2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 5 - Searches and Seizures
Article 1 - Searches Without Warrants
§ 17-5-2. Inventory of Items Seized Without Search Warrant to Be Given to Person Arrested and Judicial Officer Before Whom Person Arrested Taken; Return of Items

An inventory of all instruments, articles, or things seized in a search without a search warrant shall be given to the person arrested and a copy thereof delivered to the judicial officer before whom the person arrested is taken. If the person arrested is released without a charge being preferred against him, all instruments, articles, or things seized, other than contraband or stolen property, shall be returned to him upon release.

(Ga. L. 1966, p. 567, § 2.)

- For comment on warrantless search of defendant's home, see 41 Emory L.J. 321 (1992).

ANALYSIS

• General Consideration
• Inventory Search Rationale
• Consent to General Searches

General Consideration

Jury instructions.

- There was no showing the trial court erred in failing to give the defendant's written request to charge the language of O.C.G.A. § 17-5-2 regarding the defendant's right to an inventory of property seized from the defendant at the time of arrest when the defendant did not suggest how the defendant was harmed by the trial court's failure to give the defendant's written request. Ingram v. State, 211 Ga. App. 821, 441 S.E.2d 74 (1994).

Cited in Touchstone v. State, 121 Ga. App. 602, 174 S.E.2d 450 (1970); Gunter v. State, 182 Ga. App. 548, 356 S.E.2d 276 (1987).

This section relates only to search without a warrant. Williams v. State, 125 Ga. App. 170, 186 S.E.2d 756 (1971).

- In circumstances involving noncriminal inventory searches, when probable cause to search is irrelevant, search warrants are not required, linked as the warrant requirement textually is to the probable cause concept. Garner v. State, 154 Ga. App. 839, 269 S.E.2d 912 (1980).

- When the initial intrusion that brings the police within plain view of an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

"Plain view" doctrine will support warrantless search and seizure if the agents are lawfully in a position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- When police officers acting in good faith and while carrying out an inventory procedure without investigative intent, discovered and read a "death note" contained in the defendant's open ended shopping bag, the search was deemed reasonable and, therefore, was not violative of the defendant's rights under U.S. Const., amend. 4. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- When one officer pursuant to a valid and proper inventory read and called attention to a "death note" found in the defendant's possessions and since the discovery and disclosure of the note were appropriate police actions, the subsequent acts of other officers, in rereading and perusing the documents in question were plainly justified under the "second glance doctrine." Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- There is nothing inherent in "papers" which immunizes the papers from searches otherwise proper under U.S. Const., amend. 4. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- Inventory rationale is one which may be abused and stretched to cover unnecessary searches; but even some suspicion that contraband will be found will not avoid an otherwise valid inventory search. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- When the circumstances authorized a warrantless search, the failure to make an inventory, being merely a ministerial act, did not affect the validity of the search and the arrest. Williams v. State, 125 Ga. App. 170, 186 S.E.2d 756 (1971).

Failure to furnish the defendant an inventory of the items taken from the defendant's home does not establish that an unlawful search and seizure took place or that this evidence is inadmissible. Such failure is a ministerial act and does not affect the validity of the search. Carter v. State, 232 Ga. 654, 208 S.E.2d 474 (1974).

- Failure to furnish a defendant with the inventory required by this section does not operate to exclude the recovered evidence from the trial. United States v. Baty, 486 F.2d 240 (5th Cir. 1973), cert. denied, 416 U.S. 942, 94 S. Ct. 1948, 40 L. Ed. 2d 294 (1974).

- When the executing officers give the defendant an inventory of the items seized, the officers' failure to deliver a similar inventory to the magistrate issuing the warrant as required by Ga. L. 1966, p. 567, § 2 (see O.C.G.A. § 17-5-2) and a return thereof on the warrant as required by Ga. L. 1966, p. 567, § 2 (see O.C.G.A. § 17-5-29) and a delivery to the sheriff of the items seized and a report to the commissioner of revenue are not cause for the suppression of the evidence. Holloway v. State, 134 Ga. App. 498, 215 S.E.2d 262 (1975).

Failure to provide the defendant with an inventory as required by O.C.G.A. § 17-5-2 provides no basis for suppressing the inventory at trial. Ingram v. State, 211 Ga. App. 821, 441 S.E.2d 74 (1994).

- Seizure of evidence is not made invalid when the sheriff fails to make a written inventory as required by this section since failure to furnish an inventory to a defendant is a ministerial act and does not affect the validity of the search and seizure. Carson v. State, 241 Ga. 622, 247 S.E.2d 68 (1978).

- That the making and filing of an inventory pursuant to Ga. L. 1966, p. 567, § 2 (see O.C.G.A. § 17-5-2) is merely a ministerial act not affecting the substantive rights of an accused is borne out by the fact that failure to file an inventory is not a ground for a motion to suppress under the provisions of Ga. L. 1966, p. 567, § 13 (see O.C.G.A. § 17-5-30). Williams v. State, 125 Ga. App. 170, 186 S.E.2d 756 (1971).

