What are my rights if I am stopped by the police? Part 2

This is the second post in a multi-part series on police-citizen encounters. Of course, this is very general information and each situation will be different. Hopefully this information will be useful for general knowledge purposes. However, if you have been arrested, or have had what you believe was an improper contact with the police, you should contact our office to discuss your potential remedies or defenses.*

In my last post in this series I addressed the first tier of police-citizen encounters. This post will address the second tier. The second tier of police-citizen encounters involves a brief stop or seizure by the police. A seizure occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave. [1]Although the questions of what constitutes a seizure is often a point of contention in any criminal proceeding, the basic concept of a seizure is that the police have not yet slapped on the hand cuffs and put you in the car, which would be an arrest, but the police have made it clear that you are not allowed to leave. The bottom line is that you are considered “seized” for the purposes of determining your rights if an officer restrains your movement by physical force, command, or show of authority. All seizures, even those involving only a brief detention, implicate the Fourth Amendment.[2]

So what does this mean? In order for an officer to “seize” or stop you, the officer must have a reasonable articulable suspicion that you are involved in criminal activity prior to the officer stopping you. [3] This simply means that the officer has a reasonable belief that you are involved in something criminal. The following are a few examples that would justify the policing in stopping you:

1. if the officer is following you and you fail to use a turn signal, or commit any traffic offense;

2. if the officer sees you engage in what he believes to be a hand-to-hand drug transaction;

3. if the officer is following you and you cross over the white fog line; or

4. if the officer sees you driving along with windows that are more tinted than they should be.

However, the following are some examples that would not justify the police in stopping you:

1. your leaving a location that the police previously searched, without other factors being present;

2. driving below the posted speed limit;

3. appearing suspicious;

4. appearing nervous.

Each of the above are simply examples, and are not exhaustive of reasons why the police can stop you, nor is the list exhaustive as to reasons that would not justify the police in stopping you. The key is that if the police have a reasonable suspicion of criminal activity they can stop you. If they cannot articulate a reasonable suspicion that you were involved in criminal activity, they cannot stop you.

If the police stop you improperly, then any evidence they find as a result of the improper stop would not be allowed as evidence in a criminal case against you. This is true regardless of what the police find or learn during the illegal stop.

If the police lawfully stop you, then they can conduct a limited search of your person for weapons without your consent if they can articulate a reason that this was necessary. However, this is as far as they may go during a simple stop without probable cause (which I will discuss in my next article) unless you consent to a search. If you give your consent to a search during a lawful stop, even if the officer could not have searched you without your consent, that consent will be valid and you will not be able to complain about it later unless the officer coerced or tricked you into agreeing to a search. [4] [5]

The bottom line is that if you are stopped by the police you do not have to consent to a search of your person or vehicle. Don’t worry, if they have probable cause to search your vehicle without your consent, they will certainly do it. There is no need for you to help them out. I will discuss circumstances in which an officer would have probable cause to search without your consent in my next article.

*The information contained on this website and/or blog does not constitute legal advice. Each situation is different and you should not act based on the information contained on this website and/or blog. No attorney/client relationship shall be created as a result of viewing this website and/or blog, commenting on the blog, or otherwise interacting with this site. You should not post any personal information or specifics about any case or legal problem you might have on the comments section of the blog as this could be detrimental to your case. If you have a specific legal problem that you need assistance with, you should call our office to set up an appointment. The information on this site is intended as general information only and if you rely on this information you do so at your own risk. No attorney/client relationship shall exist between Dunlap Gardiner LLP and any person or entity absent a written retainer agreement that is signed by all parties. If you have an immediate legal emergency you should call our office so that we may speak with you immediately. Please call 678-391-8440.

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[1] State v. Tollefson, 259 Ga.App. 320, 577 S.E.2d 21 (2003)

[2] State v. Tollefson, 259 Ga.App. 320, 577 S.E.2d 21 (2003)

[3] Carrera v. State, 261 Ga.App. 832, 584 S.E.2d 2 (2003)

[4] Harris v. State, 269 Ga. App. 48; 603 S.E.2d 476 (2004)

[5] Salmeron v. State, 280 Ga. 735; 632 S.E.2d 645 (2006)

Things I Think are Awesome Part 2

The Fail Blog. This is not really work appropriate (it's not really anything that bad, usually) but it is usually hilarious.

