How Do I Get Out of the City of Atlanta Jail?

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by Ryan Walsh

You’ve been arrested in the City of Atlanta. You’re in the back of the patrol car and being transported to Atlanta Pre-Trial Detention Center. What do you do?

First, do not make any statements to the police while you are being transported to the Atlanta Pre-Trial Detention Center.

Second, do not make any statements about the facts of your case to anyone at the Atlanta Pre-Trial Detention Center. This is not the time to plead your innocence. Your sole focus should be on getting out on bond.

You’ve been taken to the Atlanta Pre-Trial Detention Center because your case is going to be beginning in the City of Atlanta Municipal Court. The City of Atlanta Municipal Court has jurisdiction (or responsibility) in handling all traffic offenses, some state law misdemeanors including possession of marijuana, theft by shoplifting, and disorderly conduct; and all City of Atlanta ordinance violations.

You are entitled to a bond on all of these charges. Your bond will be set after first appearing in front of a Judge in most circumstances. City of Atlanta holds first appearance hearings Sunday through Friday. They do not hold first appearance hearings on Saturday, so if you’ve been arrested after first appearance on Friday, you may have to wait until Sunday to go in front of the Judge to get a bond.

The City of Atlanta Judge is required to consider four factors when setting a bond.

  1. Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required;
  2. Poses no significant threat or danger to any person, to the community, or to any property in the community;
  3. Poses no significant risk of committing any felony pending trial;
  4. Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

There are several types of bonds available for your case.

  1. Cash Bond: The first option in the City of Atlanta is to pay a cash bond. This means that you pay the entire bond yourself. The benefit to this bond is that it is refundable to you once you resolve your case.
  2. Bail Bondsman: The second option is to call a bonding company. You will pay between 10% – 15% of the total bond to the bonding company. The bonding company will then post the entire bond and you will be released. This 10% – 15% is non-refundable. The City of Atlanta jail will provide you with a list of approved bonding companies.
  3. Signature Bond: In certain circumstances you will be released on Signature bond. A signature bond means you are signing your own bond, promising to appear in court on the next scheduled date.

If you or your loved one is arrested and taken to the Atlanta Pre-Trial Detention Center, please contact us any time and we can assist you in helping get a bond set.

Our office is located in downtown Atlanta at 100 Peachtree Street, Suite 2060, Atlanta, Georgia 30303. Feel free to call us at 404-581-0999 anytime day or night. Also, please go to our website at www.peachstatelawyer.com

 

 

The Commerce Clause to the United States Constitution and Criminal Law

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I am interrupting my review of sentencing law to write about the “Commerce Clause” of the United States Constitution. Recently, I listened to an excellent podcast on the Commerce Clause. I encourage you to listen to is here.

The commerce clause is the legal fiction used to grant the federal government virtual unfettered jurisdiction in matters traditionally reserved to the states. The producers of the podcast at More Perfect note that the Commerce Clause was used effectively during the civil rights era to bring freedom to the oppressed. What they did not have time to develop is that the commerce clause has since been used to lock up a disproportionate number of African Americans. Until relatively recently, crime was largely a matter for states. Today, the federal government has gone beyond its traditional role to prosecute street-level, hand-to-hand drug sales, local fraud, and a host of other crimes that do not have a meaningful impact on interstate commerce.

Since the federal government got involved in the prosecution of what was typically thought of as local crime, the number of persons incarcerated in federal prisons has risen drastically. For instance, from 1980 to 2015, persons incarcerated in federal prison increased from 22,037 to 185,917, a 743% increase. Federal incarceration for drug offenses during the same period is even more severe with a 1826% increase. This prison growth occurred while the U.S. population increased by less than 50%. And, with over 10,000 attorneys, DOJ is the world’s largest “law firm!”

So, while most Americans were pleased to see the federal government use the commerce clause to desegregate the south, today it is frequently used as a means of inserting the federal government into local criminal matters. You will have to read my recent blog on mandatory minimum sentences to appreciate the impact of the federal government being involved in low-level and local crimes.

VIDEO – Testifying in Court in Your Georgia Criminal Case

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Testifying in court can make even some of the most seasoned attorneys nervous. But what about people charged with crimes who want to express their innocence and have never testified in court before? Watch this video below and call our office with questions.

Telling your story through testifying in court is about understanding the important pieces of your case. And what does that mean? It means what does the jury need to know about what happened? What does your jury need to know about you? How do you best tell your story to the jury? What does all of that include?

