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Article: The Fundamental Rules of Georgia Search and Seizure Law ©

We at Michael Moran & Associates plan to keep you informed about legal issues that affect you and your rights. Although our Bill of Rights – embodied in both the U.S. and Georgia Constitutions – has long been in existence, the judicial interpretation and application of search and seizure law is constantly changing. Our attorneys have access to the latest legal decisions at both the federal and state levels. We are members of the State Bar of Georgia, the Atlanta Bar Association, the Georgia and National Associations of Criminal Defense Lawyers, and are licensed to practice in all state and federal courts in Georgia.

Contact our Atlanta criminal defense attorneys for a free consultation at (404) 205-8879. We invite your questions and input, and look forward to the opportunity to assist you.

September, 2017

If you have ever been stopped by police - for a minor traffic violation or for a more serious offense - you have wondered about your rights. We have all asked the question, “Can the police do that?” This article focuses on the law of search and seizure in Georgia. When and where police are allowed to search and what they may seize is defined by the 4th Amendment to the Constitution of the United States and the Georgia Constitution, which has similar language, but provides for even broader protections in some areas.

While these constitutions provide a baseline for search requirements, it is the appellate courts – both federal and state – that interpret the meaning and application of constitutional law in the context of individual cases. Those interpretations and applications, though guided by legal precedent, are often quite fluid. Having legal representation that is up to speed on recent developments and trends in the law is therefore extremely important and may affect the outcome of your case.

WHAT IS A SEARCH?

Asearch is an act by a government agent, like a police officer (or someone acting under the direction of law enforcement, i.e., under color of law), that intrudes on your privacy – the privacy of your person, your home, your car, or your personal effects. Law enforcement agents may conduct searches to find evidence that a crime has been committed or to locate a particular person they believe committed the crime. But the federal and state constitutions, as well as statutory and case law, impose limits to where, when and how law enforcement officials may conduct searches, with and without warrants.

THE 4TH AMENDMENT

“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 seized.”

Your Rights Under The 4th Amendment:

As a U.S. citizen, the 4th Amendment protects you from any invasive search performed without a warrant and probable cause – with certain exceptions. Over the years, federal and state courts have created a great body of law – case law – in which they have applied, interpreted, and in many instances, carved out exceptions to the 4th Amendment. Because of these exceptions, criminal defense lawyers have often compared what’s left of the fabric of the 4th Amendment to a piece of Swiss cheese: the holes are greater than the cheese (more about the exceptions later).

Seizure of Persons and Things

The police may take or “seize” contraband like drugs, stolen goods, or other evidence of a crime, including a vehicle which is believed to have been involved in a crime. This seizure can usually be challenged by the owner of the item or by the person who was in possession of the object at the time it was seized. In order to successfully challenge the seizure of an item by the police, you must have “standing.” Standing means that you have a reasonable expectation of privacy in the place and/or object(s) where the seizure occurred.

As a general rule, if police stop you to question you or conduct a “pat down” for weapons, you cannot legally resist. Both situations are acts of seizure (of a person). But there are specific limits on how far the police can go in such situations.

WHEN CAN THE POLICE PERFORM A SEARCH?

Generally, police officers must get a warrant before they can search your car or your home. However, there are many exceptions to that rule that are worth discussing.

Search and Seizure With a Warrant:

If police have a warrant to search you, your car, your home, or your effects, they have the right to search. In order to get the warrant, the officer must present facts about the alleged crime to a magistrate judge, under oath. If the judge determines there is probable cause that the evidence desired by the police is located in the place they desire to search, then they will issue a search warrant. If there is probable cause to believe that a particular individual committed the alleged crime, then an arrest warrant will be issued. Arrest warrants allow for the seizure of a person.

When applying for a search warrant an officer also must provide facts establishing that whatever they are looking for is probably in your possession or in your home or car or wherever it is they want to search. A warrant has to contain a particularized description of you or the place to be searched, and whoever or whatever they search must fit the description in the warrant. However, if an officer conducting a legal search sees contraband that was not listed in the search warrant, they may be justified in seizing that contraband as well. Also, keep in mind that warrants are generally not required for the police to make an arrest – all they need is probable cause.

