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Unofficial Opinion 2000-11

Unofficial Opinion 2000-11

October 25, 2000
To: 

County Magistrate

Re: 

In order for a search warrant or an arrest warrant to be valid, it must be signed by a magistrate who is authorized to hold a court of inquiry under O.C.G.A. § 17-7-20 and who is physically present in the county in which he or she serves.

You have asked whether a search warrant and arrest warrant are valid “if the issuing magistrate is physically present in a restricted area at the moment the signature of the magistrate is affixed on the affidavit and warrant.” You have also inquired whether a Fayette County magistrate who is physically present in another county within the same judicial circuit must return to Fayette County before affixing his or her signature to a search warrant. The question presented is thus whether a Fayette County magistrate physically located outside the geographical limits of the county may sign a search or arrest warrant. It is my unofficial opinion that under Georgia law a magistrate judge must be physically present within the county in which he or she serves at the time the search or arrest warrant is signed.

The Georgia Court of Appeals has on at least two occasions addressed the issue of a superior court judge's authority to sign a warrant outside the county in which it was to be executed. In Pruitt v. State, 123 Ga. App. 659 (1971), the court concluded that the superior court judge could not properly sign a search warrant outside the county in which it was to be executed because that judge was not then a “judicial officer authorized to hold a court of inquiry”1 regarding matters alleged to be occurring in Houston County at the time the warrant was signed by the judge while physically located in Bibb County. Id. at 661. The court so held even though both the county in which the warrant was signed and the county in which it was executed were then within the same judicial circuit. Id.

Conversely, in Allison v. State, 129 Ga. App. 364 (1973), the court found that, based upon an intervening change in the law, a judge of the Macon Judicial Circuit could properly sign a search warrant in Bibb County for execution in Peach County because both counties were within the Macon Judicial Circuit. The court’s holding was based upon O.C.G.A. § 15-6-23, which states in its entirety:

Any judge of the superior courts may sign any document connected with the official duties of his office in any county comprising a part of his circuit, including all writs, orders, judgments, and warrants required to be signed by the judge. The document may be signed by the judge in any county within his circuit in which he is present at the time the document is signed.

O.C.G.A. § 15-6-23 (emphasis added).

The court’s decision in Pruitt, decided prior to the enactment of what is now O.C.G.A. § 15-6-23, was based upon the clear decision that the admonition contained in O.C.G.A. § 17-5-21(a) that a “judicial officer authorized to hold a court of inquiry” means one then presently able to do so. Pruitt, 123 Ga. App. at 660-64. Thus, while it is true that the specific statutory authorization now found in O.C.G.A. § 15-6-23 permits a superior court judge to sign a warrant outside the county in which it is to be executed but within the same judicial circuit, by negative implication, no superior court judge can effectively do such an act outside his or her judicial circuit, and no other “judicial officer authorized to hold a court of inquiry” may sign a warrant outside the jurisdiction in which he or she serves. Unlike a superior court judge, a magistrate does not serve in the entire circuit but only in the county in which he or she is appointed. Ga. Const. Art. 6, Sec. 1, Para. 6; O.C.G.A. § 15-10-1. Thus, O.C.G.A. § 15-6-23 is not authorization for a magistrate to act outside his or her jurisdiction.

Therefore, it is my unofficial opinion that in order for a search warrant or an arrest warrant to be valid, it must be signed by a magistrate who is authorized to hold a court of inquiry under O.C.G.A. § 17-7-20 and who is physically present in the county in which he or she serves.

Prepared by:

CHRISTOPHER S. BRASHER
Senior Assistant Attorney General

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1 The above-quoted language, found previously at Ga. Code Ann. § 27-303, is now codified at O.C.G.A. § 17-5-21(a).