Well first and foremost you must tell the jury the truth. Jury members are smart. They will know if what you are telling them is not true. And as you are telling your story, truthful testimony will help the jury understand you as a person.

Next, listen to the entire question being asked and answer that and only that question.

Often, questions will begin with one of the classic question words like who, what, where, when, why, and how. You answer a where question with a location. Answer a question about time with the time. Jurors will stop caring about your story if you give non-responsive answers.

And if you do not fully understand the question being asked, take a moment and ask for clarification or ask for the question to be asked again.

Take a moment before answering each question to thing about your answer before actually saying it.

Let the pause calm yourself. Calm your nerves. Some questions will be inflammatory. Other questions asked by the state might even be offensive. Use that moment to center yourself to answer each question in a calm and collected manner.

You are allowed to qualify your answers on cross-examination. If the Georgia prosecutor is asking you for a yes or no answer and that’s all, you can explain your answer after responding yes or no. Do so when necessary.

Also, always remember you are telling your story to the jury. You aren’t speaking to the state’s prosecutor when they are asking you questions. Turn and make eye contact with each and every juror. Through eye contact, you will actually connect with the jury.

Putting these pieces together takes practice. It takes time. At our law firm we pride ourselves on discovery our client’s stories and preparing them for trial to connect with the Georgia jury. If you are our client and you want to practice, we are the only law firm that does criminal defense with our own mock courtroom where you can shake off your nerves and practice for testifying in court.

We want to help you tell your story. Call us today at 404-581-0999 for a free legal consultation on your Georgia criminal defense trial.

Thank you.

 

 

Georgia Analysis of Utah vs. Strieff Decision

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by Ryan Walsh

The Fourth amendment of the United States Constitution protects citizens from unreasonable searches and seizures. Traditionally, evidence found after a 4th amendment violation is excluded under what is known as the “fruit of the poisonous tree” doctrine. That is, any evidence recovered after a fourth amendment violation occurs is suppressed by the court and cannot be used against the defendant in his case. However, in the last ten years the United States Supreme Court has limited this exclusionary “fruit of the poisonous tree” doctrine to situations where exclusion is the last resort by highlighting a number of exceptions. ryan-walsh

Exceptions to the exclusionary rule under federal law include when an officer acts in good faith in what he believes is a legal search, when evidence is acquired through an independent source, when evidence would inevitably been discovered without the unconstitutional source, and the attenuation doctrine. The attenuation doctrine states that evidence is admissible when the connection between the 4th amendment violation and the evidence found is distant or the connection between the 4th amendment violation has been interrupted by a change in circumstances. The recent United States Supreme Court opinion, Utah vs. Strieff directly addresses the attenuation doctrine, creating situations where intervening circumstances cause Georgia citizens to be subject to searches and seizures that would otherwise be unreasonable under the Fourth amendment of the United States Constitution. Utah vs. Strieff, 579 U.S. ___ (2016).

In Utah, Edward Strieff left a home on foot that had been tied to drug activity and walked to a gas station. Officer Fackrell, who had been surveilling the home, approached Strieff, identified himself, asked Strieff for identification, detained him, and then questioned him regarding what he was doing at the residence. Officer Fackrell gave Strieff’s information to a police dispatcher, who told Fackrell that Strieff had an outstanding arrest warrant for a traffic violation. Strieff was arrested and a search of his person was performed incident to the arrest, where Officer Fackrell found methamphetamine and drug paraphernalia on Strieff. Strieff then moved to suppress the evidence of methamphetamine and drug paraphernalia. The State of Utah conceded that Officer Fackrell did not have reasonable suspicion for the stop, but argued that because of the arrest warrant, the connection between the unlawful stop and the search had been attenuated and the search incident to arrest and seizure were valid under the Fourth Amendment.

