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!

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.

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 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”
“Suspect OKs Amazon to hand over Echo recordings in murder case”

Peach State Lawyer Welcomes John Lovell to Our Blogging Team

I’d like to introduce a new member of our blogging team, John Lovell. John has practiced criminal law for a quarter century as an Assistant DA in New York and Atlanta. He also worked for 6.5 years in the U.S. Attorney’s Office in Atlanta. For over 11 years now he has zealously defended the accused. A recent successful case John handled typifies his work ethic.

The United States Court of Appeals for the 11th Circuit, the top federal court covering Georgia, Florida, and Alabama, awarded John’s client a new appeal to the Georgia Supreme Court. This will almost certainly result in a new trial. In 2009, his client was convicted of murder in Coweta County. However, she did not receive the trial the United States Constitution requires.

John accepted the case after his client had lost a trial and lost on appeal. 99+% of the time, the case is over at that time. However, as John looked closely at the record in the case, it became apparent to him that critical testimony was presented to the jury without his client having access to her attorney. John raised this issue in a habeas proceeding in Georgia. The judge who heard the evidence ordered a new trial. However, the state appealed the decision to the Georgia Supreme Court. The Georgia Supreme Court ruled unanimously that John’s client was not entitled to a new trial and that the conviction would stand.

John and his client did not give up. John was convinced that the unanimous Georgia Supreme Court was unanimously wrong. There was only one avenue available … an “appeal” to federal court using a mechanism called the federal habeas corpus. The federal habeas corpus is a mine field. The rules seem designed to exclude cases from the courts. The slightest mistake results in the case being forever dismissed. John had to flawlessly follow the rules and meet every deadline just to have his client’s case heard.

The battle wore on through federal court going all the way to the Eleventh Circuit Court of Appeals (one court below the U.S. Supreme Court). After reading his brief and hearing John’s arguments, the 11th circuit granted his client a new direct appeal which, based on the law in Georgia, should result in a new trial.

John began representing this client in 2011. It has taken six years to get a favorable result that will stand. John showed persistence on behalf of his client, a trait we pursue at Peachstate Law.


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.

Labor Day: Traffic Stop Tips

LABOR DAY WEEKEND EDITION: What Do You Need To Know During A Police Traffic Stop?


Most people share a general sense of anxiety when they see blue lights flashing in their rear-view mirror.  If you’re like me, when the blue lights come on your heart starts beating 100 mph, you start sweating, and your mind is racing.   Here are some helpful pointers on how to interact with a police officer during a traffic stop.


1)   Slow down and pull over as quickly as possible.  You never want to give the officer the impression that you’re attempting to get away.  Also, you don’t want to slam on the brakes immediately.  Find a safe location (parking lot, driveway, open area on the side of the road, etc..) and pull over.

2)  Roll down your window, turn off your car, place the keys on the dashboard, and have your driver’s license ready to hand to the Officer.   Obviously, if a police officer pulls you over he/she is going to want to speak with you.  It’s always a good idea to go ahead and roll your window down as soon as possible.  You wouldn’t want the officer to think that you’re having difficulty with the simple task of rolling your window down.  So go ahead and do that first.

Placing your keys on the dashboard will put the officer at ease that you’re not going to take off.  A calm Officer can sometimes be the difference in going to jail and going home.

In addition, the Officers are trained to see if you have difficulty locating your driver’s license.  To many officers, the fact that you are nervous and may not be able to find your license right away is not normal and instead is an indication you’re drunk.  So go ahead and eliminate that assumption immediately.

3)   Let the Officer speak first.   The Officer is trained to get you to admit to the crime he/she thinks you’ve committed.  So a common question an Officer will ask is: “do you know why I pulled you over?”   A lot of people will say: “Yes, I was (insert traffic offense).”   If the Officer is recording your conversation, then there is a strong possibility that statement will be used against in court.  So go ahead and answer the question with an affirmative “no.”   It’s the Officers burden to prove you guilty of the alleged offense and not your burden to proof yourself innocent.

4)  BE POLITE!  This is the key to any interaction with a police officer.  If you are a jerk to the Officer the chances of you getting a ticket and/or getting arrested go up significantly.   Sometimes a police officer can say things that are rude or inconsiderate.   Take the high road.   Remember, on the road he feels like he is in charge and has the ability to really mess up your day.  You’ll have the final say if the case goes to court.  So don’t make it easier for the Officer.  Just be polite and your behavior won’t be used against you at a later date.

If you end up with blue lights in your rear view mirror, try some of the tips listed above.       We hope that no one ends up getting ticketed or, even worse, arrested.

Labor Day weekend is a great chance to relax and enjoy time with friends and family.  With so many people on the road, you can almost guarantee that the police will be out in force.  So be careful and have a great weekend.


A few months ago  we talked about the legality of having your mugshot posted all over the internet (see: Georgia Mugshot Websites). Recently, the Georgia General Assembly took another hard stance against companies who prey on those who are booked through Georgia jails.  Our legislature made some drastic changes to the Georgia mugshot laws.

Georgia law now requires that law enforcement agencies refrain from posting booking photographs on their jail inmate website.  The General Assembly went on to limit access to any booking photographs by restricting access to those who are (1) not using the photo for purposes for written publication or website publication; and (2) the person trying to obtain the photograph is not asking for removal or deletion of the booking photograph in exchange for money.  Law Enforcement agencies now can only release photographs to individuals who sign a statement affirming that the use of the photograph will NOT be for purposes of mugshot websites.

