 (2008). "The presence of several police officers does not require a finding of coercion, although it merits close judicial scrutiny." Silverio v. State, 306 Ga. App. 438 (2010). The officers cannot misrepresent their authority to enter and search the defendant's property. Berry v. State, 313 Ga. App. 516 (2012).
A landlord cannot give consent to search a tenant's quarters. Payton v. State,326 Ga. App. 846 (2014).
The State has the burden of proving the validity of a consensual search and must show that the consent is given voluntarily. Consent which is the product of coercion or deceit on the part of the police is invalid. State v. Hamby, 317 Ga. App. 480 (2012). Consent is not voluntary when it is the result of duress or coercion. The voluntariness of any consent is to be determined by the totality of the circumstances using the standard of objective reasonableness. The question is whether a reasonable person would feel free to decline the request to search. State v. Jordan, 264 Ga. App. 118 (2003).
Exigent Circumstances
Exigent circumstances may exist when a warrantless entry is necessary for the police “to preserve public order, to maintain the peace, and to protect lives, persons, property, health and morals. In these cases, police do not enter a residence for the purpose of arresting or seizing evidence against an occupant; rather, they enter in response to what they reasonably perceive as an emergency involving a threat to life or property.” Staib v. State, 309 Ga. App. 785 (2011); Love v. State, 290 Ga. App. 486 (2008).
The Automobile Exception
Under the automobile exception to the warrant requirement of the Fourth Amendment, a police officer may search a car without a warrant if he has probable cause to believe the car contains contraband, even if there is no emergency preventing the officer from getting a search warrant. Shell v. State, 315 Ga. App. 628 (2012); O'Neal v. State, 311 Ga. App. 102 (2011). Because there is no emergency requirement in this context, the warrantless search of an automobile will be upheld so long as there was probable cause to suspect it contained contraband, even if the driver was arrested and handcuffed and the keys were taken from him before the car was searched. Sarden v. State, 305 Ga. App. 587 (2010).
The automobile exception allows the entire vehicle to be searched including all containers and packages. Brown v. State, 311 Ga. App. 405 (2011).
Roadblocks Martin v. State, 313 Ga. App. 226 (2011); Jacobs v. State, 308 Ga. App. 117 (2011); Hite v. State, 315 Ga. App. 221 (2012); State v. Brown, 315 Ga. App. 154 (2012)
Impound
When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles' contents. Ahmad v. State, 312 Ga. App. 703 (2011). Evidence discovered during such an inventory search is properly seized without a warrant and is admissible into evidence at a subsequent criminal trial. Highland v. State, 144 Ga. App. 594, 595 (241 S.E.2d 477) (1978). However, the police may not impound a vehicle as a way to search for contraband. State v. Carter 305 Ga. App. 814 (2010).
Impoundment of a vehicle is valid only if there is some necessity for the police to take custody of the vehicle. Grizzle v. State, 310 Ga. App. 577 (2011). Factors the judge is to consider are: was the offense for which a defendant was arrested related to the vehicle; was the vehicle legally parked in a safe and secure place on private property; whether the owner of the private property requested that the vehicle be removed; and whether the defendant was asked if anyone could come get the vehicle. State v. Lowe, 224 Ga. App. 228 (1997); Fortson v. State, 262 Ga. 3 (1992); State v. McCranie, 137 Ga.App. 369 (1976). As part of an inventory search, the police “may ordinarily inspect the glove compartment, the trunk, on top of the seats as well as under the front seats, and the floor of the automobile.” Arnold v. State, 155 Ga. App. 581 (1980). The police also may ordinarily examine the contents of bags and containers found in those locations of the vehicle as part of the inventory search. Lopez v. State, 286 Ga. App. 873 (2007); Grimes v. State, 303 Ga. App. 808 (2010).
The police are not required to ask the owner of a car what he would like to have done with the car when the owner is arrestee and there is no one present at the scene to take custody of the car and safely remove it. Scott v. State, 316 Ga. App. 341 (2012).
Incident to Arrest
As part of a lawful arrest, an officer may search the person of the arrestee. State v. Hargis, 294 Ga. 818 (2014).The arrest of an individual will provide a basis for searching the passenger compartment of the arrestee's vehicle and any containers therein when it is reasonable to believe evidence related to the crime of arrest might be found in the vehicle. State v. Taplin, 315 Ga. App. 622 (2012); Arizona v. Gant, 556 U.S. 332 (2009).
Inevitable Discovery
Under the inevitable discovery rule, if the State shows by a preponderance of the evidence that illegally obtained evidence would have been discovered inevitably by lawful means, the evidence is admissible. Clay v. State, 290 Ga. 822 (2012); State v. Woods, 311 Ga. App. 577 (2011); Cunningham v. State, 284 Ga. App. 739 (2007); Taylor v. State, 274 Ga. 269 (2001).
Abandonment
A person can abandon any interest or expectation of privacy they have in an item by for example throwing it away. The question is whether under the totality of circumstances, the police officer reasonably believed at the time of the search that the person had given up his interest in the property to such an extent that he no longer had an expectation of privacy in it. State v. Browning, 209 Ga. App. 197 (1993).
The warrantless search and seizure of garbage violates the Fourth Amendment only if the person who discarded the garbage "manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable." California v. Greenwood, 486 U.S. 35 (1988); Scott v. State, 270 Ga. App. 292 (2004); Perkins v. State, 197 Ga. App. 577 (1990). The act of placing garbage for collection is an act of abandonment which terminates any Fourth Amendment protection because, absent proof that a person has made some special arrangement for the disposition of his garbage, he has no reasonable expectation of privacy with respect to it once he has placed it for collection. Brundige v. State, 310 Ga. App. 900 (2011).
Contraband discarded during flight from police and before a suspect is arrested is admissible as evidence. Barber v. State, 317 Ga. Ap. 600 (2012). However, if unlawful police conduct coerces a defendant into abandoning the property, suppression of the evidence may be warranted. State v. Terrell, 327 Ga. App. 745 (2012); Edwards v. State, 239 Ga. App. 44 (1999).
Plain View
Objects within the plain view of an officer who is in a lawful position can be seized. The plain view rule applies only if (1) the initial intrusion which gave rise to the plain view was lawful, (2) the discovery of evidence was inadvertent, and (3) the incriminating nature of the evidence was immediately apparent. Clay v. State, 290 Ga. 822 (2012; Lamar v. State, 278 Ga. 150 (2004); Robinson v. State, 312 Ga. App. 736 (2011); Reid v. State, 298 Ga. App. 889 (2009). The plain view doctrine authorizes a police officer to enter a vehicle to seize an illegal item if the facts would justify the issuance of a warrant, that is, if the officer has probable cause to believe the item is contraband. Arnold v. State, 315 Ga. App. 798 (2012).