The United States Supreme Court agreed with the State of Utah. Despite the fact that the stop of Strieff was unlawful, the Court held that the valid arrest warrant created a change in circumstances that “attenuated” the illegal stop from the valid search and seizure. In looking towards whether there was a sufficient change in circumstances between the conduct that violated the fourth amendment and the discovery of methamphetamine and drug paraphernalia on Strieff, the Court looked to three factors. The three factors are (1) “the temporal proximity between the unconstitutional conduct and the discovery of the evidence, (2) the presence of intervening circumstances, and (3) the purpose and flagrancy of the official misconduct.” Brown v. Illinois, 422 U.S. 590, 603-604 (1975). The Court found that factor one favored Strieff in that the time between the unconstitutional conduct and the discovery of evidence was very brief. But the Court found that factors two and three favored the State. The existence of a valid arrest warrant was a significant intervening circumstance, and that Officer Fackrell was at most negligent in his stopping of Strieff outside the gas station. In discussing Officer Fackrell’s negligence, the Court addresses what they call his “good-faith mistakes.” Therefore, the evidence seized by Officer Fackrell was admissible at trial against Strieff. Now that we’ve analyzed the law applied by the United States Supreme Court, is the holding in Utah v. Strieff applicable to Georgia citizens?

Georgia’s restrictions on searches and seizures are greater than the protections provided by the United States Government. Georgia codified their exclusionary rule in O.C.G.A. §17-5-30. The language in that statute provides no good-faith exception to the exclusionary rule. Further, Georgia courts don’t officially recognize any specific exceptions to the exclusionary rule, but they do offer their rationale in determining whether evidence that could be excluded as “fruit of the poisonous tree” will be excluded. That rationale is most clearly articulated in Vergara v. State. Vergara v. State, 283 Ga 175 (2008). In Vergara, the Supreme Court of Georgia says, “Under the fruits doctrine as

explicated by the (United States) Supreme Court and adopted by this Court, we need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. … The more apt question … is ‘whether… the evidence … has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged by the primary taint.’” Vergara, at 182-183.

Applying the absence of a good-faith exception along with the guidance provided in Vergara, it’s unclear what Georgia courts would do if presented with the facts of Strieff. Edward Strieff was approached by Officer Fackrell and asked for his identification, which he provided. Fackrell ran his identification and saw the outstanding warrant, arrested, Strieff, and found the contraband. Because there is no good-faith exception to unreasonable searches and seizures under Georgia law, Officer Fackrell cannot be said to be merely negligent in his stop of Strieff. The evidence was clearly found as a direct result of the bad stop. And the evidence is of the sort that may not have been found independently or inevitably. There are strong arguments that this sort of evidence is still fruit of the poisonous tree under Georgia’s application of the Fourth Amendment.

However, until Georgia addresses this issue, it is unclear whether a valid arrest warrant can trigger a search incident to arrest for an otherwise unlawful stop. If you’ve been arrested and feel your Georgia rights have been violated, call the Peach State Lawyer today for a free consultation at 404-581-0999.

VIDEO – Your Right to Remain Silent!

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by  Scott Smith and Ryan Walsh

