Georgia Criminal Defense Lawyer Blog

Our firm was hired last year to represent a Savannah man accused of being a co-conspirator in a major drug trafficking case. The alleged drug conspiracy involved 10 kilograms of cocaine that was being transported by van from Atlanta to Savannah.

After we successfully suppressed an illegal wiretap and our client's statements, prosecutors agreed to drop all charges against our client. The dismissal was filed in open court yesterday.

The case began a couple of years ago when the Chatham Counter Narcotics Team placed a wiretap on an individual accused of trafficking cocaine from Atlanta to Savannah. Based on the tap and other information, the Chatham County Sheriff’s Department pulled over a van being driven by a different individual in November 2008. Inside the van, police found 10 kilos of cocaine. Police then began arresting individuals they believed they heard on the wire tap.

Our client was one of those individuals. Police interrogated our client without ever reading him his Miranda warnings in the hopes of eliciting incriminating statements. He was then indicted for conspiracy to distribute a controlled substance and trafficking in cocaine. The trafficking in cocaine charge alone carries a mandatory minimum sentence of 25 years in prison.

We fought and won a motion to suppress the statements our client made to police during his interrogation. Under Georgia and federal law, only voluntary statements may be used against a defendant in a criminal trial. For a statement during a custodial interrogation to be voluntary, police must first give the defendant his Miranda warnings. In this case, such a warning was not given, and as a result, our client’s statements were suppressed.

Along with a Savannah criminal lawyer who represented a co-defendant, we were also able to suppress all phone conversations recorded on the wiretap.

With the wiretap and statements suppressed, the state had no evidence which linked our client to the 10 kilos of cocaine, other than the fact that our client may have known some of the alleged co-conspirators.

We were fortunate to have been successful in our pretrial motions. Drug conspiracy cases like this one can lead to very long prison sentences if the person is convicted at trial, regardless of the person's alleged role in the conspiracy.

The Court of Appeals ruled earlier this month that an officer lacked probable cause to make a search incident to arrest, since the arrest was supported entirely by a third party’s statement that the suspect placed something in his pocket. The Court reasoned that there must generally be some evidence directly linking the suspect to the suspected criminal activity to support probable cause.

In Lawrence v. State, the defendant, Jack Lawrence was convicted of cocaine possession after a traffic stop. On the night of his arrest, an officer saw a vehicle swerving before it came to a stop in the middle of a road outside of a club known for drug activity. A man then walked from the club to the vehicle and got inside. The car then swerved off the road. The officer conducted a traffic stop and recognized the driver as Lawrence’s wife due to Lawrence’s history of drug offenses. The wife denied picking anyone up from the club but then admitted that she had. The officer then asked if there were any drugs in the vehicle and she replied that she didn’t think so. The officer stated that if he found any drugs in the vehicle the wife and Lawrence would probably go to jail. The wife responded “[W]ell, Jack put something in his pocket.” Not knowing the contents of Lawrence’s pocket, the officer instructed Lawrence to exit the vehicle and empty his pockets. Lawrence then pulled out a bag of cocaine which resulted in his arrest and eventual conviction.

Upon Lawrence’s appeal, the state argued that the search of the pocket was incident to Lawrence’s arrest and therefore valid. However, for such a search to be valid, the arrest must be supported by probable cause. Under the law, probable cause is described as being less than a certainty but more than a mere suspicion. It is a relatively low threshold to meet and may even exist given the totality of the circumstances. That is to say a combination of suspicious circumstances may give rise to probable cause. However, for the totality of the circumstances to give rise to probable cause, there generally needs to be some evidence which directly links the suspect to the suspected criminal activity. For instance, the smell of contraband, extreme nervousness, furtive movements or a reliable tip from an informant may be some circumstances that, when combined with others, can give rise to probable cause.

The court reasoned that the circumstances in this case do not show probable cause, since the officer’s suspicions arose entirely from an ambiguous comment made by his wife. As such, the court reversed Lawrence’s conviction finding that the contraband should have been suppressed by the trial court.

Our criminal defense lawyers have also won many drug cases due to officers performing searches after a suspect was illegally arrested. In our experience, there is almost always an issue of whether a search was properly conducted any time drugs are discovered in a vehicle or on a person. To show that there was no probable cause, and thus no grounds to arrest and/or search, a criminal defense attorney will conduct an independent investigation including obtaining police video and recordings, reviewing witness and police statements, and assessing any technology that may have been used by law enforcement such as laser, radar, taps or dog sniffs.

Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon, Madison and Savannah. 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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

On Wednesday, several law enforcement agencies raided at least two homes in Gwinnett County. The raids targeted a Mexican-based organization that police say traffics in drugs.

The Atlanta Journal Constitution has the story.

The DEA spearheaded the raids which resulted in dozens of arrests and an undisclosed sum of drugs and money. The organization which agents targeted, La Familia Michoacana, has been described by police as being an extremely violent drug trafficking organization. In addition to the DEA, agents from the GBI, Atlanta High Intensity Drug Trafficking Area Task Force and the Gwinnett County District Attorney’s Office also took an active role.

Our criminal defense attorneys have successfully defended many clients charged with drug offenses after police discovered drugs in a home. In our experience, there is almost always a question of whether a search was lawfully conducted any time drugs are found by law enforcement. To challenge the search and seizure of contraband in a private home, a criminal defense attorney must generally be able to argue that the warrant which authorized the search (if there was one) was not supported by probable cause, that police exceeded the scope of the warrant or that the warrant was somehow defective on its face. A good criminal defense attorney will do this by reviewing every aspect of the police investigation including police interviews, witness and informant statements and any electronic monitoring such as video surveillance or wire taps.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Eleventh Circuit recently vacated the sentence of a defendant after determining that the district court improperly found that he was a leader in a drug conspiracy for purposes of the Sentencing Guidelines. That erroneous finding had increased his sentence by four levels.

