2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 5 - Searches and Seizures
Article 2 - Searches With Warrants
§ 17-5-27. Use of Force in Execution of Search Warrant

All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search warrant if, after verbal notice or an attempt in good faith to give verbal notice by the officer directed to execute the same of his authority and purpose:

1. He is refused admittance;
2. The person or persons within the building or property or part thereof refuse to acknowledge and answer the verbal notice or the presence of the person or persons therein is unknown to the officer; or
3. The building or property or part thereof is not then occupied by any person.

(Orig. Code 1863, § 4636; Code 1868, § 4660; Code 1873, § 4758; Code 1882, § 4758; Penal Code 1895, § 1244; Penal Code 1910, § 1326; Code 1933, § 27-301; Ga. L. 1966, p. 567, § 8.)

- For note, "Cops or Robbers? How Georgia's Defense of Habitation Statute Applies to No-Knock Raids by Police," see 26 Ga. St. U.L. Rev. 585 (2010).

"No-knock" provision should not have been included in the warrant, when there was no allegation of increased peril to the officers or of danger that evidence would be destroyed. Adams v. State, 201 Ga. App. 12, 410 S.E.2d 139 (1991).

Trial court's grant of the defendants' motion to suppress evidence obtained from a house was not clearly erroneous because the "no-knock" provision in the search warrant for the house was unsupported by particular facts and circumstances justifying the need for its use and that no exigent circumstances were shown; a single report of the presence of a firearm over five months before the warrant issued, uncorroborated despite continued surveillance and investigation during that time, was stale. State v. Barnett, 314 Ga. App. 17, 722 S.E.2d 865 (2012).

- Officers' entry into a motel room without giving notice of authority and purpose and without knowledge that the room is unoccupied is illegal and taints all subsequent events whether viewed for the purpose of executing the search warrant or viewed as an entry to effect an arrest without a warrant. Barclay v. State, 142 Ga. App. 657, 236 S.E.2d 901 (1977).

- Failure of the police to knock and give verbal notice of their authority and purpose in the execution of a search warrant may be excused when the police have reasonable grounds to believe that forewarning would either greatly increase their peril or lead to the immediate destruction of the evidence. Scull v. State, 122 Ga. App. 696, 178 S.E.2d 720 (1970).

Threat of violence against the police is sufficient to justify the grant of an exemption from the notice requirement, and this is especially true when coupled with the probability of loss of evidence by flushing the evidence down a toilet. Jones v. State, 127 Ga. App. 137, 193 S.E.2d 38 (1972).

When a police officer has reasonable grounds to believe that forewarning parties believed to possess marijuana would lead to immediate destruction of the evidence, the officer's failure to knock and give verbal notice of the officer's authority and purpose in the execution of a search warrant is excused. Neal v. State, 173 Ga. App. 71, 325 S.E.2d 457 (1984).

Compliance with O.C.G.A. § 17-5-27 in the execution of a search warrant is not required when the police have a reasonable, good faith belief that forewarning would increase the peril of the police or lead to the immediate destruction of evidence. Hunter v. State, 198 Ga. App. 41, 400 S.E.2d 641 (1990), cert. denied, 198 Ga. App. 898, 400 S.E.2d 641 (1991).

Trial court erred in granting the defendant's motion to suppress evidence seized from the home during execution of a search warrant as a confidential informant's statement to a police investigator that the defendant had automatic weapons in the house and that defendant "would not go down without a fight" was sufficient to create a reasonable belief that officers could be harmed if the officers announced the officers' presence when executing the search warrant; accordingly, the magistrate acted properly in issuing a "no-knock warrant," pursuant to O.C.G.A. § 17-5-27, and such did not justify suppression of the seized evidence. State v. Cochran, 275 Ga. App. 185, 620 S.E.2d 444 (2005).

Substantial basis existed for the inclusion of a no-knock provision in the issuance of a warrant based on a law enforcement officer's claim that notice would greatly increase the peril to the officers because the defendant had a criminal history that included a prior arrest for the sale of drugs, that drugs were often associated with the presence of firearms, and that it was believed that there were drugs in the premises to be searched, a substantial basis existed for the inclusion of the no-knock provision in the warrant. Smithson v. State, 275 Ga. App. 591, 621 S.E.2d 783 (2005).

Denial of a defendant's suppression motion was proper as the police officers were authorized to immediately enter a residence, without announcing the officers' presence as required by O.C.G.A. § 17-5-27, as the occupants fled upon seeing the police, into a residence where the police had recently conducted controlled drug buys and the officers had a reasonable belief that the fleeing occupants might retrieve weapons or destroy evidence; once legally inside the residence, the police were authorized to execute a search warrant that led to the discovery of the defendant's involvement in drug sales. Moreover, suppression of evidence was not a constitutionally-required remedy for an improper entry pursuant to an otherwise valid search warrant. Jackson v. State, 280 Ga. App. 716, 634 S.E.2d 846 (2006).

