Can a Spouse of a Convicted Felon Own a Gun in Georgia?

By:  Mary Agramonte

Georgia law prohibits people convicted of felonies from possessing firearms. Similarly, people currently on first offender probation are also not allowed to carry guns. You must be discharged from probation as a first offender without an adjudication of guilt in order to lawfully possess a firearm. Felons cannot have guns unless and until their rights are restored in the State of Georgia.

But what if you are a convicted felon and someone else near you owns a gun? Or what if you are in the same vehicle as someone who has a gun? Likewise, one of the questions we are asked most often is “can my spouse or partner have a gun in the same home as me if I am a felon?”

The short answer is: it depends. The question that is going to be asked by law enforcement and the Courts is whether or not the State can prove YOU possessed the gun. You do not have to actually have it in your hand or your pocket in order to be charged and convicted with Possession of a Firearm by a Convicted Felon. In some instances, it simply has to be near you, or in a place where the circumstances point to the weapon being yours. This is because Georgia law recognizes two different kinds of ‘possession.’ The first is Actual Possession and the other kind is Constructive Possession.

Actual Possession is where you truly possess the gun: it is in your pocket or in your car, for example. With Constructive Possession, the line can be a little more blurry on whether or not you will be arrested or convicted of possession the firearm by a convicted felon. When  dealing with Constructive Possession, you can be arrested for possessing a firearm even if you never possessed it. The State can prove it through circumstantial evidence. For example, constructive possession occurs where a gun is in a shared hotel room with you and a friend, and you know the gun is there, and you tell police where it is. In that situation, the State will allege you had possession of the firearm- even if you never touched it. Another example of constructive possession would be if the gun was found in the drawer of a shared bedroom, near clothes that match your gender. Additionally, you can be charged with possession of a firearm by convicted felony if your co-defendant carried a gun in an armed robbery that you were a part of even if you never touched the gun.

So the answer to the age-old question is yes, your spouse can own a gun as long as you don’t possess it- actually or constructively, but to be wary as the distinction is not always clear. If you or a loved one has been arrested for Possession of a Firearm by a Convicted Felon, call us today for a free consultation on the case at 404-581-0999.

Georgia DUI Law: Challenging the Stop, Defective Equipment

Georgia DUI investigations usually begin with a routine traffic stop. At a minimum, in order to stop you and your vehicle, the stopping officer needs to have “reasonable and articulable suspicion” to believe a crime has, or is about to be committed. An officer normally satisfies this requirement by observing a traffic or equipment violation. However, if it is determined the officer did NOT have reasonable and articulable suspicion to stop your vehicle; this could result in the suppression of evidence and the ultimate dismissal of a DUI charge.

Therefore, it is crucial to examine the most common types of traffic violations that result in a DUI investigation. This article serves to inform you of the nature, methods of proof, penalties, and challenges to a defective equipment offense in Georgia.

The Offense

O.C.G.A. §§ 40-8-7(a) and (b) state:

(a) No person shall drive or move on any highway any motor vehicle, trailer, semi trailer, or pole trailer, or any combination thereof, unless the equipment upon any and every such vehicle is in good working order and adjustment as required in this chapter and the vehicle is in such safe mechanical condition as not to endanger the driver or other occupant or any person upon the highway.

(b) It is a misdemeanor for any person to drive or move, or for the owner to cause or knowingly permit to be driven or moved, on any street or highway any vehicle or combination of vehicles:

(1) Which is in such unsafe condition as to endanger any person;

(2) Which does not contain those parts or is not at all times equipped with such lights and other equipment in proper condition and adjustment as required in this chapter; or

(3) Which is equipped in any manner in violation of this chapter.

Even if you are driving perfectly, a police officer may still stop your vehicle if any of its equipment is non-operational. Examples include, but are not limited to, missing taillight, broken tag light, or a low hanging bumper. Although the spirit of this law is to protect other motorists from defective vehicles on the road, this traffic offense is often used as a “pre-textual stop,” meaning the officer stops you for this offense in hopes of discovering another criminal offense, particularly DUI. Although the law used to criticize these types of stops, a line of United States Supreme Court cases has weakened these types of challenges.[1]   

Penalties

Under Georgia law, technically, these equipment violations are misdemeanors and are therefore punishable with up to a maximum fine of $1,000 and up to one year in jail. Although these are the maximum punishments, equipment violations generally do not result in jail time. Normally, if you get the defective equipment fixed, and provide proof of such to the prosecuting attorney, your case will likely be dismissed.