In US v. Martinez, the defendant, Martinez, pled guilty to conspiring to distribute and to possess with the intent to distribute 100 kilograms or more of marijuana. Specifically, he made weekly shipments of pounds of marijuana from Texas to Florida, used fictitious return addresses and used wire transfers to receive drug proceeds. When sentencing Martinez, the district court found that he took a leadership role in shipping the marijuana. This led to an increase in his sentence by four levels under the United States Federal Sentencing Guidelines and resulted in a 78 month sentence. To have this four level increase, a court has to find that the defendant was either an organizer or a leader, and that the criminal activity involved either five or more participants or was otherwise extensive. The Sentencing Guidelines put forth seven factors which a court considers when determining if a defendant is a “leader” or an “organizer”: decision making authority, nature of participation, recruitment, right to a larger share of the proceeds, degree of participation in planning, scope of illegal activity and degree of control over others.

The increased sentence was largely due to the judge’s reliance on Martinez’s Presentence Investigation Report (PSI) which had been prepared by a probation officer. The PSI stated that he “orchestrated” weekly shipments of marijuana and recruited others. Martinez strenuously objected to the idea that he orchestrated shipments, recruited others or was a leader in any way. If a defendant objects to a fact contained in a PSI, the government bears the burden of proving the fact in dispute by a preponderance of the evidence. However, during the guilty plea, Martinez admitted to orchestrating drug shipments and that he used others in the scheme. When a defendant admits a fact during a guilty plea, the government does not have to provide evidence of those facts.

However, even with Martinez’s admissions, the appellate court found that his actions did not fit within the seven elements which would make him a “leader.” First, the term “orchestrate” is not synonymous with control. Moreover, there was no evidence that he recruited any of his co-conspirators, or that they were his subordinates. He also did not claim a larger share of the proceeds and was in fact destitute. In addition, it was unclear where he was in the chain of command. And finally, the fact that he “utilized” others did not show control over others. Instead, Martinez had always maintained that he was equally involved with his co-conspirators. Since the government failed to provide evidence of a leadership role, the 11th Circuit vacated the sentence and instructed the district court judge to resentence Martinez.

Obviously, it is important for people convicted in federal court to understand that they generally have the right to appeal their sentence if they were convicted at trial. In most cases, the United States Federal Sentencing Guidelines will determine how a convicted person is sentenced, but district court judges can and do make mistakes when employing the Guidelines.

An experienced criminal appeals attorney will analyze a sentence for any inconsistencies with the Guidelines and relevant statutes (usually, 18 U.S.C. Section 3553) and can raise any sentencing issues on appeal. In fact, our lawyers have won several recent federal appeals and have reduced our clients' sentences by a few months to many years.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Court of Appeals of Georgia recently had to determine if a suspect could be briefly detained where the facts showed that he was driving slowly and looking into the woods of an area where an alleged car thief was hiding. The court held that on these facts alone a person could not be detained.

In Thomas v. State, the defendant, Thomas, was convicted of possession of methamphetamine, possession of a firearm during a crime, and obstructing a police officer. The facts showed that a man by the name of Morris stole a car and abandoned it at a house on Penland Road in Walton County. Police believed that Morris then went to hide in the nearby woods.

An officer saw Thomas in his truck driving very slowly along the same road while looking into the woods as if trying to find someone. Thomas apparently stopped and continued driving very slowly several times. The officer ran Thomas’ tags and discovered that Thomas lived near Morris. This led to the officer stopping Thomas’ truck. While approaching Thomas, the officer saw a cell phone in Thomas’ hands and took the phone after Thomas refused to hand it over. The officer searched the call history and saw Morris’ number. Thomas explained that he was looking for pulp wooders. The officer then asked Thomas to get out of the truck so that the officer could take a picture of Thomas, but Thomas refused. As a result, the officer arrested Thomas for obstruction. A gun was found in the truck, and meth was later found on Thomas at the jail.

The encounter between Thomas and the officer was a second tier encounter. This is where an officer may briefly detain a suspect if the officer has a particularized and objective basis for suspecting that a person is involved in criminal activity. Here, the court reasoned that Thomas had not broken any traffic laws, presented a valid license, and explained that he was looking for pulp wooders. Thus, the court held that his arrest for refusing to get out of the truck to be photographed was illegal. Moreover, the evidence found after the arrest should have been suppressed.

Our criminal defense lawyers have also won many drug and weapons cases due to police officers executing illegal stops of persons and vehicles. In our experience, there is almost always a question of whether a stop was lawfully conducted any time drugs or weapons are found on a person or in a vehicle. To challenge a stop that reveals contraband, a criminal defense attorney must be able to argue that the officer had no legal reason to detain or arrest the person and that consent was not given. An experienced criminal attorney will do this by conducting a battery of assessments which may include reviewing police and witness statements, obtaining police video recordings, and analyzing any form of technology which led to the stop such as radar, laser, sensors, taps or dog sniffs.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Court of Appeals of Georgia recently held that a traffic stop is improper where the suspect simply parks in front of a residence where criminal activity has taken place.

