Tackling <i>Terry</i>: Georgians’ State Constitutional Protections on Searches, Seizures, and Privacy

Currently found in Paragraph XIII of our state Bill of Rights, Georgia has had a search and seizure provision in its Constitution for over 160 years. For the last sixty, our courts interpreted it in lockstep with the Fourth Amendment. Countless cases treat our state provision as an afterthought, only worth mention as an aside to the Fourth Amendment, or in acknowledgment that the court was not reviewing on state grounds, or both. Even where the Georgia Supreme Court issues opinions enhancing search and seizure protections, or at least arguing for it, it shunts Paragraph XIII into a corner to gather dust with the rest of our abandoned provisions. Recently, however, the Supreme Court of Georgia has begun hinting that perhaps Paragraph XIII might have a different interpretation than the Fourth Amendment—or, at least, calling for someone to make the argument. For good reason: “Current Fourth Amendment jurisprudence is a mess,” embroiled in a century-old war between “competing, inconsistent doctrines [like] . . . the original meaning, the ‘touchstone’ of reasonableness, and the ‘lodestar’ of Katz.” Yet none have answered the Georgia Supreme Court’s challenge. Why? For starters, it is enormously difficult to present state-law based constitutional arguments, especially on older provisions, when they received so little prior interpretation. Additionally, Paragraph XIII historically was construed not to provide an exclusionary remedy, not only truncating any potential judicial review of its provisions but also calling into question any existing relief today. With Georgia’s fast-paced appellate dockets, making novel, state-constitutional arguments which could provide little relief seems like a waste of time. ...\nThis is wrong. As discussed in this Article, important areas of state-law-based search, seizure, and privacy exist that differ dramatically from the federal version, most notably that Paragraph XIII does not allow for searches, seizures, stops, nor frisks supported by reasonable suspicion. Instead, both history and precedent confirm that Paragraph XIII rejects the Supreme Court of the United States’s invention in Terry v. Ohio, requiring law enforcement to act with probable cause. Part I details the Terrydecision and how reasonable suspicion has consumed the Fourth Amendment. Part II dives into Paragraph XIII’s history and precedent: Part II.A discusses its understanding up until its first adoption in 1861, Part II.B addresses from its adoption to the implement of the Fourth Amendment exclusionary rule14 in 1961, and Part II.C details the negligible analysis Paragraph XIII has received since, while Part II.D gives a primer on Georgia’s constitutionally separate right to privacy rooted in due process. Part III examines Paragraph XIII both in the reasonable suspicion and automobile contexts, concluding neither survive. Part IV discusses different avenues for litigating Paragraph XIII claims and recommends the need to revitalize our independent provision to restore Georgians’ security against unlawful searches and seizures. Part V concludes.