One of the most powerful tools a criminal defense lawyer has in a drug trafficking or possession case is the motion to suppress evidence. Motions to suppress evidence are based on the idea that law enforcement has violated an individual’s Fourth Amendment right to be free of unreasonable searches and seizures or some other right protected by a specific Georgia law. If successful, a motion to suppress evidence will usually result in the dismissal of all drug charges well before trial.
In Georgia, a motion to suppress evidence must generally be filed within 10 days after the arraignment date. If a defendant fails to file a motion to suppress evidence within this timeframe, he or she may waive the right to challenge the lawfulness of the search that led to the discovery of the contraband. At some point after the arraignment the State will provide the defendant’s lawyer with the discovery in the case. Discovery usually consists of police reports, drug lab reports, search warrants, arrest warrants, witness statements, and any video or audio recordings.
After reviewing the discovery, a criminal defense attorney will decide whether to challenge the search by demanding that the court hold a hearing to determine the admissibility of the drugs. If a hearing is requested, the court will set the hearing down to be heard on a specific date. The State generally has the burden of convincing the court that the drugs were the product of a lawful search. To meet this burden, the State usually calls the arresting or searching officer to testify about the facts that gave rise to the search. The State may also introduce the search warrant into evidence along with any other evidence it deems to be relevant. A criminal defense lawyer will have the opportunity to cross-examine the arresting or searching officer, call any witnesses of his own, and tender evidence into the record for the court’s consideration. At the conclusion of the hearing, the State and the defense will argue why the drugs should be suppressed under the Fourth Amendment or a specific Georgia statute.
Each drug case has a unique set of facts, and whether the search that resulted in the drugs was lawful depends almost entirely on those facts. When law enforcement seizes a significant quantity of drugs, it’s typically the result of a search involving an individual’s home or automobile. An individual’s home receives greater protection under our Constitution than automobiles. In the vast majority of cases involving the search of a home, law enforcement is required to obtain a valid warrant before setting foot inside of the home. The only exceptions to this rule are if the home owner gives consent to the search or if “exigent circumstances” (some immediate emergency requiring swift action) exist.
If the search was conducted pursuant to a warrant, there are three primary ways to attack the lawfulness of the search. A criminal defense lawyer may attack: 1) the information used to procure the warrant; 2) the specificity of the warrant; and 3) the search itself. When trying to obtain a search warrant, law enforcement must prepare a supporting affidavit setting forth all relevant facts. This affidavit is then submitted to the judge for his or her consideration. The judge must then determine if law enforcement has provided enough information to establish probable cause to believe that a crime has been or is being committed at a specific location. If a judge signs a warrant not supported by probable cause, the warrant is invalid and the fruits of any search must generally be suppressed. In some cases, the information submitted to the judge will be incomplete, false, stale, or obtained through unreliable sources. If the defect in the information submitted to the judge was necessary to find probable cause, the warrant will generally be voided by the court and any seized evidence will be suppressed. As a general rule, probable cause is determined by the totality of the circumstances.
A search warrant must also particularly describe the place to be searched and the person or things to be seized. If a warrant fails to state the exact address of the place to be searched or the specific items that may be seized by law enforcement, the warrant may be deemed invalid. It is also possible for a search warrant to be valid but the resulting search to be nonetheless unlawful. One way this may occur is when law enforcement exceeds the scope of the search warrant. For instance, a court may suppress cocaine found under a floorboard in a home where the search warrant only called for the seizure of an individual’s personal computer.
Individuals pulled over in their automobiles during a traffic stop do not enjoy the same level of protection and privacy. The Supreme Court has carved out an exception to the warrant requirement known as the “automobile exception”. This exception allows law enforcement to search a vehicle (that has been lawfully stopped) without a search warrant if there is probable cause to believe that the vehicle contains contraband. Probable cause to search an automobile exists when the facts and circumstances would lead a reasonably discreet and prudent man to believe that the contents of the vehicle offend the law. In other words, marijuana smoke billowing from the window will give law enforcement probable to cause to search. A driver who exhibits nervousness, however, is generally not enough to establish probable cause.
A criminal defense lawyer may also challenge the lawfulness of the traffic stop itself. A traffic stop is only lawful where the officer had reasonable grounds based on specific and articulable facts for making the stop. To put it another way, the officer must have a particularized and objective basis for suspecting the person of criminal activity. The stop cannot be arbitrary or harassing. Consequently, if the officer conducting the traffic stop cannot adequately articulate why a driver was committing or had committed a traffic offense or a crime, the traffic stop is considered to be unlawful. Law enforcement also may not unreasonably prolong a traffic stop beyond the time required to fulfill the purpose of the stop (which is usually the time it takes to issue a citation). If, for example, law enforcement detained a driver accused of speeding for an hour simply to wait on the arrival of a drug sniffing dog, the court would likely find such prolonged detention to be unlawful.
Situations often arise where a driver of an automobile is taken into custody for a traffic infraction such as driving with a suspended license or DUI. It is not uncommon for officers to then search the vehicle for contraband. The lawfulness of such a search depends heavily on how the search is characterized. If the search was done incident to the arrest, the officer must have had a reason to believe that there was evidence in the vehicle relating to the crime for which the driver was arrested. If the search is characterized as an inventory search, the state must establish (among other things) that the search was conducted in accordance with that police department’s policies regarding impounding vehicles and that the search was not simply a fishing expedition to find possible contraband.
Even when a driver consents to his vehicle being searched, it may be possible to challenge the lawfulness of the search. In many consent cases, an officer will exceed the scope of the driver’s consent. For instance, the driver may grant permission for the officer to search the vehicle’s trunk. If the officer then finds contraband hidden behind an air vent in the front compartment, a court would likely suppress the contraband as the officer exceeded the scope of the driver’s consent.
If you have been charged with a serious drug offense in Atlanta, or anywhere else in Georgia, it is imperative that you retain an aggressive Atlanta criminal defense attorney experienced in filing and arguing motions to suppress evidence. Properly filing and arguing a motion to suppress in a serious drug case could mean the difference between spending decades in prison and having the entire case dismissed.
Page Pate is an accomplished trial lawyer with over 25 years of experience in criminal defense, civil litigation, and whistleblower representation. Page is listed in The Best Lawyers in America, Top 100 Lawyers by The National Trial Lawyers, and named to the list of Super Lawyers for the past 15 consecutive years. Page is a frequent expert legal analyst for local and national media and has served as an Adjunct Professor at the University of Georgia Law School. Read Page’s reviews on AVVO. Follow Page on Twitter @pagepate and on Linkedin.