In Pritchard v. State, the defendant, Pritchard, was convicted of a single count of possession of methamphetamine. On the day of Pritchard’s arrest, an unidentified person called the Newton County Sheriff’s Department to report suspicious vehicles around a residence that the police had previously identified as a “drug house.” Upon arriving, the deputy was flagged down by the caller who stated that a truck and a Camry had just pulled out of the residence. As the deputy approached the Camry, Pritchard, the driver, pulled into another driveway. A different deputy then went to converse with Pritchard and discovered that she did not live there. The deputy then instructed Pritchard to pull out of the driveway. The deputy later testified that the driver was “stopped” and not free to leave at this point. As the deputy was speaking to Pritchard, he saw a clear plastic baggie in the middle console which later tested positive for methamphetamine and subsequently led to her conviction.

The Court of Appeals noted that a police officer must have a particularized and objective basis for suspecting a person of criminal activity in order to make an investigatory stop. Furthermore, the Supreme Court of Georgia has held that an officer lacks a reasonable and articulable suspicion necessary to stop a person who is driving near or parking near a location where crimes have been committed. Here, the only evidence to justify a traffic stop was that Pritchard’s vehicle was in front of a “drug house.” Thus, the traffic stop which led to the methamphetamine was a violation of Pritchard’s Fourth Amendment rights which required her conviction to be reversed.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Court of Appeals of Georgia recently ruled that a suspect who walks away from police in a known drug area and appears nervous does not form enough of a particularized suspicion necessary to detain or seize the suspect.

In Walker v. State, the defendant, Walker, was convicted by a jury of possession of cocaine and two counts of misdemeanor obstruction of an officer. During the daylight hours of March 27, 2007, four Covington police officers were driving through a high-drug area in an unmarked car. The area received ongoing complaints about drug activity, but the police had not received any complaints on this particular day. They came upon four men, including Walker, standing in the street, and as the car came to a stop, the four men began walking out of the street and into a yard. An officer got out of the vehicle and told the men: “hey, hold on guys, come here, come here.” Walker complied. The officer noted that Walker was very nervous and patted Walker down for weapons but found none. The officer then asked if he could search Walker. Walker responded that the officer had already searched him. The officer explained that, “a search is where I go inside pockets. . . do you have a problem with me doing that.” Walker consented. In addition to checking every pocket, the officer pulled Walker’s pants out from his stomach and found a small bag in the crotch area. Walker attempted to pull away but was tackled and police ultimately used a taser gun on him. Cocaine was found in the small bag.

The appellate court determined that the stop made by the officers was a Terry stop. During a Terry stop, an officer may only detain a person briefly if he has a particularized and objective basis for suspecting that the suspect is involved in criminal activity. Yet, the officer here could not articulate a particularized basis for suspecting Walker of criminal activity, since nervousness and walking away are not enough to detain a suspect for purposes of a Terry stop. Thus, the detention was illegal. Furthermore, the search would have been invalid even if Walker had not been illegally detained, because a search in this case would only be legal if Walker had consented to it. However, he only consented to his pockets being searched and not his crotch area. Consequently, the search was illegal and the cocaine should have been suppressed. The court reversed Walker’s conviction as a result.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The House Judiciary Committee passed the Fairness in Cocaine Sentencing Act of 2009 last week which would remove the words “cocaine base” in federal drug statutes. If the bill becomes law, it would effectively close the wide gap between sentences for crack and powder cocaine.

The Minneapolis Star Tribune has the story.

In 1986, Congress passed the Anti-Drug Abuse Act which created the vast disparity. Many of the original supporters and drafters of the 1986 law have since come out to oppose it. The law essentially created a 100-to-1 sentencing disparity between crack and powder cocaine. For instance, a person convicted of possessing five grams of crack cocaine will receive a minimum sentence of five years. However, it would take 500 grams of powder cocaine for a person to receive the same sentence.

This disparity has fallen hardest upon African Americans. It is estimated that around 80% of those convicted of crack offenses are black even though the majority of crack users are white or Hispanic.

President Obama’s Administration seems to be onboard with the proposed change in the law. Last month Attorney General Eric Holder was quoted as saying that the difference in punishment is “simply wrong.” The President will have the opportunity to sign the bill into law assuming both the House and the Senate vote in favor.

And not a moment too soon, although it is uncertain whether this proposed law will be retroactive. It's too early to tell if this legislation will help those people who have already been convicted under the existing version of this law.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

On Thursday, the Supreme Court of the United States ruled that a state’s laboratory analyst must testify in person at a criminal defendant’s trial if the state wishes to introduce forensic reports showing a substance to be drugs.

In Melendez-Diaz v. Massachusetts, the defendant, Melendez-Diaz, was arrested for distributing and trafficking in cocaine. Police were notified that he was acting in a suspicious manner while working at a Kmart and witnessed him make an apparent drug sale outside the store. An officer then detained and searched Melendez-Diaz and found white plastic bags containing a substance resembling cocaine. More bags were found in the police car after he had been transported to jail. The police submitted the substance to a state laboratory for a chemical analysis.

At trial, the prosecution entered into evidence the bags holding the substance and three “certificates of analysis” which were sworn to by a notary public as required by state law. The certificates stated that the substance was in fact cocaine and gave the weight as well. The defense objected to the evidence, since under the former Supreme Court case of Crawford v. Washington, a defendant’s accuser must testify in court unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Specifically, Crawford requires a witness to testify at trial when giving “testimonial” statements. Crawford was based on every citizen’s right to confront his accusers under the Sixth Amendment of the Constitution. The trial court disagreed with the defense and allowed the certificates to be introduced into evidence without compelling the analyst who made the reports to testify. Melendez-Diaz was then convicted. He lost on appeal until his case reached the Supreme Court of the United States.