Health Care Retreat?

It sounds as though the administration has some infighting to deal with.

Georgia State Football Players Report to Practice

Since I am a graduate of the Georgia State University College of Law, I am really amped about Georgia State getting a football program. It will probably be painful for a few years, but the guys reporting to practice has me really amped.

Bears are Mean

Don't try to chase a bear away with a broom. It can only end bad. This lady must not have seen "The Grizzly Man."

McDonough Clerk Fired for Allegedly Stealing City Funds

In local Henry County news, a City of McDonough administrative clerk who happens to be the McDonough Police Chief's wife, was separated from her job for allegedly stealing city funds.

I don't like the way the ajc article is written. The article implies a couple of things. First by making the article about the Chief and not his wife (starting with the headline), the ajc is implying some sort of impropriety or problem with the Chief with absolutely no support . Second, the article also implies that since she is the Chief's wife, there could be some shenanigans in the way the investigation is handled.

Two things:

1. I certainly hope that the Chief is not tainted by the alleged actions of his wife. Even though it is his wife, it's not him. Plus, these are simply allegations at this point. To focus on him rather than his wife is unfair at best.

2. The Henry County District Attorney's Office is extremely professional and fair. Tommy Floyd is one of the, if not the most, respected District Attorney in this State and he has an excellent staff of Assistant District Attorneys, Investigators, and support staff. I am sure the investigation will be handled accordingly. Any unsupported implication that there could be an improper investigation because the clerk happens to be the police Chief's wife is ridiculous.

So what would I have done differently than the ajc? First, I would have talked about an administrative clerk allegedly stealing city funds and mentioned in passing that she happens to be the police Chief's wife (if I mentioned it at all). Although this might be less sensational, it is the right thing to do. Focusing on the Chief and not the wife has serious implications that have, from what I can tell from the article, no support at all. Second, I would not have published anything about any alleged conflict of interest unless I had something to support it.

You may be saying to yourself: "But they didn't say there was a conflict of interest." Yeah right, the article says:

"The district attorney is handling the investigation and McDonough police are not involved, the chief said.

“There is no actual or potential conflict of interest,” the chief said."

The only reason the ajc included this was to imply a conflict of interest. It would sort of be like writing an article about a t.v. personality and quoting him as saying "I have not beat my wife." Of course in that situation, as with the ajc article, the implication is that there is something to defend. Sneaky.

The information contained on this website and/or blog does not constitute legal advice. Each situation is different and you should not act based on the information contained on this website and/or blog. No attorney/client relationship shall be created as a result of viewing this website and/or blog, commenting on the blog, or otherwise interacting with this site. You should not post any personal information or specifics about any case or legal problem you might have on the comments section of the blog as this could be detrimental to your case. If you have a specific legal problem that you need assistance with, you should call our office to set up an appointment. The information on this site is intended as general information only and if you rely on this information you do so at your own risk. No attorney/client relationship shall exist between Dunlap Gardiner LLP and any person or entity absent a written retainer agreement that is signed by all parties. If you have an immediate legal emergency you should call our office so that we may speak with you immediately.

What are my rights if I am stopped by the police?

This is the first part of a multi-part series on police interactions. Of course, this is very general information and each situation will be different. Hopefully this information will be useful for general knowledge purposes. However, if you have been arrested, or have had what you believe was an improper contact with the police, you should contact our office to discuss your potential remedies or defenses.*

Before I went to law school I believed that if the police stopped me, I pretty much had to do anything they asked me to do. Fortunately, that is not the case. One of the first questions people ask regarding interactions with the police is: “Do I have to consent to a search of my person or vehicle if the police ask to search it.” The unequivocal answer is no. If an officer asks for your permission to search your vehicle, the request is exactly that, a request.

Which leads to the next question: “So, when can the police search me or my vehicle without my consent?” The answer is: That depends (which by the way is usually the answer you will get when you ask a lawyer anything). Each interaction with the police is governed by different standards as to what they can and can’t do to you.

Georgia recognizes three distinct levels or tiers of police-citizen encounters. The first-tier involves verbal communications which involve no coercion or detention; the second-tier involves brief stops or seizures which must be accompanied by a reasonable articulable suspicion; and the third-tier involves arrests which can only be supported by probable cause. [1]Each of these “tiers” of encounters has different rules regarding how the police can engage you and what the consequences of your interaction with them will be.

