Search and Seizure Without a Warrant
April 10, 2018
The Fourth Amendment to the United States Constitution protects citizens from illegal search and seizure by requiring a search warrant, issued by a neutral and detached magistrate. There are exceptions, including in Georgia. These exceptions are what allow police to search persons, papers, vehicles and homes without consent, depending on the circumstances.
The four exceptions are:
When the search and/or seizure is incident to a lawful arrest;
When a police officer sees illegal items, including contraband, or sees items that have been reported as stolen and the items are in plain view;
When a police officer faces exigent circumstances, and is left with no choice but to take immediate action because of the situation; and
When a person gives consent to search.
If a search takes place during a lawful arrest, the police officer is allowed to search the person and the area around the person. The officer may take weapons and contraband into custody as evidence. If the arrest is later deemed illegal, then the search is also deemed illegal.
When a police officer sees items in plain view, legally there was no intentional search. However, the police officer must have legal grounds to be where the search and/or seizure happens and the items must be illegal. For example, if an officer stops a vehicle for a valid reason and sees drug contraband on the front seat, the officer has the right to conduct a search of the vehicle occupants and the vehicle.
An emergency situation might mean that the police officer doesn't have time to get a search warrant, such as when there is a threat of violence, evidence is being destroyed, or if the police are in pursuit of a suspect.
Since many law enforcement officers are equipped with “dash cams” or body cams, the question and answer regarding consent to search may be able to be heard. This can often provide conclusive proof of whether or not consent was freely given.
If you feel you have been wrongly arrested, or that law enforcement searched and/or seized your property during an illegal search, contact our office for a consultation.