Search and Seizure Without A Warrant:

While police generally need a warrant to conduct a search, there are many exceptions to this rule. These exceptions include consent, plain view, a stop and frisk/pat down, a fleeing suspect (called “hot pursuit”), emergency situations, and some searches that follow a lawful arrest.

Consent If the police ask you for your consent to search your home, car, or belongings, YOU MAY REFUSE. If you freely and voluntarily give your consent to a search, the police are allowed to search without probable cause. Many people give consent to search their house, car, or other belongings because they believe they have to. Don't make that mistake! Consent induced by threat or promise of a benefit or reward is generally not voluntary and will invalidate the subsequent search. For example, if an officer is at your house and says they're going to call the Department of Family and Child Services to take custody of a child if you don't consent, any consent under that circumstance is invalid and can be challenged.

Plain View Officers do not need a warrant to seize illegal contraband if they observe it from a legal vantage point. If you pull into a parking space in your car and a police officer on the sidewalk notices a bag of marijuana on your passenger seat, he has not searched your car because the items are in “plain view.” He can likely seize them and may have probable cause to make an arrest and conduct a full search of your car. Similarly, evidence may be in plain view if it is in your yard or in an open field, even if that area is part of your property.

Stop & FriskPolice may stop you to ask questions and to frisk you for concealed weapons. Under the 1968 landmark case of Terry v. Ohio, the U.S. Supreme Court strictly limited the scope of pat downs to items which are likely to be weapons. However, under more recent decisions, if an officer finds contraband during the pat down, he is allowed to seize it. This is called “plain feel” and is similar to plain view. In order to conduct an investigatory stop, a police officer must have a reasonable, articulable suspicion that criminal activity has or is about to occur. Articulable suspicion is an easier standard for an officer to meet than probable cause, but must still be supported by some kind of objective evidence. Similarly, an investigatory stop and frisk is not as serious as an arrest.

In recent times the indiscriminate use of “stop and frisk” procedures by police has come under increasing scrutiny and criticism – particularly where such procedures are pretexts for profiling based on race or ethnicity. So, remember this: Investigatory stops require only a reasonable (articulable) suspicion, while arrests require probable cause or a warrant. If the officer wants to perform a pat down, they must have a reasonable belief that you are armed and dangerous.

Hot Pursuit If someone commits a crime and then tries to escape, the police in pursuit are allowed to search the area to which that person runs. They may search this area for weapons the suspect might use, contraband which they have concealed, abandoned or might destroy, or people who could help the criminal to escape.

In An EmergencyIn the landmark case of Carroll v. U.S., a 1925 U.S. Supreme Court case, the court first established what is referred to as “the automobile exception” to the 4th Amendment. Because automobiles can be easily moved and their contents easily removed, police possessing probable cause that a crime is being committed may stop and search vehicles without warrants. Likewise, if police reasonably believe that they must take immediate action to protect life or property, they may conduct a search. In such circumstances, referred to as “exigent circumstances” they are allowed to seize evidence – but only if it is likely to be destroyed or removed before they can obtain a warrant.

As Part of An ArrestUnder most circumstances, police may search you and the area in your immediatecontrol as part of a lawful arrest. This is referred to as a “search incident to arrest.” Similarly, courts have approved warrantless searches and seizures under a doctrine of “inevitable discovery” where lawful arrests would ultimately have led to the discovery of contraband or evidence of a crime. However, not all arrests are lawful and you may be able to challenge a warrantless search conducted after an unlawful arrest.

DUI Checkpoints The U.S. Supreme Court ruled in Michigan v. Sitz that police officers may conduct traffic or DUI checkpoints. At these checkpoints, they may stop traffic, check drivers' licenses, insurance, vehicle registration, and conduct checks for sobriety. Checkpoints must comply with statutory and other lawful requirements to assure that they are random in nature and not pretextual or utilized to profile drivers. If an officer detects the odor of alcohol or marijuana or observes other manifestations of impairment (such as bloodshot or glassy eyes or slurred speech) during such a checkpoint, he may require you to submit to field sobriety tests to determine if you are driving under the influence of alcohol, drugs, or a combination of the two. If you are arrested as a result of these tests, your vehicle will likely be impounded and its contents searched, a procedure called “impound and inventory.”

