Georgia Criminal Defense Lawyer Blog

The Georgia Court of Appeals recently had to determine if evidence was sufficient to support a conviction for possession of methamphetamine with intent to distribute and possession of marijuana under a theory of constructive possession. The court held there was not sufficient evidence, since the defendant’s cousin had equal access to the drugs but was not charged.

In Xiong v. State, the defendant, Xiong, allowed a police officer to search his home after the officer received a tip that a stolen car was on the property. The officer found a car that had been stripped of parts in the carport, and after checking the VIN which showed the car as stolen, Xiong was placed under arrest. A search warrant for the property was then issued. In addition to auto parts strewn throughout the property, officers found 14 bags of methamphetamine and a gun in the master bedroom as well as a small amount of marijuana in the kitchen. Electronic scales and additional handguns were also found. Police also discovered a notebook with writing that inferred that the defendant’s cousin and others were handling drugs in exchange for money.

The defendant’s wife testified that the defendant’s cousin, Vang, had moved into the home prior to the arrest since he was unemployed and homeless. The wife moved out a couple of months later due to a separation, but she returned a few days before the arrest of her husband. Her testimony revealed that Vang had moved into the master bedroom with his wife while she was away. Vang moved out shortly before the arrest of Xiong due to the wife’s return, but he had left personal belongings behind and retained a key to the home. Several days later Xiong was arrested but his wife and cousin were never charged with any crimes.

Xiong was convicted on the drug charges under the state’s theory of constructive possession. Under Georgia law, there is a presumption of constructive possession of an entire premise by the owner. Yet, the state must show sole constructive possession by the defendant if the state only charges one of two or more people who had equal access to the drugs. Thus, the presumption of constructive possession can be rebutted by showing that someone else had equal access to the specific location where the drugs were discovered. The court found that Xiong’s cousin had occupied the master bedroom where the drugs were, and that he still had personal belongings in the bedroom as well as a key to the home. The cousin also had the same access to the scales and notebook as Xiong. Furthermore, evidence suggested that the notebook was not Xiong’s. The court reasoned that the only evidence which connected Xiong to the drugs was his own equal access. Since the state only charged Xiong and could not show sole constructive possession by Xiong, the court reversed the conviction.

As a result, the court firmly established the rule that a conviction based on constructive possession cannot stand where others have equal access but are not charged.

Our criminal defense lawyers have successfully defended serious drug cases using similar defenses and equal access theories. "Being in the wrong place at the wrong time" is not enough, by itself, to justify a criminal conviction.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Our firm is also listed in the Bar Register of Preeminent Lawyers by Martindale-Hubbell.

After the recent allegations hit the Peanut Corp.of America about the presence of salmonella in products it shipped from its Georgia plant, we decided to explore what sort of federal or Georgia criminal laws might apply to this case. (If you are interested in the details, a legal memo addressing food safety and criminal prosecutions under federal and Georgia law can be found after the break.)

According to the Atlanta Journal Constitution, the GBI was initially asked to look into state criminal charges. Later, however, the GBI decided to back off and leave the criminal investigation to the FBI and other federal law enforcement agencies. But, according to an article in the Macon, Georgia Telegraph, the feds rarely bring criminal charges in food safety investigations.

Of course, the magnitude of this case may cause the feds to make an exception, and an example.

Continue reading " Georgia criminal law allows for "food safety" prosecutions " »

The Georgia Supreme Court recently rejected a defense lawyer's challenge to the state’s marijuana statute on constitutional due process grounds.

The case (In the Interest of D.H.) required the Court to decide whether Georgia’s possession of marijuana statute created a mandatory presumption of guilt in violation of constitutional due process guarantees. The Court held that the language of the statute does not violate the Constitution.