The state argued that analysts do not have to testify in court since they are not accusatory witnesses. The Court disagreed with the state and determined that a witness is not excused from testifying at trial simply because he did not interrogate the witness. A witness is also not excused simply because his statements come from neutral and scientific testing. The Court found that the statements on the certificates were the type of statements Crawford intended to cover, since an objective witness would have reasonably believed that the statements made on the certificates would be available for use at trial. Furthermore, the purpose of the evidence was to show the substance’s composition and weight for which he was on trial for. Thus, information stating that a substance is a drug is in fact testimonial in nature which requires a witness to testify at trial.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

The Supreme Court of the United States recently ruled that a person who calls a drug dealer in order to make a misdemeanor drug purchase cannot be said to have facilitated the felony of drug distribution. In holding so, such a person cannot be convicted of the felony of using communications to facilitate drug distribution.

In Abuelhawa v. United States, the defendant, Abuelhawa, arranged to buy cocaine over the phone from a man named Mohammed Said. Prior to the arrangement, the FBI acquired a warrant to tap Said’s cell phone to listen for drug deals. The FBI monitored six calls that were placed between Abuelhawa and Said during which Abuelhawa arranged for two separate transactions for one gram of cocaine each time.

Under federal law, the two purchases by Abuelhawa were misdemeanors and the two sales by Said were felonies. However, federal law also provides that it is a felony “to use any communication facility in committing or in causing or facilitating” certain felonies including the felonies committed by Said. As a result, the government charged Abuelhawa with six felonies under this law for the six calls placed between Abuelhawa and Said. Abuelhawa moved for acquittal arguing that his calls to Said did not facilitate Said’s felonies. The District Court denied his motion, and Abuelhawa was convicted by a jury on all six felony counts.

On appeal, the Court of Appeals for the Fourth Circuit agreed with the District Court and reasoned that ‘facilitate’ should be given its common meaning: “to make easier or less difficult, or to assist or aid.” The Fourth explained that the phone calls made the sale of cocaine easier and possible, and thus, Abuelhawa did facilitate the felony distribution of cocaine. The Supreme Court granted cert in order to resolve a split among the circuit courts.

The Court disagreed with the Fourth’s interpretation and reversed Abuelhawa’s felony convictions. The Court reasoned that Congress provided a more lenient punishment for the buyers of drugs than for the sellers under these circumstances. If the government were allowed to increase the penalty of the buyer for facilitating the action of the seller, the calibration of punishment established by Congress would be upended.

The Court also looked at the history of the law. It reasoned that simple possession of a controlled substance was once a felony; however, Congress downgraded the crime to a misdemeanor in 1970. At the same time, Congress also limited the communications provision to prohibiting only the facilitation of a drug felony. Thus, Congress reduced the culpability for possession, and imposing a felony in such a case would be inconsistent.

The government further contended that Congress often adds aggravating factors to laws, and that the phone is simply an aggravating factor. However, the Court noted that there is no language stating that Congress wanted a first-time buyer’s six phone calls to attain a small amount of drugs for personal use to subject him to 24 years in prison when misdemeanor possession would only carry one year for each buy. Thus, the felony of facilitating a drug distribution should apply to those using phones to coordinate illegal drug operations and not to a first time buyer seeking a small amount for personal use such as Abuelhawa.

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. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.

In a landmark 5-4 decision, the Supreme Court of the United States determined that police may not conduct a warrantless search of a car after its occupant has been arrested unless he poses a threat to officer safety, or there is a need to seize evidence of the crime for which the arrest was made. The decision is a radical departure from the longstanding rule that police may search a vehicle after arresting its occupant.

In Arizona v. Gant, the defendant, Gant, was arrested for driving with a suspended license and having a warrant for failing to appear in court on a prior charge of driving without a license. The arrest stemmed from an anonymous tip that an address Gant was staying at was being used to sell drugs. When police knocked on the front door, Gant answered and told the police that the owner was out. Police later discovered Gant had a warrant out for his arrest and returned to the scene. When police returned, they arrested two other people who were placed in the back of police cars. They then saw Gant drive into the parking lot. Gant parked his car about 30 feet away from the officers. He then got out of the car and began walking towards the officers. Gant and the officers met about 10-12 feet from the vehicle. Gant was immediately arrested and placed in the backseat of a patrol car. In total, there were five officers and three arrested individuals. The officers then conducted a search incident to the arrest and discovered cocaine in the pocket of a jacket on the backseat of Gant’s car. As a result, Gant was also charged with possession of a narcotic drug for sale and possession of drug paraphernalia.

Grant moved to suppress the evidence found in the jacket on the grounds that the search violated his Fourth Amendment rights. The trial court upheld the search, since the Supreme Court decided in New York v. Belton that officers may search the compartments in a vehicle after the occupant’s arrest. Gant was convicted and sentenced to three years in prison. The decision was then appealed.

The Arizona Supreme Court found the search unreasonable despite Belton. That Court relied on the logic of an earlier Supreme Court case, Chimel v. California, which suggested that a search incident to an arrest is unreasonable when officer safety and preservation of evidence is no longer an issue. The court reasoned that since Gant was in the back of a police car he posed no threat to safety or evidence. The case was then appealed to the Supreme Court of the United States.

The Court rejected the idea that an officer may search a vehicle under any circumstances so long as the occupant has been arrested. Instead, the Court agreed with the Arizona Supreme Court and adopted the Chimel rationale which authorizes police to search a vehicle incident to arrest only when the arrested individual is unsecured and within reaching distance of the vehicle’s passenger compartments at the time of the search. However, the Court went further to say that a search incident to arrest is also valid when it is reasonable to believe that evidence relevant to the crime for which the arrest was made may be in the vehicle. Since Gant and the other arrested individuals were of no threat to officer safety or the preservation of evidence and police could not expect to find evidence of driving with a suspended license in Gant’s vehicle, the search was held to be unreasonable.

