2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 5 - Searches and Seizures
Article 2 - Searches With Warrants
§ 17-5-28. Detention and Search of Persons on Premises

In the execution of the search warrant the officer executing the same may reasonably detain or search any person in the place at the time:

1. To protect himself from attack; or
2. To prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.

(Ga. L. 1966, p. 567, § 9.)

- For annual survey of criminal law and procedure, see 41 Mercer L. Rev. 115 (1989).

ANALYSIS

• General Consideration
• Types of Searches
• Construction of Warrants
• Practice and Procedure

General Consideration

Constitutionality.

- This section is not void nor in violation of U.S. Const., amend. 14 in that the statute authorizes a search of the persons of citizens of the United States and of the State of Georgia without probable cause and without particularly describing the person to be searched or the articles to be seized. Wood v. State, 224 Ga. 121, 160 S.E.2d 368 (1968).

- O.C.G.A. § 17-5-28 pertains only to searches conducted pursuant to a warrant. State v. Stephens, 167 Ga. App. 707, 307 S.E.2d 518 (1983).

- This section describes the maximum extent to which U.S. Const., amend. 4 permits the particularity of description in a search warrant to be encroached by the practical necessities of the search environment. Wallace v. State, 131 Ga. App. 204, 205 S.E.2d 523 (1974); Campbell v. State, 139 Ga. App. 389, 228 S.E.2d 309 (1976), cert. denied and appeal dismissed, 429 U.S. 1083, 97 S. Ct. 1089, 51 L. Ed. 2d 529 (1977).

- This section does not limit the officer's right to search persons as to whom probable cause for a warrantless search exists. Wallace v. State, 131 Ga. App. 204, 205 S.E.2d 523 (1974); Travis v. State, 192 Ga. App. 695, 385 S.E.2d 779 (1989).

§ 17-5-28 indicates when officer may search occupants not in warrant. - This section by necessary implication describes the limited circumstances in which the executing officer may search persons not identified in the warrant incident to a legitimate search of premises. Wallace v. State, 131 Ga. App. 204, 205 S.E.2d 523 (1974); Bramblett v. State, 205 Ga. App. 290, 422 S.E.2d 18 (1992).

Inclusion of language in the warrant authorizing the search of "any persons present" on the premises does not broaden the powers of the searching authorities beyond the limited terms of O.C.G.A. § 17-5-28. State v. Holmes, 240 Ga. App. 332, 525 S.E.2d 698 (1999).

- Right to search those coming in while a search of the premises is going on, when such search is expressly authorized by the warrant, must be shown by the grounds of probable cause or must have been authorized under the provisions of this section. Logan v. State, 135 Ga. App. 879, 219 S.E.2d 615 (1975).

Search of a visitor was not authorized since there was nothing about the visitor's demeanor that would support a reasonable belief or suspicion that the visitor was armed and dangerous and because the visitor was not in a position to assist in the disposal or concealment of drugs sought by the warrant. State v. Holmes, 240 Ga. App. 332, 525 S.E.2d 698 (1999).

- Under Georgia statutory law, the state has no authority to seize or search a non-occupant of the premises to be searched under a search warrant, who is not on the premises at the time of the search, absent probable cause for a warrantless search. State v. Mallard, 246 Ga. App. 357, 541 S.E.2d 46 (2000).

- This section allows the search of persons not particularly described in the search warrant only when the executing officer may reasonably believe that it is necessary: (1) to protect the officer from attack; or (2) to prevent the disposal or concealment of items particularly described in the warrant. A search for these purposes is permitted as an incident of a lawful arrest without a search warrant. Wood v. State, 224 Ga. 121, 160 S.E.2d 368 (1968).

- Search under paragraph (1) of this section is permissible only when the executing officer may reasonably believe that it is necessary to protect the officer from attack. Smith v. State, 139 Ga. App. 129, 227 S.E.2d 911 (1976).