Agent's request for a no-knock warrant was properly granted because the subject had been convicted of theft by receiving stolen property and possession of marijuana with intent to distribute and, further, was the subject of a pending charge for possession of a firearm by a convicted felon. Kimble v. State, 301 Ga. App. 237, 687 S.E.2d 242 (2009).

- Although O.C.G.A. § 17-5-27 excuses force in the execution of a search warrant only after giving verbal notice of authority and presence, this requirement for notice is waived if giving notice would increase the peril of the officers conducting the search. Anderson v. State, 249 Ga. 132, 287 S.E.2d 195 (1982).

- Mere fact that the issuing magistrate did not expressly authorize a "no-knock" search is of no consequence if there is a good-faith belief on the part of the arresting officer that such authorization was intended; and the officer's failure thereby to comply with the formal requirements of O.C.G.A. § 17-5-27 does not justify exclusion of the evidence obtained. Neal v. State, 173 Ga. App. 71, 325 S.E.2d 457 (1984); Hunter v. State, 198 Ga. App. 41, 400 S.E.2d 641 (1990), cert. denied, 198 Ga. App. 898, 400 S.E.2d 641 (1991).

Erroneously included "no knock" provision in the warrant did not require granting a motion to suppress when it appeared that officers entered the premises on the good faith belief that the officers were authorized, because of the peril created by the presence of a dangerous dog, to proceed with a "no-knock" warrant issued by the magistrate. Adams v. State, 201 Ga. App. 12, 410 S.E.2d 139 (1991).

In executing a warrant without a "no-knock" provision, a five to ten second interval between the police officer's knock and the nonviolent opening of the unlocked door (after no one inside responded) was not manifestly unreasonable. Felix v. State, 241 Ga. App. 323, 526 S.E.2d 637 (1999).

- Police acted reasonably in executing a search warrant at a certain house to look for evidence of drug transactions since the police knocked on the door and announced the identity of the police and the purpose in being there and since the police then waited three to five seconds before entering the home by nonviolent means after no one inside the home responded. Swan v. State, 257 Ga. App. 704, 572 S.E.2d 64 (2002).

- If reasonable grounds for belief that exigent circumstances exist relieving police officers of the officers' duty to give verbal notice of the officers' authority and purpose in the execution of a search warrant are supplied by an informer, the informer's identity need not be disclosed if the information meets the same tests as those for probable cause for the issuance of a warrant, i.e., reliability of the informer shown and the tip sufficiently detailed. Scull v. State, 122 Ga. App. 696, 178 S.E.2d 720 (1970).

- Trial court's conclusion that an announcement simultaneous with entry satisfied O.C.G.A. § 17-5-27 was erroneous and remand was necessary to determine if the entry was not forcible and exigent circumstances were present. Hourin v. State, 301 Ga. 835, 804 S.E.2d 388 (2017).

- When there is sufficient evidence to authorize a finding that verbal notice was given, the trial court's fact and credibility determinations on the issue must be accepted. Strickland v. State, 153 Ga. App. 51, 264 S.E.2d 540 (1980).

- Trial court erred in denying the defendant's suppression motion as the law enforcement officers executing a search warrant, which did not contain a no-knock provision, for defendant's apartment failed to comply with O.C.G.A. § 17-5-27; defendant's convictions of possession of cocaine and possession of marijuana with intent to distribute were reversed as exigent circumstances to justify a forced entry into the apartment without an announcement were not established merely because a person appeared at a window of the apartment and left, in the absence of any evidence that: (1) the person at the window was defendant; (2) the defendant or the person who peered through the window had a history of violence; (3) either person had threatened violence if law enforcement officers entered; or (4) the defendant had located drugs in the apartment for quick disposal. Poole v. State, 266 Ga. App. 113, 596 S.E.2d 420 (2004).

Cited in Bridges v. State, 227 Ga. 24, 178 S.E.2d 861 (1970); Brooks v. State, 129 Ga. App. 393, 199 S.E.2d 578 (1973); Jackson v. State, 129 Ga. App. 901, 201 S.E.2d 816 (1973); Baxter v. State, 134 Ga. App. 286, 214 S.E.2d 578 (1975); Kent v. State, 134 Ga. App. 573, 215 S.E.2d 331 (1975); Morris v. State, 170 Ga. App. 302, 316 S.E.2d 860 (1984); Moore v. State, 176 Ga. App. 251, 335 S.E.2d 716 (1985); Hout v. State, 190 Ga. App. 700, 380 S.E.2d 330 (1989); Grant v. State, 198 Ga. App. 732, 403 S.E.2d 58 (1991); State v. Smith, 219 Ga. App. 905, 467 S.E.2d 221 (1996); Cook v. State, 255 Ga. App. 578, 565 S.E.2d 896 (2002).

RESEARCH REFERENCES

Am. Jur. 2d.

- 68 Am. Jur. 2d, Searches and Seizures, §§ 246, 251 et seq.

- 79 C.J.S., Searches and Seizures, §§ 255 et seq., 261 et seq.

- What constitutes compliance with knock-and-announce rule in search of private premises - State cases, 85 A.L.R.5th 1.