Changes to the Way Search Warrants for Cell Phone Content Must be Obtained

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A new decision released by the Georgia Supreme Court changes the way police must obtain warrants if they want to search the contents of your cell phone. In State v. Wilson, released on February 21, the Court tightened the reigns on what officers must include in their search warrants.

In Wilson, a defendant was on trial for murder. The defendant’s lawyer argued that the search of his cell phone was illegal because it did not specify what police were looking for and sought to have any evidence recovered from his phone kept out of his trial. The trial court agreed with the defendant’s attorney and said that “the search warrant was overly broad and authorized a general search of [the defendant’s] personal effects without probable cause in violation of the Fourth Amendment and O.C.G.A § 17-5-21”.  The judge ruled that evidence found in defendant’s phone could not be used in trial.

The State appealed the trial court’s decision, but the Georgia Supreme Court agreed with the trial court. The Supreme Court reminded us that the Fourth Amendment requires that search warrants list the particular items sought in order to prevent “general, exploratory rummaging in a person’s belongings”. Because the search warrant in Wilson just listed “contents of phone” and didn’t mention that it was limited to evidence pertaining to the commission of a certain crime, it was overbroad and illegal, and the search was unconstitutional.

This means that search warrants for the contents of phones must contains a particular description  of the things to be seized (i.e. text messages or pictures in a child molestation case, or internet search history in a murder case). If you have been charged with a crime in Fulton, Cobb, Dekalb, Forsyth, Gwinnett, Clayton, Rockdale, or any metro county,  and the police searched your phone, it is important to have a lawyer review the search warrant and see if it was properly executed. The lawyers at W. Scott Smith specialize in spotting issues like this and standing up to the State to protect our clients’ constitutional rights. Call our office at 404-581-0999 today for a free consultation.

 

 

Was my search warrant obtained properly?

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In order for an investigator to obtain a search warrant, they have to prove to a magistrate judge that they have probable cause that a criminal activity occurred or is occurring. Probable cause basically means that investigators can communicate a “reasonable belief” that a criminal activity is taking place. Investigating officers have to lay out this probable cause in an affidavit attached to an application for search warrant. Then, a magistrate judge will review the affidavit and application and grant or deny the warrant. In addition to the written affidavit, magistrates may consider oral testimony of the officers during the warrant application process.

In Georgia, the courts have laid out several scenarios that instruct when probable cause has or has not been communicated. For example, a tip from a confidential informant in a drug case is not enough to establish probable cause. The tip would have to be corroborated by other circumstances. However, if police come to your door and you voluntarily speak with them and admit to a crime, there is enough probable cause to obtain a search warrant.

If a warrant is granted and it lacked probable cause, the warrant is bad and any search resulting from the warrant violates your Fourth Amendment rights. In this case, you need a lawyer to argue that your rights have been violated and that any evidence obtained during the execution of the bad search warrant must be suppressed.

At the Law Offices of W. Scott Smith, we are experienced at spotting issues with search warrants and often successful at having evidence suppressed. Often, after a judge has ruled that evidence must be suppressed, prosecutors are more willing to negotiate or even dismiss charges because they no longer have a strong case. If you are in Cobb, Clayton. Fulton, Gwinnett, Henry, or Rockdale County and are charged with a serious offense like Violation of the Georgia Controlled Substance Act, trafficking drugs, or possession of drugs with the intent to distribute and believe that your Fourth Amendment rights have been violated by a warrant lacking probable cause, call us for a free consultation at 404-581-0999.

I was arrested without a warrant, and they did not bring me to court, what do I do?

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If you have been arrested, booked into the County Jail, and there is no warrant, you must be brought before a Judge within 48 hours. If you are not brought before a judge within 48 hours, you must be released from custody.

Under O.C.G.A. § 17-4-62, it requires the arresting person (typically the police officer) to “without delay, convey the offender before the most convenient judicial officer authorized to receive an affidavit and issue a warrant as provided for in Code Section 17-4-40.” Further, “[n]o such imprisonment shall be legal beyond a reasonable time allowed for this purpose; and any person who is not brought before such judicial officer within 48 hours of arrest shall be released.” Riverside v. McLaughlin, 500 U.S.  44, 57 (1991).

If you or someone you know has been arrested for a charge without a warrant, and they have not been brought before a judge, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Marijuana Trafficking at the Atlanta Airport

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News reports of airline travel being back to 90 percent of pre-covid flying will lead to more scrutiny at the airport for passengers flying into Atlanta’ s airport.  Atlanta has the world’s largest airport: Jackson-Hartsfield International Airport.  In a discussion I had with a DEA agent, he told me on every flight from California, Arizona, and Colorado there will be a passenger on the flight with a large amount of trafficking marijuana.  Even though Marijuana is legal in some states, it is still illegal in Georgia.  If you get stopped by Clayton County, Drug Enforcement Agents or Atlanta Police, and you are found to be carrying greater than ten pounds of marijuana in your luggage you will be arrested for Marijuana Trafficking and taken to the Clayton County Jail.  In all cases, the first appearance judge will deny you a bond.  On every case our firm has been hired to assist couriers charged with marijuana trafficking in Atlanta, we have been able to get the client a bond in Clayton County.  In order to get a bond, you need to acquire copies of the warrants and incident reports.  The state’s prosecutor in Clayton County will want to run the subject’s criminal history.  Once those items are acquired, you can get a consent bond and bond out of jail.  It is also helpful if the person traveling has money (shows they are a courier and not seller), they fly very infrequently and they were cooperative to law enforcement.  However, people flying should never consent to a search of their luggage, as consent is voluntary and nobody should be subject to search of their person or personal effects such as luggage without a warrant.  If you or a loved one gets charged with marijuana trafficking at the Atlanta Airport, please do not hesitate to call our law office so we can assist with representation.  Our phone number is 404-581-0999.

Civil Forfeiture – What does it mean?

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Unfortunately you got stopped by the police while driving and you had something in your car that was illegal that resulted in your arrest – maybe your stash of THC cartridges, some loose leaf marijuana, and the cash you had been saving up.  Your main concern is of course the pending criminal case against you, but did you know the state can also seize the drugs, cash and even your vehicle?

It’s called civil forfeiture, and it’s legal in Georgia under the Uniform Civil Forfeiture Procedure Act.  The State can seize any assets it claims were used in furtherance of the illegal activity.  So what do you do?  You need to protect yourself in the criminal case and also in the civil forfeiture case.  You’ll know your property has been seized because you’ll be given a Notice of Seizure either by the police at the time of your arrest, or recently after.  Timing is important here, because you have only 30 days to notify the prosecutor’s office that you are asserting a claim on the property.  During this time you’ll want to gather all the documentation you have to show that your seized property was not used in furtherance of the illegal activity.  This could be proof of purchase of the vehicle, pay stubs from your employer, etc.  A knowledgeable attorney can file the notice of your claim with the proper documentation, ensuring that it gets to the right people.

From there the State will serve an official document on you called a Complaint.  They must do so within 30 days of receiving the notice of your claim.  Once you have been served with the Complaint, you then have only 30 days to respond by filing what is called an Answer.  Once all the paperwork is submitted, the court will hold a bench trial, usually within 60 days, to determine if your property should be returned to you.

This is a multi-step, technical process, and our law firm can help you navigate it to get your property back.  If you’re facing a criminal case with civil forfeiture of your property, call the Law Offices of W. Scott Smith at 404-581-0999 for a free consultation.

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

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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

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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

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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

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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

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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.