- If a search is to be upheld on the basis of the warrant, the state must demonstrate that the officer acted under either of the two justifications provided by this section. Smith v. State, 139 Ga. App. 129, 227 S.E.2d 911 (1976); Campbell v. State, 139 Ga. App. 389, 228 S.E.2d 309 (1976), cert. denied and appeal dismissed, 429 U.S. 1083, 97 S. Ct. 1089, 51 L. Ed. 2d 529 (1977).

Searches pursuant to O.C.G.A. § 17-5-28 are valid only if the state can point to particular facts from which the police reasonably inferred that the individual searched was armed and dangerous or was concealing things described in the search warrant. Clark v. State, 235 Ga. App. 569, 510 S.E.2d 319 (1998).

To support a search, officer had to be able to articulate specific facts that would support a reasonable belief or suspicion that the person to be searched was armed and dangerous. It was illegal to search a person not named in the warrant but found on the premises, without independent justification for a personal search. Mercer v. State, 251 Ga. App. 465, 554 S.E.2d 732 (2001).

- To uphold a search of a person or vehicle not particularly described in the warrant the state must demonstrate that the searching officer acted under one of the two subdivisions of O.C.G.A. § 17-5-28 justifying the expanded scope of a search. Collins v. State, 187 Ga. App. 430, 370 S.E.2d 648 (1988); Benham v. State, 196 Ga. App. 241, 395 S.E.2d 658 (1990).

When the police officer had no particular reason to suspect that the defendant was armed or was concealing items described in a search warrant, the weapons pat-down search of the defendant was illegal and the marijuana found pursuant to that illegal frisk should have been suppressed. Clark v. State, 235 Ga. App. 569, 510 S.E.2d 319 (1998).

- To search other persons under paragraph (2) of O.C.G.A. § 17-5-28, there must be a nexus between what the officers are authorized to search for, based on the criminal activity which the officers had probable cause to believe was and/or still is occurring and which prompted the warrant, the nature of the evidence sought, the environment in which the search is authorized, and the person searched. There must be a connection between that person and the activity which logically leads to a belief that the person is in possession of a targeted item. State v. Hawkins, 187 Ga. App. 826, 371 S.E.2d 668 (1988).

- Police officer did not have probable cause to search club visitor's purse since there was no competent evidence to establish a nexus between the visitor and alleged illegal activities at the club, and thus no reasonable basis for suspecting the visitor might be concealing either liquor or marijuana, which was the contraband named in a warrant. State v. Anderson, 195 Ga. App. 793, 395 S.E.2d 50 (1990).

- Search warrant is "general" as to a particular defendant when the defendant is neither listed by name specifically nor described generally, and no additional indicia of probable cause are provided at the scene of the search. State v. Cochran, 135 Ga. App. 47, 217 S.E.2d 181 (1975).

- Warrant to search designated premises will not authorize the search of every individual who happens to be on the premises, but a warrant which identifies the premises and the premises' owners or occupants is not void as a general warrant because the warrant authorizes the search of other persons found there who may reasonably be involved in the commission of the crime for which the warrant is issued. Willis v. State, 122 Ga. App. 455, 177 S.E.2d 487 (1970).

- This section deals with the execution of the warrant, and does not purport to deal with the necessary elements of probable cause and particularity in the description of the persons to be searched and the articles to be seized. Wood v. State, 224 Ga. 121, 160 S.E.2d 368 (1968).

- This section implicitly presupposes that a valid warrant is in existence before authorizing a search of other persons present at the place. Patterson v. State, 126 Ga. App. 753, 191 S.E.2d 584 (1972); Brown v. State, 133 Ga. App. 500, 211 S.E.2d 438 (1974).

- Personal belongings brought by an owner on a visit to a friend's house retain their constitutional protection until their owner meaningfully abdicates control or responsibility. Childers v. State, 158 Ga. App. 613, 281 S.E.2d 349 (1981).

No claim for false imprisonment existed since the plaintiffs were being detained briefly pending the execution of a lawful search warrant and the securing of the premises. White v. Traino, 244 Ga. App. 208, 535 S.E.2d 275 (2000).

