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State v Smith – Search and Seizure is illegal without a warrant affidavit in Court

Smith v. State, A13A1119, November 7, 2013.  The Georgia Court of Appeals reversed the denial of a motion to suppress the seizure of marijuana plants as the State failed to produce the warrant affidavit in court along with the warrant and the testimony of the Officer at the motion to suppress hearing. There are three grounds upon which a seizure may be challenged: (1) that search and seizure without a warrant were illegal; (2) the warrant was insufficient because there was no probable cause; and (3) the warrant was illegally executed. Smith challenged the search and seizure as illegal and the warrant as was not based on probable cause. OCGA 17-5-30.

The Court held that State v. Slaughter, 252 Ga. 435, 439 (315 SE2d 865) (1984), requires that the State produce both the warrant and affidavit used to support the warrant at the motion to suppress hearing where the validity of a search and seizure with a warrant is at issue. If the State fails to produce the actual warrant or warrant affidavit the State loses without even going into the facts.

The Court also found that without a warrant the seizure of the marijuana plants was unlawful as the agents would have had to walk across the Constitutionally protected curtilage of the property including the yard and driveway.  Citing Corey v. State, 320 Ga. App. 350, 353 (1) (739 SE2d 790) (2013), the Court held that “even with probable cause, absent exigent circumstances or proper consent, warrantless searches and seizures within a home [or curtilage] by officers in pursuit of their traditional law enforcement duties are presumptively unreasonable. . . . Thus, even if officers have probable cause to investigate a crime, without a warrant, exigent circumstances, or proper consent, they may not enter a home or curtilage.”

-Author: George Creal