Custodial seizures and accompanying inventory searches are reasonable. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- Inventory searches are reasonable if conducted in accordance with standard police practice. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979); Gaston v. State, 155 Ga. App. 337, 270 S.E.2d 877 (1980).

- When the police take custody of any sort of container such as an automobile it is reasonable to search the container to itemize the property to be held by the police. Garner v. State, 154 Ga. App. 839, 269 S.E.2d 912 (1980).

- Fourth Amendment is not violated when police take custody of property of persons the police arrest to store that property for safekeeping. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- Whenever a search is made pursuant to Ga. L. 1966, p. 567, §§ 1 and/or 2 (see O.C.G.A. § 17-5-1 and/or § 17-5-2) the motive for the search is irrelevant. Carson v. State, 241 Ga. 622, 247 S.E.2d 68 (1978).

Inventory must not be done with investigative intent, but it should be incident to the caretaking function of the police. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

Inventory searches have two purposes: to protect the vehicle and the property in the vehicle, and to safeguard the police or other officers from claims of lost possessions. Garner v. State, 154 Ga. App. 839, 269 S.E.2d 912 (1980); Thompson v. State, 155 Ga. App. 101, 270 S.E.2d 313 (1980).

- Police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve the property. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979); Thompson v. State, 155 Ga. App. 101, 270 S.E.2d 313 (1980).

- Police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve the property. The police are permitted to take charge of property under broader circumstances than that. Garner v. State, 154 Ga. App. 839, 269 S.E.2d 912 (1980); Thompson v. State, 155 Ga. App. 101, 270 S.E.2d 313 (1980).

- Only so long as the scope of the search is reasonable, taking into consideration the three interests to be protected by the inventory (the protection of the owner's property while property remains in police custody; the protection of police against claims or disputes over lost or stolen property; and the protection of the police from potential danger), will the search be held to be a constitutionally permissible intrusion. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- Inventory is not for the exclusive protection of the owner, but also serves to protect the police and, therefore, it is not necessary that police ask a prisoner whether the prisoner wants personal items to be inventoried. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- There is no requirement for the accused's presence during a routine inventory of valuables in an impounded car done in accordance with Ga. L. 1966, p. 567, § 2. Carson v. State, 241 Ga. 622, 247 S.E.2d 68 (1978).

- Any inference from the language in both Dunkum v. State, 138 Ga. App. 321, 226 S.E.2d 133 (1976) and State v. McCranie, 137 Ga. App. 369, 223 S.E.2d 765 (1976) suggesting that seizure and inventorying of an automobile not involved in an offense against the law may be justified only when the automobile poses some threat to the traveling public, such as impeding the roadway, is mistaken. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- Even though the decision to seize and inventory need not be based upon the absolute necessity to do so, unless the rationale for an inventory search inheres in the decision to seize and inventory, the impoundment itself may be unreasonable and the resulting inventory search invalid. Garner v. State, 154 Ga. App. 839, 269 S.E.2d 912 (1980); Thompson v. State, 155 Ga. App. 101, 270 S.E.2d 313 (1980).

Consent to General Searches

Test of consent is totality of circumstances.

- Test as to whether or not consent to search was freely given is the "totality of the circumstances" under Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) and United States v. Scott, 578 F.2d 1186 (6th Cir.), cert. denied, 439 U.S. 870, 99 S. Ct. 201, 58 L. Ed. 2d 182 (1978). Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- Whether or not consent to search was freely given is an issue on which the state must carry the burden of proof. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- When an individual, in whose car defendant's luggage was placed prior to the defendant's arrest, is torn between two unattractive alternatives - keeping the unwanted luggage or turning the luggage over - and finally decides to take a police receipt and gives the luggage to the police, the individual's consent is voluntary and effective. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- When the defendant, in making no provision for the luggage, in effect abandons the luggage in an individual's automobile with no undertaking from the individual to keep the luggage, the individual is at best a reluctant bailee, and thus the defendant's argument that the individual has no authority to dispose of the luggage, by turning the luggage over to the police, is clearly erroneous. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

- When an officer requests and seizes the defendant's luggage, as a protective custody action, from an individual in whose automobile the luggage had been placed prior to the defendant's arrest, the officer's acts are not improper and issues of probable cause and time to obtain a warrant do not arise. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979).

RESEARCH REFERENCES

Am. Jur. 2d.

- 68 Am. Jur. 2d, Searches and Seizures, § 312 et seq.

ARTICLE 2 SEARCHES WITH WARRANTS

Cross references.

- Inspection warrants in connection with enforcement of public health laws, § 31-5-20 et seq.

Inspection warrants in connection with enforcement of laws relating to mental health, § 37-1-70 et seq.

- For note, "To Deceive or Not to Deceive: Law Enforcement Officers Gain Broader Approval to Use Deceptive Tactics to Obtain Voluntary Consent," see 69 Mercer L. Rev. 627 (2018).