Introduction

Search and seizure are among the most widespread investigative actions that restrict human rights, aimed at obtaining evidence necessary for identifying persons who have committed crimes and bringing them to criminal responsibility. Since these investigative actions involve interference with the sphere protected by the right to private life, it is important that legislation and practice comply with international and constitutional guarantees of human rights.

 

The conduct of search and seizure is directly related to Article 8 of the European Convention on Human Rights. The European Court of Human Rights generally considers it appropriate to conduct search and seizure for the purposes of disorder and crime prevention or protection of the rights of others, for private or general prevention purposes, to obtain evidence without which it would be impossible to identify the perpetrator of a crime. The justifying reasons for such measures must be relevant and sufficient and must not be disproportionate to the purpose pursued.[1] The Court has explained that the absence of a search warrant altogether, or its absence without justifiable reasons, is contrary to Article 8 of the Convention; this was also a requirement of domestic legislation, which serves the purpose of controlling the legality of police actions by the prosecutor office.[2] In other words, the use of this measure should primarily be subject to judicial control, while exceptions should be implemented according to clearly established and reasoned standards.

 

1.    Search and Seizure Based on a Court Order

One of the most important instruments for controlling search and seizure is a court order. This guarantee was enshrined as early as 1791 in the Constitution of the United States of America. Specifically, according to the Fourth Amendment to the U.S. Constitution, “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 persons or things to be seized.”[3] Supreme Court of the United States has repeatedly emphasized the importance of court orders: “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well delineated exceptions”[4] These exceptions must be established jealously and carefully.[5]

 

Over the years, the Supreme Court of the United States has established such exceptional cases through its precedents, the consideration of which and understanding of the standards they set is also important for Georgian criminal procedural legislation. According to Article 15, paragraph 2 of the Constitution of Georgia, Personal space and communication shall be inviolable. No one shall have the right to enter a place of residence or other possessions, or to conduct a search, against the will of the possessor. These rights may be restricted only in accordance with law for ensuring national security or public safety, or for protecting the rights of others, insofar as is necessary in a democratic society, based on a court decision or without a court decision in cases of urgent necessity provided for by law.[6] The Constitution of Georgia contains within its text the possibility of conducting search and seizure without a court order. This is specified in the Criminal Procedure Code of Georgia (hereinafter referred to as the CPC),[7] according to which, as a general rule, search and seizure are conducted on the basis of prior permission from the court, i.e., a court order. The necessity of obtaining a court order in advance to conduct search and seizure at the pre-trial investigation stage is an important guarantee for protecting the inviolability of person and private life. Prior or permissive judicial control means that there is no exceptional circumstance—urgent necessity—and according to the basic rule, the prosecutor must motion the court. After considering the motion, the court makes one of the following decisions: either issues an order to conduct search and/or seizure, or refuses to issue this order.

 

However, as with U.S. case law, the European Court of Human Rights,[8] and Georgian criminal procedural legislation, exceptional cases are provided when law enforcement agencies are authorized to conduct search and seizure even without a court order.

2.    Consent

One of the cases of conducting search and seizure without a judge order is the consent of a co-owner/co-possessor or one party to communication. An exception to the Fourth Amendment of the U.S. Constitution exists when a person voluntarily consents to the search of their own dwelling. However, the court particularly emphasizes that the voluntariness of the owner consent must be proven by the prosecution.[9] During consideration, the court must take into account the totality of circumstances in order to determine the voluntariness of consent and the absence of coercion. In this case, the existence of a demonstration of force, the persons age, mental state, and intellectual capabilities to understand the meaning of consent are taken into account, as well as examination of the surrounding circumstances, the persons location at the time of giving consent—whether they were in a state of restriction of freedom [e.g., detained/imprisoned], whether consent was given after the person conducting the search stated that they had a search warrant. When deciding the issue of voluntariness of consent, the main question is how morally acceptable the methods and techniques used by the police to obtain consent are.

