As a Georgia DUI attorney, I’ve spent years defending clients against charges that often hinge on the
The Fourth Amendment and the Terry v. Ohio Revolution
To understand Rodgers’ argument, we first need to look at the federal landscape. The Fourth Amendment protects against unreasonable searches and seizures, traditionally requiring law enforcement to have probable cause—specific, articulable facts suggesting a crime has been committed—before conducting a search or seizure. However, in 1968, the U.S. Supreme Court’s decision in Terry v. Ohio fundamentally altered this framework. In Terry, the Court ruled that police could stop and frisk individuals based on "reasonable suspicion," a lower standard than probable cause. This decision allowed officers to detain and search people based on vague, subjective judgments, rather than concrete evidence of wrongdoing.
Since Terry, reasonable suspicion has expanded dramatically. Today, police can stop you based on "commonsense judgments and inferences about human behavior," ethnicity, location, or even a minor traffic violation. In the context of DUI cases, this means officers can pull you over for something as trivial as a broken taillight or weaving within your lane, then use that stop to investigate for DUI—even if their initial suspicion was minimal or pretextual. The Fourth Amendment, once a robust shield, has been eroded by Terry and subsequent rulings, leaving many Georgians vulnerable to invasive police actions.
Georgia’s Paragraph XIII: A Stronger Shield?
Rodgers argues that Georgia’s state constitution offers a potential counterweight to this federal erosion. Paragraph XIII, found in Article I, Section I of the Georgia Constitution, mirrors the Fourth Amendment’s language:
"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 warrant shall issue except upon probable cause, supported by oath or affirmation, particularly describing the place or places to be searched and the persons or things to be seized."
For decades, Georgia courts have interpreted Paragraph XIII in lockstep with the Fourth Amendment, treating it as a mere echo of federal law. However, Rodgers contends that this approach overlooks the unique history, text, and intent of Georgia’s provision. Unlike the Fourth Amendment, which has been diluted by Terry’s reasonable suspicion standard, Paragraph XIII may demand a higher threshold: probable cause for all searches and seizures, including stops and frisks.
The Historical Roots of Paragraph XIII
Georgia’s search and seizure protections predate the Civil War, appearing in the state’s 1861 Constitution. Even before then, the Georgia Supreme Court recognized these rights as fundamental, rooted in English common law traditions that emphasized probable cause and rejected general warrants. Rodgers highlights cases like Pickett v. State (1896), where the Georgia Supreme Court struck down a warrantless search of a person’s home, emphasizing that searches without probable cause were illegal under state law.
This historical context is crucial. At the time Paragraph XIII was adopted, "seizure" meant an arrest, and "search" required probable cause—standards far stricter than today’s reasonable suspicion. Rodgers argues that Terry stops and frisks, which allow police to detain and pat down individuals based on mere suspicion, are inconsistent with this original understanding. For DUI cases, this could mean that many traffic stops—often initiated on flimsy pretexts like "weaving" or "failure to maintain lane"—might not hold up under Paragraph XIII.
Rejecting Terry in Georgia: A Call to Action
Rodgers’ central thesis is that Paragraph XIII rejects the Terry framework entirely. He asserts that Georgia’s constitution does not permit searches, seizures, stops, or frisks based on reasonable suspicion. Instead, law enforcement must have probable cause—a higher bar that requires specific evidence of a crime. This argument has profound implications for DUI cases, where stops often rely on vague observations like "erratic driving" or "the odor of alcohol."
For example, consider a common DUI scenario: an officer pulls you over for a minor traffic violation, claims to smell alcohol, and begins a DUI investigation. Under the Fourth Amendment, this stop is likely lawful if the officer can articulate some reasonable suspicion. But under Rodgers’ interpretation of Paragraph XIII, the officer would need probable cause for the initial stop—something more concrete than a hunch or a minor infraction. If the stop lacks probable cause, any evidence obtained (like a breath test or field sobriety results) could be deemed inadmissible in a Georgia court.
DUI Roadblocks and Paragraph XIII
Rodgers also takes aim at DUI roadblocks, a common tool in Georgia’s fight against impaired driving. Under federal law, the U.S. Supreme Court upheld sobriety checkpoints in Michigan Dep’t of State Police v. Sitz (1990), using a Terry-style balancing test to weigh the state’s interest in preventing drunk driving against the intrusion on individual rights. However, Rodgers argues that such roadblocks violate Paragraph XIII because they involve suspicionless seizures—stopping every driver without probable cause or even reasonable suspicion.
