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.
[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