What do you do when the police begin to ask you questioning in relation to a criminal investigation? We are all familiar with those magic words we hear so often in television and film. You have the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney.
That’s the beginning of the Miranda warning, a warning that must be given in any situation where a government agent or police officer has placed you in custody, is questioning you, and seeks to admit those responses into evidence against you at trial. What most of us don’t realize is that warning doesn’t have to be given in every situation where you are being questioned. For the Miranda warning to apply, the Georgia government agent or police office must be questioning you while you are in custody. Custody is a legal term that doesn’t have an exact meaning. It is determined by looking at a totality of the circumstances surrounding the questioning.
Circumstances that impact whether you are deemed to be in custody to trigger a Miranda warning include:
  • Who asked the questions?
  • How many officers were present?
  • Were any non-law enforcement officials or government agents present?
  • Did the officer tell the suspect the interview was voluntary?
  • Where did the questioning take place?
  • Did the officer use any physical restraints, like handcuffs?
  • How long was the conversation?
  • Was the suspect free to leave at the end of the conversation?
These factors, along with others, are things the court looks at when determining if it was necessary for a Miranda warning to be read. Failure of the investigative official or government agent to read your Miranda rights does not necessarily mean the charges against you will be dropped. It just means your responses to those questions that violated your rights will not be admissible in court.
You don’t have to wait to hear those words that begin a Miranda warning to exercise your right not to talk to the police or any other investigative authority. Any person who is being stopped, detained, or investigated for the commission of a crime has no duty to answer any questions asked of them by any law enforcement or investigative official of Georgia or any state in the United States. And at W. Scott Smith, PC, the Peach State Lawyer, we advise all our current and potential clients to politely decline to answer any questions until after speaking with an attorney about the facts and circumstances surrounding the questioning.
We see the scenario play out in consultations every day. A Georgia officer walks up to the driver’s side of our potential client’s vehicle and asks “Do you know how fast you were going?” Or “How much have you had to drink tonight?” Our immediate instinct is to think we’re caught; let’s embellish the truth a bit. And instead of telling the officer ‘I politely refuse to answer any questions or exactly seventy-four miles per hour, Officer’, you make up a number 5-10 miles per hour over the speed limit, or respond with the ever-popular ‘two drinks.’ At this point the speeding case is over. You’ve admitted to violating at least one Georgia speeding statute. And in regards to the investigation into Driving under the Influence of Alcohol, we’ve given the officer an admission of alcohol consumption that may give them probable cause to arrest you for DUI in conjunction with any traffic infractions.
The reason we advise our clients to politely refuse to answer questions is because these officers are not on your side. They aren’t trying to find a reason not to cite you, not to arrest you, not to take warrants out against you. Their job is to gather evidence of criminal activity and to determine who most likely committed the crime. Georgia law enforcement officers are trained to ask specific, pointed, leading questions to get you to make admissions that could lead to you being charged with a crime. Those questions are designed for only one reason, and that is to gather information that can ultimately be used against you. DO NOT help them with their job. Even if you know you are one hundred percent innocent in the circumstances surrounding the Georgia law enforcement officer’s questions, politely decline their questions, tell them you want a lawyer, and let them release or arrest you.
Answering police officers questions without an attorney present will not help your case. Telling an officer you only had two drinks, or telling an officer you don’t have any marijuana on you but you smoked earlier, does not let them know that you were safe to drive or that you aren’t guilty of possession of marijuana. It tells them that you’re willing to voluntarily provide them with evidence they are going to use against you in their DUI or Drug investigation.
If you have any questions about your rights, if you’ve been contacted by law enforcement and asked to give a statement, or you’ve been arrested and questioned, you must contact us immediately. It is imperative that an experienced criminal defense attorney assess your situation, prevent further statements, and see if your rights have been violated in prior questioning. Call The Peach State Lawyer today at 404-581-0999 for a free consultation.

What to Do at the Jail After a DUI Arrest

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By: W. Scott Smith

The scenario every wife, husband, father, mother or friend fears receiving:  A call from a Georgia jail, and someone has been arrested for DUI:

“Its me.  I need your help.  I got arrested last night.  I am at the Fulton county jail/ Cobb county jail/ DeKalb county jail/ Gwinnett County jail.  I am being charged with DUI.  Can you please come bail me out?”

Scott Smith - Atlanta's Top DUI Attorney

W. Scott Smith is the founding partner of the Law Offices of W. Scott Smith.

This phone call can be one of the most important moments in your loved one’s DUI defense down the road.  Although not a secret, this information may assist your friend or family member in winning their DUI case at trial or negotiating a reduction to Reckless Driving.  If you are on Google and Googling this while you are on the phone with a friend charged with DUI in Georgia, it is extremely important to relay this information to the DUI friend or family member while in jail:

If the person in jail refused to take the DUI breath test at the jail.  Tell them to find the nearest jailer and rescind their refusal.  Meaning tell the jailer nearest them they now have changed their mind and want to take the Georgia breath test: “I am charged tonight with DUI.  The officer asked me to perform the breath test.  I initially declined.  I want to take it now.  Can you please help me in taking it?”  Make sure to remember the name of the person who they ask.

If the person in jail took the DUI breath test at the jail.  Tell them to find the nearest jailer and ask for an independent blood and breath test: “I am charged tonight with DUI.  The officer asked me to perform the breath test on the Intoxilyzer.  I took it.  I now want to take a an independent test of blood at the nearest hospital, a breath on a different machine than the one I breathed into, a urine at a hospital, or another bodily substance test.  Can you please help me in taking it?”  Make sure to remember the name of the person who they ask.

Here is the reason you want to advise your loved one charged with DUI in Fulton, Cobb, DeKalb, Atlanta or Gwinnett to request the test from the jailer.  Georgia courts have repeatedly rejected the argument that once a DUI suspect indicates to an officer that he refuses to submit to a blood-alcohol test, the matter is closed.  Georgia law recognizes the possibility that an individual may rescind his or her refusal to submit to an Intoxilyzer test, the police administered breath test down at the jail or the police department.  The machine is always on and almost always available to use.  Similarly, Georgia law allows a person in Georgia suspected of being DUI to request an independent test of their own choice.

