What must the state introduce at a motion to suppress hearing for evidence obtained through a search warrant?
Posted by Ben Sessions | | Criminal Defense
If you are defending DUI cases in Georgia, you are almost certainly going to see a case that involves a DUI blood test obtained through a search warrant. This is going to be a more frequent concern in DUI cases in Georgia. This post discusses what evidence the State must introduce in order to establish the validity of a search warrant.
This is a template that you can easily adapt for DUI blood search warrant cases:
So, one of the things that we’re hearing continuously after Elliott versus State is that a lot of prosecutors are saying that they’re going to begin seeking search warrants in a lot more cases and if you’re really, really, dealing with misdemeanor DUI cases, one of the things that you don’t really see a lot of are search warrants. Particularly search warrants for blood and those are things that are, if they actually follow through with this strategy, seeking search warrants instead of using implied consent, that’s something that we really need to be concerned about. And if you haven’t handled search warrant cases, they are a little bit different and in some ways a lot more predictable than your typical consent search case. So, instead of going to court and wondering what your officers is going to say, you know what it is the officers going to say except for in a very narrow situation, at the search warrant hearing. So, you’re what you’re going to do is you’re going to rely upon but the search warrant and the underlying affidavit.
What you really need to be careful, be aware of as you’re approaching the hearing is if the search warrant indicates that there was oral testimony that was relied upon by the magistrate in issuing the search warrant. So, when first to begin, whenever you’re preparing for a motion to suppress hearing, know the State still has certain burns even though they’re relying upon a search warrant in your DUI blood test case. So, if you have a case in which there is in fact a search warrant don’t just think that, oh they got a warrant that’s the end of the deal, it’s not the end of the deal all. Instead at the search warrant the motion to suppress hearing for the search warrant the States required first to introduce evidence of the search warrant and they’re required to introduce the actual affidavit or evidence that the magistrate relied upon in the issue of the search warrant. It’s not enough for them to just bring in the officers who allegedly testified to the magistrate as to probable cause there required to actually show and introduce the evidence that the magistrate relied upon in an issue of the search warrant. Typically that is in the form of an affidavit, so if you had a search warrant case in which a magistrate just relied upon the affidavit there’s only the indication that the magistrate only looked at the affidavit in issuing search warrants, well then what you should have the prosecutor in that case is they should introduce evidence of the search warrant and they should introduce the underlying affidavit, if they don’t introduce evidence of the affidavit your motion to suppress should be granted, that is clear. The case that you should rely upon is Watts versus State, 274 Georgia 373. I’m going to make a post this is going to be mentioned and explanation or description of this video. I’ll include that and that citation in the relevant portions from Watts versus State in that post, so you’ll have that information.
It is really important that we begin to look closely at the search warrants look closely at the affidavits both to challenge, for example, it in a lot of the DUI cases we’ll see in the search warrant affidavit that the officer claims that my client refusing to submit to you field sobriety tests, my client refusing to submit to a preliminary breath test, supports his decision there was a probable cause to seek a search warrant in the case. We know from Miley Mackey Gardner Kwiatkowski, that that is an improper statement that’s included in that affidavit, that should be stricken from the affidavit and probable cause evaluated exclusive of that information. So, we need really need to start kind of digging into more traditional search warrant cases and looking at our search warrants and the affidavits in learning to challenge the admissibility of that evidence in our DUI cases. If you have questions about search for case, if you need any help feel, free to call me. My name is Ben Sessions, my phone number is 470-225-7710. Again, 470-225-7710, thank you.