Archive for category: Blog

The odor of marijuana provides law enforcement the ability to search without consent and without a warrant. However, in recent years the state legislature has enacted the Georgia Hemp Farming Act (GHFA), legalizing hemp products. It is without debate that the odor of illegal marijuana and legal hemp are the same. Because of this, courts of this state are presented with the challenge of whether the odor of marijuana and hemp alone still provide law enforcement with probable cause to search.

The appellate courts of Georgia have issued three opinions in cases related to the argument that the odor is insufficient to give an officer probable cause. In Gowen v. State (2021), the court upheld a search where law enforcement smelled the odor off marijuana because the GHFA did not allow for the commercial sale and raw hemp to consumers and Gowen presented no evidence that he possessed legal hemp that was designed to be smoked. The court ruled the search was proper by also considering the odor in the context that Gowen also had a warrant for his arrest for drug related offenses. In Coverstone (2024), law enforcement stopped the vehicle for stopping passed the balk line. Law enforcement detected the odor they believed to be marijuana and conducted a search locating pre-rolled CBD cigarettes and a controlled substance. The defense presented evidence that the CBD cigarettes were designed to be smoked and therefore the odor alone was not sufficient. Again, the court denied the motion to suppress. The court found that probable cause to search was not founded solely on the odor but in conjunction with an admission that marijuana was smoked within four hours of the traffic stop. The third case addressing the odor of marijuana as probable cause to search is Rosales-Urrutia (2026). For a third time the court declined to revisit whether the odor precedent focusing again on the fact that admissions were made regarding having “smoked in the car recently.”

While Georgia courts upheld warrantless searches in these cases, the courts have laid the groundwork that the odor of marijuana/ hemp alone without additional admissions may no longer provide sufficient probable cause to search.

O.C.G.A. § 16-11-39 classifies disorderly conduct as a misdemeanor offense. The law prohibits various behaviors that disturb the peace or endanger others’ safety.

What Counts as Disorderly Conduct?
A person commits disorderly conduct when they:

1. Act violently or loudly in a way that makes someone fear for their safety.
2. Behave violently in a manner that could damage another person’s property.
3. Use “fighting words” — abusive or insulting language intended to provoke a fight.
4. Speak obscenely or use vulgar language toward or over the phone with a child under 14, in a way that could cause a breach of the peace.

Possible Penalties
A conviction for disorderly conduct can lead to:

• Up to 12 months in jail
• Fines of up to $1,000
• Probation or community service

If you or someone you care about faces a disorderly conduct charge in Sandy Springs Municipal Court, don’t handle it alone. The legal team at W. Scott Smith, P.C. has the experience to defend your rights and guide you through the process. We offer a free consultation to discuss your case and help you pursue the best outcome.

The Fourth Amendment to the Constitution protects against unreasonable searches and seizures by the government. To legally seize and search personal items the government must obtain a search warrant based on a probable cause standard.

While the provisions of the Fourth Amendment are clear, there are exceptions that allow the government to seize and search items without the issuance of a search warrant. One of the most argued exceptions to Fourth Amendment search and seizure is the plain view exception. This exception balances the practical needs of government agents with the protections required by the Fourth Amendment. The plain view exception allows the government to seize evidence of a crime or contraband without a warrant.

Under this exception, the government must establish three conditions to avoid a violation of the Fourth Amendment provisions. First, the government must lawfully be at the location to observe the item. Government agents must not have violated Fourth Amendment rights to be able to observe the evidence. Secondly, it is not enough that the government agent lawfully be at the location, they also must have a lawful right to access the item. For instance, if drugs are viewed through a window of a home, it would be a Fourth Amendment violation for the government agent to enter the home to seize the drugs. Even though the agent can lawfully see the drugs a warrant or exigent circumstances are still required. However, if a government agent is executing a search warrant the first two requirements are typically met. The final requirement under the plain view exception to the Fourth Amendment is that the incriminating nature of the item must be immediately apparent. Immediately apparent does not require absolute certainty that an item is contraband or evidence but is based on a probable cause standard. In making this determination, the government may not manipulate, move, or open the item to discover the evidentiary value.

The protections of the Fourth Amendment require precision by the government. Search warrants should require an equally high degree of precision. If the government is going to utilize an exception under the Fourth Amendment, their actions must precisely adhere to the long-established rules.

The First Offender Act is a progressive statute implemented by the State of Georgia where a person who has never been convicted of a prior felony offense can be sentenced on a pending charge, but subsequently, have those charges sealed by the court if he/she successfully completes their First Offender sentence.

According to O.C.G.A. § 42-8-60, the accused may be eligible under the First Offender Act if the following statements are true:

• The accused has never been convicted of a felony;
• The accused have never been previously sentenced under the First Offender Act;
• The offense charged is not a serious crime committed against a law enforcement officer engaged in his/her duties;
• The offense charged is not Driving Under the Influence (O.C.G.A. § 40-6-391);
• The offense charged is not a serious violent felony (O.C.G.A. § 17-10-6.1);
• The offense charged is not a serious sexual offense (O.C.G.A. § 17-10-6.2);
• The offense charged is not related to child pornography (O.C.G.A. § 17-10-100.2);
• The offense charged is not related to electronic sexual exploitation of a minor, computer pornography (O.C.G.A. § 17-10-100);
• The offense charged is not trafficking of persons for labor or sexual servitude (O.C.G.A. § 16-5-46); and
• The offense charged is not neglecting disabled adults or elderly people (O.C.G.A. § 16-5-101).

HOW IT WORKS

Trial counsel for the accused must ask the judge to sentence him/her under the First Offender Act. Then, the judge will consider whether to sentence the accused to First Offender after he/she hears arguments from both the prosecution and the defense. If the judge sentences the accused under First Offender, his/her official criminal history will describe the disposition of the crime charged as “First Offender” until the sentencing term is successfully completed. If the accused violates any conditions placed on him/her during their term of sentence, including committing another crime, the judge has the discretion to revoke the First Offender status. This means that the accused will be sentenced and convicted, which will be shown on his/her official criminal history. In revoking one’s status, the judge does have discretion to sentence the accused to the maximum penalty for the crime charged. However, if the term of sentence is successfully completed, the clerk of court will seal the offense charged from his/her official criminal history.

CONTACT US

At the Law Offices of W. Scott Smith, our attorneys are knowledgeable about the consequences of a criminal conviction on one’s record, as well as all possible options for our clients dealing with pending allegations. Therefore, if you have been recently arrested on a criminal charge or your case is currently pending, please call our office today at 404-581-0999 for a free consultation.

Under Official Code of Georgia Annotated § 40-6-391, “a person shall not drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that it is less safe for the person to drive.” Accordingly, a driver may be charged with and potentially convicted of DUI even if their BAC measures below 0.08.

It is widely understood that operating a motor vehicle with a blood alcohol concentration (BAC) of 0.08 or higher constitutes driving under the influence in Georgia. However, law enforcement officers may still initiate a DUI charge even when a driver’s BAC is below 0.08 if they believe the driver is impaired to the extent that it is less safe for them to operate a vehicle than if they had not consumed alcohol.

If you have been charged with a “less safe” DUI in Dekalb County, it is essential to retain experienced legal counsel to safeguard your driving privileges and minimize the long-term consequences of a conviction. The attorneys at W. Scott Smith, P.C are well-versed in the complexities of DUI defense and are committed to pursuing the most favorable resolution possible on your behalf. Contact our office at 404-581-0999 to schedule a free consultation!