In order for the consent to be proper after first refusing the police administered test, it must be made:

(1) within a very short and reasonable time after the first refusal;

(2) at a time when the test administered would still be accurate;

(3) when testing equipment is still readily available;

(4) when honoring the request would result in no substantial inconvenience or expense to the police; and

(5) when the individual requesting the test has been in the custody of the arresting officer and under observation for the whole time since arrest.

If the jailer does not allow you to take the test, then the initial refusal to take the state DUI breath test OR the results from taking the test will be suppressed as long as you can meet the five requirements outlined above.  This nuance in Georgia DUI law even applies to all Georgia Administrative license suspension hearings where the State attempts to suspend your license after being charged with DUI.

In essence, it comes down to timing and knowing your rights while still in custody.  The fifth factor is so important when you are on the phone with someone in jail or adult detention centers (all county jails in the state of Georgia including Gwinnett, DeKalb, Cobb, Fulton and Atlanta). Remember to tell them to ask a jailer near them to please allow them to take the test; or, if they already took the test, to ask the jailer to supply them with an independent blood test at the nearest hospital.

As we have always stressed to clients, the first thing one should do when booking out of jail after being bonded out for a DUI arrest in Georgia is write everything down. This includes a detailed description of the events leading up to the DUI.  The DUI arrest itself.  And if you followed my suggestion outlined above, the name of the jailer he or she requested to take the test (either initial breath or independent blood test). The name of the jailer is incredibly important because if you selected us as your lawyer we would want to send them a friendly reminder to memorialize the occurrence and we would want to subpoena them to court.

I hope this information is useful if you are now on the phone with someone charged.  Remember, our phone lines are on 24/7 to assist with DUI defense as it is happening.  Please call us at 404-581-0999.

 

Hit and Run

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Hit and Run

Do you know your responsibilities when involved in a car accident in the State of Georgia?  Many people don’t.  Every day, Georgia drivers find themselves charged with one of the worst traffic offenses someone can have on their driving record, hit and run.

Every person driving on Georgia roads has five distinct responsibilities that they must adhere to when involved in car accident involving death, injury, or damage to someone else’s vehicle.   The responsibilities must be met in order to avoid being charged with hit and run.

First, if you are involved in a car accident involving damage to another vehicle, injury, or death then you must provide the other driver your name, address, and the registration number of the vehicle you are driving.   Next, upon request, you must present your operator’s license (driver’s license) to the person struck or the driver or occupant of the other vehicle.  If someone is injured, you are required to give reasonable assistance to that person, including transporting or make arrangements to transport the person to a medical professional.  Also, if the other driver is unconscious or deceased, you must make every reasonable effort to contact medical services and local law enforcement (Call 911).  Finally, and most importantly, you must remain at the scene of the accident until all of the requirements mentioned above are fulfilled.

Most of the requirements seem to be common sense.  But a common, and unfortunate situation, is when a Georgia driver is involved in a car accident where both parties appear to be ok and there is little damage to the vehicles.  The other driver, we’ll call him John, tells you: “Everything is fine.  I don’t think we need to call the cops.”  Initially, you think that everything is fine and you can go about your business, only to later find out that “John” has called the police and reported the accident.   To make matters worse, “John” let the police know that you left the scene!   The police can then go the magistrate court and take a warrant for hit and run, leaving you with an active warrant for your arrest…

Sound like a nightmare? Believe me, it is.driving-car-accident

A conviction for a hit and run charge can result in severe consequences on your criminal history and the suspension of your driver’s license.  If someone is injured or dies as a result of the accident, then you can be charged with a felony and face up to three years in prison.   More common, if there is damage to other driver’s vehicle, and you are convicted of hit and run, you can receive up to twelve months in jail and $1000 fine.  And if that’s not enough, a conviction for hit and run will suspend your driver’s license.

If you have found yourself charged with hit and run, do not go to court and just plead guilty.  Contact our lawyers immediately to discuss your options and how to protect your rights going forward.  Our lawyers are trained to handle hit and run cases and are available for a free consultation.  Please call 404-581-0999 to setup a consultation as soon as possible.

Police Roadblocks in Georgia

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WHAT YOU NEED TO KNOW ABOUT ROADBLOCKS IN GEORGIA

by W. Scott Smith Esq. 

