Illegal Search and Seizure Appeals

The Fourth Amendment to the United States Constitution protects citizens from illegal searches and seizures. The Georgia Constitution also protects Georgia citizens from the same, and in fact offers even broader protections than the Federal Constitution. Ben has handled just about every type of search and seizure issue as a Criminal Appeals Attorney in Marietta and across Georgia. These issues are typically litigated before trial, in a motion to suppress hearing. If the suppression motion is denied, the rulings can sometimes be appealed before trial through the interlocutory appeal process. However, most of the time the rulings are appealed directly following a guilty verdict at trial.

Illegal Arrest

While the legality of an arrest itself is not usually an appealable issue as far as the guilt or innocence of someone, illegal arrests frequently lead to evidence obtained illegally. If the arrest itself was illegal, any evidence thereafter located by law enforcement may be what is called "fruit of the poisonous tree." This means that it should be excluded from evidence at trial. 

One issue frequently litigated before trial in this context is whether the police had probable cause to arrest you. These issues are very fact-specific and require a complete analysis of all the facts and circumstances. 

If an arrest was questionable and led to the discovery of harmful evidence, this is hopefully something that the trial lawyer in your case raised before trial. If so, the issue for appeal is probably preserved and can easily be raised on appeal. If not, the appellate lawyer will have to prove that the trial lawyer's failure to assert this issue at trial was ineffective assistance of counsel. This requires a showing that, had the trial lawyer properly argued the illegal search and seizure issue in a motion to suppress, the trial court would likely have granted the motion.

Searches Without Warrants

Generally, a search can only be conducted with the existence of probable case and (a) a valid search warrant, (b) valid consent by the party whose person or property is searched, or (c) exigent circumstances. As a Criminal Appeals and Criminal Defense Lawyer, Ben has argued all of these issues at trial and on appeal. 

Search warrants, typically issued by a magistrate judge, can be attacked in a pretrial motion to suppress. Generally, the argument will be either that the search warrant application itself lacked sufficient information to establish probable cause, or that the affiant (police officer seeking the warrant) omitted information that could have affected the magistrate judge's analysis of whether probable cause existed. If the search warrant itself is deemed to be bad, the evidence obtained as a result is inadmissible. There are some exceptions to this rule, including what is called the "inevitable discovery" doctrine, where the State may argue that the allegedly inadmissible evidence would have been discovered anyway, absent the bad search warrant.

Consent searches are very common. Although citizens have an absolute right to always deny consent to search, when asked by law enforcement, people frequently consent to searches of themselves, their homes and their vehicles. When consent is validly given and obtained, any subsequent argument that the search was illegal will usually fail. 

The problem is that consent is not always validly given or obtained. Sometimes law enforcement uses trickery and deceit to obtain invalid consent. Sometimes law enforcement uses tactics that make the option of giving consent a meaningless choice. If consent is illegally obtained, this will present grounds to exclude, or suppress, the fruits of the search.

Exigent circumstances refer to occasions where the police have probable cause for a search and have reason to believe that taking the time to obtain a search warrant will lead to the destruction of evidence or will endanger the life of someone. These issues are normally litigated in the context of drug cases, and can include situations where the police obtain what are called "no knock" search warrants, where the police can kick down your door to search without giving you any advanced notice of such. 

Search and seizure law is frequently litigated in the appellate courts of Georgia and everywhere in the United States. If you need a Criminal Appellate Attorney to analyze the search and seizure issue(s) in your case, call Ben at 404-985-9772 for a free consultation.

Illegal Vehicle Stops

Many drug-related and DUI offenses commence with a traffic stop by a police officer. Under Georgia law, a police officer can stop a vehicle upon observance of literally any traffic infraction. Even if the officer has ulterior motives in stopping someone, as long as the officer has reasonable suspicion that a traffic offense has been committed, the stop will be upheld.

Thankfully, more and more police vehicles are equipped with dashcam videos, where the defendant's lawyer can see for him or herself whether or not reasonable suspicion existed for the traffic stop. If the dashcam video objectively refutes an officer's claim that he or she witnessed a traffic infraction, the stop will be ruled illegal.

The result of an illegal traffic stop is that any evidence obtained thereafter is inadmissible at the defendant's trial. Thus, it is extremely important to gather any and all evidence relating to the initial stop of a vehicle.

Illegal Seizures

Police and citizen encounters on the street are frequently described in a tier system. First tier encounters are completely voluntary interactions with cops. This means that a citizen is also free to terminate the encounter. If you are walking down the street and a police officer asks if he or she can speak to you, you are free to do so but also free to walk away. In fact, absent reasonable suspicion that you are, have been, or are about to be, engaged in criminal activity, you are even free to run away from this voluntary encounter.

Second tier encounters occur when a police officer has reasonable, articulable suspicion that you are, have been, or are about to be, engaged in some form of criminal activity. If the officer can articulate a reason for having this suspicion, he or she is free to detain you temporarily to investigate if his or her suspicions are founded. This is not a full blown arrest, and the officer is not required to read you the Miranda warnings at this juncture. If the officer develops probable cause during this encounter, he or she may effectuate a full blown arrest.

Third tier encounters are arrests or the functional equivalent thereof. This means that a citizen does not always literally have to be sitting in handcuffs to be formally under arrest. Arrests also occur when a reasonable person would no longer believe their detention to be temporary. 

The above has been a very limited description of the potential Fourth Amendment violations that can occur in a criminal prosecution. For a specific analysis of your situation, contact Ben, a Criminal Appeals Attorney well-versed in the law.