DID THE POLICE VIOLATE YOUR RIGHTS
DURING A DRUG ARREST?
When someone is arrested for weed or some other drug possession (VGCSA) in Georgia, there is often a question about whether you ever should have been searched or even arrested in the first place. Did the police violate your rights? Below are some general answers to common issues about your rights during drug arrests. A good lawyer will examine your arrest from start to finish to see if your rights were violated during the drug arrest. These issues are complicated and there's no way I can cover them all. I'm going to talk mostly about your rights related to searches in this post. It is really important to talk to a lawyer about your specific case. You should never try to argue a potential violation of your rights to the court on your own. You should always get an attorney to represent you when you're dealing with violations of your rights during a drug arrest.
What kinds of laws apply to my drug arrest?
The U.S. Constitution applies to everyone in America. The most common constitutional issue involved in a drug arrest is the 4th Amendment since it covers issues of search and seizure. There are also many legal opinions issued by the United States Supreme Court about the 4th Amendment, and those opinions also apply to everyone in the country. In some cases, you may be dealing with federal agents who have arrested you, which would mean certain federal laws (that cover the whole country) will also apply. However, in most cases, you were arrested by a local law enforcement or the State police. That means you will be subject to the state laws where you were arrested. So for most drug cases in Cobb County and Georgia itself, the laws that cover your drug arrest will be the U.S. Constitution, U.S. Supreme Court case law, the laws of the State of Georgia, and case law from the Georgia Supreme Court and the Georgia Court of Appeals.
Were you stopped and arrested for drugs found in a car?
If the police pulled you over while driving a car, one of the first questions about any search that occurred is whether the initial traffic stop itself was lawful? Did the police have reasonable articulable suspicion to pull you over in the first place? Did they hold you at the traffic stop longer than was reasonable? Did they ask questions not related to the traffic stop itself? If they searched your car and found drugs, there will be a lot of different questions about the search itself. Did you give them consent to search or did they use another legal justification for searching? If you were a passenger in a car, your rights with regard to the search of the car itself are different and may be more difficult to challenge. However, passengers do still have certain rights and may still have good defenses to drug charges stemming from drugs found in the car.
In Georgia, the law also allows police to search cars when they smell marijuana. Unfortunately, this means that some police will lie and say they smell marijuana during a traffic stop just as an excuse to search a car. It is very hard to argue about the existence of a smell, especially months or years later in court, but that doesn't mean that there aren't other ways to defend a drug arrest, even when the search was based on testimony of a smell.
Where were the drugs found in the car?
Even when a search itself is valid, how you defend a drug case often depends on where the drugs were found in the car. Were they found in the center console or were they found in the trunk? This is important because a passenger riding in a car that isn't theirs can make a good argument they had no idea there were drugs in the trunk. On the other hand, while anyone, including a passenger, could have put the drugs in the center console, that passenger may also argue "equal access" meaning the prosecutor can't prove the drugs were possessed only by one particular person.
What if the police used a drug dog to find drugs in my car?
If the police called a K-9 unit to your traffic stop, and the drug dog alerted on the drugs somewhere in the car, you may have some unique defenses to the search. Some of the key issues in any drug dog search case is why the drug dog unit was called, and how long you were detained while they waited on the drug dog to get there. A lengthy detention while waiting for a drug dog to arrive has been found to be unconstitutional if the stop otherwise should have been concluded. And just like I discussed above, all the other issues about why you were stopped in the first place and where the drugs were found would also still be important.
Were the drugs found on you during a pat down?
If the police had you exit the car, they might pat you down for weapons "for their safety." Then, during that pat down, they may have felt something that they believed was drugs in your pocket and you were later arrested for those drugs. There is a great deal of case law on what happens when drugs are found during a pat down. It is very important to go over the exact details of what happened in these scenarios. I often tell my clients we will need to see the police body cam footage to be sure how best to attack a search. Did they even have the right to pat you down in the first place? What part of your clothing were they patting? Did they have right to take the drugs out of your pocket or make you take them out? How were the drugs packaged, and were they inside something else like a wallet? What exactly did the police officer say? These little details matter in these cases. I have been successful in getting a drug case thrown out just based on the manner in which the police officer "discovered" drugs in my client's pocket.
Were the drugs found in a purse or a backpack?
Getting arrested for drugs found in a purse or backpack is a common thing, and it is always important to determine whether the police had the right to search it. If the police encounter you on the street (see below), a simple pat down for weapons while you are detained may not justify them looking in your purse or backpack without consent. On the other hand, if the police have probable cause to search a car and your purse or backpack is in the car, the search of it then might be lawful. If you are being arrested for some unrelated crime like DUI, the belongings you have with you (like a purse) will be searched and inventoried. If they find drugs during that search of your purse, you can get additional charges for the drugs. While that search of your purse incident to arrest may be lawful at the time, if you can later prove the traffic stop or the arrest itself was unlawful, then anything flowing from the unlawful arrest, like the drugs in the purse, should also be thrown out.
Did you encounter the police while you were just walking or sitting in your car somewhere in public?
