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 RESULTS OF ILLEGAL SEARCHES AND SEIZURES

This document tells you the following:

• What does the exclusionary rule apply to and what can happen when it is applied?
• What happens when evidence is uncovered and seized by the police illegally?
• What are "1983" suits?

RESULTS OF ILLEGAL ARRESTS AND SEARCHES AND SEIZURES

The exclusionary rule was defined by the U.S. Supreme Court in the 1961 case of Mapp v. Ohio, 367 U.S. 643 (1961).

The exclusionary rule says that illegally obtained evidence cannot be used to convict a person of a crime.  The rule applies to illegally obtained confessions. It applies with equal force to illegally arrested persons and any evidence that is discovered incident to an illegal arrest. In short, it applies to any evidence seized in an illegal manner.

What can happen when the exclusionary rule is applied? A good example would be a case that the Georgia Court of Appeals decided in 1975, called here the Case of the Sleeping Drunk. Peoples v. State, 216 S.E. 2d 604 (1975).

CASE OF THE SLEEPING DRUNK

A man was passed out at an all-night restaurant. He was sleeping soundly on a stool. His face was buried in his folded arms on the counter. At his feet lay a half-empty bottle of rum. He smelled strongly of alcohol.

The police came into the restaurant. Seeing the man, they quickly decided he was drunk and should be arrested. They charged him with being a "public drunk," a misdemeanor in Georgia. During a brief search following the arrest, the police discovered two small plastic bags of cocaine, a Schedule II drug, in his pants pocket.
The man did not resist arrest. He was very cooperative. However, he insisted that he did not own the cocaine or know how it got in his pocket. Nonetheless, the police charged him with possession of a Schedule II drug.

In the trial, the man's attorney filed a "motion to suppress" the bags of cocaine as evidence. The attorney felt that the cocaine had been illegally obtained by the police. The attorney also sought to have the charge of public drunkenness dismissed.

The attorney argued to the court that the police had illegally arrested his client. The reason was that his client had not committed the offense of public drunkenness in their presence. Georgia law states that the person accused of the crime of public drunkenness must be loud, profane, and boisterous toward other people. The man was not showing any of these essential elements of the crime. Therefore his attorney claimed that he was illegally arrested.

Of course, if this charge were dismissed, the more serious charges of drug possession would also have to be dismissed because the drugs would then have been discovered in a search during an illegal arrest. In other words, if the arrest were declared illegal, the search would also be illegal. If the search were illegal—under the exclusionary rule—the evidence of the drugs could not be admitted. However, the trial court judge denied the motion to suppress the evidence. The man was found guilty of both charges.

On appeal, the Georgia Court of Appeals agreed with the defendant's attorney. It reversed the trial court's denial of the motion to suppress, agreeing with the defense that the arrest of a person under these circumstances was illegal. Therefore the search was also illegal. Both the public drunkenness and drug charges were dismissed. The man escaped serious felony prosecution because of the exclusionary rule.

Do you think the exclusionary rule is needed, or do you agree with those who claim that the rule makes it difficult to obtain convictions? Do you think it is too hard to follow the law as precisely as the exclusionary rule requires?

Based on what you have learned, would the following evidence be suppressed under the exclusionary rule?

SITUATION 19 A search warrant authorizes the search of a barn for a stolen auto. While looking around the barn, an officer opens a drawer in an old chest. In it, he finds plates for counterfeiting money.

SITUATION 20 The police are investigating a murder case. They interview a woman at her home. She seems uneasy, and one officer gets a hunch. Although he has neither a warrant nor consent, he pulls open a drawer in a table. He finds and seizes several vials of crack cocaine.

SITUATION 21 The same situation as 20, except the drawer is open, and the drugs are in plain view.

The evidence of counterfeiting found in situation 19 would be illegally obtained. The object of the warrant was a car, not the contents of the drawer. The officer had no right to open the drawer.

All evidence from a warrantless search that does not fit into one of the recognized exceptions would be excluded from a trial. It would be considered illegally seized. The evidence in situation 20 would have to be excluded. The officers did not have a search warrant. Situation 21 is different. The woman gave them permission to enter, and the drugs were in plain view; therefore the drugs were properly discovered and seized and would be admissible at trial. Cases in which an illegal arrest or search occurs may be dismissed.

The police could then be sued by the person who has been subjected to the illegal action. Suits of this kind can be tort actions for recovery of damages, or they may be civil rights actions. Such lawsuits would be based on a federal statute passed to protect people from unreasonable governmental actions. They are called "1983" suits because this law is found in section 1983 of title 42 of the United States Code. Police officers need to be very familiar with the law before making arrests and searches and seizures.

* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004).  The Vinson Institute is not responsible for errors in the online text.  Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications.  Any such matter should be specifically addressed with an attorney. The book is available for purchase at or by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.