I often get asked what is the 4th Amendment?  How can that help me in my case?

The 4th Amendment to the U.S. Constitution states:

“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 persons or things to be seized.”

Simply put, the right of the citizens to enjoy a reasonable amount of privacy in their person and property is a cherished right we all enjoy.  For law enforcement to search you or your property, they need to do it according to the Constitution and the law.  If a Court finds that the police violated your constitutional right in this regard, all evidence obtained as a result of that search will be suppressed, meaning it cannot be used against you.  Often, that can result in a dismissal of all charges pending against you.  Once your attorney files what is called a “Motion to Suppress,” the State bears the burden of proving that both the search and the seizure of evidence were lawful.

Below is a brief summary of the law surrounding the 4th Amendment and different scenarios explaining how the law is applied.

Traffic Stops

For a traffic stop to be valid, an officer must identify specific and articulable facts that provide a reasonable suspicion that the individual being stopped is engaged in criminal activity.  A routine traffic stop is more like a brief stop under Terry v. Ohio, 392 U.S. 1 (1968), and is characterized as a "seizure" as that term is contemplated in the 4th Amendment to the U.S. Constitution.  In the absence of any reasonable articulable suspicion that a crime had been committed, the seizure and subsequent search are constitutionally impermissible and must be suppressed.

Georgia courts have repeatedly held that law enforcement officials are not discharging their official duties if that officer lacked a reasonable articulable suspicion that an accused was or was about to engage in criminal conduct.  Further, a police officer is not discharging his official duty when he arrests an individual without reasonable suspicion or probable cause. 

Police Cannot Illegally Prolong the Stop

Georgia courts have repeatedly held that an officer may continue to detain a driver after the investigation of a traffic violation is complete only if the officer has a reasonable, articulable suspicion that the driver was engaged in other illegal activity.  For purposes of this continued detention, nervousness alone cannot provide reasonable suspicion of criminal activity.  Indeed, Georgia courts have held that if a police officer decides to continue to detain a driver and expand the traffic stop beyond its original purpose absent any evidence that any other criminal conduct is afoot, even a K-9's subsequent positive alert on the driver's vehicle cannot serve as a basis for the driver's continued detention.  

Legal Standing as to a Passenger in a Vehicle

Rights under the Fourth Amendment are personal, and in order to challenge the validity of a governmental search an individual must actually enjoy the reasonable expectation of privacy, that is, the individual must have standing.  Thus, demonstrating standing is a threshold burden for suppression of the evidence.  As Georgia courts have explained:  "It is apparent beyond doubt that society is prepared to accept as reasonable that both vehicle owners and their authorized passengers may carry bags and parcels with them into the automobile; it is further our view that society is prepared to recognize a right of privacy in those closed packages and bags, which legitimate passengers and vehicle owners carry with them into the vehicle at least to the extent of vesting the passenger or owner with lawful authority to assert a violation of Fourth Amendment rights due to an illegal search or seizure of those objects."  

The Exclusionary Rule

In general, searches are of two types:  those conducted with a search warrant or those undertaken without one, and searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.  Thus, a warrantless search is presumed to be invalid, and the State has the burden of showing otherwise.  

Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of the Fourth Amendment.  The officer's purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or a warning.  Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention.  

Consent

When a criminal defendant consents to law enforcement searching her person or property, courts are bound to ensure that the consent was freely and voluntarily given.  In order to justify a warrantless search on the grounds of consent, the State must prove that the consent was voluntary under the totality of the circumstances.  If a search's legality is in question, the State must show that the consent was not the product of that illegality.  

Officer Safety

Georgia courts have held that identification checks on both drivers and passengers are generally permitted as an officer safety measure during a traffic stop.  Furthermore, the United States Supreme Court has held that officers making a traffic stop may validly require a vehicle's passengers to submit to a pat-down search for weapons.  Additionally, an officer may search a vehicle's passenger compartment when he has reasonable suspicion that an individual is dangerous and might access the vehicle to gain immediate control of weapons.

Exigent Circumstances  

This exception to the warrant requirement requires a court to examine the particular facts of the case to determine whether an emergency justified a warrantless search under the circumstances.  Such exigencies could include the need to prevent the imminent destruction of evidence, to pursue a fleeing suspect, and to assist persons who are threatened with imminent injury.  In contrast, there generally are no exigent circumstances when a driver is arrested, handcuffed, and the keys secured.  

It is also critical to note that the Georgia Supreme Court has held that the mere presence of contraband alone without more does not give rise to "exigent circumstances."  A certain case involved a warrantless search of a refrigerator where narcotics were ultimately recovered.  Recognizing that that case did not rise to the level of emergency involving immediate threats to life or limb, the search was found to be illegal.  This analysis comports with the United States Supreme Court's reasoning involving cases dealing with exigent circumstances.

Community Caretaking Doctrine

In the interests of public safety and as part of what the Court has called "community caretaking functions," automobiles are frequently taken into police custody.  The police may inventory the contents of a vehicle that has been lawfully impounded, but they may not use an impoundment or inventory as a medium to search for contraband.  The individual's right to privacy is superior to the power of police to impound a vehicle unnecessarily.  Additionally, the impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property.  

Georgia Courts Do Not Recognize the Good-Faith Exception to the Exclusionary Rule

The United States Supreme Court has held that the exclusionary rule should be modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that was subsequently held to be defective.  That Court concluded that the marginal or nonexistent benefits produced by suppressing evidence in objectively reasonable reliance on a subsequently invalidated search warrant could not justify the substantial costs of exclusion.  The Georgia Supreme Court has held that this good-faith exception is not applicable in Georgia in light of its legislatively-mandated exclusionary rule found on O.C.G.A. § 17-5-30.  Georgia courts have also repeatedly held that there is no good-faith exception to the state's statutory exclusionary rule in cases involving a warrantless search.