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.

Georgia DUI – License Hearing and Ignition Interlock Device

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Do I fight for a license hearing or choose an Ignition Interlock Device? This is a tough question but one that must be answered within thirty days of your arrest. The Ignition Interlock device is a decent option for those individuals charged with a DUI-Refusal where they are facing a hard one-year suspension if they lose the administrative license hearing. The license hearing is the only recommended route for a DUI-Per Se case where you ultimately submitted to a chemical test of your blood, breath, or urine. This recommendation is based on the fact that you are eligible for a limited driving permit even if you lose the hearing. Installing the Ignition Interlock in this situation will just add unnecessary burden and expense. Still, many times we will advise you to submit a request for an administrative hearing even if you are facing the one-year hard suspension , but that decision is based on your personal needs and the facts of your case.

If you wish to file an appeal and request an administrative hearing, then the formal request must be mailed off within thirty days from the date of your arrest. Those are not thirty business days and that is a strict deadline so you must mail your request the Friday before the deadline if it falls on a weekend.

If you wish to go the Ignition Interlock route, then you must first install the Ignition Interlock device at a certified provider. With the Ignition Interlock installed, you must then go to your local DDS branch to show proof of installation and file a waiver of the administrative hearing.

Making this decision isn’t easy, but it’s often the first step of the DUI process. For an in-depth evaluation of all your options, call us today for a free consultation at 404-581-0999.

Atlanta DUI Lawyer

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by Mary Agramonte

If you or a loved one has been charged with an Atlanta DUI, picking the right criminal defense attorney can be challenging. You need to look to the credentials, success rate, and reputation of the attorney in the field. Even if you believe you are guilty of the DUI, it is still important to contact an attorney experienced in complex area of DUI law as having a knowledgeable DUI attorney can be the difference in saving and losing your driver’s license. There are some DUIs that if you plead guilty, your license is suspended without a limited permit. The license repercussions of a DUI conviction are one of many reasons to contact a DUI attorney.

Call our firm to speak with experienced DUI attorneys on how to best defend your case. Experienced Atlanta lawyers in our firm are available any time, including nights and weekends, to provide you with the best possible outcome and advice. We can be contacted 24/7 at 404-581-0999 and provide free consultations.

Our firm consists of six highly trained Atlanta and Fulton County attorneys. We have an office near the Municipal Court of Atlanta – and have successfully defended against hundreds of Atlanta DUIs. W. Scott Smith has 18 years of DUI under his belt. He is active The National College of DUI Defense, Georgia Association for Criminal Defense Lawyers, The Lawyer Club of Atlanta, the Cobb County Bar Association and the Sandy Springs Bar Association.

The address of the Atlanta Municipal Court is 150 Garnett Street. This court handles all cases where defendants are charged with traffic misdemeanors and local ordinances within the City of Atlanta in Fulton County. Atlanta has its own police department, and so if you are arrested for a DUI in Fulton County by an Atlanta Police Officer, your case will begin in the Atlanta Municipal Court. Additionally, if you are pulled over and arrested by a Trooper with the Georgia State Patrol within the City of Atlanta, your case will also begin in the Atlanta Municipal Court. DUI Court is currently held by Judge Bey at 1pm and 3pm daily. If you’ve been arrested and are in custody, Atlanta Muncipal Court Judges hold bond hearings Sunday through Friday, daily. The Atlanta Municipal Court does not always hold bond hearings Saturdays, so if you were arrested late Friday night or early Saturday morning you may not see a Judge until Sunday.

If you have been arrested with a DUI in Atlanta or in Fulton County, our lawyers are ready to fight to avoid a DUI conviction. We are a group of knowledgeable attorneys prepared to defend against your Atlanta DUI in order to best protect your freedom and your license. If you have been charged with Driving under the Influence and your case is in the Atlanta Municipal Court, call a law firm with the experience necessary to achieve the most favorable result for you.  We are available 24/7 to speak with you about your Atlanta DUI at 404-581-0999.

 

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

 

 

Public Indecency Crimes in Georgia

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by Mike Jacobs

Public Indecency is a serious crime in Georgia. It is imperative that you retain a qualified attorney immediately if you have been charged with public indecency.

O.C.G.A. § 16-6-8(a) defines public indecency as follows:

A person commits the offense of public indecency when he or she performs any of the following acts in a public place:

  1. An act of sexual intercourse
  2. A lewd exposure of the sexual organs
  3. A lewd exposure in a state of partial or complete nudity; or
  4. A lewd caress or indecent fondling of the body of another person.

