Burden of Proof
a. Under American law this legal standard of proof falls below “probable cause,” the standard required before warrants or arrests occur, but above “inchoate and unparticularized suspicion” (a “hunch”). In order to meet this burden there must be “specific and articulable facts” that are “taken together with rational inferences from those facts.” Furthermore, the suspicion must be directed towards the specific individual.
i. State v. Dixson, 280 Ga. App. 260 (2006)
b. Police are permitted to frisk detainees for weapons if they have a reasonable belief that the detainee is armed and dangerous, however they may not do so to search for other contraband such as drugs.
i. Chaney v. State, 207 Ga.App 72 (1993)
c. The standard for evaluating whether or not the suspicion was “reasonable” is that of a “reasonable person/officer.” The suspicion will be found to be “reasonable” if the circumstances would lead a reasonable person to suspect that a person has been or will soon commit some kind of criminal activity. When making this determination all relevant circumstances are taken into account, meaning that even small details that seem small by themselves may combine to create a reasonable suspicion.
i. Chaney v. State, 207 Ga .App 72 (1993)
a. Under this standard police must have an adequate reason to arrest someone, carry out a search, or seize property, which relates to alleged criminal activity.
b. This requirement is derived from the 4th Amendment of the Constitution, the text of which reads:
i. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be searched.”
c. The focus of the standard is the amount and quality of information that is necessary in order to arrest someone, to search or seize private property, or to charge someone with a crime. Probable cause will be found when the known facts and circumstances would cause a reasonable person to believe:
i. That the individual who is sought for arrest committed the given crime, or
1. Durden v. State, 250 Ga. 325 (1982)
ii. That the location intended to be searched was the location in which a crime took place, or
1. Dawson v. State, 238 Ga. App. 263 (1999)
iii. That evidence is present at the location sought to be searched, or
1. Dawson v. State, 238 Ga. App. 263 (1999)
iv. That any property meant to be seized is either contraband, stolen, or will serve as evidence of some crime.
1. Hogan v. State, 140 Ga. App. 716 (1976)
d. Probable cause is necessary before a court may issue a warrant to make an arrest, search, or seizure.
i. State v. Stephens, 252 Ga. 181 (1984)
e. Furthermore, in order to make an arrest without a warrant, the police must have probable cause. Oftentimes it will also be necessary before searches or seizures may take place without a warrant.
i. Moore v. State, 174 Ga. App 826 (1985)
f. Finally, in order to charge an individual with a crime a prosecutor must first have probable cause
i. No criminal case law mentions this specifically however under Georgia law a lack of probable cause is the “gravamen” of an action for malicious prosecution. Morgan v. Mize, 118 Ga. App. 534 (1968)
a. In order for an officer to obtain a warrant they must first sign an affidavit which contains the facts establishing probable cause in order to make an arrest, search, or seizure. If the judge agrees that probable cause is present they will issue a warrant.
i. Sullivan v. State, 284 Ga. 358 (2008)
b. Warrants are not always necessary however, such as when an officer arrests an individual for a felony that the officer witnessed. In these situations probable cause must be shown after the arrest is made. Prosecution will only follow if probable cause is found to have existed.
i. Moore v. State, 174 Ga. App 826 (1985)
a. If the facts and circumstances known by the officer are the kind that would cause a reasonable person to think a suspect (1) has committed, (2) is currently committing, or (3) is about to commit a crime then probable cause will be found to have existed. In these situations probable cause must be based on specific circumstances and facts, a simple hunch or suspicion will not suffice.
i. Brown v. State, 262 Ga. 728 (1993)
b. Probable cause is not necessary to carry out a “detention” which falls below an arrest; these “detentions” require only that the officer had a “reasonable suspicion.”
i. Brooks v. State, 129 Ga. App. (1973)
c. These detentions can of course develop into arrests, however the point at which this occurs may be difficult to determine. Common triggers include an officer stating that they are placing a person under arrest, restraining a suspect physically, and other similar actions. Said actions may cause the Constitutional requirement of probable cause to accrue.
i. Jackson v. State, 191 Ga. App. 439 (1989)
a. If the officer knows of facts and circumstances that would lead a reasonable person to believe that a crime has been committed at the given place, or that the place contains evidence of a crime the officer will have probable cause search.
i. Dawson v. State, 238 Ga. App. 263 (1999)
b. Search warrants must be specific regarding the location to be searched as well as the objects that will be seized.
i. Ellenburg v. State, 113 Ga. App. 585 (1966)
c. Search warrants are not always required however, these situations include
i. The person who has control of the location consents to the search
1. Niles v. State, 325 Ga. App. 621 (2014) (quoting Illinois v. Rodriguez)
ii. Searches that are being carried out in connection to lawfully made arrests
1. Eberhart v. State, 257 Ga. 600 (1987)
iii. When an emergency situation exists that either (1) presents a threat to public safety or (2) presents a threat that evidence will be lost
1. Minor v. State, 298 Ga. App. 391 (2009)
d. Contraband that is located “in plain sight” where an officer has a right to be do not require a warrant.
1. State v. Brown, 158 Ga. App. 312 (1981)
2. Pickens v. State, 225 Ga. App. 792 (1997)
a. If the facts and circumstances known to an officer would cause a reasonable person to believe that a given item is contraband, stolen, or amounts to evidence of some crime the officer will have probable cause to seize that property.
i. Hogan v. State, 140 Ga. App. 716 (1976)
b. If a search warrant has been issued the police are generally bound to search only for items that are described in the warrant. Despite this restriction any contraband or evidence of other crimes that officers stumble upon may typically be seized as well.
i. Grant v. State, 220 Ga. App. 604 (1996)
c. If evidence is found to have been discovered via an illegal search the “exclusionary rule” comes into play. This rule prevents the evidence from being used by the prosecution against the defendant. The determination of whether to admit or exclude such evidence is made by a judge following their hearing of arguments presented by both the prosecution and the defense.
i. Harvey v. State, 266 Ga. 671 (1996)
a. This standard does not impose a burden on the prosecutor to prove a case beyond any doubt at all. Several Georgia cases have defined a “reasonable doubt” as:
i. One which a juror can provide a reason for
ii. One for which a specific reason can be given
iii. One that come from a fair mined and impartial juror
iv. One which leaves the individual’s mind wavering, unsettled, and unsatisfied
v. One which is based upon common sense and reason
b. Cornish v. State, 187 Ga. App. 140 (1988) (“The burden of proof in a criminal case is on the state to establish the defendant’s guilt beyond a reasonable doubt.”) and Alexander v. State, 308 Ga .App. 245 (2011)
a. As per O.C.G.A. 24-1-1(5) “Preponderance of the evidence means that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than the other.” Essentially this boils down to whichever side has the most convincing evidence should win. Examples of when a preponderance of the evidence is all that is required for the State to prove their case include:
i. When the state wishes to show a violation of probation
1. Smith v. State, 283 Ga. App. 317 (2007)
ii. During Jackson Denno hearings to decide whether Miranda warnings had been given and/or whether a confession was both freely and voluntarily given
1. Jones v. State, 285 Ga. 328 (2009)
iii. When an individual has consented to a search the State must only prove by a preponderance of the evidence that consent was in fact given
1. State v. Barnett, 233 Ga. App 496 (1998)
iv. In situations involving similar transactions the State must only show that the defendant committed the similar offense by a preponderance of the evidence.
1. Freeman v. State, 268 Ga. 185 (1997)