 

Knowledge of the right to refuse consent is not necessary; moreover, a law enforcement representative is not obligated to explain to the person the existence of such a right.[10]

 

As for consent given by a third party, the latest precedents indicate that conducting a search with the consent of a third party is lawful, as long as another co-owner/co-possessor present at the location does not refuse. According to established precedent, the refusal of a co-owner present at the location can outweigh the consent given by the other co-owner.[11] It is also important that despite the existence of consent, the conducted search is considered unlawful when the searched property is used not by the owner, but by the tenant of the property. Accordingly, the Supreme Court established an unlawful violation of privacy with respect to a person who, although legally had a lesser degree of authority with respect to the property (possession), in fact the threat to their private life was higher than that of the property owner.[12]

 

According to the most recent American case-law, the existence of actual authority of the person giving consent is not necessary for conducting a search. It is sufficient that the police officer has a reasonable, even if mistaken, belief that the third party has actual authority to consent to the search.[13]

 

Article 112, paragraph 1 of the Criminal Procedure Code of Georgia also allows the possibility that search and seizure may be conducted without an order and ruling if there is the consent of a co-owner/co-possessor or one party to communication.

 

The provisions of Georgian criminal procedural legislation clearly indicate that in the case of consent, it is no longer mandatory to approach the judge to verify the legality of search and seizure at the pre-trial investigation stage. The legality of search or seizure will be verified in the general manner at the preliminary hearing or during the substantive consideration of the case in court. The consent of the co-owner/co-possessor/one party to communication must be recorded in writing. When requesting consent, the investigator must specify what they are requesting consent for and what the authorized person is giving consent to, so that the scope of consent is precisely determined and the investigator does not arbitrarily search a place or seize an item for which the authorized person has not given consent.

 

3. Plain View Doctrine

As noted above, according to the general rule, search and seizure are conducted on the basis of a court order. The detailing of the order and the precise indication of the items subject to search and seizure is an important guarantee for the protection of privacy.

 

Excessively general terminology in the order gives the person conducting the search unlimited discretionary power to determine which documents are interest for the investigation of a criminal case. This leads to large-scale search and seizure, which violates the right to privacy. Judicial authorities should be careful in issuing broad and/or very general orders. The requirement for detail is a mechanism for protection against arbitrariness by the state, increases public trust in the judiciary, and promotes the full exercise of the right to appeal.

 

It is considered that court orders satisfy the requirement for detail when the list of items to be seized simultaneously indicates precisely defined items and items for the definition of which the court uses so-called comprehensive terms, such as: electronic media or electronic devices, which includes any type of electronic media, including all computers, memory, disks, memory cards, etc., located at the search site. In this case, the detail of the order is determined by the context of the order and other items to be seized indicated therein. As a result, the order should be read as granting persons conducting the search the right to search only for material containing information related to a defined range of issues in the seized computers and electronic devices. When interpreting the order in this way, the court considers it sufficiently detailed.

 

Thus, according to the general rule, the limits of the order are given essential importance. As a rule, the person conducting the search does not have the right to exceed the limits of the order. Despite this general guarantee, there is an exceptional case when a law enforcement representative can exceed the limits of the order and/or conduct a search even without an order. This exception is the so-called plain view doctrine.

 

3.1. Expectation of Privacy

The plain view doctrine has a significant connection with a person’s expectation of privacy. Before moving directly to the doctrine, it is important to review the meaning of expectation of privacy.

 

In 1967, in its important precedent Katz v. United States,[14] the Supreme Court developed the standard of expectation of privacy. The Court explained that the Fourth Amendment (property right) does not protect such property that has been made public by a person, even if it is located in their own home. Conversely, when property becomes public and the person considers it their property, it is protected by the Constitution, for example, a store, as in the mentioned case. Anyone can enter a store without prior permission to purchase a desired product or item (which is why it is public); however, if the need for search and seizure arises, this object, like all property, is protected by the Fourth Amendment of the U.S. Constitution. Accordingly, whether the Fourth Amendment applies to specific property depends not on its location (whether it is located in a house or on the street) but on the extent to which a person has a reasonable expectation that their property is protected from unlawful interference by the state.