A public place means any place where the conduct involved may be reasonably be expected to be viewed by people other than members of the accused’s family or household.

Under O.C.G.A. 16-1-3(15), a public place is any place where the conduct involved may reasonably be expected to be viewed by someone other than immediately family members. In fact, the residence of the accused may be considered a public place if the person performs the lewd act in front of a window or someplace where he intends the public to see it.

Lewd has been defined as any gross indecency so notorious as to tend to corrupt community morals. The act is one in which it represents a moving away from some form of community morality norms towards amorality, immorality or obscenity which in the final analysis within community standards as to particular acts, as to acceptability or unacceptability, is best left to a jury for determination. The statute does not require that some person be embarrassed, offended or otherwise outraged by the lewd act.

The intent of the accused is relevant in a prosecution for public indecency.

The offense of public indecency is not a crime against the person. The person viewing the lewd act is a witness and not a victim of the crime.

The United States Supreme Court has held that the First Amendment’s guarantee of freedom of expression does not prevent the State of Georgia from enforcing its public indecency laws.

The punishment for public indecency is up to 1 year in prison. If it is a 3rd or subsequent violation, then the punishment is 1 to 5 years imprisonment. Also, the accused may be required to register as a sex offender under O.C.G.A. §42-1-12.

It is imperative that you do not talk to the police if you are accused of public indecency. Only speak to a qualified attorney so that you can properly defend yourself.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Statutory Rape Crimes in Georgia

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by Mike Jacobs

Statutory Rape is a serious crime in Georgia. O.C.G.A. § 16-6-3 defines Statutory Rape as engaging in sexual intercourse with any person under the age of 16 years old who is not your  spouse.

Statutory Rape requires corroboration and cannot stand solely on the unsupported testimony of the victim.

In Georgia, it is not a defense to Statutory Rape that the accused believed the victim was of the age of consent.

Many people have the idea that if they have consensual sex, then they did not break the law. That is not true.  Individuals who commit statutory rape in Georgia can face serious felony charges. In addition to a prison sentence, a person faces being put on the Sex Offender Registry and has limits on housing and job opportunities and loses their right to vote and own a firearm.

To be convicted of Statutory Rape, it is not necessary to fully penetrate the vagina or to rupture the hymen. Only slight penetration of the vulva or labia is sufficient. Proof of force is unnecessary for statutory rape.

The punishment for Statutory Rape is very serious. O.C.G.A. § 16-6-3 mandates that the sentence be from 1 to 20 years in prison. If the defendant is 21 years or older, then the mandatory sentence is 10 years up to 20 years in prison with at least one year on probation. If the victim is at least 14 years old but less than 16 years old and the person convicted is 18 years old and is no more than 4 years older than the victim, then it is a misdemeanor and a maximum of 12 months in custody.

If the defendant is over 21 and convicted of statutory rape, he or she cannot plead under the First Offender Act.

If you face charges in Georgia for Statutory Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Sex Offenses. You must protect your rights and take this matter very seriously.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Sodomy Crimes in Georgia

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by Mike Jacobs

Sodomy is a serious crime in Georgia. O.C.G.A. § 16-6-2 established two separate criminal offenses. O.C.G.A.  §16-6-2(a)(1) defines sodomy as the performance of or submission to a sexual act involving the sex organs of one person and the mouth or anus of another. O.C.G.A. § 16-6-2(a)(2) defines aggravated sodomy  as the commission of sodomy with force and against the will of the other person involved or with a person who is less than ten years of age.

The offense of aggravated sodomy protects individuals from violent acts where the offense of sodomy punishes consensual sexual behavior.

For sodomy, all that is required is contact between the sex organs of one person and the mouth or anus of another person. Proof of penetration is not required in a sodomy case unless is specifically listed in the indictment. Whether there was prohibited contact between the defendant and alleged victim is solely a question for a jury.

No corroboration is required in a sodomy case.

Aggravated Sodomy is different than Sodomy. In order to make out a case for Aggravated Sodomy, the State must show that the contact was made both with force and against the will or without the consent of the alleged victim. The standard of proof is the same as required for a rape case. Both the words and actions of the accused can be used to determine if the alleged victim was in reasonable apprehension of bodily harm.

O.C.G.A. § 16-6-15 prohibits the solicitation of sodomy. Solicitation of sodomy is defined as soliciting another individual to perform to a sexual act involving the sex organs of one and the mouth or anus of another and such act is to be performed in public in exchange for money or anything of value or by force or by or with an individual who is incapable of giving legal consent to sexual activity. In order to be convicted of solicitation of sodomy, the State must be present sufficient evidence of all three elements of the crime.

