GA: A temporary protective order is not a substitute for a SW; they’re also issued on a citizen complaint

A temporary protective order issued on a citizen’s complaint cannot substitute for a search warrant to permit entry into defendant’s property to seize firearms. State v. Burgess, 2019 Ga. App. LEXIS 191 (Mar. 14, 2019):

Here, the trial court found that the TPO statute allowed the superior court judge to issue the TPO including the directive to officers to enter Burgess’s home and seize explosives and firearms because the TPO statute authorized the entry of “any” protective order, and thus, it was a “valid order” authorizing the search. In so holding, the trial court compared the TPO statutory scheme to that addressed in Rawcliffe v. Rawcliffe, wherein this Court determined that a trial court did not have authority under OCGA § 16-5-94, another protective order statute, to prohibit a respondent of a protective order from owning firearms for the duration of the protective order. Regardless of whether a court could order a respondent to surrender his guns and explosives under this statutory scheme, the question before the trial court in reviewing the motion to suppress is whether the TPO’s directive to the sheriff constituted a warrant, and if not, whether an exception to the warrant requirement existed or whether the officer’s actions based on the TPO were reasonable.

Compared to the subpoena statute addressed in King, the TPO statute requires sworn testimony, application of a probable cause standard, and issuance by a judicial officer. We are mindful these safeguards are central to the protections in the warrant statute. Nevertheless, the procedure to obtain a TPO does not contain all the safeguards codified in this State’s warrant statute (specifically, application by a law enforcement officer), and we decline to hold that, under these circumstances, issuance of the TPO under this statutory scheme met the “warrant and probable cause standard” of the Fourth Amendment and OCGA § 17-5-20, obviating the need for officers to first obtain a warrant to enter Burgess’s property. This conclusion is reinforced by the explicit prohibition in OCGA § 17-5-20 (b) against issuing warrants on application by a private citizen. “[T]he warrant requirement is an important working part of our machinery of government, not merely an inconvenience to be somehow weighed against the claims of police efficiency,” and the State has not articulated a need to deviate from that requirement in this instance. Accordingly, the trial court erred by finding that the TPO authorized the search of Burgess’s home.