Monday, August 22, 2016

Reasons for stops | Douglas county criminal defense lawyer

As an Atlanta Criminal defense lawyer and DUI attorney, I often see stops that are called in on a Bolo from an anonymous caller. These stops are always problematic because nobody knows the true motives of that person who called the police or even if they are even telling the truth. A recent appellate decision has come down that states fairly clearly that those stops even though are anonymous can give the police officer articulable suspicion to stop the vehicle and investigate if the driver is in fact DUI.  In Blanks v. State, the Georgia Court of Appeals upheld the trial court’s decision to deny blanks motion to suppress holding that an anonymous emergency 911 call was sufficiently reliable to be considered in determining whether an officer had reasonable article suspicion to conduct a traffic stop.  Relying upon the recent Navaratte United States Supreme Court decision, the court held that the fourth amendment to the United States Constitution permits a brief investigative stops when a law enforcement officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity. The reasonable suspicion necessary to justify an investigatory stop is dependent upon the content of information possessed by police and its degree of reliability. The standard takes into account the totality of the circumstances. Although a mere hunch does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence and less than is necessary for probable cause. In this case, the officer relied upon an emergency 911 call in which an anonymous caller provided information to the effect that the driver in front of him was driving erratically in speeding. Additionally, the caller was reporting information live on mostly keeping the vehicle and site. Furthermore, the caller provided live updates on the vehicle’s location as well as an additional detail when asked by the dispatcher about how the vehicle was being operated during the time the caller was on the telephone. Per the Court of Appeals, the police officer responded to the dispatcher’s report based on the anonymous emergency nine one two had sufficient descriptive information such as the make, model and color of vehicle to effectuate a stop even though the officer did not have the license tag number of the vehicle, a description of the vehicle, or any indication of wrongdoing other than speeding.
In Armentrout v. State 332 Ga. App. 370 2015, Armentrout was convicted following a stipulated bench trial of driving under the influence of alcohol less safe and per se.  On appeal, Armentrout contended that the trial court erred in denying her motions to suppress evidence recovered from the traffic stop and the results of the state administered chemical test arguing that the roadblock was unlawful. In this case, the police submitted a proposed roadblock to establish safety checkpoints to enhance safe travel and that the primary purpose of the roadblock was to conduct a check of driver’s licenses and to identify drivers who are under the influence of drugs and/or alcohol. The Court of Appeals reversed the trial court’s decision holding that the State failed to prove that the Police Department’s overall checkpoint program had a legitimate primary purpose as required to demonstrate the lawfulness of Armentrout stop at the roadblock in that there was no written evidence or testimony to show the actual roadblock program had a purpose other than ordinary crime control. Contact a Douglas county criminal defense lawyer today for help with your case.

Douglas County DUI lawyer | DUI lawyer Douglas county

In State v. Barnes 331 Ga. App. 631 2015, the State appealed the trial court’s order granting Barnes motion to suppress the result of her state administered breath test following her arrest for driving under the influence. The State contended that the trial court erred in finding that after being read the implied consent notice, Barnes had clearly refused to take the state administered test and had not later rescinded her refusal. The State also argued that the trial court erred in finding that Barnes did not rescind her refusal by voluntarily taking the breath test. In this case the officer read Barnes the implied consent notice twice. During the second reading of the implied consent notice, the officer misread the notice stated that if Barnes submitted to the test results indicated an alcohol concentration of .0 grams or more, her driver’s license could be suspended for more than a year. At the end of the second reading of the notice, Barnes responded “no I thought I just did that.” Another officer then explained that the portable breath test was different from the test referenced in the implied consent notice, and Barnes responded okay. The arresting officer testified that she interpreted Barnes’s response is the rescission of her refusal and acquiescence to the breath test. The Georgia Court of Appeals remanded the case back to the trial court holding that in considering whether Barnes statement oh okay constituted a rescission of her prior refusal to take the official state breath test, the court was required to consider whether the police officer’s actions were reasonable and fair under the totality of the circumstances. Contact a DUI lawyer in Douglas county for help with your DUI case. 