Challenging the Stop

If an officer pulls you over for an equipment violation and ultimately arrests you for DUI, you may lodge a challenge to the stop of your vehicle through a motion to suppress or a motion in limine. These challenges are designed to attack the stop, arrest, or any evidence gathered as a result of an unlawful stop and/or arrest.

If you are facing a DUI-Less Safe case, the State will have to prove “less safe driving.” If you have only been cited for defective equipment, the State will have great difficulty in proving alcohol caused you to be a less safe driver because there is no “less safe” driving act (ie. speeding, failure to maintain lane, improper turn, etc.). This is a major issue a defense attorney should raise during trial.

Contact Us

If you or someone you know has been arrested for driving under the influence, contact the law firm of W. Scott Smith at 404.581.0999 today for a free case evaluation. You’ll find a local Atlanta DUI attorney ready to aggressively fight on your behalf. You can also find out more detailed information about Atlanta laws here.


[1] See, Atwater v. City of Lago Vista, 532 U.S. 318, 121 S. Ct. 1536 (2001); Whren v. U.S., 517 U.S. 806, 116 S. Ct. 1769  (1996); Ohio v. Robinette, 519 U.S. 33, 117 S. Ct. 417 (1996); and Maryland v. Wilson, 519 U.S. 408, 117 S. Ct. 882 (1997).

Privacy Rights- Carpenter vs. United States

by John Lovell

Last month, the United States Supreme Court ruled in favor of the privacy rights of individuals. The Government, without a warrant or a showing of probable cause, issued an order to a cell phone company to provide Timothy Carpenter’s cell site data. The Government sought to gather the extensive records, including the location of Carpenter’s phones. The Supreme Court, in a 5-4 decision, found that Mr. Carpenter had a privacy right in his phone records. For the Government to seize these records, the Government needed to present to a magistrate a warrant based on sworn testimony establishing probable cause. The Court noted that a significant factor causing the War for Independence was Britain’s use of warrantless searches … Americans have never been fond of warrantless searches!

Do not be quick to conclude that this ruling makes it necessary for the police to obtain a warrant for all types of stored records. Your privacy could still be affected. Previously, the Court has held that a warrant is not necessary to obtain records of the numbers called by a cell phone-not the content of the calls but just the fact that the “target” phone called particular numbers at particular times. The Court has also held that other stored records such as bank records may be obtained without a warrant. A couple of years ago, the Court ruled that a warrant is required to place a GPS tracking device on a vehicle. The critical distinction that the Court has made is in information that reveals the location of the subject. We have a greater expectation of privacy in where we are than is more typical records such as numbers called and even bank records. Protect your privacy rights today and call Peachstate Lawyer for your FREE consultation!

Search Warrants and Social Media in Georgia Criminal Cases

by Mary Agramonte

Social media has become, for many of us, a central part of our lives. We use Facebook to share and view photos of friends and family, and even to catch up on daily news. We use Snapchat to send live photos or short clips and videos to those in our circle. Instagram exists to view photos of friends and strangers, and even to gain inspiration for food, travel, and lifestyle.

These social networking sites are used and enjoyed by people in all walks of life. Consequently, as the use by the general population increases, so does use for those engaged in drug dealing, gang activity, and other criminal acts. For this reason, social media and apps once thought to be private are becoming the key pieces of evidence as law enforcement is obtaining this information through search warrants. Search warrant allow police to conduct searches of people and their belongings for evidence of a crime and they are now being used to gain entry into your Facebook, Snapchat, and other sites.

Snapchat has recently come out to say that 350 million Snaps are sent every single day. Before these fleeting photos are opened, they exist on Snapchat’s server awaiting for the person on the other end to open it.  Some unopened Snaps, they’ve admitted, have been handed over to law enforcement through search warrants.

Facebook is no different and law enforcement is using the site regularly to investigate crimes. While a law enforcement agency is free to look at your public site, they are even able to obtain a search warrant even for the private aspects of your account. A recent case in the 11th Circuit, United States v. Blake, involved search warrants for email and Facebook accounts.  Law enforcement in Blake sought essentially every piece of data on the person’s Facebook account. The court stated that the search warrants were overly broad and stated they must still be specific and limited in scope. The data was still fair evidence despite this, as the officers relied on the good faith exception to the exclusionary rule, and the State was allowed to use the evidence from their Facebook account against them.

