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How the Fourth Amendment Could Protect You in Drug Cases

The Fourth Amendment provides safeguards for individuals during their interactions with law enforcement. If evidence is discovered during an interaction that violates an individual’s Fourth Amendment rights, that evidence cannot be used against the individual in court.

This issue commonly arises in cases where an individual is pulled over for a traffic violation and is subsequently charged with possessing drugs. For example, if an officer pulls you over for crossing the solid line, they are not allowed to search your car for drugs if you do not consent to the search. While there are certain exceptions in place to ensure officer safety and to prevent the destruction of evidence (such as patting down an individual on the outside of their clothing to search for weapons, for example), the officer cannot freely look through your pockets or inside your vehicle.

Understanding Fourth Amendment protections is complex, and it is important that you hire an experienced attorney if you are charged with a serious offense like possession of drugs, possession of drugs with intent to distribute, or trafficking drugs. The lawyers at W. Scott Smith, PC will work diligently to discover any Fourth Amendment violations in your case and to keep the harmful evidence out of court. If you are charged with one of these serious offenses in Clayton, Cobb, Dekalb, Fulton, Gwinnett, or Fayette Counties, call our office at 404-581-0999 today for a free consultation.

Police Vehicle Searches in Georgia

You are driving down the highway and the blue lights come on behind you. You pull over and the officer says to step out of the car so he can search your car and the bag you have in the backseat. What are your rights? What is the law relating to a search of your car?

The Fourth Amendment to the United States 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.

This blog will focus on the law relating to the search of a car in Georgia.

A police officer is allowed to stop any car if the officer observes the car is violating any traffic law. This includes equipment violations, such as a taillight that is out. The police do not even have to see an actual violation of a traffic law if they see a sign that the driver may be impaired.

An investigatory stop of a car must be based on some objective manifestations that the person stopped is, or is about to be, engaged in criminal activity. Even if it is shown that no actual traffic violation occurred, the stop of the car can still be upheld if it was based on a reasonable mistake of fact or a reasonable mistake of law.

Once the trial court determines that the initial stop of the car was allowed, the issue then turns to whether the search of the vehicle was permitted.

If the driver gives consent to the search, this the search of the car is allowed.

But if the driver does not give consent? Does the officer have probable cause to believe that a crime has occurred. Often probable cause will develop during the initial questioning of the driver or other occupants of the car.

But what is the law for prolonging a traffic stop unnecessarily? In Rodriguez v. United States, the Supreme Court said that the duration of a traffic stop is determined by the legitimate mission of the stop and a traffic stop may not be prolonged, even for a few minutes, in order to engage in criminal investigation unrelated to the traffic stop. So the focus is on whether the officer is prolonging the traffic stop for a general criminal investigation.

If the duration of the stop is not excessive, the police may search the contents of the car and its occupant if one of the exceptions to the search warrant is applicable.

  1. The car may be searched if there is probable cause to believe that there is contraband or evidence of a crime in the vehicle.
  2. The car may be searched if the driver or another occupant is arrested and the search qualifies as a search incident to arrest;
  3. The car is impounded and the contents inventoried.
  4. The driver or owner consents to the search.

If you were pulled over for a minor traffic ticket and your car was searched and you were arrested, please call our law office. You have a very limited time period to file a motion to suppress to challenge the search of your car.  Our law firm is W. Scott Smith, P.C. and our number is 404-581-0999.

Police Roadblocks

Even the most seasoned motorists may never encounter a police sobriety roadblock or checkpoint during their entire driving history. Nonetheless, you should be armed with information regarding their validity and how to best approach them if you happen to drive towards one.

What is a Roadblock?

            In addition to the above factors,those arrested should urge their attorneys to be aware of local requirements regarding roadblocks, and subpoena all relevant records; although the road block may satisfy federal and state guidelines, it may fail the local arresting agency’s own policies.