The decision fractured the Court in a way which defied ideology. The majority opinion was written by Stevens and joined by Thomas, Ginsburg, Souter, and Scalia (who also wrote a concurring opinion). Alito, Breyer, Roberts, and Kennedy dissented.

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.

The Georgia Court of Appeals recently held that marijuana found in a vehicle after a citation was issued should be suppressed as the result of an illegal search. The court based this ruling on the conclusion that the encounter was not consensual, and there was no reasonable suspicion of criminal activity.

In State v. Felton, the defendant, Felton, was in the passenger seat of a vehicle which was pulled over because the driver was not wearing a seatbelt. The officer noticed that the driver’s hands were shaky and that he had eye tremors. The officer took the driver’s license and returned to his police cruiser where he filled out a citation. The officer noticed that the driver and Felton were turning around to look at the officer while he was issuing the citation. When the officer returned, he asked the driver to step out of the car. The officer handed the driver the citation, and then asked for consent to search the driver’s car. The driver agreed and the officer told Felton to exit the car. During the search of the vehicle, the officer found a potato chip bag which contained marijuana. Felton admitted that it was his and was then arrested for possession.

Felton argued that the marijuana should be suppressed, since the initial stop was unjustified and the officer exceeded the scope of the initial stop. The trial judge found that the stop had ended when the license and citation were given to the driver. The judge also found that there was not sufficient evidence to expand the stop at that time to request a search. The state appealed.

The Georgia Court of Appeals noted the general rule that an officer exceeds the scope of a traffic stop when he continues to detain the person after the conclusion of the stop and then interrogates or seeks to search without reasonable suspicion of criminal activity. The evidence showed no reasonable suspicion to search. It is also illegal to search at the end of a traffic stop when an encounter with a police officer is not consensual in the absence of reasonable suspicion. The court found that at no time did the encounter between the officer and the men become consensual, since it was not apparent that the men were free to leave. This is partially because the officer made the driver exit the vehicle before giving the citation and then the officer asked to search. Thus, the search was illegal, since it was not a consensual encounter nor did the officer have any reasonable suspicion to believe that criminal activity was afoot. As a result, evidence of the marijuana was suppressed.

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.

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.

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.

The Georgia Court of Appeals recently upheld a trial court's decision to suppress cocaine found in a vehicle for the lack of a proper consent to search when the arresting officer could only say that driver “pretty much” gave consent.

In State v. Holloway, two officers were dispatched to a Dekalb County residence with the suspicion that the occupants were selling drugs. When the officers arrived, they saw a man, woman, and their children on the front porch. The officers explained why they were there, and the woman freely gave consent for the officers to search her home.

Upon finding no evidence, the officers noticed a vehicle in the driveway. The officers then asked the man and woman for consent to search the vehicle. The man stated that the woman was the primary driver, but that the vehicle was registered in his name. The officer who conducted the search testified that the woman “pretty much” consented to the search. In addition, the officer stated that she “pretty much advised that she did see a bag containing a white substance in the vehicle.” The man never gave consent for a search. The officer then used a K-9 dog from his patrol car to conduct a free air search. This search resulted in the officers finding a bag of suspected cocaine in the glove compartment. Ultimately, the man was arrested for trafficking cocaine and possession with intent to distribute.

The man challenged the legality of the search by arguing that the consent given by the woman was involuntary. The trial court found that the officer’s testimony was vague and disingenuous when he used the words “pretty much” during several parts of his testimony. After hearing the officer and observing his demeanor, the trial court suppressed the cocaine. The state argued that the officer’s language was simply a “verbal tic.” The Court of Appeals ruled that the trial court was the trier of fact which determines the credibility of a witness, and it is free to reject the testimony of a witness. Furthermore, the Court of Appeals wrote that it will not disturb the trial court’s ruling on the credibility of a witness unless there is evidence demanding a different finding. Since there was no evidence that suggested a different result, the trial court’s ruling was affirmed and the cocaine was suppressed.

This decision may help to prevent police officers from searching vehicles unless owners give clear and unambiguous consent to search. Our criminal defense lawyers represent people charged in situations where the legality of a search conducted by police officers is disputed. This case will help us defend people whose constitutional rights have been violated by searches without warrants, probable cause or proper consent.

The Georgia Supreme Court heard arguments yesterday from a Gwinnett County lawyer challenging the constitutionality of the law that prohibits the possession of less than one ounce of marijuana, a misdemeanor offense.

The Atlanta Journal Constitution has the story.

The constitutional challenge is based on the language of the statute which seems to make someone automatically guilty simply because they are charged with the crime - “Notwithstanding any law to the contrary, any person who is charged with possession of marijuana, which possession is of one ounce or less, shall be guilty of a misdemeanor.” The obvious problem with that language is that it creates a presumption of guilt.

But the Georgia Supreme Court may not be persuaded to strike the law done just because it was poorly drafted. Such a decision could result in many other cases being reversed on appeal.

Our firm has represented many people charged with marijuana and other drug crimes in Georgia. We will closely watch this case. If the law is struck down, we may be able to people who were convicted or pleaded guilty to a violation of this statute.

Is it possible for a police officer to smell raw marijuana when it's wrapped up and locked in a car trunk?

That was the question asked by David West, a Georgia criminal defense lawyer, in a drug case currently pending in Gordon County.

Mr. West's client was arrested and charged with drug crimes after law enforcement officers found 10 pounds of marijuana in the trunk of the car he was driving. The police believed they had probable cause to search the car after catching a "whiff" of raw marijuana coming from the car.

