Amendment 4, one of the most important amendments of the United States Constitution reads as follows:

"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 seize."

This language is mirrored in Georgia's state constitution, Article I, Section I, Paragraph XIII, which reads as follows:

"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 warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched and the persons or things to be seized."

So when can your person or car be searched at a stop? More specifically, what is an unreasonable search and seizure and what constitutes probable cause for searching your person/car at an Atlanta DUI stop?

When can your vehicle be searched?

Probable cause is based on probabilities - there must be more than mere suspicion, but there is no requirement of proof beyond a reasonable doubt. See Wong Sun v. United States, 371 U.S. 471, 479 (1963); Brown v. State, 151 Ga. App. 830, 831 (1979). In a typical case, before a search or seizure of your vehicle can be conducted, a search warrant is required based on probable cause. However, there are some exceptions that dispense with the warrant requirement.

During an Atlanta DUI stop, the first important exception utilized by the police is the search of a movable vehicle, under the “automobile” exception. Under this exception, before your vehicle can be searched the police need probable cause to believe that your vehicle contains contraband or evidence of crime. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. See United States Code Annotated. Const., Amendment 4; Georgia Const. Art. 1, § 1, Par. XIII.; see also Tukes v. State, 236 Ga.App. 77, 511 (1999). Driving while intoxicated constitutes such a traffic violation. See Ga. Code Ann. § 40-6-391(a)(1) ("under the influence of alcohol to the extent that it is less safe for the person to drive"); see also Head v. The State, 303 Ga.App. 475 (2010). Therefore, if you were driving while under the influence of alcohol (DUI) or a substance and the police had probable case, then the police can search your vehicle. Furthermore, when there is probable cause to believe that there is evidence of a crime in a vehicle, it may be searched without a warrant. U.S. v. Chapman, 196 F.Supp.2d 1279 (2002). In fact, even if the officer had a reasonable and articulable suspicion that you were driving under the influence of alcohol (DUI) and stopped you; the stop was properly conducted. See Smith v. State, 236 Ga.App. 548 (1999). Additionally, subsequent to the stop, if the officer had probable cause that you had violated Ga. Code Ann. § 40-6-391(a)(1) (including but not limited to - if the officer smelled alcohol on your breath, or if you were driving in a "weaving" fashion, or if you were slurring) then a search of your vehicle will be deemed to have been properly conducted. While the scope of the search of your vehicle can include the entire car, including closed containers, the automobile exception dispenses only with the need for a search warrant, not with the need for probable cause. So for each step in a warrantless search that depends on the automobile exception, the police has to have probable cause to believe that the particular place they were searching contained contraband or evidence of crime.

However it is important for you, as the driver of the vehicle that was searched, to know that unreasonable searches and seizures are not allowed as they violate state and federal constitutions. See Cooper v. State, 277 Ga. 282 (2003). For example, extraction of a suspect's blood constitutes a “search” within the meaning of the Georgia State Constitution. See State v. Poppell, 277 Ga. 595 (2004). And, "a suspect's fourth amendment right to be free of unreasonable searches and seizures applies to the compelled withdrawal of blood." See Welch v. State, 254 Ga. 603, 607(3) (1985). Similarly, governmental taking of a urine specimen constitutes “seizure” under the Fourth Amendment because  urine is discharged and disposed of under circumstances where person has reasonable and legitimate expectation of privacy. See Smith v. City of East Point, 183 Ga.App. 659 (1987).

When can you be frisked?

The second exception where the warrant requirement can be dispensed with is during the “frisk” portion of a “stop and frisk.” A stop and frisk is a combination of two different events, each with different constitutional requirements:

1. A stop takes place when an officer accosts a person and briefly restrains his freedom to walk away. See Terry v. Ohio, 392 U.S. 1 (1968). A stop is constitutionally permissible even if the officer does not have probable cause to make an arrest; the officer must merely have a reasonable suspicion, based on specific and articulable facts, that the person being accosted is involved in some criminal activity. For an Atlanta DUI stop, the officer must have a reasonable suspicion that you were driving under the influence of alcohol (perhaps he observed you driving in a "weaving" fashion, etc.) making it less safe for you to drive thereby violating Ga. Code Ann. § 40-6-391(a)(1).
2. After making a stop, the officer can make a brief protective search of the accosted person's body for weapons – a “frisk” – if the officer has reasonable grounds to suspect that the person may be armed and dangerous. See Terry v. Ohio, 392 U.S. 1 (1968).

