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What Is A "Search" In A Georgia Criminal Defense Case?

Posted by Ben Sessions | Jun 19, 2015 | 0 Comments

One of the essential first steps in assessing what defenses are available in a criminal case is 1st determining whether the admissibility of the State's evidence can be challenged. The most common tool that criminal defense lawyers in Georgia use to challenge the admissibility of evidence is the Fourth Amendment of the U.S. Constitution. However, the 4th Amendment only protects against searches or seizures by government agents. Therefore, identifying what constitutes a search is an essential first step in determining whether evidence in a criminal case was obtained legally.

In United States v. Jones, we held that “the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a ‘search.' ” 565 U.S., at ––––, 132 S.Ct., at 949 (footnote omitted). We stressed the importance of the fact that the Government had “physically occupied private property for the purpose of obtaining information.” Id.,at ––––, 132 S.Ct., at 949. Under such circumstances, it was not necessary to inquire about the target's expectation of privacy in his vehicle's movements in order to determine if a Fourth Amendment search had occurred. “Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.”Id., at ––––, n. 3, 132 S.Ct., at 950, n. 3.

We reaffirmed this principle in Florida v. Jardines, 569 U.S. ––––, –––– – ––––, 133 S.Ct. 1409, 1413–1414, 185 L.Ed.2d 495 (2013), where we held that having a drug-sniffing dog nose around a suspect's front porch was a search, because police had “gathered … information by physically entering and occupying the [curtilage of the house] to engage in conduct not explicitly or implicitly permitted by the homeowner.” See also id., at ––––, 133 S.Ct., at 1417 (a search occurs “when the government gains evidence by physically intruding on constitutionally protected areas”). In light of these decisions, it follows that a State also conducts a search when it attaches a device to a person's body, without consent, for the purpose of tracking that individual's movements.)

Grady v. N. Carolina, 135 S. Ct. 1368, 1370, 191 L. Ed. 2d 459 (U.S. 2015).

In Georgia, our case law interpreting the Georgia Constitution's provision that is the equivalent of the federal Constitution's right to remain silent has stated that the Georgia Constitutional right is more expansive. Nothing prohibits states from providing more protection than the U.S. Constitution, but the State Constitution cannot provide less protection that the U.S. Constitution. The Georgia Constitution's provision that is equivalent to the U.S. Constitution's 4th Amendment is interpreted to, basically, track the 4th Amendment.

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About the Author

Ben Sessions

I work to provide exceptional service, attention, and results to each of my clients. Most of clients come to me because they are in a completely overwhelming situation. They need someone that will do more than address their legal problems.


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