In Georgia, cases like State v. Swift (1974) and LaFontaine v. State (1998) have upheld roadblocks, but these decisions relied heavily on federal precedent and ignored Paragraph XIII. Rodgers contends that an originalist reading of Georgia’s constitution would invalidate these checkpoints, as they clash with the historical requirement of probable cause. For Georgians facing DUI charges from a roadblock stop, this argument could provide a powerful defense strategy.
Privacy and Due Process: Another Layer of Protection
Beyond Paragraph XIII, Rodgers highlights Georgia’s independent right to privacy, rooted in the state’s due process clause (Article I, Section I, Paragraph I). This right, famously articulated in Pavesich v. New England Life Ins. Co. (1905), protects Georgians’ liberty to move freely without governmental interference, absent due process of law. Rodgers suggests that this privacy right could further bolster challenges to DUI stops and roadblocks, which often intrude on personal freedom without individualized suspicion.
Practical Challenges and Opportunities
While Rodgers’ arguments are compelling, litigating Paragraph XIII claims is no easy task. Unlike the Fourth Amendment, Paragraph XIII does not explicitly provide an exclusionary rule (a remedy that suppresses illegally obtained evidence). This means that even if a stop or search violates Paragraph XIII, the evidence might still be admissible in court. Additionally, Georgia’s fast-paced appellate dockets and the judiciary’s historical reliance on federal precedent make it difficult to convince courts to break from Terry.
However, Rodgers identifies several potential avenues for advancing these claims:
- Obstruction of an Officer Cases: Georgia law allows individuals to resist unlawful arrests or detentions. If a DUI stop lacks probable cause under Paragraph XIII, a defendant might lawfully resist, potentially undermining related obstruction charges.
- Motions to Suppress under O.C.G.A. § 17-5-30: This statute allows individuals to challenge illegal seizures and seek the return of property. While it’s an uphill battle, it could force courts to grapple with Paragraph XIII’s implications.
- Privacy-Based Challenges: By invoking Georgia’s due process right to privacy, defendants could argue that DUI stops and roadblocks unjustifiably infringe on their liberty, offering a complementary strategy to Paragraph XIII claims.
What This Means for Your DUI Case
If you’re facing a DUI charge in Georgia, Rodgers’ article underscores the importance of exploring state constitutional defenses. Many DUI stops rely on the low threshold of reasonable suspicion, which may not withstand scrutiny under Paragraph XIII’s probable cause requirement. Similarly, if you were stopped at a DUI roadblock, you might have grounds to challenge the stop as an unconstitutional suspicionless seizure.
As your DUI attorney, I can help you evaluate whether your case involves a potential Paragraph XIII violation. For example:
- Did the officer have probable cause for the initial stop, or was it based on vague suspicion?
- Was the stop part of a roadblock, and if so, did it comply with Georgia’s constitutional standards?
- Were your privacy rights infringed by an overly intrusive investigation?
While these arguments are novel and untested, they represent an opportunity to push back against the erosion of constitutional protections and hold law enforcement accountable.
A Call to Revitalize Paragraph XIII
Hunter J. Rodgers’ "Tackling Terry" is a clarion call to rethink how Georgia courts interpret Paragraph XIII. By rejecting Terry’s reasonable suspicion standard and emphasizing probable cause, Georgia could restore robust protections against unreasonable searches and seizures—protections that are especially critical in DUI cases. While the road to revitalizing Paragraph XIII is challenging, it’s a fight worth having for the sake of Georgians’ liberty and security.
If you’ve been charged with DUI, don’t assume your case is hopeless. Contact me, George Creal, to discuss how we can leverage both federal and state constitutional defenses to protect your rights. Together, we can ensure that law enforcement respects the boundaries set by Georgia’s constitution.
Contact George C. Creal, Jr. for Expert DUI Defense
If you’ve been charged with a DUI in Atlanta or elsewhere in Georgia, don’t face the legal system alone. With over 25 years of experience defending DUI cases, I have the knowledge and expertise to navigate complex issues like those raised in Dias v. State. Contact us today for a free consultation to discuss your case and learn how we can help.
George C. Creal, Jr. is a trial lawyer specializing in DUI and criminal defense in Georgia. This blog post is for informational purposes only and does not constitute legal advice.
For a free consultation, contact the Law Offices of George Creal today on the web at www.georgecreal.com or on the phone at (404) 333-0706. We are here to help you navigate the legal system and fight for your rights.
Disclaimer
The information in this blog post is for general informational purposes only and should not be construed as legal advice. Please consult with an attorney to discuss your specific legal situation.