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!

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.


VIDEO – Make Sure You Are Prepared to Attend Court in Georgia

What should I wear to court, how should I act when  I’m there, what if I am super nervous about attending court? You must be prepared to attend court. These are topics we will be discussing in today’s Peach State Lawyer video blog.

Hey there, I’m Scott Smith from the Peach State Lawyer law firm talking to you today about preparations you should make in attending court in Georgia, whether it be the city of Atlanta or Superior Court of Cobb County, there are certain things you need to know to be prepared to attend court in Georgia.

First, be on time. Regardless of whether or not you have an attorney who is representing you or you are representing yourself, if you’re told to be in court, you need to be on time. That means be in the courtroom five to ten minutes earlier than the time stated on your court notice. As we all know traffic in and around Atlanta can be awful, I strongly recommend you become familiar with the traffic patterns from your home to the courthouse, parking at the courthouse, and the courtroom number you are going to. If you are super anxious about attending court ask your lawyer to meet you at the courthouse a day or a week in advance to introduce you to the courthouse and the courtroom.

One suggestion I have for our clients is to add a reminder in their phone that includes the judges name they are assigned, the case number, and courthouse information. That information is easily accessible when it is on your telephone which you will bring with you to the courthouse. If you are running late, call or text your lawyer to let them know your expected time of arrival.

If you don’t make it to court on time you could be subject to a bench warrant, fines, or even a Georgia driver’s license suspension. It might also have an impact on your pre-trial negotiations with the government’s prosecutors.

Next, dress appropriately. Certain courthouses have specific dress codes you must follow. But here’s a great go by.

Gentlemen, no shorts, no sandals, no tanktops, no ballcaps. Our office recommends you dress conservatively and professionally. We recommend wearing khaki pants and tucked in, collared shirt every time you appear in court.  It is not necessary to wear a suit or a jacket and a tie. We feel sometimes that is overkill. But it is important to show the court you are taking the matter pending against you very seriously.

Women, no open toed shoes. No exposed shoulders. No shorts. Again, we recommend dressing conservatively and professionally.

Next, turn off all phones and electronic devices while you’re in court. If a device goes off in court, it will most likely be taken and you may be subject to a fine or other penalty for contempt of court.

Pay attention to the bailiff and court staff. Most courtrooms will actually instruct you on courtroom procedures and decorum prior to the start of court. They will tell you if you are allowed to leave the courtroom to make phone calls or use the restroom without court permission.

Lastly, always stand when you hear the court or court clerk call your name.  In our experience 90 % of courtrooms expect you to stand to show you are present.

Following these guidelines will ensure you are prepared to attend court and your day in court runs smoothly.

If you’re facing an upcoming court date and want to ask questions about the nature of the charge you are facing or courtroom procedures call us today and schedule a free consultation. We’re available 24 hours a day, 7 days a week. 404-581-0999. Thank you so much.

VIDEO – What Happens to Your Georgia Drivers License After You Are Arrested for DUI in Georgia

You’ve been arrested for DUI in Georgia. The officer has read you Georgia’s Implied Consent Notice, requesting a blood or breath test. What do you do? What happens if you refuse to take the State’s test? Can you get a permit to drive to work or school? What happens to your drivers license after DUI arrest in Georgia?

Watch the video below and call us today at 404-581-0999 for a free consultation or to answer your questions.

What happens to your Georgia Driver’s License after DUI arrest in Georgia?

Hello, I’m attorney Scott Smith and today we’re talking about what happens to your Georgia Driver’s License after you’ve been arrested for DUI here in Georgia.

You’re arrested for DUI. You’re read from an orange card asking for a blood or breath test and then later the police officer takes your license from you. In its place he hands you a sheet of paper called a DDS 1205 form. I’ve got an example right here. It has some basic information on the top and on the bottom it says notice of license suspension and temporary driving permit.

Can the officer take my license from me? What is this sheet of paper? Why did I receive it?

That piece of paper is going to act as your temporary Georgia driver’s license. In Georgia, our law allows the police officer to take your license from you and return it to the Department of Driver Services, also known as DDS for suspension by simply being suspected of DUI. That piece of paper that the officer gives you in place of your license states your license will be suspended in thirty days if you do not request an appeal of the suspension within ten business days from the date of your arrest. In essence, you only have ten days to prevent an automatic suspension of your license. If you don’t appeal the pending suspension, your license gets suspended.

You may lose your ability to drive for one year. If you are arrested for DUI and you did not give the officer the test they requested, that means a one year suspension with no ability to get a work permit to drive for work. If you did give the requested sample, and the result was over the legal limit, you may be eligible for a work permit.

At our office of experienced Atlanta criminal defense attorneys, we can look at your case, let you know if you need to submit a request for appeal, help you make sure your appeal is submitted correctly so you do not lose your right to drive, and we’ll even give you a copy of the ten day letter which you can submit on your own to get the process started.

Don’t lose your ability to drive after a DUI arrest. Call us today at 404-581-0999. Thank you.