2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 5 - Searches and Seizures
Article 2 - Searches With Warrants
§ 17-5-20. Requirements for Issuance of Search Warrant Generally

1. 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 or a currently certified peace officer engaged in the course of official duty, whether said officer is employed by a law enforcement unit of:
   1. The state or a political subdivision of the state; or
   2. A university, college, or school.
2. A search warrant shall not be issued upon the application of a private citizen or for his aid in the enforcement of personal, civil, or property rights.

(Ga. L. 1966, p. 567, § 14; Ga. L. 1990, p. 1980, § 1.)

- For note on 1990 amendment of this Code section, see 7 Ga. St. U.L. Rev. 261 (1990).

Only a law enforcement officer may successfully apply for a search warrant. Holstein v. State, 183 Ga. App. 610, 359 S.E.2d 360, cert. denied, 183 Ga. App. 906, 359 S.E.2d 360 (1987).

When the officer who obtains a search warrant is not a certified police officer, the officer has no authority to obtain a search warrant, and evidence obtained as a result of that warrant is inadmissible. Rottenberg v. State, 184 Ga. App. 331, 361 S.E.2d 533 (1987).

- Noncompliance with the conditions of O.C.G.A. Ch. 8, T. 35, by the express terms of O.C.G.A. § 35-8-17(a), renders the exercise of any powers of a law enforcement officer unauthorized. Thus, due to an officer's lack of certification, the officer had no authority to apply for a search warrant, and the evidence seized pursuant to the execution of the illegal warrant should have been suppressed. Holstein v. State, 183 Ga. App. 610, 359 S.E.2d 360, cert. denied, 183 Ga. App. 906, 359 S.E.2d 360 (1987).

- City of Atlanta police officer, who is also a deputy sheriff of Fulton County, has the authority to apply for, obtain, and execute a search warrant in Clayton County. Bruce v. State, 183 Ga. App. 653, 359 S.E.2d 736 (1987).

- Absence of a signature on the affidavit left in the magistrate court's file did not invalidate a search warrant for vehicles because there were multiple original affidavits, only one of which was unsigned, and the warrant actually served contained the affiant's signature; the affiant explained that the affiant took three identical search warrants to the magistrate, that the affiant signed two of the affidavits but inadvertently failed to sign the third one and that the affiant served the defendants with the warrants by leaving copies for the defendants at the jail. Prado v. State, 306 Ga. App. 240, 701 S.E.2d 871 (2010).

- O.C.G.A. § 17-5-20 deals with the requirements for the issuance of search warrants generally and does not deal in any way with the disposition of the seized property. Wallace v. State, 165 Ga. App. 804, 302 S.E.2d 718 (1983).

Juvenile court probation officer has no authority to apply for a search warrant. Huff v. Walker, 125 Ga. App. 251, 187 S.E.2d 343 (1972).

- Search warrants are criminal in nature, having no relation to civil process and are unavailable to an individual for the maintenance of a mere private right. Johnson v. State, 111 Ga. App. 298, 141 S.E.2d 574 (1965).

- Temporary protective order (TPO) obtained by the defendant's girlfriend did not constitute a valid search warrant and was not a substitute for a search warrant authorizing entry into the defendant's home and, therefore, the trial court erred by denying the defendant's motion to suppress because the TPO did not meet the warrant and probable cause standard of the Fourth Amendment and O.C.G.A. § 17-5-20 and the state did not articulate a need to deviate from the requirement of obtaining a warrant to search the defendant's home. State v. Burgess, 349 Ga. App. 486, 826 S.E.2d 352 (2019).

- Trial court did not err in denying the defendant's motion to suppress evidence police officers found at a residence because the fact that the investigator who submitted the affidavit for the search warrant did not leave a copy of the affidavit with the warrant at the premises did not render the warrant invalid; the warrant satisfied the particularity requirement of the Fourth Amendment and Ga. Const. 1983, Art. I, Sec. I, Para. XIII on the warrant's face because the warrant listed the address of the place to be searched and contained a description of the home, and the warrant also listed items to be seized, including marijuana, weighing devices, and other paraphernalia used in the distribution of drugs. Pass v. State, 309 Ga. App. 440, 710 S.E.2d 641 (2011).

- Because the magistrate was presented with a substantial basis for concluding that evidence of child molestation would be found in the cameras and film located in the defendant's car, and such provided probable cause to support the issuance of a search warrant, the trial court properly denied the defendant's motion to suppress the evidence seized as a result of the search warrant. Manders v. State, 281 Ga. App. 786, 637 S.E.2d 460 (2006).