CAN THE POLICE SEARCH MY RESIDENCE?

Courts are customarily more cautious in issuing warrants for the searches of residences than in other circumstances. Searches of residences must be conducted pursuant to a valid, particularized search warrant, issued by a magistrate after a determination that probable cause exists to believe evidence of criminal conduct will be found there. Thus, unless one of the above exceptions applies, the police cannot search a residence without a warrant.

CAN THE POLICE SEARCH MY CAR?

Generally, a search for weapons and of the passenger compartment is allowed without a warrant. Searches of most closed containers and other areas, like the trunk, require - if not a warrant - probable cause, unless your car has been abandoned or is impounded. In those cases, the entire car may be searched. Additionally, if an officer smells marijuana in your vehicle, then they have probable cause to search your entire vehicle.

If you are a passenger in a car that has been searched, you may challenge an unlawful stop of the vehicle but you do not have the standing to contest the search of the vehicle's interior. This is because the U.S. Supreme Court ruled in Rakas v. Illinois that you do not have a reasonable expectation of privacy in another person's car. There is a similar rule for house guests, which was established in Minnesota v. Olson. Temporary visitors cannot contest the search of another person's house, but overnight visitors can. To contest a search, you must have a reasonable expectation of privacy in the place searched.

CAN THE POLICE USE DRUG-DETECTION DOGS?

Police may generally use drug-sniffing dogs to detect the presence of narcotics without a warrant. Public places such as airports, bus terminals and highways are commonly approved for “free air sniffs” by K-9s. However, a warrant is required if the dog physically intrudes upon a place where you have a reasonable expectation of privacy, such as your home. The U.S. Supreme Court ruled recently in Florida v. Jardines that the use of a drug dog on the front porch of a home constitutes a search and therefore requires a warrant.

In traffic stops, the answer is generally yes. The U.S. Supreme Court decided this in the 2005 case of Illinois v. Caballes. Thus, the use of a trained detection dog does not require a warrant for the area around your vehicle. Further an alert from a trained dog provides probable cause to search the entire vehicle. However, if the police pull you over for a traffic stop, they may not prolong the traffic stop unnecessarily in order to wait for a drug-sniffing dog to arrive on the scene. Unreasonable delays may result in the suppression of evidence and the dismissal of charges.

CAN THE POLICE SEARCH ME AT THE AIRPORT OR THE BORDER?

For reasons of national security, law enforcement officials do not need a warrant or probable cause to perform certain searches at airports or at the borders between countries.

CAN I GET MY SEIZED PROPERTY BACK?

If you can prove that seized property is rightfully yours you are generally entitled to its return (unless the property is contraband like drugs). However, if you are apprehended for a drug-related crime while driving a car, it may be subject to forfeiture and you may not get it back. Police may even seize money that they find if they believe that money was a product of unlawful activities, such as theft or drug dealing. On the other hand, if the underlying arrest or search was not valid, then the seizure may be invalid too.

WHAT IF A SEARCH IS ILLEGAL?

You have the right to challenge the legality of an arrest and any search that follows. The typical mechanism for this is a motion to suppress or motion in limine. If the judge determines that a search is illegal, any articles found during the search can be “suppressed,” or kept out of evidence. This “exclusionary rule,” established by the landmark U.S. Supreme Court in Mapp v. Ohio, is the basis for upholding your 4th Amendment rights. The Court further held in Wong Sun v. United States that any evidence obtained as a result of an illegal search, seizure, or arrest may be excluded at trial. This can even include statements and admissions given to police. The Wong Sun decision is known as “the fruit of the poisonous tree” doctrine. If the illegally seized evidence is the only evidence of the person's guilt, and evidence is suppressed, charges may be dismissed altogether, as prosecutions cannot go forward without evidence.

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