The police have the right to walk up and speak to you while you are in public. But there are specific rules on what the police can do, depending on what kind of "encounter" it is. If they don't have any reasonable suspicion that you may have committed a crime or are about to commit one, then it is just a "consensual" encounter. This means you are agreeing to talk with them, or you can simply decline to talk to them and leave anytime you want. The police cannot force you to stay ("seize" you) nor do they have any right to look in your pockets or through your belongings. If the encounter rises to the next level where you are "detained," the officer must have a reasonable suspicion to detain you. Lots of case law has been written based on what is considered a reasonable suspicion in different circumstances. Also, whether you're actually being "detained" at all may be the subject of some argument in your case. While you are being "detained," the officer might also pat you down. A patdown is discussed above, and has its own set of legal issues.
The last level of a police encounter is an actual arrest, and any search of your body and belongings incident to that arrest. Did the police have probable cause to arrest you (and search you due to that arrest)? Can you argue you were actually arrested as opposed to just detained? If they "detain" you for too long, you might be able to argue you were in reality "arrested" and they are must prove they had probable cause to do so. But in all cases, be aware that things that can be seen in "plain view" changes the analysis. For example, if the police walk by your parked car and see drugs sitting out on the front seat, your defense is going to be much more difficult, since the sight of that alone is likely sufficient for a search of the car.
Did the police find drugs in your house?
The law is very different when drugs are found in a home as opposed to in a car. How did the police get access to the home in the first place? Did they have a search warrant or some other legally permissible reason to come inside? The police will say they had the right to come in to a home without a warrant if there were exigent circumstances like in immediate pursuit of a felon, to prevent the destruction of evidence, to prevent a suspect's escape, or to alleviate risk to persons or police inside or outside the home. These questions of why the police entered the home are the first step in analyzing a possible violation of your rights under the 4th Amendment, and the courts tend to look very skeptically at officers entering a home without a warrant, especially if the reasons aren't one of the specific exceptions I just mentioned.
Once the police are inside the home, there are still questions about whether they had the right to search and seize any drugs. Were those drugs in plain view where anyone could see them? Or did the police go beyond their lawful reason for being in the house when searching for the drugs? For example, if the police are inside a home solely due to searching for a family member who has an arrest warrant, did they also go through your desk drawers and find drugs? That is likely a violation of your 4th Amendment rights. On the other hand, if they walk by your room and see drugs laying out on your bed, they may legally seize the drugs and arrest you because the drugs were in plain view, and they were in the home for a lawful reason at the time they saw the drugs.
Another issue may be that if a person told the police they could come in and search a home, did the person who gave the police consent have the proper authority to give that consent? Did the police have good reason to believe the person had the authority to consent to a search? Searches of homes are taken very seriously by the courts and it is always important to make sure the police didn't cut any corners in coming into your home and arresting you.
Did the police force you or trick you to consent to a search? Did you really voluntarily give consent to a search?
Even in cases where you have told the police it is ok to search, and they found drugs, it might still be possible to make an argument that the search was not lawful. One of the first questions will be how did they ask for consent? Did they use a trick question like "You don't have any objection to me searching do you... it's ok isn't it?" That kind of question is tricky because they will argue whether you say Yes or No, you've given them consent to search. (It's always best to just clearly state "I do not consent to any searches.")
Your lawyer should also look to see whether your "consent" to search was truly done in a voluntary manner. Were you being threatened or intimidated by the police so that you felt you had to give them permission? Were you subject to a lengthy detention prior to finally agreeing to the search? Were you even made aware that you could refuse to give them permission to search? The courts will look at the totality of the circumstances when deciding whether your consent was given freely and voluntarily. If you withdrew consent and told them to stop searching, any search that continued after might be unlawful. The courts will also look at your age, level of education, intelligence, and whether you were given warnings (like Miranda rights) prior to your giving consent to search. Miranda warning are not a requirement prior to consenting to a search, but they may be important, especially if the police asked for permission to search after they had arrested you and you were not properly advised of your constitutional right to remain silent. The law also says that merely acquiescing (submitting) to their authority is not the same as giving free and voluntary consent.
What happens if a judge agrees a search was illegal?
Your lawyer might file a Motion to Suppress the drugs if there is evidence the police violated your 4th Amendment rights with an unlawful search that resulted in their discovery of the drugs. The judge will hear testimony, look at evidence and then listen to your lawyer and the prosecutor make arguments about the issue. Then, the judge will decide if the evidence should be thrown out (suppressed). If the judge decides to throw out the evidence, it could mean your entire case has to be dismissed. If the only charges against are drug charges, and the drugs themselves cannot be used as evidence at a trial, the State has no case, and will likely dismiss the case. On the other hand, if the judge only throws out some evidence, the case might still go forward, only with less evidence against you. Also, if there are other criminal charges against you that are totally unrelated to the drugs or the search, those charges might still proceed to trial or plea.
It is always best to have a lawyer look carefully at the search that resulted in drug charges against you. The police may have violated your 4th Amendment rights and you should fight to make sure all your rights are protected.
If you have been arrested for weed or some other drug (VGCSA) in Cobb County and you want to discuss the possibility that the police violated your rights, I am happy to talk with you about. Feel free to call me for a free 30 minute consultation.