Cited in Jones v. State, 126 Ga. App. 841, 192 S.E.2d 171 (1972); Patton v. State, 148 Ga. App. 793, 252 S.E.2d 678 (1979); Morris v. State, 170 Ga. App. 302, 316 S.E.2d 860 (1984); Clark v. State, 184 Ga. App. 380, 361 S.E.2d 682 (1987); Harrison v. State, 213 Ga. App. 174, 444 S.E.2d 354 (1994); Moody v. State, 232 Ga. App. 499, 502 S.E.2d 323 (1998); Hunter v. State, 244 Ga. App. 488, 536 S.E.2d 157 (2000); Peterson v. State, 252 Ga. App. 469, 556 S.E.2d 514 (2001).

Types of Searches

Valid warrant permits.

- Because the officers are executing a valid warrant, under this section the officers are permitted to make a very limited search of those present in the apartment at the time. Campbell v. State, 139 Ga. App. 389, 228 S.E.2d 309 (1976), cert. denied and appeal dismissed, 429 U.S. 1083, 97 S. Ct. 1089, 51 L. Ed. 2d 529 (1977).

- This section allows a very limited search of persons present on the premises at the time of the search to look only for weapons or for the items particularly described in the warrant. Campbell v. State, 139 Ga. App. 389, 228 S.E.2d 309 (1976), cert. denied and appeal dismissed, 429 U.S. 1083, 97 S. Ct. 1089, 51 L. Ed. 2d 529 (1977).

Frisk of an individual who is a visitor on the premises and who is not named in the warrant must be justified by the officer's reasonable belief that the frisk is necessary. Condon v. State, 203 Ga. App. 163, 416 S.E.2d 802 (1992).

- This section specifically gives the officer the right to search for weapons. This right is limited to a pat down of the person's outer clothing. Campbell v. State, 139 Ga. App. 389, 228 S.E.2d 309 (1976), cert. denied and appeal dismissed, 429 U.S. 1083, 97 S. Ct. 1089, 51 L. Ed. 2d 529 (1977).

When the warrant authorized a search for drugs, police officers could anticipate that those suspected of involvement in the drug trade might be armed, and when the defendant arrived on the scene in a truck, the officer was clearly authorized to direct that the defendant step from the defendant's truck and submit to a frisk for weapons. Condon v. State, 203 Ga. App. 163, 416 S.E.2d 802 (1992).

- Type of weapons search referred to in this section is the limited pat down search of a person's outer clothing. Smith v. State, 139 Ga. App. 129, 227 S.E.2d 911 (1976).

- Two-step process must ordinarily be followed in a pat down search: (1) the officer must pat down first; and (2) then intrude beneath the surface only if the officer comes upon something which feels like a weapon. Wyatt v. State, 151 Ga. App. 207, 259 S.E.2d 199 (1979).

- Search of defendant's person conducted to prevent concealment of contraband sought pursuant to the search warrant was lawful. Scott v. State, 213 Ga. App. 84, 444 S.E.2d 96 (1994).

- Unlike a full search, a frisk is conducted solely for the purpose of insuring the safety of the officer and of others nearby, not to procure evidence for use at a subsequent trial. Brown v. State, 133 Ga. App. 500, 211 S.E.2d 438 (1974).

- If one is unlawfully searched, the fact that incriminatory matter is found on that person will not render the search legal. Willis v. State, 122 Ga. App. 455, 177 S.E.2d 487 (1970).

- O.C.G.A. § 17-5-28 authorizes a defendant's detention and search of the defendant's person to protect police officers from attack after the defendant's companion is seen reaching for an exposed pistol. Rockholt v. State, 129 Ga. App. 99, 198 S.E.2d 885 (1973).

"Pat down" search authorized under this section to protect the officer from attack is permissible only when the executing officer may reasonably believe that the pat down is necessary and the officer must be able to point to particular facts from which the officer reasonably inferred that the individual was armed and dangerous. Wyatt v. State, 151 Ga. App. 207, 259 S.E.2d 199 (1979).

