There are some legal protections against unlawful searches and seizures in the Fourth Amendment of our Constitution. But you might be surprised to learn that there are also state-level search and seizure laws in Georgia that help protect private citizens.
Since the Fourth Amendment has been challenged in numerous court cases in our nation’s history, the line between lawful and unlawful searches and seizures can be blurred. A recent example of hotly contested searches and seizures is many states’ “stop and frisk” policies.
A basic rule of thumb is that searches and seizures of property and persons require a warrant, with some exceptions. Our criminal defense attorneys at Frye Law Group have put together some helpful information to help you understand your rights in Georgia.
What does search and seizure refer to exactly?
A search refers to a law enforcement officer searching your body and clothing for weapons and illegal substances or searching through your property, such as your vehicle, home, backpack, or purse.
A seizure refers to law enforcement officers confiscating your property for a criminal investigation. For example, if you are suspected of dealing drugs from your car, your car can be seized by the police.
When can an officer search my property and possessions?
Generally, an officer can search your person, car, or home with a warrant. If you are suspected of a crime like drug manufacturing or selling illegal weapons, a police officer can present evidence to a magistrate to obtain a warrant.
There are a few instances, however, where police can search your property and possessions without a warrant. In Georgia, the smell of burning marijuana is sufficient probable cause to support a warrantless search of your car (Folk v. State).
Consenting to a Search
Law enforcement can search your possessions and your vehicle if you consent to a search. Still, if a police officer asks to look through your things or your property, you have the right to refuse. It’s best to respectfully decline with clear language, such as “No, Officer. I do not consent to searches.”
Plain View
If you have suspicious items, weapons, or drug contraband/paraphernalia in plain view, an officer can search your possessions and your car without a warrant or your consent.
Stop and Frisk
While the concept of stop and frisk has been contested in places like New York City, there was a Supreme Court case (Terry v. Ohio) that upheld a law enforcement officer’s right to pat down suspects of crimes. While these pat-downs are normally exercised to ensure that a person isn’t armed, officers can confiscate contraband such as illegal substances if they find them.
DUI Checkpoints
A Supreme Court ruling (Michigan v. Sitz) found that DUI checkpoints, where officers stop drivers to check their license, insurance, and registration are permissible. It is also permissible to administer field sobriety tests and breathalyzers at these checkpoints, too, if empty bottles or drug contraband are in plain view.
Can I refuse a search?
Yes, you can refuse to consent to a search; however, if an officer claims to have probable cause or a warrant, or if you’re crossing an international border or traveling in an airport, your possessions will likely be searched regardless.
If you want to refuse to consent to a search, it’s best to remain calm and state your refusal to consent clearly without derogatory comments or becoming combative.
What should I do if I believe a search and/or seizure was done illegally?
If you believe that your rights to unreasonable searches and seizures were violated, it is important to speak with a criminal defense attorney. They can investigate whether your rights were violated by reviewing dash and body cam footage and police reports so that you’re protected inside and outside of the courtroom.
Our firm, the Frye Law Group, LLC, represents clients charged with DUIs, domestic violence, drug offenses, and crimes of a sexual nature in and around Marietta, Georgia. Get in touch with Frye Law Group today at (770) 919-9525 to schedule a consultation.
Frequently Asked Questions About Search and Seizure Law in Georgia
1. What does the Fourth Amendment protect me from in Georgia?
The Fourth Amendment protects you from unreasonable searches and seizures. The rules are that police generally cannot search your person, home, or vehicle without a warrant based on probable cause (with a few exceptions). If you believe your rights were violated, our Marietta criminal defense lawyers can review your case.
2. When can police search my car or home without a warrant in Georgia?
Georgia law recognizes several exceptions to the warrant requirement, including:
- Consent: You voluntarily agreed to the search
- Plain view: Contraband is visible to the officer
- Search incident to arrest: You were lawfully arrested
- Exigent circumstances: Evidence was at risk of being destroyed
If you were searched without a warrant, our criminal defense team serving Cobb, Fulton, Cherokee, Bartow, and Paulding counties can determine whether an exception legally applied to your case.
3. Are DUI checkpoints legal in Georgia?
Yes, DUI checkpoints are legal in Georgia, as long as they follow strict procedural guidelines. Officers may administer field sobriety tests or a breathalyzer if they smell alcohol or see empty bottles or drug contraband in plain view. You have the right to refuse these tests, but refusing a post-arrest chemical test can trigger an automatic license suspension.
4. What is the plain view doctrine in Georgia?
It allows police to seize evidence without a warrant if it is clearly visible from a location where the officer has a legal right to be and its incriminating nature is immediately apparent. For example, if an officer sees drugs in plain view during a traffic stop, that can establish probable cause for a warrantless search and arrest. Our criminal defense attorneys can challenge whether the doctrine was properly applied.
5. What happens to evidence from an illegal search in Georgia?
Evidence obtained through an illegal search may be suppressed and kept out of court. Under O.C.G.A. § 17-5-30, a defendant can file a written motion to suppress illegally seized evidence, and critically, the burden falls on the state to prove the search was lawful, not on you to prove it wasn’t. If the motion is granted, the evidence cannot be used against you at trial.
6. Should I hire a criminal defense attorney if my search and seizure rights were violated?
Yes. Challenging an illegal search requires detailed knowledge of Georgia constitutional law and the procedural rules governing how courts apply it. Experienced attorneys can file a motion to suppress illegally obtained evidence and ultimately get your charges reduced or dropped. Attorney Kim Frye is a former prosecutor with 50 years of combined team experience defending clients across Marietta and the surrounding counties. Learn more about our firm or contact us today for a free case evaluation.