Roadblocks have become more and more popular among Georgia law enforcement agencies.  In North Georgia, we are seeing Georgia State Patrol roadblocks and Georgia Public Safety roadblocks for DUI more than ever before.

Here is what you need to know: The Fourth Amendment to the United States Constitution imposes limits on search-and-seizure powers in order to prevent arbitrary and oppressive interference by Georgia police officials with the privacy and personal security of individuals. The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. As its text indicates, the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ When a driver brings his vehicle to a stop as a result of a request or show of authority by a law enforcement officer, the officer effectively seizes the vehicle and everyone in the vehicle, the driver and all passengers. Such a seizure ordinarily is unreasonable, and hence unconstitutional – absent individualized suspicion. The United States Supreme Court has recognized, however, a narrow exception to the individualized suspicion requirement for vehicle stops made pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Under this checkpoint exception, the reasonableness of the initial stop depends not on individualized suspicion that the driver has committed a traffic violation or other wrongdoing, but instead on the balance between the public interest served by the checkpoint program and the right of individuals to personal security free from arbitrary and oppressive interference by Georgia officials.

Aside from general reasonableness, the Fourth Amendment applied to roadblocks also requires that the government follow with two other main requirements:

The first is that a roadblock is only satisfactory where [1] the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; [2] all vehicles are stopped as opposed to random vehicle stops; [3] the delay to motorists is minimal; [4] the roadblock operation is well identified as a police checkpoint; and [5] the screening officer’s training and experience is sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

The second requirement is that a roadblock program must a have a principle purpose other than the general interest in crime control. The Georgia Supreme Court stated late last year in its landmark roadblock decision Brown v. State that this requirement poses the question as to why an agency utilizes a roadblock.  If the primary purpose of the checkpoint program is crime-fighting in general then the checkpoints implemented under that program are unconstitutional, even if the decision to implement them was made well in advance by the official with the most policymaking authority in the agency.  The Court stated it is at the “programmatic level” that the “primary purpose” inquiry must focus, with the goal of ensuring that the agency has not authorized roadblocks primarily for the general crime control but rather for an “appropriate limited purpose” like traffic safety. Thus, the question is whether the police checkpoint at issue implement pursuant to a checkpoint program that had when viewed at the programmatic level, an appropriate primary purpose other than general crime control.

Based on this recent case law, when we challenge your initial stop at a roadblock by way of a motion to suppress, the State bears the burden of proving that the seizure was constitutional. This requires the State to prove that the stop was reasonable under the totality of the circumstances. At a minimum, the State must show that the law enforcement agency’s checkpoint program had an appropriate primary purpose other than ordinary crime control-a purpose examined at the programmatic level, rather than by trying to determine the motives of the supervisor who implemented and the officers who coordinated the particular roadblock at issue. Further, the State bears the burden of proving that the five (5) requirements in step one were met.  The written policy in Brown stated that the primary purpose of a roadblock was namely “to monitor and check driver’s licenses, driver condition, vehicle registrations, vehicle equipment, and various other requirements of the Georgia State Motor Vehicle and Traffic Code.” Further, the policy also expressly forbids the use of roadblocks as a pretext for general crime detection.  The Court upheld the policy as satisfying the second requirement.

It is our opinion at our criminal defense law firm that every roadblock needs to be closely scrutinized for illegal seizure.  Proper scrutiny requires an examination of a policy purpose of the checkpoint at the programmatic level. The Georgia law enforcement policy must sufficiently limit the agency performing the roadblock, whether it be Georgia State Patrol or others, so that the primary purpose of a roadblock could not be for general crime detection.

They found my gun at the airport! What happens now?

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Bringing Your Gun to the Hartsfield-Jackson Airport in Atlanta, GA

In addition to being the nation’s busiest airport, Atlanta’s Hartsfield-Jackson International Airport is also known for confiscating more firearms during security screening than any other airport in the country.

Historically, at Hartsfield-Jackson, when a TSA officer would find a traveler’s firearm during security screening, they would detain the traveler, confiscate the firearm, and immediately notify local law enforcement.  This would happen regardless of whether the traveler had a permit to carry the firearm because Georgia law strictly prohibited the possession of all firearms in its airports.