- Since the testimony of a police officer clearly established that the officers conducting the search reasonably could have concluded that the defendant was armed and dangerous, a pat-down search was authorized under paragraph (1) of O.C.G.A. § 17-5-28. Brown v. State, 181 Ga. App. 768, 353 S.E.2d 572 (1987).

Trial court properly denied the defendant's suppression motion as drug evidence was properly seized during a pat-down search of the defendant's person for weapons, which was justified under O.C.G.A. § 17-5-28 because police were in the process of executing a search warrant to search for drugs; a deputy's removal of a package from the defendant's pants pocket was within the scope of the defendant's consent. Brint v. State, 306 Ga. App. 10, 701 S.E.2d 507 (2010).

- Since the records were totally devoid of testimony or facts showing that the searching officer first conducted a tactile and visual search of defendant's shirt and, only then, finding something that felt like a weapon, extended the search into defendant's shirt pocket, where cocaine was found, the weapons search was not conducted within constitutionally permissible bounds and the seizure of the drugs could not be justified on this basis. Brown v. State, 181 Ga. App. 768, 353 S.E.2d 572 (1987).

Since the defendant refused to exit a vehicle at the officer's request and resisted the officer's efforts to place the defendant against the vehicle, the officer was authorized to conduct a pat-down to determine if the defendant was armed and, when the defendant refused to identify an object the officer felt in the defendant's pocket (subsequently identified as a packet of cocaine), the officer was justified in retrieving the object. McGugan v. State, 215 Ga. App. 535, 451 S.E.2d 460 (1994).

- Although the defendant argued that the defendant was only a visitor at the house being searched, police had the authority to search the defendant when the police had information that two black Haitian males were selling cocaine in the house, and the defendant was the only black Haitian male present. Louis v. State, 188 Ga. App. 435, 373 S.E.2d 231 (1988).

Construction of Warrants

Warrant permitting search of anyone possibly involved is more intrusive than weapons search.

- Warrant that permits the search of any person on the premises who might reasonably be involved in the crime of possession of illegal drugs or narcotics is more intrusive than the weapons search authorized by paragraph (2) of this section. Wallace v. State, 131 Ga. App. 204, 205 S.E.2d 523 (1974).

- Even though the words "and any person present" are in a warrant, the searching authorities may not broaden the authorities' power to search persons not identified in the warrant beyond the limited terms of this section. Wallace v. State, 131 Ga. App. 204, 205 S.E.2d 523 (1974).

- Searches may be upheld under this section when a warrant states that known drug abusers have been observed by police entering and leaving the premises, and persons not specified in the warrants are found sitting in the same room with the named suspects when the contraband pills could easily be passed around and concealed; the persons named in the warrant should either be present or actually reside there, and the particular contraband described should be found. Wyatt v. State, 151 Ga. App. 207, 259 S.E.2d 199 (1979).

- When the warrant contained no language authorizing the search of any person present on the premises, the defendant was wearing a coat and the defendant's purse was on a table beside the defendant, the police determined that the defendant lived in Cleveland, Tennessee, not in the trailer that was the subject of the search warrant, and they also learned that the trailer belonged to two men, which also indicated that the defendant was a visitor, the search of defendant's purse was illegal and it was, therefore, error to deny the defendant's motion to suppress. Hawkins v. State, 165 Ga. App. 278, 300 S.E.2d 224 (1983).

- Searches of persons not named in search warrant but found on premises to be searched are illegal absent independent justification for a personal search. Childers v. State, 158 Ga. App. 613, 281 S.E.2d 349 (1981); Bundy v. State, 168 Ga. App. 90, 308 S.E.2d 213 (1983); State v. Varner, 239 Ga. App. 347, 521 S.E.2d 247 (1999).

- Person found on the premises, but not named in the warrant, may be searched in a pat down for weapons when the searching officers have information that there are firearms on the premises. Gumina v. State, 166 Ga. App. 592, 305 S.E.2d 37 (1983).

