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VIDEO – Seizure and the 4th Amendment under Georgia Criminal Law

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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.

 

VIDEO – Everything You Need to Know about Your Georgia Criminal History Record

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Do you have a Georgia criminal history? Do you know what it looks like? What will your prospective employer or landlord see if they run it? Georgia criminal history records are the topic of today’s Peach State Lawyer video blog.

Hello, I’m Scott Smith and today we’re talking about your Georgia criminal history record, and why it is important for you to know what the information your Georgia criminal history record contains.

Your criminal history is a specific document tied to your name, date of birth, and social security number. It contains arrest and final disposition information, including whether you’ve ever been incarcerated in a Georgia jail or prison.

Arrest data includes the arresting agency, date of arrest, and charges. Disposition information relates to the final resolution of the charges through the court process, whether it be through a dismissal, reduced charges, guilty pleas, or result after trial.

Your criminal history is maintained by the Georgia Bureau of Investigation through their Crime Information Center.

Your criminal history is reported in cycles, with each cycle representing a separate incident. A cycle is created when you are fingerprinted, typically following an arrest and being booked into jail. Some minor offenses such as city or county ordinances or minor misdemeanor offenses may not result in you being arrested and fingerprinted, and will not be shown on your criminal history.

Georgia Law allows anyone access to any felony conviction on your criminal history that has not been removed after successful completion of any conditional discharge or first offender program. For anyone, including a prospective employer or landlord to have access to your complete criminal history, they must have your consent through a signed authorization form.

If you have a charge that has been record restricted or expunged, that cycle should not appear on your Georgia Criminal History Record when requested by anyone besides a government agency.

Georgia Criminal History Records can be requested at Sheriff’s Offices and Police Stations throughout the state for Twenty dollars. To request a full copy of your Georgia Criminal History, you will need a driver’s license or photo ID, your social security number, and date of birth.

If you look at your criminal history record and see something you believe should have been restricted or expunged, call our office at 404-581-0999 to discuss potential restriction or expungement options. Our team of experienced Georgia criminal defense attorneys can assist you in determining whether the charge can be restricted or expunged during a free consultation. Thank you.

Can My Criminal Record be Expunged? Record Restriction and Sealed Records in Georgia

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by Mary Agramonte

We know how hard it is to rebuild your life when you have a criminal history following you. In Georgia, your complete criminal history is released for employment and licensing purposes, no matter how long ago you were arrested, unless your record is restricted or sealed. If you have recently been arrested and just want a second chance, Georgia has several options available. These options allow certain individuals who have been arrested to avoid having potential employers see their criminal record. Even if you were arrested in the past, you may be eligible to have your record restricted or sealed from people being able to access it.

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

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

Under Georgia’s Record Restriction law, O.C.G.A. §  35-3-37, you may be qualified to hide your arrest record from potential employers. This is available for you if your case was dismissed, not presented to a grand jury, twice no-billed by the grand jury, or if you had a trial and were found not guilty on each and every charge. If you were arrested after July 1, 2013, your record is automatically restricted, meaning your official Georgia criminal history report (GCIC)  will not be released to any employers or licensing boards. If you were arrested prior to July 1, 2013, and your case was dismissed or you were found not guilty on every charge, then you will need to apply to have your record restricted on your official criminal history report.

However, even if your record is restricted, your court records will remain in the clerk’s office as public records. Unfortunately, many employers do not use official background checks through GCIC. Instead, they use private companies. If your record is restricted, there is an additional step that is not automatic that can protect you and your criminal history from finding its way onto the internet and into the hands of potential employers. This process is known as petitioning the court to seal your records and can also be found under O.C.G.A. §  35-3-37(m).

There is another new and exciting law in place that truly helps individuals who have struggled with getting jobs over the years based on a conviction in their past. This is known as the Retroactive First Offender statute. To qualify, you must have been eligible for First Offender treatment, yet were not informed of it, and the prosecuting attorney must consent. If you were convicted of the crime or pled guilty to it in the past, Georgia only allows for record restriction if you are eligible under the Retroactive First Offender Statute.

We are experienced lawyers here to help. We know how hard it is to move on with your life when you have an arrest record or conviction holding you back. There are laws in place that help past offenders clean up their record and move on once and for all. If this is a new arrest, there are also several avenues to take if you are concerned about your criminal history and how it’s going to affect your career and your future. Call us today at 404-581-0999 for a FREE CONSULTATION to see how we can help with your criminal record.