So, before July 1, 2014, the traveler would be arrested by the Clayton County Police Department and taken to jail. Travel plans would obviously be ruined and a criminal charges would be brought against the traveler. Then, if the prosecuting authority determined that the traveler had no criminal history and there were no aggravating circumstances surrounding the firearm confiscation, they would invite the traveler to participate in their pre-trial diversion program. By successfully completing the program, which involves community service, a gun safety class, and often, drug testing, the traveler would avoid a conviction on their criminal history.

While Clayton County would go forward with their criminal case, TSA would be assessing a federal civil penalty for the firearm violation. Upon determining the fine amount, the traveler would receive a letter via U.S. mail notifying them as to the amount they owe TSA. The penalty would range anywhere from $500 to $10,000 and depend on a variety of circumstances including the traveler’s intentions, level of cooperation, prior history,  risk to the community, and negotiation skills.

That was before July 1…

Now, as of July 1, 2014, Georgia residents with licenses to carry firearms are permitted to carry their firearm in many public places, including the entrance and waiting area in the Hartsfield-Jackson airport. Obviously, this permission does NOT extend to the airport’s terminals due to federal law but TSA officers at security screening will no longer call Clayton County Police Department if the traveler can show proof of their permit to carry.

Instead of calling the police, TSA will give the traveler the following options: 1) check the firearm as luggage (if properly secured in a hard case), 2) return the firearm to their vehicle (if they parked it at the airport), 3) hand the firearm to an individual who is licensed to carry in Georgia and not traveling via the airport, or, in the event that no other option works out, 4) forfeit the firearm permanently to TSA.

Whether the traveler has a license to carry a firearm or not, TSA will still pursue a civil case against them. Like before, TSA will investigate the circumstances of the case and assess a civil penalty ranging from $500 to $10,000. TSA may also temporarily suspend a traveler’s “TSA Pre-Check.”

It is important to remember that Georgia’s new gun laws only affect Georgia residents with valid licenses to carry their firearm(s). All other travelers carrying guns in the Hartsfield-Jackson airport remain out of luck when it comes to TSA calling Clayton County Police Department. Those individuals will be arrested and charged like all gun-carrying travelers were charged prior to July 1, 2014.

If you were charged with bringing a firearm to the Hartsfield-Jackson airport or have any questions about the subject, do not hesitate to contact our firm for a free consultation. You can trust that our firm will work hard to protect your rights and secure the best possible outcome.

Legislation Forcing Removal of Mugshots Would be a Positive Step to Defend the Rights of Individuals Found Not Guilty

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As a leading Atlanta criminal defense lawyer, W. Scott Smith, the Peachstate Lawyer, knows that successfully defending a client’s rights is a multifaceted process. Of course, the focus is always on defending that client in court, if necessary, against the criminal charges they may be facing. However, even with a positive outcome at trial or via settlement, our work isn’t always done.

One aspect of this is the damage to a person’s reputation, and their standing within the community. A person’s reputation can often be irreparably tarnished even when they are found not guilty, and are not convicted of any charge.

There’s the stigma of the arrest and the trial, and a tendency for people to not quickly change their mind once it has been made. Making matters worse is when police mugshots are posted online, and are prominently and permanently displayed across a variety of blogs, websites and online networks.

Right now in Florida, Rep. Carl Zimmermann of Palm Harbor has introduced legislation to the state which would force websites to delete arrest photos if the person in question is later found not guilty, or if the charges are dropped. While these websites have the right to share or publish information, they also should have a legal responsibility to remove, amend or update that information based on what happens down the line.

It’s also a unique circumstance for websites, versus traditional newspapers. If a newspaper has a story with a mugshot included within it, that story is only in circulation for that day. It will not be readily found by other people over a period of weeks, months or years. Further, if a newspaper publishes incorrect information, they issue corrections or retractions

Websites, though, can continue showing an old arrest photo technically as long as they wanted, without any consequences. Imagine if somebody was searching for you online and found a picture of your mugshot on the first page of Google, for some kind of erroneous charge which was dropped. That’s the kind of thing which needs to be prevented, and the legislation introduced in Florida would certainly be beneficial in regards to that.

It’s also important to note that this is a proposed piece of legislation within the state of Florida alone. There have been related issues in other states, from a sheriff in Utah stopping mugshots being posted on websites by stopping releasing them, to a class-action lawsuit filed in Ohio against some websites which had posted mugshots.

Defending the rights of our clients is something we take seriously at W. Scott Smith, and that’s why this news was something of interest which we knew would also be of value to our clients.