The Constitution’s Fourth Amendment prohibits unreasonable searches and seizures. For over a century, this fundamental right was nothing but ink on paper. In fact, as late as 1897, the Supreme Court ruled that police-coerced confessions were admissible evidence in criminal prosecutions. A few years later, the Supremes finally embraced the exclusionary rule, which prohibited the use of illegally-obtained evidence in court. However, 1914’s Weeks vs. United States only applied the exclusionary rule to federal cases. It would be another half-century before the High Court applied the exclusionary rule to state prosecutions, in 1964’s Mapp vs. Ohio.
All this to say that, unless officers have a valid warrant or a narrow search warrant exception applies, a Marietta criminal defense attorney can exclude drugs, weapons, and other contraband. Generally, no evidence means no case. Generally, officers only obtain warrants after lengthy investigations. Most criminal cases begin with routine traffic stops. In these situations, there’s no time to get warrants. Things happen too quickly. So, when the case goes to court, prosecutors must rely on a search warrant exception which may or may not be supported by the facts.
The aforementioned Fourth Amendment came from an idea in old English law that “A man’s home is his castle.” If the castle owner voluntarily lowers the drawbridge, the castle, and anything therein, is fair game. That’s the basic idea behind the owner consent exception.
This consent must be affirmative and voluntary. Commonly, officers threaten to get warrants unless owners consent. Arguably in these cases, the consent is neither affirmative nor voluntary. The consent is more like assent. Additionally, the warrant threat means the “consent” is coerced instead of voluntary. Coerced confessions are illegal, and so is coerced consent.
Incidentally, the warrant threat is almost always an empty threat. If officers had probable cause for a warrant, they wouldn’t ask owners for consent. They’d get the warrant and be done with it.
Similarly, if officers see contraband in plain view, they don’t need a warrant to seize it, provided they didn’t use vision enhancement, like binoculars, and they were lawfully in that place at that time.
Officers often use binoculars, high-powered cameras, and other gadgets during surveillance. They can watch people, but in most cases, they cannot intervene, unless someone is in danger. More on that below.
On a related note, partial plain view cases are an ongoing disputed subject. If Officer Sally sees what looks like a Glock’s handle protruding from underneath a seat, the item could be a real Glock or a fake Glock. So, that seizure might or might not be legal.
Additionally, the plain view exception only applies if the traffic stop or other initial law enforcement contact was legal. Officers have a great deal of leeway in this area. We mentioned the line of exclusionary rule cases above. 2016’s Utah vs. Strieff, an under-the-radar Supreme Court case, gave police officers unprecedented power in this area.
Strieff affected the reasonable suspicion rule, which is at the heart of weapons pat-down searches. Officially, officers have reasonable suspicion if they have specific, articulable facts that the defendant was doing something illegal. The Supreme Court has always let officers use their experience to interpret the facts they have. So, until Strieff, reasonable suspicion was basically an evidence-based hunch. Now, it’s not quite a hunch based on evidence, but it’s close to that.
During pat-downs, the plain view rule, or in this case the plain feel rule, applies. Officers may seize any contraband they feel, such as drugs.
A brief note about cell phones and reasonable suspicion. Several Supreme Court cases in recent years have dealt with officers who seize phones, scroll through text messages, and find incriminating evidence. The Supremes have consistently ruled that people have a privacy interest in anything beyond the home screen. Therefore, you don’t have to give officers your password unless they have a warrant.
Of course, if you refuse to provide that information, officers will probably assume you have something to hide and arrest you. So, don’t say we didn’t warn you.
We mentioned damsel-in-distress situations above, during the plain view discussion. If officers reasonably believe a person is in trouble, they may go into a house or other building without a warrant and conduct a security sweep. During such sweeps, the plain view doctrine applies.
Significantly, the exigent circumstances doctrine isn’t an excuse to perform a warrantless search. It’s limited to personal safety. A disturbance call is a good example. If officers respond to a call at a house, they may move through the house to make sure everyone is okay. Officers cannot look in closets or cupboards or under beds. Injured people don’t loiter in such places.
Additionally, officers can go through the main building and that’s it. They definitely cannot search tool sheds and probably cannot search detached garages.
Officers don’t need warrants if they reasonably believe evidence of a crime is in an automobile, boat, or other motor vehicle. Frequently, this exception hinges on the “I smelled marijuana” excuse that officers have used for years. Under current law, that line might or might not hold up in court.
Hemp is legal in Georgia and all other states. Hemp is basically marijuana without the THC. Hemp and marijuana have the same physical properties, including odor. So, if officers smell burnt marijuana, it could (theoretically) be burnt hemp.
The law is still very unsettled on this point. More than likely, the Supreme Court needs to weigh in on this subject. Stay tuned to this station for further updates as they become available.
Search Incident to Arrest
Marietta criminal defense lawyers and their clients scored a major win in this area back in 1990. Prior to Arizona vs. Gant, officers often “arrested” people for speeding and other minor infractions. The “arrest” lasted long enough for the officer to tear the car apart looking for contraband. If the officer found nothing, the officer released the defendant.
Gant limited such searches to weapons pat-downs, which the officer had probably already done under the reasonable suspicion rule. So, this once-common exception hardly ever comes up anymore.
Seized evidence is often inadmissible in court. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Virtual, home, after-hours, and jail visits are available.