If you are convicted of sodomy, it is a felony punishable by not less than one nor more than twenty years in prison and is subject to the sentencing provisions of § 17-10-6.2 which requires the sexual offender to receive a split sentence including the minimum sentence of imprisonment.

Aggravated Sodomy is also a felony and is punishable by either life imprisonment or by a split sentence of imprisonment for not less than 25 years and probation for life.

Solicitation of sodomy is a misdemeanor. However if the solicitation is of someone under 18 years of age or the solicitation is for money then it is felony punishable of not less than 5 nor more than 20 years in prison.

If the victim is at least 13 years old but less than 16 years of age and the person convicted of sodomy is 18 years of age or younger and is no more than 4 years older than the victim, then the accused would be guilty of a misdemeanor and would not be subject to the sentencing provision of O.C.G.A. §17-10-6.2.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Sexual Assault and Rape Crimes in Georgia

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by Mike Jacobs

Rape is a serious crime in Georgia. O.C.G.A. § 16-6-1 defines rape as follows:

  1. A person commits the offense of rape when he has carnal knowledge of:
    1. A female forcibly and against her will or:
    2. A female who is less than ten years of age.

Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.  Any penetration, however slight, is sufficient and can be proven by direct or circumstantial evidence. The fact that the person allegedly raped is the wife of the defendant shall not be a defense to a charge of rape.

How do you define “force” in a rape case in Georgia? Force means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. Lack of resistance, induced by fear, is force.

The elements of Rape in Georgia are 1) penetration, 2) force, and 3) against her will. If the person is underage, then force is implied. If the person is above the age of consent, but due to mental incompetence or severe intoxication, then finding of constructive force based on penetration.

The law on Rape in Georgia does not require physical injury or semen.

A person convicted of Rape can be punished by death, by imprisonment for life without parole, by imprisonment for life with the possibility of parole or by a split sentence that is a term of imprisonment for not less than 25 years and not exceeding life imprisonment to be followed by probation for life. Any person convicted of rape is subject to the sentencing provisions of O.C.G.A. §§ 17-10-6.1 and 17-10-7.

In addition, the person could be on the Sex Offender Registry for life.

A person convicted of rape can also be held to account for civil liability. Furthermore, if the rape was committed by the defendant while he was acting in his scope of his employment, his employer may also be held liable.

If you face charges in Georgia for Rape, it is imperative that you do not make any statements to law enforcement or to anyone else and immediately seek help from an experienced attorney handling Rape cases in Georgia. You must protect your rights and take this matter very seriously.

The statute of limitation for a prosecution of rape is 15 years.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.

Enticing a Child for Indecent Purposes Crimes in Georgia

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by Mike Jacobs

Enticing a child for indecent purposes is a serious crime in the State of Georgia. It is imperative that you retain a qualified attorney immediately if you are being accused of Enticing a child for an indecent act. Many allegations of enticing a child are false. Even if you know the allegation of enticing a child against you is made up, you still must take it very seriously and aggressively defend yourself.

O.C.G.A. § 16-6-5 defines Enticing a Child for indecent purposes as follows:

A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.

The State must prove a joint operation of (1) the act of enticing a child and (2) the intention to commit acts of indecency or child molestation.

Enticing a Child for Indecent Purposes is different than Child Molestation because of the extra element of asportation. The asportation element is satisfied with the taking involving physical force, enticement or persuasion. The evidence must show some movement of the child. It can be slight movement.

Indecent Acts means illicit sexual conduct. Because the statute refers to both indecent acts and child molestation, it is reasonable to assume that indecent acts are different than acts punished by the child molestation statute.

Neither consent nor lack of knowledge of the child’s age is a defense to prosecution under the Enticing a Child statute.

The statute is intended to protect children from sexual predators. It is unlawful to entice any child under the age of 16.

The punishment for Enticing A Child is a mandatory of 10 years imprisonment up to 30 years and at least 1 year of probation.

Do not wait until the State actually returns an indictment against you for Enticing a Child before seeking an attorney. It is vital that you immediately retain an attorney and get to work in defending yourself of these allegations.

I would be happy to meet with you any time for a free consultation to discuss your case, your rights and your defenses to these allegations.

Call me at 404-581-0999 and let’s schedule a time to meet and discuss your case.

It is your life, your criminal record and you deserve the best representation possible.