Posts

Civil Asset Forfeiture- Coweta Drug Cases

/in , , , , , , , , , /by

Civil asset forfeiture allows the government to confiscate property that they deem as having been used in criminal activity. Civil asset forfeiture does not require a conviction or criminal charges being taken out.

In Georgia, civil asset forfeiture is a legal process, and it allows the government to seize your property that they claim is connected to a crime or would likely be used to commit a crime, especially a crime involving a controlled substance. The most seized property includes cash, cars, cell phones, firearms, and real estate.

If the police have seized your property in a civil asset forfeiture, you must act fast so that you do not lose what the police has taken. It is important that you hire an experienced attorney as soon as possible because there is a limited amount of time to object to the forfeiture.

If you or someone you know has been arrested for a drug offense and has had their property seized, having a lawyer fight your case can result in a better outcome. Contact the Law Office of Scott Smith today for a free consultation at 404-581-0999.

Civil Forfeiture – What does it mean?

/in , , , /by

Unfortunately you got stopped by the police while driving and you had something in your car that was illegal that resulted in your arrest – maybe your stash of THC cartridges, some loose leaf marijuana, and the cash you had been saving up.  Your main concern is of course the pending criminal case against you, but did you know the state can also seize the drugs, cash and even your vehicle?

It’s called civil forfeiture, and it’s legal in Georgia under the Uniform Civil Forfeiture Procedure Act.  The State can seize any assets it claims were used in furtherance of the illegal activity.  So what do you do?  You need to protect yourself in the criminal case and also in the civil forfeiture case.  You’ll know your property has been seized because you’ll be given a Notice of Seizure either by the police at the time of your arrest, or recently after.  Timing is important here, because you have only 30 days to notify the prosecutor’s office that you are asserting a claim on the property.  During this time you’ll want to gather all the documentation you have to show that your seized property was not used in furtherance of the illegal activity.  This could be proof of purchase of the vehicle, pay stubs from your employer, etc.  A knowledgeable attorney can file the notice of your claim with the proper documentation, ensuring that it gets to the right people.

From there the State will serve an official document on you called a Complaint.  They must do so within 30 days of receiving the notice of your claim.  Once you have been served with the Complaint, you then have only 30 days to respond by filing what is called an Answer.  Once all the paperwork is submitted, the court will hold a bench trial, usually within 60 days, to determine if your property should be returned to you.

This is a multi-step, technical process, and our law firm can help you navigate it to get your property back.  If you’re facing a criminal case with civil forfeiture of your property, call the Law Offices of W. Scott Smith at 404-581-0999 for a free consultation.

Seizures; The Three Tiers of Police-Citizen Encounters under Georgia Law

/in /by

In assessing Fourth Amendment issues in a given case, lawyers should be cognizant of the three tiers of police-citizen encounters. These different levels of police encounters are meant to balance a person’s reasonable expectation of privacy against society’s legitimate interest in enforcing criminal laws. These tiers are designed to establish when, where, and how police should interact with members of the public in accordance with constitutional law. This article will explain the three tiers and the legal rules surrounding them.

 

1st Tier Encounters

 

In a 1st tier encounter, or “mere encounter,” between a person and a police officer, a person is not considered to be “seized” for 4th Amendment purposes. U.S. v. Mendenhall, 446 U.S. 544 (1980). This is because 1st tier encounters are when citizens and police come into voluntary contact with each other.  A “seizure” of a person only occurs when a reasonable person in the citizen’s situation would not feel free to “disregard the police and go about his business.” Florida v. Bostick, 501 U.S. 429 (1991). To determine whether a seizure has occurred, a judge will analyze the encounter to determine if there was a show of authority or an application of physical force. California v. Hodari D., 499 U.S. 621 (1991).

 

2nd Tier Encounters

 

A 2nd tier encounter is referred to as an “investigative detention.” The most common situation is when a police officer pulls you over in your car. This is also referred to as a “stop.” Under this tier, a police officer may seize a person for investigative purposes if the officer has reasonable suspicion to believe a crime has been or is about to be committed AND the officer may conduct a limited pat down or frisk of a lawfully seized person if there is a reasonable belief the person is armed and dangerous. Terry v. Ohio, 392 U.S. 1 (1968).

 

“Reasonable Suspicion” is more than an unparticularized hunch, but less than probable cause. These investigative detentions must be temporary, lasting no longer than necessary to effectuate their purpose and terminate once the suspicion has been dispelled.

 

3rd Tier Encounters

 

The 3rd tier contemplates the arrest of a person. A person is under arrest if he is not free to leave and a reasonable person in his situation would not think the detention was temporary. Williams v. State, 293 Ga. App. 842 (2008). Because an arrest is more intrusive than a stop, this tier requires more legal justification. Here, the standard of proof is “probable cause.” Probable cause to arrest exists when facts and circumstances based on reasonably trustworthy information would lead a prudent person in believing that a suspect is committing, has committed, or is about to commit a crime. Beck v. Ohio, 379 U.S. 89 (1964). Probable cause is a “fair probability,” less than a preponderance of evidence, but greater than reasonable suspicion. Illinois v. Gates, 462 U.S. 213 (1983).

 

If law enforcement officers violate the above rules, certain evidence in the case may be suppressed (ruled inadmissible) by a judge upon a motion to suppress.

 

Contact Us

 

If you or someone you know has been charged with a crime, please contact our office today at 404-581-0999 for a free consultation.

 

 

 

 

 

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

/in , , , , , , , , /by

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.