Possession of Drug Related Objects

What’s a drug related object?

It is not uncommon for an officer to search your car or home and not only arrest you for the marijuana or drugs they found, but also for Possession of Drug Related Objects. In Georgia, under O.C.G.A. § 16-13-32.2, it is illegal to possess objects used to smoke, store, ingest, manufacture, and conceal drugs with. The most common drug related object we defend against are the use of pipes, but other examples are syringes, grinders, and scales. Possession of a drug related object is a misdemeanor charge in Georgia, and can carry up to 12 months in jail and a $1,000 fine. Even if the pipe or other item does not have any residue in it, you can still be arrested. Even if there were no drugs found in the car, police officers will routinely arrest you nonetheless for any drug related object that comes up in the search.

What will my case look like?

The defense in these cases vary, but if the officer finds the paraphernalia or drug related object as a result of an unlawful search, then the drugs and the drug objects can be suppressed as what is referred to as fruit of the poisonous tree. Examples of unlawful searches include those without a warrant in some circumstances, or those with faulty search warrants. An experienced and aggressive criminal defense attorney can attack the search and seizure of the drug paraphernalia or drugs found during a search by police officers. If you or a loved one has been charged with possession of drugs or possession of drug related objects in Georgia, call us today for a FREE CONSULTATION at 404-581-0999.

by Mary Agramonte

Marijuana Possession in Georgia

by Mary Agramonte

Even as the nationwide trend moves to legalization and decriminalization, possession of marijuana remains illegal in the State of Georgia. In most jurisdictions across the state, a possession of marijuana charge in Georgia will land you in jail, forcing you to dish out hundreds or thousands of dollars in bond money to be released. If you later plead or are found guilty, you can expect high fines, at least 12 months of probation, community service, drug evaluations, costly classes, and depending on your record, even more jail time.  An experienced criminal defense attorney has the ability to alleviate this by evaluating your defenses and advocating on your behalf.

If you have been arrested or cited for possession of marijuana less than an ounce, call the leading defense firm W. Scott Smith to protect your rights, your wallet, and your criminal history. A nolo contendere charge will not keep the charge off your record, and will not eliminate punishment. There are defenses beginning with the reason the officer stopped you, how the search was conducted, even down to the testing of the marijuana found. Being convicted of any crime can be detrimental to your future. Call us today for a free case evaluation at 404-581-0999.

 

 

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.

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.

 

Restoration of Rights and Pardons from the State of Georgia

by Mary Agramonte

Mary Agramonte is an attorney with W. Scott Smith P.C.

Mary Agramonte is an attorney with W. Scott Smith P.C.

A felony conviction on your record comes with many consequences. You served the time, but now you are finding more and more ways that your record is stopping you from getting to where you want to be. For example, convicted felons lose various civil and political rights. Felons cannot vote while they are still incarcerated or on parole or probation. A convicted felon is unable to run for and hold public office or serve on a jury.

In Georgia, felons can apply to restore these civil rights that were lost at the time of their conviction. The right to vote is automatically restored upon completion of the sentence. However, if you are looking to restore your civil and political rights, a special application must be submitted asking the State of Georgia to allow you to serve on a jury and hold a public office. To be eligible to have your civil and political rights restored, you must have completed your sentence within two (2) years prior to applying, and you must demonstrate that you have been living a law-abiding life. There is no fee to apply to have your civil and political rights restored through the State Board of Pardons and Paroles.

If you are finding that your criminal history is following you, but that you are not eligible for Record Restriction, which is Georgia’s version of expungement, Georgia Record Restriction Blog there may be a way for you to advance in your employment and education, despite the felony conviction on your record. In limited circumstances, the State of Georgia can pardon your offense, which is an official forgiveness granted to you. The pardon does not expunge or erase the crime from your record. However, a pardon will serve as an Official Statement attached to your criminal record that states the State of Georgia has pardoned, or forgiven, your crime. The State will make this decision based on the fact that you have maintained a good reputation after completing your sentence, and have truly changed your life after the conviction. Pardons have a better chance of being granted if there is clear proof that the felony is disallowing your qualification for employment in your chosen field. An official pardon will also automatically restore your civil and political rights. In order to apply for a pardon, you must have completed your sentence at least five years ago, and have not gotten into trouble at all in the last five years. All restitution must be paid in full by the time you apply.  Letters of recommendation, school documents, resumes, and awards and certificates, are all helpful to show the State how important a pardon would be in your life.

There is no fee and the State uses the same application for restoring civil and political rights, and for pardons. The application can be found here: Restoration of Rights Application

Our law firm consists of seven criminal defense attorneys who represent individuals facing felony and misdemeanor charges in Georgia. We hope this information helps you restore your civil or political rights in Georgia. If you are currently facing criminal charges, our knowledgeable and experienced criminal defense lawyers have what it takes to defend against the most serious offenses. Call us today for a free consultation at 404-581-0999.

VIDEO – Marijuana Possession in Georgia May be Treated as a Felony

Did you know that personal possession of less than one ounce of marijuana isn’t always classified as a misdemeanor under Georgia law? I’m Scott Smith and personal possession of marijuana is the subject of today’s video blog.

The statutes that cover marijuana laws are in the official code of Georgia Title Sixteen Chapter Thirteen. This chapter covers all controlled substances under the Georgia Code.

In Georgia, it is only a misdemeanor to possess less than one ounce of marijuana for personal use if that marijuana is still in plant form. That includes all areas of the plant including low potency areas like leaves, stalks, and stems.

But if that same less than one ounce of marijuana has been extracted or concentrated into a substance that no longer has a plant like appearance, then possession of any amount of that substance is considered a felony under Georgia law.

This includes marijuana infused foods like lollipops, brownies, and candies along with concentrated marijuana that takes the appearance of a wax and oil like substances.

Possession of any type of marijuana, plant or otherwise, of one ounce or more is a felony under Georgia law.

If you’re facing possession of marijuana charges, it is important to know your defenses. Was the marijuana found after an illegal traffic stop? Is there enough marijuana to be tested? Has the marijuana been tested and did it come back positive? Was the amount of marijuana found less than the officer states in their report?

At the Peach State Lawyer law firm, our experienced drug attorneys can evaluate these defenses and discuss strategy in handling your case. Georgia law provides options for handling your marijuana case that can allow experienced attorneys to prevent convictions on your criminal history, even for repeat offenders.

Call us today for a free consultation at 404-581-0999 and let us help you with your marijuana case. Thank you.

Georgia Analysis of Utah vs. Strieff Decision

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.