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Defending Your Rights Against Illegal Search And Seizure

Last updated on August 2, 2022

According to your rights, an arrest must follow certain procedures in order to be valid. The Maloof Law Firm has an extensive relationship with the criminal justice system in Dekalb County, spanning generations. We know the procedure, and we can tell you when your rights have been violated during an arrest. This knowledge allows us to work alongside you to construct solid defense strategies for criminal cases. Call us at 404-492-5104 or send us an email to learn more about how we can help.

What Is Search And Seizure?

A common defense in drug crime cases and other criminal law matters is the exclusion of evidence from an illegal search or seizure. This defense is derived from the Constitution’s Fourth Amendment which reads “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Case law has created the exclusionary rule in the federal and state courts. The exclusionary rule prevents evidence gathered from an illegal search or seizure from admittance into evidence in criminal prosecution. In order for evidence to be suppressed from a search, a person must have standing, the government must have unreasonably invaded a person’s privacy, and the evidence must not have been inevitably discoverable.

The law on searches in the United States originates from the common law in England when the King’s officials could rummage through a person’s house with general warrants. The public became outraged, and rules were passed preventing the use of general warrants without cause. When the United States drafted the Constitution, they made sure to include the 4th amendment in order to avoid unlawful government intrusion into a person’s privacy.

Many factors go into whether or not a search is a violation of someone’s rights. The two most important questions are how intrusive is the search and what level of privacy the person should expect under the circumstances. A person has a much lower expectation of privacy in their car than they do in their home or person. Treatises have been written on just a small amount of this subject. For brevity, our firm has broken it down into police-citizen encounters and warrants requirements: the most frequently encountered searches and seizures.

Police-Citizen Encounters

The law has divided police-citizen encounters into three tiers. The first tier is the least invasive. It includes general encounters that all people have in public in the course of regular conduct. For example, a police officer can talk to you while you are walking down the road like any other person in public. He does not need probable cause simply to ask how your day is going. This type of encounter is not a seizure and is not protected under the fourth amendment. A person is free to leave at all points in this type of encounter.

The second tier derives from the U.S. Supreme Court’s Seminole case Terry v. Ohio allows the police to temporarily detain an individual but not to arrest an individual. For a Terry stop to be lawful, the police must have “reasonable articulable suspicion criminal activity is about to occur or is in the process of occurring.” When a police officer stops your car or prevents you from leaving an area, he must have reasonable articulable suspicion. However, once the purpose of his stop has been completed the officer must allow you to leave. Any further detention is unlawful.

Finally, the third tier encounter is an arrest. Here a person is in custody. This type of encounter requires the police to have probable cause. If probable cause does not exist then an arrest is not lawful and objects found the incident to an illegal arrest cannot be used in criminal prosecution. Probable cause is defined as “reasonable ground to suspect that a person has committed or is committing a crime.” (Black’s Law Dictionary)


The law requires police to obtain warrants in order to search for private property for persons or evidence. The only time a warrant is not required is when consent is given or exigent circumstances exist. A warrant must be issued by a magistrate judge. They have great discretion on whether or not they believe probable cause exists.

A search warrant must name the object of the search and the location where the search can be performed. The warrant cannot be general it must name specifically what is sought and where. Police are restricted by what the warrant allows. For example, if a person is sought in the warrant at a residence. The police cannot rummage through drawers or open small containers as a person could not be located in these areas. Anything found in these containers or drawers will be suppressed as a violation of the 4th Amendment.

If the police do not have a warrant, do not allow them entrance. Police will make promises that they will take it easy on you or that they can get a warrant anyway. Make them do their job. An officer with a GED probably doesn’t have the same definition for probable cause that a judge who graduated law school believes.

Miranda Rights

Everyone has seen or heard the phrase on television, “You have the right to remain silent anything you say can be used against you.” The U.S. Supreme Court ruled in its Seminole case Miranda v. Arizona (86 S.Ct. 1602, (1966)) that an officer must inform a defendant of their 5th amendment right to not incriminate themselves after they are placed under arrest.

Once an individual has been placed under arrest, they must be informed of these rights before they are further interrogated. The big question in many cases is when is the person actually under arrest. In many cases, an officer claims they did not place the person under arrest so the statements made are good evidence. For example, an officer will place a person in handcuffs and claim it was for office safety, or a detective will call an individual to the station for a statement and hold them for a long period of time claiming they are interviewing a material witness for several hours.

The rule to follow is always to ask for a lawyer. Once you have asked for a lawyer then they have to provide you one before further investigation. Often they do not have enough to make a case and are trying to trick a person into making incriminating statements. Officers are allowed to use deception in interrogating tactics. It is a bad idea to cooperate without a lawyer present. In addition, certain information may be very valuable to an officer and without a lawyer present, no concrete deal can be made with the state.

Miranda only applies to statements. For example, in a DUI case if an officer asks how much I had to drink after placing me under arrest and I say 10 drinks then that statement is thrown out. However, the odor of alcohol from my breath during the statement or manner of speech i.e. slurred or loud come in as physical evidence.

Jackson Deno Motions And Motions To Suppress

In order to prevent evidence illegally obtained from a bad search or seizure, an attorney files a motion to suppress. This lays out the person’s privacy interest, the level of intrusion, and the grounds for excluding the evidence. The most common time the defense is asserted occurs in drug cases. If the drugs were found in violation of a person’s rights, then the case will be dismissed against the individual.

In order to prevent incriminating statements from entering evidence, an attorney files a Jackson Deno motion challenging the lack of Miranda and the attempt to continue a further investigation. Our firm files these motions in ever-serious felony cases where statements are key for the state’s prosecution.

Have Your Rights Been Violated?

For a free consultation to discuss your arrest, contact The Maloof Law Firm, online or give us a call at 404-492-5104. We will work hard to defend your freedom with the same personalized care and attention we have been giving to the Dekalb County community for generations.

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