 

To determine whether a person has a legitimate expectation of privacy, Judge John Marshall Harlan developed a two-part test: 1) subjective—whether the person had an expectation of being in a private space; 2) objective—whether this expectation was objectively reasonable.

 

Regarding the issue of expectation of privacy, an important case is Hoffa v. United States,[15] where Edward Partin, a local union official and law enforcement inspector, visited Jimmy Hoffa in his hotel room. Jimmy Hoffa was at that time charged with corruption related to union activities. Hoffa told Partin about bribing jurors. Partin subsequently testified in court with witness status and became the prosecutions main witness in the case of Hoffa bribery of jurors. The Supreme Court ruled that despite the hotel room being a legally protected territory, Hoffa should not have had an expectation of privacy in the room. Instead, Hoffa unreasonably hoped that Partin would not reveal his conversation about bribing jurors. The Supreme Court noted that the Fourth Amendment does not in any part protect the criminal unreasonable belief that a person whom he in good faith informs about a committed crime will not reveal it to others. A similar decision was made by the Supreme Court in the case of Lewis v. United States.[16] Lewis repeatedly invited a federal agent to his home to sell him marijuana. The Supreme Court ruled that when a home turns into a commercial center, it does not have a higher right to protection than in cases where commercial activity takes place in shops, on the street, or in a garage.

 

3.2. Plain View

The plain view doctrine represents one of the exceptions when interference with the sphere protected by a persons private life occurs without a court order and/or by expanding a court order. For this, it is necessary that a law enforcement officer:

1.    Be lawfully present on the territory

2.    The item to be seized is within the persons field of vision, in plain view

3.    The illegal nature of the item to be seized is self-evident from superficial observation and does not require additional investigation

One of the most important precedents that established the plain view doctrine and its preconditions is Horton v. California.[17] The defendant and his accomplice were suspected of robbing a jewelry store using firearms and an electroshock weapon. The court warrant gave the police permission only to search and seize stolen property and did not apply to weapons. When the police arrived at the location and began executing the warrant, they did not find the stolen property, but they found weapons that were stored in an accessible place. The Supreme Court recognized the search as lawful and relied on the view that in general, a person cannot have a legitimate expectation of privacy with respect to illegal items that they leave in plain view and are easily noticeable to a law enforcement representative.

 

The Fourth Amendment also does not protect open fields and/or public spaces. In the case of Oliver v. United States,[18] Kentucky state police were investigating a report that Thornton and Oliver were cultivating marijuana on farm. Police bypassed Olivers house and followed a fence that read No Trespassing and arrived at a marijuana plantation one mile from Olivers house. The Supreme Court ruled that the Fourth Amendment does not protect persons, houses, and property from unauthorized searches conducted in open fields. The guarantee of inviolability of property generally does not extend to open fields. According to the same doctrine, for example, if a police officer sees from the street through a person’s window an item whose criminal nature is obvious, they do not need a court warrant to enter the house and conduct a search.

 

The plain view doctrine is also established in Georgian legislation. The possibility of expanding the circle of items to be seized specified by the order is provided both by Article 112, paragraph 5 (in case of urgent necessity) and when the conditions provided by Article 120, paragraph 5 exist. Article 120, paragraph 5 provides not just the possibility but the obligation to expand the limits established by the order in three directions. Specifically, according to this article, all other objects containing information must also be seized if they: 1. Clearly indicate another crime; 2. May be of evidentiary significance for this case; 3. Are withdrawn from civil movement (an object, document, substance, or other object containing information).

 

The legislation obliges the body conducting the proceedings to exceed the limits of the search determined by the court and to seize not only the information carriers indicated in the order, but also other objects containing information belonging to the above-mentioned category.