Being searched by an officer is an incredibly stressful experience to undergo, regardless of whether an individual has broken the law. Oftentimes, our clients are unaware of their rights when interacting with law enforcement officers, and fail to protect or exercise these rights during these encounters. So, what exactly are your rights when an officer compels a search of you or your property?
Our country’s founding fathers built protections into the United States Constitution that are designed to prevent the State and its agents, such as police officers, from unduly utilizing their power against citizens in these sorts of interactions.
The Fourth Amendment guarantees “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 is most simply referred to as your right against unreasonable searches and seizures. The language of the Fourth Amendment is mirrored in Article I, Section 7 of the Tennessee Constitution, and was ruled to be “identical in intent and purpose with the Fourth Amendment [to the U.S Constitution” (State v. Brock, 327 S.W.3d 645, 681 (Tenn. Crim. App. 2009)). Article I, Section I, Paragraph XIII of the Georgia Constitution also invokes protections against unreasonable searches and seizures.
Because constitutional protections only apply to unreasonable searches and seizures, and because a valid warrant makes a search reasonable, searches and seizures conducted pursuant to a warrant do not implicate Fourth Amendment protections. This means that if an officer shows up at your door with a warrant signed by a judge, they are endowed with the legal power to enter your home whether or not you welcome them in. Remember, however, to read the warrant an officer produces in its entirety before the search or seizure is conducted. Search warrants are supposed to be specific, so be sure that officers only search the place and property defined on the warrant. In Mapp v. Ohio, 367 U.S. 643 (1961), one of our country’s most iconic Supreme Court cases, officers gave Ms. Mapp a piece of paper that they pretended was a warrant in their attempt to search her home. Reviewing this case, the Supreme Court of the United States held that the prosecution is not allowed to present evidence at trial which was obtained during an unconstitutional search. Such unlawful evidence is referred to as fruit of the poisonous tree, and can be excluded from evidence in a trial.
Not all searches and seizures require a valid warrant. This may seem conflicting in the face of Mapp v. Ohio, but the courts have devoted a lot of energy to defining which searches are and are not legal. Courts are obligated to presume that a warrantless search or seizure is unlawful until the state (the prosecution) proves that one or more warrant exceptions existed at the time of the search or seizure. These exceptions are to be drawn “jealously and carefully;” thus, a warrantless search will only be deemed legal if it demonstrates specific circumstances (Jones v. United States, 357 U.S. 493, 499 (1958)).
Let’s look at a few exceptions to the warrant requirement through the lens of a common scenario: a traffic stop. Most of the time, officers pull cars over without a warrant after witnessing the driver commit a misdemeanor, such as speeding. The Supreme Court ruled that stopping a vehicle constitutes a seizure. Because a seizure has taken place, the driver and passengers alike may challenge the Fourth Amendment constitutionality of the stop (Brendlin v. California, 551 U.S. 249 (2007)).
Perhaps the most simple exception to the warrant requirement are consent searches. Individuals may waive their Fourth Amendment rights by consenting to a search of their person and property. We see this all the time with clients who want to comply with law enforcement. Officers may ask questions like, “So, you don’t mind if I search your vehicle?” when they’ve stopped a car and suspect there might be contraband in the vehicle. The bottom line is, you are NOT required to consent to a search. You have the right to tell an officer “no.”
The only instance where there would be legal consequences to this denial of consent is when an individual has been arrested for DUI and refuses to consent to a blood sample. Upon receiving their license, drivers in Tennessee and Georgia give Implied Consent to the State to obtain a sample of their blood or breath for chemical testing if there is probable cause to believe they have driven under the influence of an intoxicant. Therefore, if an individual refuses Implied Consent, the State can charge the driver with an Implied Consent Law violation under OCGA § 40-5-55 (2020) or TCA §55-10-406. (In Tennessee, the arresting officer will most likely apply for a search warrant for the suspect’s blood and ultimately collect a blood sample despite their refusal.) For all other searches, there is no criminal penalty for denying an officer consent to conduct a search.
So, what happens if you do refuse to consent to a search? Does the officer just walk away and move on to another suspect? Not quite.
Let’s go back to the traffic stop example. If an officer pulls a defendant over for a valid traffic stop, then sees an open can of beer in the front cup holder, this is considered a “plain view” search. A plain view search occurs when an officer is in a position they have a right to be in and views an item that is clearly illegal or is evidence in a criminal case. Officers have the right to seize objects in plain view, so long as probable cause exists to believe these objects are contraband.
Say there is no contraband in plain view, but the officer pulls the defendant out of the car to perform field sobriety tests. After running through field sobriety tests, the officer determines that the driver is too intoxicated to legally operate a vehicle and places them under arrest for suspicion of DUI. Now that the driver of the car is in custody, the officer has the right to conduct a search incident to arrest. The Supreme Court ruled in United States v. Robinson, 414 U.S. 218 (1973), that in the case of a lawful custodial arrest, a full search of the person is an exception to the warrant requirement and considered “reasonable” under the Fourth Amendment. Furthermore, when an individual is arrested for DUI, an officer may in some circumstances conduct an inventory search of the car prior to impounding that car. Generally speaking, searches made incident to an arrest are considered reasonable and lawful.
The application of warrant exceptions is highly specific, and can vary greatly from state to state. It’s difficult for an individual to know at the time of a search or seizure whether officers are acting within the bounds of the law, or whether their Constitutional rights are being violated. In most circumstances, it’s a good idea to refuse consent to a search or seizure. If the officer chooses to conduct the search or seizure after you refuse to consent, the burden is upon the State to prove that this search or seizure was legal. A dedicated and well-informed lawyer should be able to identify any unlawful searches or seizures which can result in evidence being suppressed in the court of law.At Best & Brock, we are strategic and assertive about protecting your Constitutional rights. We analyze each item of evidence thoroughly for any procedural errors that could bolster our client’s case. If you or a loved one is facing criminal charges, and you believe the State violated your rights, reach out to us at 423-829-1043 or fill out this contact form to get in touch with our talented legal team.