            In determining the validity of a police roadblock, our courts analyze the following factors[1]:

  1. The roadblock was implemented pursuant to a checkpoint program that has, when viewed at the programmatic level, an appropriate primary purpose other than general crime control;
  2. The decision to implement the specific roadblock in question was made by a supervisor in advance, and not by an officer in the field;
  3. All vehicles that passed through the roadblock were stopped, rather than random vehicle stops;
  4. The delay to motorists was minimal;
  5. The roadblock was well-identified as a possible police checkpoint;
  6. The screening officers staffing the roadblock possessed sufficient training and experience to qualify them to make an initial determination as to which motorists should be subjected to field sobriety testing; and
  7. Under the totality of the circumstances, the stop of the defendant was reasonable under the Fourth Amendment.

What Should I Do?

            Now that we have seen what constitutes a valid police sobriety roadblock in theory, it is time to put the roadblock scenario into practice. If I see a roadblock coming what do I do? Am I allowed to evade it? The answer is . . . it depends. Drivers who violate a traffic law in order to avoid a police roadblock may be pulled over,arrested for said violation, and may be subject to further investigation by the police. However, drivers are entitled to take legal actions to avoid a roadblock, and police may not stop a driver from doing so, as long as the driver does not commit any traffic violations or other offenses while doing so.

An Example of a Roadblock

            For example, you are driving down a one lane road and you see a valid police roadblock ahead. However, the entrance to your apartment building happens to be 200 feet before the roadblock commences. You execute a legal turn into your apartment complex. A police officer at the roadblock sees you turn into the complex, follows your vehicle,and stops your vehicle. The officer’s hunch that you were avoiding the roadblock because you were intoxicated is, by itself, an insufficient basis to stop your vehicle.[2] As a result, most roadblocks are conducted on remote single lane roads so that an individual would necessarily have to break a traffic law in order to avoid them.

Call Us Today

             If you have been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.

by Casey Cleaver


[1] Brown v. State, 293 Ga. 787 (2013); Williams v. State, 293 Ga. 883 (2013); Baker v. State, 252 Ga. App. 695 (2001); LaFontaine v. State, 269 Ga. 251 (1998); Indianapolis v. Edmond, 531 U.S. 32 (2000).

[2] Jorgensen v. State, 207 Ga. App. 545 (1993).

VIDEO – Police Searches and the 4th Amendment under Georgia Law

by Scott Smith and Ryan Walsh

You’re driving and the blue lights come on behind you. You pull over and the officer comes up to your vehicle. He immediately asks if he can search? Do you know what your rights are? The Fourth Amendment’s protection against unreasonable searches is the subject of today’s video blog.
Hello, I’m Scott Smith. The Fourth Amendment of the United States Constitution prevents the government from unreasonable searches without a warrant.
Lets go back to the example we talked about in the introduction. You’re driving down the road and the blue lights come on behind you. The officer comes up to your vehicle and asks you if they can search. Are you going to let them? No.
For an officer to be justified in searching your car they must have probable cause that evidence of criminal activity will be found in your vehicle. It has to be more than just a hunch that they will find evidence of criminal activity inside. Always say no. But that doesn’t mean they can’t get probable cause to search. If you leave a bag of weed out in plain view for the officer to see, the officer has probable cause to search your car. They can also search you and your immediate area after you are placed under arrest. And if they have to impound your vehicle, they can do what’s called an inventory search of your vehicle.
Whether a search is reasonable is always up for argument. An experienced attorney can use the facts of the encounter to argue why this specific incident isn’t reasonable under the law. At the Peach State Lawyer we recommend always politely declining to allow an officer to search your home, vehicle, or belongings. A search can only hurt you, it can never help you.
If you feel like you’ve been the victim of an unlawful search, or you’ve been charged with a crime where a search was involved, call us today at 404-581-0999 for a free consultation. We’re available twenty four hours a day, seven days a week to meet with you. Thank you.