Toll Free: 800-564-6728
Search & Seizure Law in Georgia
The Fourth Amendment to the United States Constitution, as well as a parallel provision of the Georgia Constitution, protects us from unreasonable searches and seizures. The amendment itself is rather brief, so most of the law defining what is or is not reasonable has come to us from court decisions. As a general rule a valid warrant is required for a valid search. However, there are numerous exceptions.
An owner or occupier of property may consent to a search. However, the consent must be voluntary, and the Georgia courts have held that mere acquiescence is not the same as valid consent. Police officers need not advise an individual that he or she may refuse. There are also instances where another person who has common authority over the property may consent to a search. However, if both spouses are present and one refuses a police request to search their home while the other consents, the refusal of the one spouse “trumps” the consent of the other.
In order to challenge a search, a person needs to have a reasonable expectation of privacy in the property that was searched. When an individual does not have a reasonable expectation of privacy that society is willing to recognize, that person cannot successfully challenge a search. For example, a person does not have a reasonable expectation of privacy in a purse belonging to another individual. It has also been held that a homeowner does not have a reasonable expectation of privacy in the contents of a garbage can left outside the “curtilage” of the home.
There is also a lowered expectation of privacy for motor vehicles. This “automobile exception” was carved out by the United States Supreme Court early in the 20th Century because automobiles are mobile, which means that exigent circumstances almost always exist. Probable cause to search coupled with exigent circumstances (a car’s mobility) can justify a search of a motor vehicle much more easily than the search of a home. The search of a residence or other building must always be accompanied by a search warrant absent exigent circumstances or some other exception.
The courts have established the exigent circumstances exception to the warrant requirement, which simply excuses the warrant requirement because of the perceived need for swift police action. This is typically the case when the police have a reasonable belief that evidence is in imminent danger of being removed or destroyed. Exigent circumstances may also exist where there is some danger or the police reasonably believe that someone needs immediate assistance.
The primary remedy in illegal search cases is the “exclusionary rule.” This means that evidence obtained through an illegal search is excluded and cannot be used against a defendant at his or her trial. In addition, if evidence is the “fruit of the poisonous tree,” meaning it was discovered as a result of an unlawful search, it too should be inadmissible.
Traffic Stops
Many arrests and automobile searches begin with traffic stops. Numerous policies, procedures, and laws govern the actions of the police. Mistakes, misunderstandings, or errors from the initial contact to the final booking may help in winning your case. If an officer makes a traffic stop that violates your right to be free of unreasonable searches and seizures, all evidence obtained after the traffic stop is suppressed. Without any evidence, your case should be dismissed.
Here are some of the areas we frequently explore:
Tips or Anonymous Calls
For most cases an officer cannot stop you based solely on an anonymous call. The officer must observe an actual violation of the law before the stop is legal. However, over the past decade the Court of Appeals has eroded this Fourth Amendment protection when there is a dispatch report of erratic driving, which is just one more example of DUI’s being treated differently from other crimes. In drug cases, however, the police are required to corroborate more information before effecting a traffic stop.
One particularly egregious case was reported about four years ago. A former wife called and reported that her ex-husband was driving on a suspended license and had approached her in violation of a temporary restraining order. Not only was the man’s license valid, but there was no restraining order. The police made no attempt to confirm what they were told, but the Court of Appeals ruled that the traffic stop was valid.
The Court apparently believes that the odds of someone falsely reporting a suspected DUI are remote. Since only the cases resulting in an arrest end up in court, they will never have an opportunity to confirm their hunch.
Mistake of Law
Even if the officer has the best intentions, a stop based on a mistake of law is an illegal stop. There is some Georgia case law that says even if it is later determined that an officer’s technical interpretation of the law was incorrect, the stop may still be valid. However, even in a case like that the officer must still have a reasonable suspicion of criminal wrongdoing.
Failure to Maintain Lane
Truly the favorite of law enforcement officers who want to stop bar patrons everywhere. This “observation” alone is frequently not a proper basis for detaining a driver. No car drives completely straight. There are various reasons a driver may drift or weave within a lane or even touch a lane marker.
Although weaving within a lane, although not an offense, can justify a stop under some circumstances, the Court of Appeals has consistently characterized the kind of driving that warrants a brief investigative detention as “erratic.” Somewhat more elusive is a definition of weaving in the Georgia case law, but “...a continuous failure on the part of the driver to maintain a direct line of travel within his lane”, from the Oregon Court of Appeals, should suffice.
The failure to maintain lane statute, O.C.G.A. 40-6-48, has counterparts in every state, and these statutes employ identical or nearly identical language. The vast majority of courts have held that more than the integrity of lane markings, the purpose of the statute is to promote safety on roadways divided into traffic lanes. In other words, the statute is not violated unless a vehicle fails to stay within its lane and such movement is not safe or not made safely.
The Georgia Court of Appeals has upheld traffic stops based on violations of the statute involving much more than simply touching the fog line. Specifically, they have approved a stop based on trying to change lanes without signaling, straddling middle and slow lanes, and then straddling middle and left lanes, as well as weaving across lanes of traffic onto the shoulder and weaving from the shoulder of the roadway to the left lane. Other courts have interpreted language identical to that in the Georgia statute as requiring more for a violation than a momentary crossing or touching of an edge or lane line.
Stopping the Wrong Car
Just as an officer must generally see an actual violation, the officer must be able to clearly identify the car stopped and identify why it was stopped. If an officer receives a description that is vague and stops a car that, more or less, resembles the vague description, that detention is in all likelihood invalid. For example, a BOLO (be on the lookout) for a maroon or brown Mercury or Ford does not justify the traffic stop of a maroon Ford Taurus. A BOLO for a white van, possibly a Ford, does not justify the detention of a white Ford Aerostar heading towards, not away from, the scene of a possible offense. Once again, if the traffic stop is invalid, all the evidence obtained after the stop should be suppressed.
Stopping for a Hunch of Just Felt Like It
Rarely will an officer admit this was the reason for a stop. Almost every officer knows this is an illegal stop and any resulting evidence will be excluded. However, once in awhile one will admit to making a stop just to be sure nothing was wrong.
Stopping a Vehicle for a Different Reason than the Officer Claims
Occasionally, the reason an officer claims for making a traffic stop was not the real reason. We have encountered cases where an officer will claim to have received a call from dispatch, but there was no such call. We have seen cases where the officer will claim that dispatch gave him a vehicle description that simply was not given. Without the actual dispatch recordings and dispatch logs we would never be able to win those cases. With a little extra digging we do.
The law of search and seizure is constantly changing. We receive daily updates on new decisions from the Court of Appeals and Supreme Court in order to keep abreast of breaking developments. In order to protect you and your rights, we invest the time and effort you deserve.
