Criminal Defense

Search and Seizure Law in Georgia

By December 21, 2020No Comments

Most people know that there are some legal protections against unlawful searches and seizures in the fourth amendment of the US Constitution. But some may be surprised to learn that there are also state laws 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 are many states’ “Stop and Frisk” policies. 

A basic rule of thumb is that searches and seizures of property and persons require a warrant, but there are some exceptions.

Here’s 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 or illegal substances along with searching through your property such as a 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 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 such as 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 trained perception of the odor of burning marijuana is sufficient probable cause to support a warrantless search of a car. Folk v. State, 191 Ga. App. 58 (1989)

Consenting to a Search: Law enforcement can search your possessions and your vehicle if you consent to a search. If a police officer is asking 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 are found. 

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 an officer smells alcohol or marijuana or 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, a warrant, or if you’re crossing an international border or traveling in an airport, your possessions will likely be searched even if you refuse.

When refusing to consent to a search, do not act combatively or make derogatory remarks. Remain calm and state your refusal to consent clearly.

What should I do if I believe 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.

An attorney can investigate whether your rights were violated by reviewing dash and body cam footage and police reports.

Hiring a criminal defense attorney helps ensure that your rights are 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. Call the Frye Law Group today at (770) 919-9525 to schedule a consultation.

Directions:

From I-75: Exit at the Highway 120 (South Marietta Parkway) (Exit #263) and follow the signs to KSU Marietta Campus.

You will be headed west and cross over Cobb Parkway (US 41).

Continue until you get to the intersection with Atlanta Street.

At the traffic light turn right onto Atlanta St. (going north).

Atlanta Street will take you straight to the Marietta Square.

Prior to entering the Square, you will see Anderson Street a block before the Square.

Turn Right onto Anderson Street. The Lawyer’s Building will be on your right.