Legal News

In court a while back, while interviewing a police officer, I wanted to know how he knew my client happened to be on Interstate xx when the officer knew to pull my client over in an allegedly stolen car from another state. There were otherwise no driving infractions or other reason to to pick him out from the sea of cars whizzing by at 65 plus in the middle of the day. I asked if the officer’s car was equipped with mobile, automatic tag readers on the trunk. He said, no, not exactly. So I asked was it a stationary reader. By his vague response I could see that that may in fact be the case. I asked another officer, unrelated to the case, whether stationary police tag readers exist and are they in this county. He responded, “Of course.”

So I did my own research and discovered that stationary tag readers are everywhere. The camera reporting system is known as “Flock.” These can be attached to traffic and sign poles. The Windows program accessible by officers in police cars can alert officers of potential infractions from no insurance to stolen car, or person wanted for murder. As this example shows, they can be a great crime fighting tool. However, like other modern technologies, such as DNA analysis, geofencing, Facebook, etc, stationary tag readers can be a real threat to privacy. Multiple cameras, in sequence and shared across police departments, can track a car’s travels and determine driving habits over time. The Electronic Frontier Foundation points out that the government’s ability to automatically track where you drive to can chill protected First Amendment activity of people who visit sensitive areas such as clinics, gun stores, political protests, or immigrant and religious meetings.

I was recently benignly tracked and tagged by a stationary tag reading system. In this case it worked great for me. I drove through Maryland and Delaware. To avoid I -95 traffic through Baltimore, Waze had me drive a long detour north through Annapolis to Wilmington. The sign said Delaware Highway 301 is an an EZPass toll road. I didn’t have EZ Pass. So I was prepared to stop and pay tolls. But, strangely, there weren’t any for whole 40 or so miles. A couple of weeks later I received a letter from the Delaware Toll Authority. I figured it must be a fine and wondered if I blew past a toll booth and didn’t realize it. But how can that be? I learned that that toll system is completely automated. I did nothing wrong. Delaware sent me a photo of my car and tag, thanked me for my business, and said that the toll is $3.50 for non EZPass holders. The toll is a little less if you have an EZPass.

Criminal defense lawyers need as much information as possible to best represent their clients. The police and prosecutors have great resources at their disposal when they try to convict our clients for supposed crimes. We need to at least match their resources and get favorable evidence into our hands quickly before that evidence disappears. One way we can do so is through the Open Records Act or Freedom of Information laws. Through the Open Records Act, lawyers can demand records and other materials that in the old days were impossible or nearly so to obtain. For instance, in DUI cases, after arrest, clients are booked into the local jail. Video of the jail book in process, fingerprinting, picture taking, etc., is recorded by multiple cameras at the jail and retained for a few days or weeks. After that, the video is erased. This video is something we can demand through the open records laws, well before the first court date. It is usually very helpful for our clients because it shows them appearing sober and acting normally, right after the arrest. This can counteract police claims that our clients appeared drunk or under the influence of drugs. The government’s routine destruction of such evidence during the regular course of business is one of the reasons that it is important to retain a criminal defense lawyer as soon as possible.

People who work in government who refuse to turn over records and other materials to defense lawyers can be punished for committing a crime. That recently happened in the City of Atlanta where an assistant to the mayor refused to turn over records to a TV news reporter. The employee was arrested, went to trial, lost, and is now facing punishment for refusing to turn over records. This is very unusual. The Georgia Attorney General prosecuted the case against the city hall employee. Violation of the Open Records Act is a misdemeanor and can be punished with up to a year in jail. This made national news.

Google is providing law enforcement with a controversial new tool to aid in criminal investigations. Google geofencing is a privacy intrusion on anyone who owns an Android cellphone. Android is now the most popular smartphone operating system. It is important to be aware how Google’s geofencing works because it is in effect everywhere now.

Even if GPS tracking is off on your Android phone, the installed apps, by default, are constantly reporting back your approximate location to Google. This assists in search advertising, restaurant review, shopping, weather, and many other apps that depend on knowing your location in order work. They do so via local cell tower connection data Bluetooth, and wifi access points. Even if you have wifi turned off, Google occasionally turns it on and off. Your location information is stored in a “Sensorvault” maintained by Google, creating a log of where you were and when. Over time the Sensorvault creates a database that tends to show your travel habits.

Police agencies are using geofence data provided by Google to gather information regarding who was present at the scene of a crime. Say there was a murder at a mall. Google would provide the data to the police, who then know what Android cell phones were present at that time. Police analyze that data along with other leads to help determine who may have committed the crime. In Georgia the police do not need a search warrant or court order to get basic geofence information. However, other states have required court orders. Police are not just using this technique to investigate murders. They have used Sensorvault in auto theft cases as well.

The United States Supreme Court observed that detailed travel data like this can provide “an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.” Carpenter v. United States No. 16-402, 585 U.S. ____ (2018)

The Carpenter case ruled that the police must first get a search warrant or court order to obtain a specific named individual’s cellphone location records. However Carpenter is different than the geofence cases because it applies only to police getting a specific suspect’s information. The police need to show probable cause to believe that that that suspect’s cell phone location records constitute evidence of criminal activity. Geofence records on the other hand can lead to personal information about everybody present at a particular place and time.

There is no doubt that the United States and individual state supreme courts will have to rule on at what point will a search warrant be required in order for the police identify everyone present at the scene of a crime.

Congress is investigating.

Here is more information about Google Geofence and Sensorvault.

