Search and Seizure

Georgia Search and Seizure Law is highly contested

Search and seizure, sometimes called stop and search or stop and frisk, is probably the most hotly contested area of criminal law. Police are always making stops and searches. Those arrested are always contesting the legality. The reason is obvious. If either the stop or the search is illegal, any evidence found during the search is inadmissible at trial. In other words, No Evidence = No Case. Search and seizure is a complicated area of the law. The remainder of this booklet briefly explains search and seizure law in Georgia.

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First Tier Encounter – Georgia Law

This is casual contact between a citizen and the police.

It is a purely voluntary and no detention takes place. Since no detention takes place and you are free to walk away, this is not an arrest.

Second Tier Encounter – Georgia Law

This involves a brief investigative detention of someone by the police.

You cannot simply walk away but an investigative detention is not an arrest.

Third Tier Encounter – Georgia Law

This involves custodial detention of someone by police. This is an arrest.

In most instances, a person has no doubt about when he is placed under arrest.

But what happens if the officer never says “You are under arrest”?

The answer is surprisingly simple. Under Georgia law, if circumstances are such that a reasonable person would believe that he or she were under arrest, then an arrest has occurred.

If the time of arrest is in dispute, a judge will make the determination at a pretrial or Motion’s hearing.

Fourth Amendment Protections

The Fourth Amendment of the U.S. Constitution protects people from unreasonable searches and seizures:

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.

Search Warrants

Generally, the police must first have obtained a search warrant from a judge before conducting a search. Some searches are legal without a warrant, but what constitutes an illegal search can be very confusing and complicated, and only an experienced attorney can accurately explain whether a particular search is legal.

The method for obtaining a search warrant is very similar to that for obtaining an arrest warrant. That is, the judge must be given facts under oath and the facts must show probable cause to believe that certain items will be found in the place to be searched. The items and the place to be searched must be specifically described.

Four exceptions to needing a Search Warrant 

  1. During Lawful Arrest: When a search occurs in conjunction with a lawful arrest, the arresting officer can then search the person and the immediate area around him or her. The reasons for this exception are obvious. The officer needs to know that the person is not armed and needs to prevent the destruction of concealed evidence.
  2. Item in Plain View: If an officer sees an illegal item in plain view, it is understood that there is no intentional search. This includes items within arm’s range of a driver. If there is probable cause that there is wrongdoing further than traffic violation for which the car has been pulled over or if the driver is arrested, then the search is considered incident to a lawful arrest.
  3. In Emergency Situations or Pursuit: Police may conduct a search in emergency situations without a warrant, for example, in the case of a bomb threat or in pursuit of someone who has just committed a crime.
  4. With Consent: Police may also search when an individual consents to a warrantless search or seizure. Consent searches are valid, but the state must prove that consent was freely and voluntarily given.

Pat Downs or Frisk

In the execution of a search warrant or an arrest, the police may reasonably detain and pat down any person in the place at the time in order to protect themselves from attack or prevent the disposal or concealment of any instruments, articles, or things described in the search warrant.

A pat down, or frisk, involves the patting down of a person’s outer clothing to discover a potential weapon or other object that could cause harm.

Cell Phone Searches

In June 2014, the Supreme Court unanimously ruled in the case of Riley v. California, that police need a warrant to search the cell phone of anyone they arrest.

Wiretaps and Electronic Eavesdropping

The Fourth Amendment generally protects people from the interception and recording of any oral statements unless the conversation were held where there was no reasonable expectation of privacy or if one party to a conversation consents to the interception.