A typical first-tier encounter would be an officer simply approaching a person on a public street and asking them questions. Another example of a first-tier encounter would be an officer approaching a stopped vehicle and inquiring why the vehicle is in the area or asking other questions. [2]In the first-tier encounter, the officer can ask you personal information, ask to see identification, and/or ask to search you. To do this they do not need to have any basis or belief that you are involved in criminal activity so long as the police do not detain you or convey the message that you cannot leave. [3]

Of course, since this type of interaction is voluntary, you do not have to answer any questions or otherwise cooperate with the police. However, if the police stop or prevent you from leaving, then this type of interaction becomes a second or third tier encounter and must be supported by reasonable articulable suspicion or probable cause. What is reasonable articulable suspicion and probable cause? Those are questions I will answer in my next posts.

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[1] See Carrera v. State, 261 Ga.App. 832, 584 S.E.2d 2 (2003).

[2] See Collier v. State, 282 Ga.App. 605, 639 S.E.2d 405 (2006).

[3] See Carrera v. State, 261 Ga.App. 832, 584 S.E.2d 2 (2003).

Contact us at 678-391-8440

*The information contained on this website and/or blog does not constitute legal advice. Each situation is different and you should not act based on the information contained on this website and/or blog. No attorney/client relationship shall be created as a result of viewing this website and/or blog, commenting on the blog, or otherwise interacting with this site. You should not post any personal information or specifics about any case or legal problem you might have on the comments section of the blog as this could be detrimental to your case. If you have a specific legal problem that you need assistance with, you should call our office to set up an appointment. The information on this site is intended as general information only and if you rely on this information you do so at your own risk. No attorney/client relationship shall exist between Dunlap Gardiner LLP and any person or entity absent a written retainer agreement that is signed by all parties. If you have an immediate legal emergency you should call our office so that we may speak with you immediately. Please call 678-391-8440.

Serving Dallas, Paulding County, Carrollton, Carroll County, Newnan, Coweta County, Decatur, Dekalb County, Douglasville, Douglas County, Atlanta, Fulton County, Jonesboro, Clayton County, Fayette County, Fayetteville, McDonough, Henry County, Marietta, Cobb Co

Things I Think Are Awful-Part 1

As the ying (or yang) to my "Things I think Are Awesome" post, I give you the following awful things:

1. The Garden of Eden, by Ernest Hemingway. I have been wanting to read something by Hemingway for the last month or so. I made the mistake of letting a woman at a bookstore in Decatur convince me that the Garden of Eden was where I should start. I am pretty sure this is a book about nothing. Nothing except for some weird relationship between a husband, a wife, and some other random girl. The relationships are odd, the story is boring, and there doesn't seem to be any point whatsoever. I rarely stop reading a book halfway through, but this one might force my hand. I will probably finish it, but it is going to be really painful. To put that into perspective, the last book I stopped reading halfway through was Dianetics, The Modern Science of Mental Health. I finished that one, eventually, but it was a little like nails on the chalkboard for a week. To sum that one up, we all have weird recordings (not memories) and we have to "clear" them in order to be high functioning. This includes "recordings" from before conception. Yes, that's right, before conception, not birth. Google around on that one if you don't believe me.

2. The Changeling (Film). This is actually a well done film. The acting is good, the story is interesting, and the direction is spot on, even the cinematography is good, and I don't even know what cinematography is. However, it has to be the most depressing movie I have ever seen. I rarely cringe during movies but with my first child on the way this one hit home quite a bit. If you like true crime dramas with unfulfilling and depressing stories about how everyone on Earth is evil, then this one is for you.

Things I think are Awesome Part-1

Alright here's the deal, I ran into a couple of things this weekend that I find totally awesome. As I discover new awesome things, I will share them with you.

1. Organic SO Delicious Dairy Free Ice Cream. This discovery comes courtesy of good friends. I know you're skeptical, so was I. I believe organic food is a rip off, and I have no interest in soy anything. However, this ice cream is simply awesome.I have no idea about the health/environment/hippy benefits, but I know it tastes really good.

2. The Catcher in the Rye, by J.D. Salinger. I am pretty sure I "read" this in high school. However, "reading" in high school consisted of sleeping in a such a way that it looked like I was reading. In any case, I am reading it now and it is hilarious and thoughtful at the same time. I highly recommend it.