A demonstration of excellent police work. This woman was stopped by police in traffic. In her car were illegal drugs. There were outstanding warrants for the woman’s arrest. The woman allegedly told police that she was her daughter. Police then got suspicious, further investigated and compared her with a picture of her daughter. They then claimed the lady was not her daughter and arrested her. People do give police false names and information all the time in order to avoid prosecution. That’s not at all unusual. But this case is. Woman tries to avoid arrest and prosecution by claiming to be her own daughter.

Two recent cases in the news point out how police have solicited or engaged in sexual activity with people they either encounter on the street or on the road in a traffic stop. This may be done in exchange for not arresting or ticketing them. A case I defended involved the police officer’s receipt of a sexual favor in exchange for the driver believing she would not get a citation for speeding. However, to the driver’s shock, the officer still wrote her a ticket. She complained to the police about this and the case went to trial for sexual battery against the officer. The woman testified that the officer “flipped the script” on her because the implicit plan, or script, was she would allow him special “access” in exchange for overlooking the speeding infraction. The jury found the officer not guilty because the driver at the time consented to the officer taking liberties with her. Lawyers keep up with news contained in stories such as this because it can immediately destroy all pending cases the officer made if it can be proven to have happened,or if the officer is fired. Monroe County Sheriff, Cobb County Police incident

Man attacked a 13 year old boy and cracked the child’s skull because the child did not remove his hat during the national anthem. The man’s criminal defense lawyer said the man’s defense is that the man thought that the president wanted him to do it. A witness said the man told him “[the boy] was disrespecting the national anthem, so he had every right to do that.” This appears to be a potential insanity defense because the defendant, who had suffered a service related brain injury, claims that he thought his commander in chief ordered him to do it. Even if insanity is not a workable defense, the man still has a mental health defense that can mitigate, or reduce, any possible punishment. Montana, like Georgia has a mental health court. The man’s lawyer will likely look into that option along with an insanity defense.

State v. Monquez Jackson is a horrible prosecutorial misconduct case (for the DA). I have to simplify the facts but it boils down to this: This elected Dougherty County, Georgia District Attorney (not an Assistant DA), knowing he had a weak case, forced a mistrial by making an improper and misleading closing argument to the jury in a murder case. When the DA tried to retry the defendant for the murder, the trial judge said no he can’t because he, the elected DA, intentionally ruined the first trial. The defendant is therefore acquitted and goes free. The Georgia Supreme Court affirmed the trial court’s order barring retrial on double jeopardy grounds. Albany GA news article here.

Marietta, Cobb County, Metro Atlanta, Georgia, Criminal, Juvenile, and DUI Defense Attorney Bert W. Cohen, 321 Lawrence Street, Marietta, GA 30060, Tel: 770-422-5101

If you are charged with Driving Under the Influence or accused of committing any crime in the Atlanta metropolitan area, you need to be thoroughly aware of your rights and defenses. You need a lawyer who knows how to best present your case to the court to your best advantage. Mr. Cohen is an aggressive and creative metro Atlanta criminal defense attorney, former prosecutor, and graduate of Emory Law School in Atlanta. He has over 30 years experience, as one of the top criminal defense lawyers in metro Atlanta, successfully defending adults and young people accused of committing crimes in adult and juvenile courts throughout the metro Atlanta area and the State of Georgia. Call criminal defense attorney Bert W. Cohen today to ensure that your rights are protected. Your state and US constitutional rights, including your rights against unreasonable searches and seizures, against compelled self incrimination (your right to keep your mouth shut!), and your right to confront and cross examine witnesses against you, constitute powerful defenses and tools that, if properly asserted, could make all the difference in the world in what you may mistakenly believe is an impossible case to win. If you  or your child were charged with illegal drug possession (VGCSA), Driving Under the Influence (DUI), domestic violence, shoplifting, assault, probation revocation, or have any other felony or misdemeanor charge in metro Atlanta adult or nearby counties, Mr. Cohen has the experience and ability to represent you or your loved one well. You will be represented by Mr. Cohen himself. Your case will not be sent to a “junior associate” whom you have never met. Mr. Cohen is always accessible on his cell phone. Initial consultation is always free and the retainer fee is reasonable. Your questions will be clearly answered. We will make sure you know your rights and you will always be informed about the status of your case. For a no obligation consultation, there are several ways to reach Mr. Cohen You can call (770)422-5101. Be absolutely assured that all calls are confidential and only Mr. Cohen will hear voice mail messages left at this number. (No texts to this number please.)  You can also consult with Mr. Cohen, by completing the short contact form.  If you don’t want to call or complete the form, please feel free to send us an e mail. Whichever way you chose to contact us, you will receive a personal response within a day. This Criminal and DUI Law Firm represents individuals throughout Georgia. Following is a representative sample of some of the jurisdictions covered by this firm: Atlanta, Smyrna, Acworth, Woodstock, Cartersville, Marietta, Kennesaw, Powder Springs, Roswell, Alpharetta, Dallas, Dalton, Macon, Monroe, Jeffersonville, Norcross, Doraville, Chamblee, Savannah, and Cobb, Fulton, Gwinnett, Dekalb, Bartow, Paulding, Cherokee, Forsyth, Douglas, Clayton, Walton, Whitfield, and Chatham Counties. There are 159 counties in Georgia, just too many to list here. Additionally, there are countless cities and towns in Georgia, each with their own court system. Therefore, if you have a pending matter in a jurisdiction not listed, please feel free to call our office. If we can not serve your needs in a particular jurisdiction, we will likely be able to refer you to a qualified attorney who can. Mr. Cohen is a member of the Georgia Association of Criminal Defense Lawyers, the Georgia Bar Assocation, the Cobb County Bar Association and the DUI Defense Lawyers Association. Additionally, he has been nationally recognized and peer review AV rated by Martindale Hubbell and has earned a 10-Superb rating on Avvo.com.