The lawyer filed a motion to suppress the marijuana. Among other things, the lawyer argued that the police officers could not have possibly smelled the marijuana that was wrapped up and stored in the trunk. It's a standard motion in this type of case, and defense lawyers file them all the time.

What's unusual about this case is that the defense lawyer asked the judge to require the officers to do a smell test. The lawyer suggested that the evidence be put into the trunk of a random car in the parking lot. The officers would then be required to determine which car it was in.

Bill Rankin of the Atlanta Journal Constitution covered the story. In the first article reporting the filing of the motion, he quoted both the defense attorney and a medical expert from the University of Pennsylvania's "Smell and Taste Center" who agreed with the lawyer that a person could not smell marijuana when it is wrapped up and stored in a trunk.

Novel idea, but the judge would not go for it. The Atlanta Journal Constitution covered the judge's decision denying the smell test in a follow-up article.

I think most criminal defense lawyers would like to see if the officers could really smell what they say they smell in these traffic stop cases. If the science doesn't support them, the judge should really question whether there is sufficient probable cause to search a car just because an officer says he smelled something incriminating.

But no judge wants to be the first judge to require a police officer to walk around a parking lot sniffing car trunks. It may lead to a lot of dismissed drug cases.

We've seen this before.

A federal grand jury in Savannah recently indicted Christian and Jennifer Navoy, a couple from Roswell, Georgia, on illegal distribution of controlled substances through the internet.

The Atlanta Journal Constitution has the story.

We are currently representing a doctor who is being charged with a similar offense for his involvement in an internet medicine business operated out of Atlanta. I discussed the case in a previous post.

In the Atlanta case, our client reviewed medical information submitted by patients through an online questionnaire. It was the same information they would have had to provide if they made a personal visit to the doctor's office; it just saved them time and money to do it this way. The drugs involved in our case are non-narcotic drugs like Viagra and weight loss medication, some of the same drugs involved in the Savannah case.

One of the doctors in the Atlanta case has already gone to trial. The jury deadlocked and could not reach a decision. A retrial for this doctor, and any other defendant left in the case, is set for this Fall.

The government is not guaranteed a conviction in this type of case. We think juries will require more evidence than just the fact that someone used the internet to order drugs. Ultimately, the jury's verdict may depend on whether there was a doctor involved, and whether the doctor had sufficient information available to determine the person's need for the medication he ordered. Some jurors may find it difficult to convict a doctor for doing the same thing he would have done if the person had made an appointment to see him at the office.

"Metro Atlanta may get a little bloodier. Call it a sign of success."

So begins a recent article in the Atlanta Journal Constitution about "progress" in the so-called war on drugs.

Federal drug agents are claiming that they have "decreased the quality and raised the price of drugs on the street." As a result, they are expecting more violence between drug dealers, and more crimes committed against average citizens because the drug users need to steal more money to buy drugs at the inflated price.

The author of the article, Steve Visser, has a good understanding of how drugs get to Atlanta, and why the traffic has increased so dramatically over the past few years.

Metro Atlanta became an outpost of organized crime for reasons of geography, logistics and immigration. It also has a strong and diverse market for drugs — powder cocaine for the suburbs, crack cocaine for the city, crystal meth for the exurbs and ecstasy for Midtown raves — for the cartels to fill, Killorin said.

Moreover, the region is a transportation hub — by rail, air and interstate highways and even by sea, by way of Savannah — to make it a natural distribution point, whether to New Jersey or Chicago.

"We've got the busiest airport. We've got three major interstates passing through. We're just accessible," said Atlanta Police Lt. Robert Browning, deputy director of HIDTA. "It is not that the drugs are coming to Atlanta and stopping. This is the transportation route for the whole East Coast."

The reason is simple logistics.

Cocaine is still manufactured in South America, but instead of being shipped directly to the U.S. by plane or ship — as was the case in the Miami Vice heyday — the Colombia cartels are now selling it to Mexican cartels.

Those organizations then ship it, along with marijuana, methamphetamine and heroin, to Atlanta, a major metro area with a large Hispanic population in which the traffickers can hide.

They often hide shipments in cargoes of legitimate goods that thousands of trucks ferry across the border each day. Drug shipments even have been hidden with truckloads of produce bound for the state Farmer's Market in Forest Park, according to the 2007 HIDTA annual report.

The cartels' operatives in metro Atlanta repackage the drugs for distribution in the region or shipment elsewhere, Benson said. Then, millions in dollars are transported back to Atlanta, where the cash is packed and ship to Mexico.

The trafficking organizations rent houses in affluent neighborhoods in Cobb and Gwinnett counties that shield them from surveillance because they're on large, private lots, the HIDTA report noted.

Of course, an increase in drug traffic and drug arrests keeps criminal defense attorneys busy as well. Atlanta defense lawyers have seen a lot of federal drug cases in the past few years. In fact, our law firm has been involved in a few federal drug trials where the quantity of drugs seized exceeded several hundred kilos. In a case I tried two years ago, federal drug agents had also seized 4 million dollars in cash as a result of a drug operation in Atlanta and Marietta, Georgia.

We have posted on several of these cases before - 88 people indicted for drug conspiracy in Atlanta; and my recent drug trafficking case in the Eleventh Circuit Court of Appeals.

I don't see how an increase in violence is a good thing, or a sign of the demise of drugs being imported into the U.S. I am sure the federal government could be a lot more effective if they spent just a fraction of that money on treatment and reducing the demand for drugs. But I don't expect that to happen anytime soon. There is just too much money and bureaucracy dedicated to this un-ending, and un-winnable, war on drugs.