Douglas County DUI lawyer | Douglasville DUI


By far, the bill at the greatest impact on DUI defense practice is the defense of traffic cases is Senate Bill 100. Senate Bill 100 resolves the discrepancy between the definition of commercial motor vehicle in O.C.G.A section 40-1-1 and O.C.G.A section 40-5-142. Effectively July 1, 2015 the definitions will be the same. This can be useful in DUI defense because some officers may not realize that a vehicle qualifies as a commercial motor vehicle under the new definition, and the reading of the wrong warning can be grounds for the suppression of test results or a refusal. Senate Bill 100 also contains a wonderful opportunity for drivers who have had their licenses canceled or their applications for a license denied due to a suspension in another state. The language in O.C.G.A section 40-5-22 (c) prohibits issuance of a license to such individuals, and the Court of Appeals recently upheld the DDS’s interpretation of this code section in Wolff v. Georgia Department driver services 330 Ga. App. 552 (2015). Senate Bill 100 at subsection D to O.C.G.A section 40-5-22 which will allow the DDS to issue a limited driving permit to such drivers if they are otherwise eligible for such limited driving permit in accordance with paragraph one of subsection (a) of code section 40-5-64. Another significant change enacted in Senate Bill 100 is the elimination of mandatory license suspensions for fraudulent or fictitious use of or application for license as provided in code section 40-5-120 or 40-5-125 or any felony violation of article 1 of Chapter 9 of title 16 if such offense related to an identification document as defined in code section 16-9-4. Section 4-15 of Senate Bill 100 repeals the driver’s license suspensions imposed upon drivers under age 21 in O.C.G.A section 40-5-57.1 for underage possession of alcohol, and section 4-16 repeals the suspensions for such offenses found in O.C.G.A sections 40-5-63 E and F. Section 40-17 of Senate Bill 100 replaces the language in O.C.G.A section 40-5-64 to allow the holder of a limited driving permit, including a ignition interlock limited driving permit, to drive for work purposes in addition to driving to and from work. Section 4-18 modifies a controlled substance language in O.C.G.A section 40-5-75 to apply only to convictions for DUI of drugs under O.C.G.A section 40-6-391(a)(2), (a)(4), and (a)(6). The suspension will no longer apply to drug offenses that do not involve the operation of a motor vehicle while under the influence of controlled substances or alcohol. It appears that a first or second suspension within five years would be eligible for a limited driving permit under O.C.G.A section 40-5-76 if the defendant is participating in a drug Court program. No other permit authorization can be found in the code. Section 4-24 modifies the language of O.C.G.A section 40-6-15 relating to driving with a suspended registration to allow for one plea of nolo contendere every five years to avoid the license suspension contemplated in O.C.G.A sections 40-5-54 and 40-5-63. Senate Bill 100 provides that almost all its provisions are effective on July 1, 2015 and it is intended to be applicable to offenses that occur on or after that date. Contact a Douglas County DUI lawyer for help with your DUI charge.

Thursday, December 25, 2014

Articulable suspicion to search the vehicle | Douglas county criminal lawyer

“1997)—Painter v. State, 227 Ga. App. 875, 490 S.E.2d 544.
The police were staking out a restaurant and saw the defendant park in the lot, stay in her car for several minutes, then go in the restaurant for three minutes and then return to her car. Shortly thereafter, a truck pulled up next to the defendant’s car and the defendant got out of her car and entered the truck, which then drove off. The officer learned that the defendant was someone who was suspected of using and selling drugs. These facts did not amount to an articulable suspicion justifying the stop of the truck. Stopping the truck and bringing a drug dog to smell the outside of the vehicle was an illegal detention and required that the evidence from a subsequent search of the vehicle.
“1995)—State v. Moon, 217 Ga. App. 790, 459 S.E.2d 441.
The police received a tip that two people in a car at a gas station were involved in a drug transaction. There was no prediction of future activity. This tip, alone, did not provide sufficient information to justify a Terry-stop and the trial court properly suppressed the evidence.
(1994)—State v. Fowler, 215 Ga. App. 524, 451 S.E.2d 124.
The police staked out a convenience store where they believed drugs were being distributed in the parking lot. They observed two defendants drive up in one car and make a phone call. Shortly thereafter, a third defendant drove to the parking lot and one of the first two participants entered the third defendant’s car. The police then observed “back and forth movements” among the individuals in the car. When the cars left, the police stopped the vehicles and searched them, finding cocaine. The information known to the police did not rise to the level of an articulable suspicion and the stop was therefore unlawful. The trial court correctly granted the motion to suppress. Contact a Douglas county criminal defense lawyer for help with your case.

“2003)—Tiller v. State, 261 Ga. App. 363, 582 S.E.2d 536.
The police pulled over a car being driven by Colten because the license plate was obscured. Colten did not have a driver’s license, but his mother brought it to the scene. Tiller was a passenger in the vehicle. The police had received information that Colten was a drug dealer. The information was not from a source known to be reliable, and did not furnish a basis for detaining Colten, or, for that matter, Tiller. While Colten and Tiller were being detained, a drug dog was summoned and it alerted to the car. A search of Tiller’s jacket in the car revealed a gun. Tiller had standing to contest the detention; his identification documents were being held by the police and the detention of the driver deprived him of his means of transportation. His detention was illegal and the search of his jacket in the car was the fruit of that illegal detention.”