The General Assembly obviously recognized there was a serious problem with websites extorting those who have been booked through the criminal process.  Already, the Cobb County Sheriff’s Department has taken steps to remove all photographs from their jail website in accordance with the new law. Hopefully, these steps will put an end to for profit mugshot websites.

Please contact our office today at 404-581-0999 if you have been arrested in Georgia and you need help getting your mugshot removed.

They found my gun at the airport! What happens now?

Bringing Your Gun to the Hartsfield-Jackson Airport in Atlanta, GA

In addition to being the nation’s busiest airport, Atlanta’s Hartsfield-Jackson International Airport is also known for confiscating more firearms during security screening than any other airport in the country.

Historically, at Hartsfield-Jackson, when a TSA officer would find a traveler’s firearm during security screening, they would detain the traveler, confiscate the firearm, and immediately notify local law enforcement.  This would happen regardless of whether the traveler had a permit to carry the firearm because Georgia law strictly prohibited the possession of all firearms in its airports.

So, before July 1, 2014, the traveler would be arrested by the Clayton County Police Department and taken to jail. Travel plans would obviously be ruined and a criminal charges would be brought against the traveler. Then, if the prosecuting authority determined that the traveler had no criminal history and there were no aggravating circumstances surrounding the firearm confiscation, they would invite the traveler to participate in their pre-trial diversion program. By successfully completing the program, which involves community service, a gun safety class, and often, drug testing, the traveler would avoid a conviction on their criminal history.

While Clayton County would go forward with their criminal case, TSA would be assessing a federal civil penalty for the firearm violation. Upon determining the fine amount, the traveler would receive a letter via U.S. mail notifying them as to the amount they owe TSA. The penalty would range anywhere from $500 to $10,000 and depend on a variety of circumstances including the traveler’s intentions, level of cooperation, prior history,  risk to the community, and negotiation skills.

That was before July 1…

Now, as of July 1, 2014, Georgia residents with licenses to carry firearms are permitted to carry their firearm in many public places, including the entrance and waiting area in the Hartsfield-Jackson airport. Obviously, this permission does NOT extend to the airport’s terminals due to federal law but TSA officers at security screening will no longer call Clayton County Police Department if the traveler can show proof of their permit to carry.

Instead of calling the police, TSA will give the traveler the following options: 1) check the firearm as luggage (if properly secured in a hard case), 2) return the firearm to their vehicle (if they parked it at the airport), 3) hand the firearm to an individual who is licensed to carry in Georgia and not traveling via the airport, or, in the event that no other option works out, 4) forfeit the firearm permanently to TSA.

Whether the traveler has a license to carry a firearm or not, TSA will still pursue a civil case against them. Like before, TSA will investigate the circumstances of the case and assess a civil penalty ranging from $500 to $10,000. TSA may also temporarily suspend a traveler’s “TSA Pre-Check.”

It is important to remember that Georgia’s new gun laws only affect Georgia residents with valid licenses to carry their firearm(s). All other travelers carrying guns in the Hartsfield-Jackson airport remain out of luck when it comes to TSA calling Clayton County Police Department. Those individuals will be arrested and charged like all gun-carrying travelers were charged prior to July 1, 2014.

If you were charged with bringing a firearm to the Hartsfield-Jackson airport or have any questions about the subject, do not hesitate to contact our firm for a free consultation. You can trust that our firm will work hard to protect your rights and secure the best possible outcome.

Fulton County Backlog for Judge Susan Forsling

Fulton County State Court Judge Susan Forsling recently discovered she has a HUGE backlog of cases.  In early May, Judge Forsling discovered hundreds of misdemeanor criminal files in the office her case manager Joel Schaffer.  To date, the missing case files have led to 55 dismissals of criminal cases.

Fox Five Atlanta investigative reporter Dale Russell recently reported on the story.  Mr. Russell’s report focused on an individual whose pending charges have languished due to the hidden or lost files.  The story included a written statement from Judge Forsling.  While the story is certainly news worthy and the backlog is a concern, Mr. Russell’s report sensationalized the severity of the crimes and the likely outcomes of the forgotten cases.  As former Fulton County prosecutors, Peach State Lawyers W. Scott Smith and Daniel Farnsworth realize that many of those hidden cases would have resulted in dismissals when alleged victims failed to appear in court.  The serious drug offenses which Mr. Russell focused are simply possession of marijuana less than one ounce.  While there are certainly cases that languished which would be cause for concern, all of the cases have been deemed by our State Legislature to be misdemeanor offenses and not the more serious felony offenses which Mr. Russell seemed to want to make these charges.

Judge for yourself at:

Yesterday, the Fulton County Daily Report ran a similar story which included comments from Judge Forsling as well as Fulton County State Court Chief Judge Patsy Y. Porter.  Judge Forsling called Schaffer’s actions “gross neglect” and outlined a plan to get her criminal docket moving again.  Judge Porter outlined the new computer system that will be implemented in 2013.  Peach State Lawyer Daniel Farnsworth applauds a new court case tracking system as working with the old system, Banner, was counter intuitive, confusing, and frustrating.


Legal News update

The legal news from around the country:

U.S. Supreme Court throws out fine for Janet Jackson wardrobe malfunction:

U.S. House of Representatives voted to hold Attorney General Eric Holder in contempt:

DNA found on lip balm leads to burglary arrest in New Hampshire:

Former Atlanta Falcon Jamal Anderson arrested for DUI:

State of Georgia greatly expands the number of people in the jury pool:

Ten laws you should know BEFORE July 1, 2012 (okay, so we’re a little late sending this out!):