In Atlanta, Georgia, two TSA security screeners and one Delta Airlines employee appeared in federal court yesterday after being indicted on drug charges. The charges are based on their alleged involvement in agreeing to help courier drugs on Delta flights from Atlanta to New York. The arrests, and the recent indictment, are the result of a undercover investigation by federal agents in Atlanta.

The Atlanta Journal Constitution has the story. So does the Atlanta Business Chronicle. The arraignment was also covered by the local Atlanta tv news media.

It appears the charges relate to an undercover operation by the DEA. A DEA agent convinced a TSA employee to help smuggle suitcases containing drugs through the security checkpoints and deliver them to a Delta employee. The Delta employee would then fly the suitcases to the undercover source in New York. The DEA apparently used fake drugs in the sting. According to the criminal complaint, the price for the delivery was $8,000 for two suitcases in the first deal. There were apparently two other transactions with the same DEA agent.

Apparently, this is not the first time Delta employees have been charged with smuggling drugs. Here is a story from the New York Times in 1997.

These are serious charges in federal court. Depending on the quantity of drugs involved, there may be mandatory minimum penalties of 10 years and up. Heavy fines are also a possibility. Losing their jobs is almost a certainty.

Defense lawyers for the defendants were able to secure bond for the three, and they are likely out of jail now and awaiting another court date. In federal court, at least in Atlanta, there is usually a pretrial conference shortly after the arraignment to determine if there are any substantive motions that need to be heard prior to trial. It is also a good opportunity for the defense attorneys to make sure they have all the evidence and other discovery materials that the government must provide pursuant to the federal criminal rules.

The fact that the government did not ask for detention for these defendants suggests that case may be resolved for something less than the mandatory minimum sentences. That usually happens only when the defendants cooperate with the government, or when they have no prior convictions and qualify for "safety valve" treatment under the federal sentencing guidelines.

Of course, that all assumes that the government can prove its case. As we have learned in several other federal cases, the facts are not always as they appear from reading a criminal complaint. But those facts do make interesting headlines. And blog topics.

Not that this is surprising news, but a "reliable" confidential drug informant pleaded guilty today in federal court in Atlanta, Georgia to lying to federal drug agents about drug deals. The Atlanta Journal Constitution has the story.

Any defense lawyer who has tried a drug case in federal court can tell you about snitches. In virtually every federal drug case (especially those involving drug conspiracy charges), the government will call informants to testify. Sometimes the informants are paid by the government, sometimes they are trying to avoid being charged by cooperating. The most common type of informant, however, is the co-defendant who has already pleaded guilty and is hoping for a reduction in his sentence pursuant to Section 5K1.1 of the federal sentencing guidelines.

Defendants who are facing time for federal drug charges have a strong motivation to do whatever the government asks them to do. It is one of only two ways to avoid a draconian mandatory minimum sentence; and it is the only way to avoid a mandatory minimum if the person already has a record.

The problem is that informants in drug cases are generally not the most credible people to begin with (most have long criminal records). When these informants are offered the chance to cut their sentence by several years for "cooperating," you often end up with some highly dubious testimony, and more often than not, some questionable convictions.

There is no way to tell how many people have been convicted based on informants who have lied. Our firm is often asked to handle federal criminal appeals where the person was convicted of federal drug charges based solely on informant and co-defendant testimony. Unfortunately, the defense lawyer who tried the case could only try to impeach the informant with his criminal record and his plea deal with the government. It is very difficult to prove that an informant is actually lying unless the defense lawyer has access to the same information the government has. But that doesn't happen in federal court.

There is some good news. I tried a federal drug case recently where the government's evidence against my client was based almost entirely on the testimony of five informants who were given deals to testify. Despite the testimony of these five witnesses, the jury did not convict my client. Several of the jurors told me afterwards that they did not believe the informants. They said they placed very little weight on their testimony because they thought the informants had a strong motivation to lie. I was pleased to hear that, and I've been told by other federal criminal lawyers that they have heard the same thing from their jurors.

But the best way to stop informants from lying is to stop rewarding them for it and start prosecuting them. Maybe the prosecution of this informant in Atlanta will be the first of many. I know there is no shortage of lying informants out there if the government wants to pursue them.

The U.S. Attorney's office in Atlanta indicted 88 individuals who are alleged to be connected to two major drug cartels in Mexico. According to the Atlanta Journal-Constitution, the federal government's investigation in this case, which involved law enforcement officers from 300 agencies, led to the seizure of $10 million in cash, 111 kilograms of cocaine, 17 pounds of crystal methamphetamine, and 32 weapons.

The Drug Enforcement Administration (DEA) alleges that the currency was headed back to Mexico and the packaging of the drugs revealed unique markings indicating that they originated with the Mexican drug cartels.

The DEA has spent much of its resources over the past several years targeting Mexican drug trafficking organizations and considers the recent indictments a major blow to their alleged movement of drugs through Atlanta. Atlanta has become a major hub for drug trafficking in recent years.

Our firm has handled several recent federal cases involving alleged Mexican drug trafficking organizations in Atlanta, several of those cases involved literally truckloads of drugs and millions of dollars in seized cash. In these cases, the government sought to tender their DEA agents as "experts" in the field of Mexican drug trafficking organizations. The agents would then testify that the seemingly innocent conduct that our clients had engaged in was consistent with what their investigations had revealed were the practices employed by Mexican drug trafficking organizations. We have vigorously fought for the exclusion of this sort of testimony on the grounds that the agents were not "experts" in this field and that they could never prove that they ever reliably determined just how Mexican drug trafficking organizations did, in fact, operate. Moreover, the government has never been able to prove that "Mexican" drug trafficking organizations actually behave any different than those of other nationalities.