There tends to be a false sense of privacy for those engaged in sending Snaps, Facebooking, or Instagramming. These ‘private’ sites and photos can and do become to subject of search warrants in law enforcement investigations, and the biggest piece of evidence in a case might just end up being something you posted  or sent with the belief it would remain private.

First Offender Sentencing in Georgia

First offender treatment is available in Georgia for anyone who has not been previously convicted of a felony and is not charged with a serious violent felony. Serious violent felonies are murder, felony murder, armed robbery, kidnapping, rape, aggravated child molestation, aggravated sodomy, and aggravated sexual battery. Anyone charged with one of those offenses is automatically ineligible for first offender unless the charge is reduced to a lesser offense.

If a defendant receives first offender treatment, it can be both a blessing and a curse. If there are no issues during the period of probation, then no official conviction will ever be reported and the record itself will seal from public view. However, if the defendant commits a new offense while on probation or has any issues at all, then the judge has discretion to revoke the first offender status and re-sentence the defendant up the maximum sentence allowed by law.

While serving the sentence which will undoubtedly involve a period of probation, the defendant is not technically convicted of a crime but still cannot possess a firearm. After successful completion, all gun rights are restored.

Finally, first offender status can be granted retroactively if the defendant was eligible for first offender treatment at the time of the original plea but was not informed of his or her eligibility. Still, there is discretion, and the judge must find by a preponderance of the evidence that the ends of justice and the welfare of society are served by granting retroactive first offender status.

If you are charged with a crime in Georgia, then you should always consult with an attorney as to whether you are a candidate for first offender treatment. If you have already pled guilty, then you should still reach out to discuss whether you can receive retroactive first offender treatment. Give us a call today at 404-581-0999.

The Dangers of Eyewitness Testimony in Georgia

A number of cases have been overturned in recent years due to newly discovered DNA evidence. Many of those convictions were based on false eyewitness identifications. Most of the eyewitnesses did not lie, they just “misremembered.” That is the danger of this sort of testimony because the witness may be genuinely unaware of the inaccuracies in their testimony.

One underlying issue with eyewitness testimony is a misunderstanding of how memory works. The act of remembering is more akin to putting puzzle pieces together rather than retrieving a video recording. A memory can be distorted over time or from misinformation provided by third parties. For these reasons, it is critical to document one’s memory as close in time to the actual event as possible. If you have eyewitnesses that you believe can be beneficial to your case, then you should always get them to write down as many details as possible while the memory is fresh before time and outside influences can distort that memory. For police purposes, the identification process should be videotaped if possible, and the witness should be told that the suspect may or may not be in the lineup.

There are a multitude of issues that could result in a false identification. Recognizing those issues in your criminal case is something that may require a second set of eyes. Feel free to call our office for a free consultation at 404-581-0999.

The Commerce Clause to the United States Constitution and Criminal Law

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.

What are your rights to a search of your dorm room or locker in Georgia?

As a student, what rights do you have to contest the search and seizure of drugs or alcohol on campus? Whether you are in high school or college, you still have limited rights to privacy that can only be overcome in accordance with school policies or a search warrant if law enforcement is involved. The Fourth Amendment prohibits unreasonable searches and seizures but those protections typically do not extend to actions taken by school officials. However, if the facts of your case show that the school officials violated their own handbook and/or acted in a law enforcement capacity, then there could be a valid defense to your case. There is no bright line rule, but you can contact us at 404-581-0999 for a free consultation to discuss the specifics of your case and decide whether hiring an attorney is in your best interest.

Your Fitbit Might End Up Being the Star Witness Against You

By Mary Agramonte

You have the right to remain silent. Anything you say may be used against you in a court of law. Knowing these two things, a good rule of thumb is to not say anything and to ask for a lawyer.

Even when you don’t talk, your own technology speaks volumes. Your Fitbit knows when you are awake and when you are asleep. Your cell phone sends data of your location any time you log in or send a message. Your Amazon Echo sits and waits to be called Alexa and then listens for a command, which is then recorded and stored along with the time and date. Your Facebook shows where you were when you last posted. Your silence is one thing, but your electronics can tell their own story.