A traffic stop is reasonable where the police have probable cause to believe that a traffic violation has occurred. See Thompson v. State, 289 Ga.App. 661 (2007). A full body search incident to a valid arrest is always valid. Therefore, if the police officer who stopped you had probable cause for arresting you and thus conducted a full body search incident to the arrest, it will be presumed valid. Thus, in a stop and frisk, probable cause is not needed like it is under the automobile exception, but the police officer does need reasonable suspicion of criminal activity such as driving under the influence to the extent that it makes it less safe for you to drive (which violates Ga. Code Ann. § 40-6-391(a)(1)). For example, if a police officer detects alcohol on your breath and if you were driving, then the police officer is justified in conducting a pat-down search of your person after you exit from the vehicle following a valid investigative stop based on reasonable suspicion. See Bianco v. State, 257 Ga.App. 289 (2002). According to Georgia law, an encounter with the police is considered consensual if a reasonable person in your position would feel free to disregard the police and go about his/her business. Therefore, even if you felt like you were not free to go about your business while interacting with the police, but another reasonable person in your position would have, the encounter will be presumed to be consensual. In this case, the police would not have to satisfy the reasonable suspicion requirement. See Gonzales v. State, 255 Ga.App. 149 (2002). Some factors that may indicate that a reasonable person in your position is not free to leave or otherwise terminate the encounter with the police officer are the officer's words or tone of voice; the threatening presence of the officer or several officers; an officer's display of a weapon, etc. Furthermore, while a stop may have been legally made, it is crucial to recognize when a stop can transition from being reasonable to unreasonable. The duration of the stop should be no longer than the circumstances justifying the search require. And, the search should be no more intrusive than necessary to verify or dispel the officer's suspicions.

Here are some examples of scenarios where a "stop" was considered to have been lawfully conducted by a court:

1) Police officer was found to have probable cause for a brief investigatory stop of defendant's vehicle based on information provided by other officers in the “last few weeks” preceding the stop that the defendant's driver's license had been suspended. Here the court held that the officer was not required to check to see if defendant's license had been reinstated before stopping him. SeeState v. Harris, 236 Ga.App. 525 (1999); see also United States Code Annotated. Const., Amendment 4; Ga. Const. Art. 1, § 1, Par. 13.

2) A police officers' stop of the defendant's vehicle was supported by a reasonable suspicion that the defendant was driving on a suspended license as a result of a prior DUI conviction in violation of Georgia law. The day on which the defendant was pulled over by the police was 122 days after his license was suspended, and it was the first business day on which the defendant could have applied to have his license reinstated and the court held that it was reasonable for the officers, who knew that defendant had not appeared for the DUI hearing that caused his license to be suspended, to believe that the defendant had not yet applied to have his license reinstated. See U.S v. Woods, 385 Fed. App. 914 (2010).

What are Miranda Rights (also known as a Miranda Warning)? Do these rights apply to you during your interactions with the police at an Atlanta DUI stop?

If during your interaction with the police at a DUI stop, you reasonably deduced that you were not free to leave, then the interrogation will likely be deemed "custodial." If this was the case, then it is highly likely that the police officer needed to provide you with a Miranda warning before any questioning took place between you and the officer. Here is a paraphrase of the Miranda Warning:

You have the right to remain silent;
Anything you say can be used against you in a court of law;
You have the right to consult with a lawyer and to have the lawyer with you during interrogation; and
If you can't afford an attorney, one will be appointed for you prior to any questioning if you so desire.

Keep in mind though, that this only applies to communications that are deemed to be custodial interrogations. If you were arrested for your DUI offense, then all interrogations performed will automatically be considered custodial. However, the police officer is free to engage in any general questioning with you at the DUI stop without prividing you with your Miranda warning. Furthermore, as mentioned before, if a reasonable person in your position would have felt free to disregard the police and go about his/her business then the police need not have read your Miranda rights to you. While it is true that one can waive one's Miranda rights, this waiver needs to be voluntary, knowing, and intelligent. Therefore, if you did not know you were waiving your Miranda rights, you did not in fact waive your Miranda rights. Similarly, if your waiver was not voluntary or made intelligently then you did not waive your Miranda rights. In other words, any confessions you might have made during a custodial interrogation are only admissible if two conditions were satisfied:

1. Your Miranda warnings were given to you before the questioning; and
2. You made a valid waiver of your miranda rights (i.e. a voluntary, knowing, and intelligent waiver).

Nonetheless, you should realize that even though your confessions are inadmissible where these two conditions are not satisfied, this applies only with respect to the prosecution's case-in-chief. A non-Mirandized confession may still be introduced to impeach your testimony if you testify.

If you have reason to believe that your search or seizure was conducted unlawfully, then you have the right to challenge the validity of your search or/and seizure. Similarly, if you have reason to believe that your Miranda rights were violated, then any confessions you made under custodial interrogation will be inadmissible but only with respect to the prosecution's case-in-chief.

If you think any of your rights were violated during your DUI stop, please contact my offices immediately. We challenge any violations in crafting a legal defense strategy.