Many Georgia criminal defense attorneys have been critical of this "expert testimony" believing that it is nothing more than a ploy to allow the agents to tell the jury "trust us, we know these guys are drug dealers." This type of testimony has been offered in several cases where there was no other evidence at trial that the defendants had possessed or distributed drugs.

With the wealth of information that these recent indictments should reveal about Mexican drug trafficking organizations, we'll see whether these agents really knew what they were talking about.

The U.S. Attorney's Office in Atlanta, Georgia confirmed today that Dr. Phil Astin will likely face additional criminal charges in federal court for over-prescribing testosterone to Chris Benoit, the pro wrestler who killed himself, his wife and young son earlier this year in Fayetteville, Georgia.

The Atlanta Journal Constitution has the details.

Dr. Astin was already under a federal indictment due to an alleged "excessive" number of prescriptions he wrote while practicing medicine in Carrollton, Georgia. The criminal case is currently pending in federal court. Dr. Astin's former defense lawyer had challenged the basis for the search warrant that led to the seizure of his file and patient records. No word on when the court will rule on that challenge. (Usually, it takes several months. First, the magistrate judge issues a "report and recommendation" that goes to the district judge. That judge then evaluates the report and makes the final decision.)

This is not the first time federal prosecutors in Atlanta have challenged a physician's decision about prescribing medications. I am currently representing a well-respected physician who is being charged with authorizing certain medications to be prescribed over the internet for patients with obesity problems or erectile dysfunction. That case is scheduled to go to trial in December. The government's theory is that the doctors (there are several being charged) should not have authorized medications to people based on medical histories and other information they provided over the internet. At the time, however, there were no federal laws preventing such prescriptions, and the American Medical Association had not yet developed a position on that practice. Our position is that a doctor should not be held criminally liable for what is basically a medical decision. We'll see what happens in December.

As for Dr. Astin, I am not representing him, so I do not know all the facts of his case. To me, it appears that the government is trying to do the same thing to him - turn some questionable medical decisions into federal crimes. Not sure how his case will turn out, but it may set a precedent for prosecuting doctors for being negligent in their practice. Being negligent used to mean a trip to the state medical board, now it may mean a trip to the pokey.

A federal criminal trial in Rome, Georgia continues today. It's an interesting case involving a local businessman (Mario Armas) who is accused of funding a multi-million dollar drug smuggling operation. He is charged with violating federal drug laws, and also of being involved in a Continuing Criminal Enterprise. He is looking at 20 years minimum if convicted. Read the indictment filed in the federal district court in Rome.

The trial is expected to last over a week. The government witnesses will include Armas' former business partner (an admitted drug smuggler) and two professional rodeo workers who allegedly transported truckloads of cash and drugs. According to the federal indictment, over 2,000 pounds of marijuana was distributed in Georgia through this conspiracy. And millions of dollars in cash changed hands, including over $1 million as ransom for a kidnapped associate.

The case is covered in the Macon, Georgia Telegraph, and in the Rome News-Tribune.

Although the facts of this case are somewhat unusual, there is nothing unusual about the U.S. Attorney's Office using drug dealers as snitches at trial. I have tried over a dozen federal drug trials in the last few years and have seen it happen many times. Sometimes it's successful, and sometimes not. It usually depends on how credible the snitch is, and how many snitches the government calls to testify.

Considering the severity of the federal statutes and sentencing guidelines, there is an incredibly strong motivation to become a government witness. The only way to avoid the mandatory minimum sentences in federal drug cases is to either cooperate and give the government "substantial assistance" in a criminal investigation, or qualify for "safety valve" treatment as a first-time drug offender. Even under the safety valve, a person only gets credit if they agree to tell the government everything about their offense, and that assumes the government believes their story.

So, the only real way to significantly reduce a federal drug sentence is to testify and get the coveted 5K2.1 motion. That allows the court to give a much lower sentence than either the sentencing guidelines or the statutes ordinarily require.

But there are no guarantees. Once you roll over, you're at the government's mercy. We'll see if these witnesses end up better off than Mr. Armas as a result of their guilty pleas.

I argued a federal criminal appeal in front of the Eleventh Circuit Court of Appeals yesterday in Atlanta, Georgia. It was my sixth trip for an oral argument before that court. The case involved a very large drug seizure in Cobb County, Georgia ($4 million in cash and 270 kilos of cocaine and methamphetamine).

We were arguing about the scope of a consent search given by our client, the owner of the auto repair shop where the trailer was found. Our client told agents they could search the shop, but specifically told them that he did not own the trailer. Our position was that our client's statement limited the scope of the search under the Fourth Amendment, so that the agents had no right to look in the back of the trailer where they found the cash.

Under United States Supreme Court authority, a person has the absolute right to limit the scope of a search they otherwise consent to. For example, a person could consent to a search of their car when stopped by a police officer, but tell him that he could not search the trunk. The cops could then only search the trunk if they had independent probable cause to do so. (Ironically, the person telling them not to search the trunk may have just given it to them!)

In our case, our client had no problem allowing the agents to search his shop, but felt he did not have the authority to let them search a trailer that did not belong to him. They searched it anyway and found all that cash.

The judges were very prepared (as they usually are in that court), and asked a lot of questions. I don't expect a decision for at least a few weeks, maybe months.

The outcome could be huge. If we win, our client gets a new trial in federal court here in Atlanta. And, more importantly, the government can't use the $4 million in cash against him. That won't guarantee a win, but it will certainly help.