Believe it or not: a murder case in Connecticut was just solved based on the victim’s Fitbit. A husband called 911 and told police a masked intruder had shot his wife. He gave a timeline of the incident of when she got home to when the intruder appeared and killed her. The police got a search warrant for the data on his wife’s Fitbit. The Fitbit showed she was awake and walking at a time the husband stated she had already been killed. It poked holes in his defense and after 18 months while the case was being investigated, the State has charged him with murder.

The Amazon Echo (Alexa) has also made its way into criminal cases. A man in Arkansas allegedly killed his friend after a night of drinking and watching football. Investigators sought to obtain the recordings from Alexa, and served a warrant to Amazon noting there was “reason to believe Amazon.com is in possession of records related to a homicide investigation being conducted by the Bentonville Police Department.” Investigators, not sure what they would find, wondered if the suspect possibly had asked Alexa something like how to clean up a crime scene. Amazon refused, but the defense lawyer filed a motion consenting to the data pull.
We know technology is here in part to make our lives easier. It’s also making it easier for police to solve crimes and see through suspects’ false statements. When your alibi is you couldn’t have committed the crime because you were somewhere else sleeping, the police may later learn from your Fitbit that you weren’t asleep at all.

Technology’s impact in the courtroom will continue to increase. As we become more dependent on technology, law enforcement will also turn to technology in solving crimes. If you have been arrested for a crime in the State of Georgia, hire an experienced criminal defense lawyer that is familiar with the challenges to privacy protections and search warrants as they relate to technology. Call us today for a free consultation at 404-581-0999.

Sources: “Cops use murdered woman’s Fitbit to charge her husband” http://www.cnn.com/2017/04/25/us/fitbit-womans-death-investigation-trnd/index.html
“Suspect OKs Amazon to hand over Echo recordings in murder case” http://www.cnn.com/2017/03/07/tech/amazon-echo-alexa-bentonville-arkansas-murder-case/index.html

VIDEO – Seizure and the 4th Amendment under Georgia Criminal Law

by Ryan Walsh and Scott Smith

You’re sitting in a park with friends. An officer comes up to you and asks you if you’ve been smoking weed. You say no, but they place you in handcuffs while they search the area. Is this legal? What are your rights? The 4th amendment’s protection against unreasonable seizures is the topic of today’s Peach State Lawyer video blog.

Hello, I’m Scott Smith.

The Fourth Amendment of the United States Constitution prevents the government from unreasonable seizures without a warrant. A seizure is a restriction on your freedom.

In order for you to be seized under the fourth amendment, the officer must have an arrest warrant, or have a legal reason to continue to detain you. Whether the officer has that reason depends on the interaction between you and the police officer.

Lets go back to the park example.

The officer comes up to you and He says hey, how you doing? He just asks if you’ve been smoking weed, but does nothing more. You’re free to respond to him or not. You’re free to walk away. This type of encounter is a tier 1 encounter. It can happen at any time.

But what if you’re sitting in the park and the officer says, hey, I smell marijuana over here. Are you guys smoking? Sit right here while we investigate. Is this seizure legal? The United States Supreme Court created this second tier of police-citizen encounters in the case of Terry vs. Ohio. It’s called a tier 2 encounter or Terry stop, and is lawful only if the officer has reasonable articulable suspicion that a crime has been committed.

You can’t leave in this situation, but the officer must also be in active investigation to find evidence of the specific criminal activity for which they’ve detained you.

Finally, you’re back in the park and the officer says, hey, I smell marijuana, are you guys smoking? Immediately, the officer places you in handcuffs while they look for evidence of weed. This is what’s called a tier 3 stop, which is the same as an arrest. An officer can’t arrest you without probable cause. Whether you’re under arrest depends on the officer’s statements and actions. Have they told you you are under arrest? Have they physically restricted your freedom? These factors and more are used to determine whether the encounter has escalated to this level.

Remember, in all situations the police officer’s job is to find evidence of criminal activity. Anything you say or do can be used against you later. Politely decline consent to search. Politely decline to answer any questions. Tell the officer you want to speak with your attorney.

The attorneys at the law offices of W. Scott Smith specialize in seizure issues. We’re available 24 hours a day, 7 days a week for free consultations. If you feel you’ve been arrested unlawfully, call us today at 404-581-0999. Thank you.