“2002)—Duke v. State, 257 Ga. App. 609, 571 S.E.2d 414.
A sheriff’s deputy testified that he pulled the defendant over because there was a radio communication that the driver of the vehicle was suspected of drug activity. At the suppression hearing, no further evidence was offered as to why the vehicle was stopped, or the basis for the suspicion. The officer was entitled to rely on what he was told over the radio, but the state must still support the basis for the stop at the suppression hearing by proving what the collective knowledge of the police was at that time. The stop was illegal and the evidence should have been suppressed.”

“1999)—State v. Kwiatkowski, 238 Ga. App. 390, 519 S.E.2d 43.
The police approached the defendants in a parking lot where they were parked. The defendants acted nervous and claimed to be lost. They had out-of-state drivers’ licenses and an out-of-state car. They refused to consent to a search of the car. This did not amount to an articulable suspicion, and detaining the defendants until a drug dog arrived was impermissible. The fact that the police never told the defendants they were not free to leave did not mean they were not detained, because there were three police cars surrounding the defendants’ car and the officers held the defendants’ drivers’ licenses. Also, even after the police were denied consent to search the car, they did not tell the defendants they were free to leave.

Contact a paulding county criminal defense lawyer today!!

Bad informant information leading to suppressed evidence | Paulding county criminal defense lawyer

“2006)—Baker v. State, 277 Ga. App. 520, 627 S.E.2d 145.
The police received a tip from a confidential informant (he was not shown to be reliable) that a man in a black or green jeep or truck at a particular Wendy’s would be involved in a drug deal “in the near future.” The police went to the scene and observed the defendant, Baker, in a black pickup truck. He drove around a nearby gas station a couple times; then drove to another restaurant and pulled alongside another pickup truck. Baker then drove away. The police pulled him over and asked for his license which was determined to be suspended. The court of appeals held that there was no basis for the stop of Baker and the evidence that was thereafter acquired (through a consent search) was tainted by the illegal stop. After arresting Baker, the police asked if he had any more drugs at his house and he acknowledged that he might have some marijuana.” “The police went to the house and confronted the second defendant, Ms. Drescher. She was asked for consent to search her house and her purse. She was arrested based on drugs found in the house and in her purse. The court of appeals held that this evidence, too, must be suppressed, based on the illegal detention of Baker: “Drescher’s consent was the product of the illegal detention [of Baker], and the taint of the unreasonable stop was not sufficiently attenuated.”

“2004)—State v. Davenport, 268 Ga. App. 704, 603 S.E.2d 324.
The police arrested a man who promptly agreed to set up another person. The arrestee made a call to arrange a delivery and told the police that the supplier would be driving a white car and would come from a certain apartment. The police did not know to whom the arrestee made the call. The police were at the designated apartment and did not see anybody actually leave that apartment, but saw two people come from around the corner and get into a white car. That car was stopped and the driver was seen kicking a bag under the car. The bag contained cocaine. The trial court suppressed the evidence and the court of appeals affirmed. First, the information from the arrestee amounted to a tip, not informant information, because the arrestee was not previously known to the police and had provided no reliable information in the past. Second, the information provided to the police (the location of the source’s apartment and “the color of the car) were innocent details which did not support the stop. Third, the stop of the vehicle was not supported by articulable suspicion.”
Contact a paulding county criminal defense lawyer today.

Reliability of line-ups | Douglas County Criminal lawyer

“The admission of expert testimony on the reliability of eyewitness testimony is left to the discretion of the trial court. Where eyewitness identification of the defendant is the key element of the state’s case and there is no substantial corroboration of that identification by other evidence, trial courts may not exclude expert testimony without carefully weighing whether the evidence would assist the jury in assessing the reliability of the eyewitness testimony.”
“Grabowski v. State, 234 Ga. App. 222, 507 S.E.2d 472.
The victim identified a van being driven by the perpetrator of an attempted burglary (she only saw the vehicle, not the perpetrator). The police arrested the defendant and brought the victim to the scene of the arrest to determine if she could identify the van, which she did. The defense argued that this identification should be excluded on the basis that it amounted to a “show-up” that was unreliable.  Jurisprudence applying to the show-up of people should not apply to inanimate objects.
“1997)—Campbell v. State, 228 Ga. App. 258, 491 S.E.2d 477.
The audiotape voice lineup that was used in this case was not impermissibly suggestive. The defendant made a certain statement during his interrogation and then the State obtained five similar voice exemplars from which the victim chose the defendant’s voice.
(1993)—Wade v. State, 208 Ga. App. 700, 431 S.E.2d 398.
A police officer was permitted to testify that an eyewitness to the armed robbery chose the defendant’s photograph from a photo spread. The eyewitness was not present at trial. This was permissible testimony: A law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection.
(1981)—Pope v. State, 157 Ga. App. 154, 276 S.E.2d 666.
The trial court committed reversible error in failing to instruct the jury on the law relating to fingerprint evidence. Instructions on circumstantial evidence and expert testimony are not an adequate substitute.”