With regard to a defendant's convictions on drug-related offenses, the trial court properly denied the defendant's motion to suppress the evidence seized from the defendant's apartment upon execution of a search warrant since the affidavit of a deputy, which was based on an informant's tip, sufficiently established probable cause as the informant had been in the defendant's apartment and had personally viewed the drugs. Rocha v. State, 284 Ga. App. 852, 644 S.E.2d 921 (2007).

Trial court properly found that under the totality of the circumstances, the affidavit in support of a search warrant for a residence suspected of being a marijuana "grow house" gave the magistrate a substantial basis for concluding that probable cause existed because the affidavit set forth the fact that similar investigations and seizures had taken place in several grow houses in the area, the house under surveillance had characteristics similar to those houses, and two men fled from the residence and were apprehended with large amounts of cash; the information from the stop was not excludable as "stale" because there was a substantial basis for believing that the electrical ballasts and light fixtures identified in the search warrant could still be found at the residence and the items were not perishable. Prado v. State, 306 Ga. App. 240, 701 S.E.2d 871 (2010).

Trial court did not err in denying the defendant's motion to suppress evidence a detective found in the defendant's home because given the totality of the circumstances, the magistrate who issued the search warrant was authorized to conclude that there was a fair probability that contraband would be found at the defendant's home; the detective's affidavit in support of the warrant contained ample facts by which the magistrate could independently evaluate the veracity and reliability of anonymous informants and their information, and a confidential informant's controlled buy of marijuana from the defendant at the defendant's residence on the day the detective applied for the warrant independently confirmed that illegal drug activities were taking place at the home. Taylor v. State, 306 Ga. App. 175, 702 S.E.2d 28 (2010).

Trial court did not err in refusing to suppress the defendant's hospital records, which showed that the defendant used drugs on the day the defendant shot the victim, because on the evidence's face, the affidavit for the search warrant issued for the records demonstrated a fair probability that evidence of the defendant's drug use would be found in the hospital records; the alleged omissions in the affidavit, which was based on the statements of the defendant's spouse, had the potential to impeach the statements made by the spouse, but the omissions did not eliminate the existence of probable cause because if the omitted material were included in the warrant, probable cause would still exist. Herrera v. State, 288 Ga. 231, 702 S.E.2d 854 (2010).

Cited in Fowler v. State, 128 Ga. App. 501, 197 S.E.2d 502 (1973); Allison v. State, 129 Ga. App. 364, 199 S.E.2d 587 (1973); Baxter v. State, 134 Ga. App. 286, 214 S.E.2d 578 (1975); State v. Harber, 198 Ga. App. 170, 401 S.E.2d 57 (1990); Davis v. State, 261 Ga. 382, 405 S.E.2d 648 (1991); Hightower v. State, 205 Ga. App. 305, 422 S.E.2d 28 (1992); White v. Traino, 244 Ga. App. 208, 535 S.E.2d 275 (2000).

Constable or small claims court bailiff is not charged with the general duty of enforcing the criminal laws of this state. 1975 Op. Att'y Gen. No. U75-17.

- "Registered" or "exempt" peace officer who is in compliance with the requirements for certification under the Georgia Peace Officer Standards and Training Act, O.C.G.A. § 35-8-1 et seq., has the same authority and limitations as that of a "certified" peace officer in all respects relevant to law enforcement duties, including the ability to apply for a search warrant. 1999 Op. Att'y Gen. No. 99-7.

RESEARCH REFERENCES

Am. Jur. 2d.

- 68 Am. Jur. 2d, Searches and Seizures, §§ 179, 183, 187, 193.

- Sufficiency of affidavit for search warrant based on affiant's belief, based in turn on information and investigation by one whose name is not disclosed, 14 A.L.R.2d 605.

Search warrant: sufficiency of showing as to time of occurrence of facts relied on, 100 A.L.R.2d 525.

Disputation of truth of matters stated in affidavit in support of search warrant - modern cases, 24 A.L.R.4th 1266.

Lawfulness of search of person or personal effects under medical emergency exception to warrant requirement, 11 A.L.R.5th 52.

Search conducted by school official or teacher as violation of fourth amendment or equivalent state constitutional provision, 31 A.L.R.5th 229.

Validity of anticipatory search warrants - state cases, 67 A.L.R.5th 361.

Civilian participation in execution of search warrant as affecting legality of search, 68 A.L.R.5th 549.

When is consent voluntarily given so as to justify search conducted on basis of that consent - Supreme Court cases, 148 A.L.R. Fed. 271.