- Search warrant for an apartment in a multi-unit building was not broad enough to include the search of the individual suspect who was standing outside the premises in a common area, the parking lot which served all four apartment units in the building. Bayshore v. State, 208 Ga. App. 828, 432 S.E.2d 251 (1993).

Two-and-a-half hour search for cocaine in an apartment was not unreasonable on its face since cocaine is a substance which is concealed easily. Riviera v. State, 190 Ga. App. 823, 380 S.E.2d 353 (1989).

If a visitor in a residence makes no threat or gesture which causes the officer to fear for the officer's safety and the officer has no prior knowledge of the visitor, the police officer has no reasonable belief that the visitor is armed or is a threat to the officer's safety, and a search of the visitor is illegal. Bundy v. State, 168 Ga. App. 90, 308 S.E.2d 213 (1983).

Whether police had notice that the police were searching personal effects of a visitor to searched premises must be determined on the facts of each case. Childers v. State, 158 Ga. App. 613, 281 S.E.2d 349 (1981).

Search of visitor at apartment was authorized since the officers knew that drug dealing there had been heavy that day and the visitor matched the description of a dealer known to supply drugs to residents of the apartment. Steward v. State, 237 Ga. App. 672, 516 S.E.2d 534 (1999); Hall v. State, 242 Ga. App. 280, 527 S.E.2d 624 (2000).

- Without notice of some sort of the ownership of a belonging, the police are entitled to assume that all objects within premises lawfully subject to search under a warrant are part of those premises for the purpose of executing the warrant. Childers v. State, 158 Ga. App. 613, 281 S.E.2d 349 (1981).

- O.C.G.A. § 17-5-28 does not limit an officer's right to search persons as to whom probable cause for a warrantless search exists; defendant's flight from premises identified in a search warrant, coupled with the defendant's presence at the premises, provided probable cause to believe that the defendant possessed, or was a party to possessing, unlawful contraband, justifying an officer's stop and search of the defendant. Underwood v. State, 266 Ga. App. 119, 596 S.E.2d 425 (2004).

- Searches of paper bag carried under person's arm and of plastic bag in person's pocket are treated as searches of the person. Childers v. State, 158 Ga. App. 613, 281 S.E.2d 349 (1981).

- Police, executing a search warrant in the home of the defendant's son, properly searched a purse found a few inches away from the defendant, when the son was absent and the purse was by its nature a holding object and one capable of concealment of such items as drugs or weapons. Bonds v. State, 188 Ga. App. 135, 372 S.E.2d 448 (1988).

- Defendant could not raise an objection to the admission of defendant's spontaneous statement to police officers executing a search warrant that "you've got me" for the first time on appeal absent plain error; there was no plain error in admitting the statement as: (1) the defendant was being detained under O.C.G.A. § 17-5-28, and was not under arrest; (2) the defendant was not being interrogated, making Miranda warnings not required; (3) defense counsel cross-examined the officers on the statement: (4) the statement was admissible as a spontaneous statement; and (5) the statement was admissible under former O.C.G.A. § 24-6-3 (see now O.C.G.A. § 24-3-3) as a part of the res gestae. Zackery v. State, 262 Ga. App. 646, 586 S.E.2d 346 (2003).

- Officers did not possess articulable facts that the home harbored any persons who could pose a danger to those on the arrest scene and therefore a protective sweep was not authorized. State v. Mixon, 251 Ga. App. 168, 554 S.E.2d 196 (2001).

- Detention and search of the defendant's person at defendant's aunt's home where the defendant was visiting at the time police arrived to execute a search warrant was not justified under O.C.G.A. § 17-5-28(2) since the officers failed to articulate facts that justified the defendant's search for safety reasons and defendant was not named in the search warrant. Norton v. State, 283 Ga. App. 790, 643 S.E.2d 278 (2007).

RESEARCH REFERENCES

Am. Jur. 2d.

- 68 Am. Jur. 2d, Searches and Seizures, §§ 176 et seq., 238 et seq., 260, 278.

- Propriety of search of nonoccupant visitor's belongings pursuant to warrant issued for another's premises, 51 A.L.R.5th 375.