The ruling stems from the arrest of two juveniles for possessing marijuana. Police received a tip that two young men were involved in a drug deal at a gas station. Upon arriving, the police officers did not see anyone at the gas station; however, two teenagers matching the description were seen walking down a nearby road. The two officers stopped their vehicle and approached the two young men on foot. The suspects stated that they were coming from the gas station in question. The officers asked if they could search the two suspects and the suspects agreed. In the defendant’s pocket, an officer found rolling papers, and officers found marijuana on the other suspect. Both suspects admitted that they had just purchased the marijuana and were going to smoke it. The teenagers were issued citations for possession and were subsequently adjudicated as delinquent.

Their defense attorney appealed arguing that the text of the marijuana statute violates constitutional due process since it creates a mandatory presumption of guilt. The statute states that, “any person who is charged with possession of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor. . .”

The Court disagreed with this argument, and it determined that a literal reading of the statue would result in the absurd consequence of a defendant who is automatically found guilty the moment he or she is charged with the possession of marijuana. The Court explained that the literal meaning of a statute will prevail unless it leads to an absurd result which the legislature did not intend. In such cases, the Court will interpret the language in a reasonable manner in order to conform to the legislative intent and to ensure the statute is valid. According to the Court, the intent behind the statute was to show that possession of one ounce or less of marijuana was punishable only as a misdemeanor and not as a felony. The intent was not to create an automatic presumption of guilt. Thus, the Court interpreted the statute so as not to violate due process.

Attorney Page Pate of our firm was interviewed about the Court's decision on WABE FM 90.1, the Atlanta public radio station and NPR affiliate.

We did not represent the defendant in this case, but our criminal lawyers have helped people charged with Georgia drug crimes for 15 years. Although the constitutional argument was not effective in this case, challenges like this can (and should) be raised in drug cases involving marijuana prosecutions and illegal searches and seizures.

The Georgia Court of Appeals recently decided that a driver displaying nervousness, a failure to make eye contact, and certain indicators of drug use during a routine traffic stop do not constitute reasonable suspicion necessary to search the vehicle for weapons.

In Bell v. State, Bell and his passenger were stopped by two Catoosa County Sheriff’s officers for traveling 39 in a 25 mph zone. The officers approached the sides of the vehicle and spoke with both men. Both officers noticed that the men refused to make eye contact and that Bell seemed very nervous and appeared to be under the influence of a drug. One officer stated that Bell had a very dry mouth and that his eyes were slightly closed which was consistent with drug use.

Upon noticing these peculiarities, the officer asked Bell if he could search the vehicle, but Bell refused. The officer then requested that a K-9 unit be dispatched from another county. One officer had also noticed an expandable baton in the cup holder next to Bell. Since the K-9 would take a while to arrive, the officers ordered Bell and the passenger out of the car to alleviate any threat that may come from the baton, and the two men were then patted down for weapons. No weapons were found.

While searching the vehicle for additional weapons, the officers found a bag under the seat which contained scales and suspected methamphetamine. The officers found additional contraband inside a water bottle under the passenger seat. Bell and the passenger were subsequently charged for possessing the contraband.

In its decision, the Court of Appeals noted that the general rule is that an officer can only detain someone after the conclusion of a traffic stop if there is reasonable suspicion of criminal activity. The only possible reasonable suspicion of a crime under these circumstances would have been that Bell was driving under the influence. However, the officers performed no sobriety tests and did not hold Bell to perform a DUI investigation. The men were simply being detained until the K-9 unit could arrive to search for drugs. The court reasoned that nervousness and dry mouth alone cannot constitute reasonable suspicion necessary to detain a suspect for the suspicion of drug possession. Thus, the search of the vehicle was performed after Bell was illegally detained, and as a result, the trial court should have suppressed the contraband found during that search.

In most drug cases, the traffic stop is a critical issue in a successful defense of the case. If the defense lawyer is able to show that the stop was not proper, the evidence will be suppressed and the case usually dropped. Our criminal defense lawyers have won many motions to suppress in drug cases like this, and have insured that the constitutional rights of our clients are protected.