October 2018

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What constitutes a ‘legal’ search by the police?

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Decatur Lawyer

The Fourth Amendment defends civilians against irrational search and seizures. So, it is vital to understand what a reasonable search and seizure is and when these actually begin when police are involved. While it is the police officer’s duty to search property or seize any possessions connected to a crime, there are also laws in places that protect the privacy of people against any illegal searches and seizures.

Expectation of privacy and reasonable expectation of such are the main focuses when regarding a legal search. If you or your property is searched by the police while you have a reasonable expectation of privacy, your Fourth Amendment rights have been violated. The police must show that a crime has likely happened in order to prove that a search was indeed reasonable and legal, and the search will likely lead to evidence or a crime of some sort.

There are conditions that grant law enforcement the capability to search and seize property:

  • Police often retain search warrants to gain the ability to search and seize property with or without the person’s consent. A search warrant is a court order issued by a judge and authorizes law enforcement to search and confiscate any evidence they discover with the consent of the occupant/owner of said property.
  • While you are not entirely obligated to grant their request, if you have given the police consent to search your property they are then allowed to do so. If they discover anything that may connect to a crime, they are then permitted to seize it and submit it into evidence, and it some cases it may lead to an arrest.
  • If the cops have reason to believe that their own safety, or the safety of others, is in jeopardy the premises will be searched.

Law enforcement has several legal alternatives and somehow still find ways to conduct a search and seize illegally. Due to the exclusionary rule, when a search and seizure happens unlawfully, any evidence that is found through this irrational or illegal search, may not be used against you should you appear in court. Neither can the police use the evidence found in an illegal search and seizure to discover any other evidence. If you or a loved one has been subjected to any illegal searches and seizures, please be sure to speak with a skilled Decatur lawyer at Andrew R. Lynch, P.C. that will be able to inform you of your rights and ensure justice is served in court.

What you need to know about manslaughter

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Decatur Attorneys       

Webster defines “Manslaughter” as the unlawful killing of a human being without express or implied malice premeditation—this would mean someone was killed with ill intent. In comparison to first or second-degree murder, manslaughter would involve far less moral blame. This indicates that the kill was likely an accident or not aforethought. Manslaughter typically does not get punishment as great as murder does, despite the seriousness of the crime. Experienced Decatur attorneys at Andrew R. Lynch, P.C. can explain all of this to you in detail.

There is voluntary manslaughter and involuntary manslaughter, which are the two main distinctions of manslaughter.

Voluntary manslaughter is also considered a killing in the “heat of passion”, which typically occurs when an unlikely person is provoked in some way to commit a murder. There is an irresistible impulse of emotion that is sparked in a normally rational person. Like a snap. It is difficult to call it intentional when the emotional context almost justifies the action.

To explain the basic concept of how voluntary manslaughter verdicts are determined, here is an example of a voluntary manslaughter scenario:

A husband or wife comes home in the middle of the day. Unbeknownst to them, their spouse is home. Upon more inspection, they find them in bed committing adultery. In the “heat of the moment”, emotions arise that were in no way premeditated, and things happen. Out of anger, hurt, or shame a life is taken. It is very likely that a judge and/or jury will find this to be a case of voluntary manslaughter based on the basic facts.

Involuntary Manslaughter refers to an unintentional homicide from the commission of a crime or negligence. With the defendant having a clear understanding of their disregard of human life it is reason to be charged with involuntary manslaughter.

To explain the basic concept of how involuntary manslaughter verdicts are determined, here is an example of a voluntary manslaughter scenario:

A couple of friends have a drink or two at a local bar and decide to drive home because it is not that far away. On the way home, the driver loses control of his car and strikes a light post. The passenger is then ejected from the vehicle and dies due to the injuries sustained. The driver’s blood alcohol concentration level was higher than the legal limit. Although he may not have intended to kill his friend, he will be charged for involuntary manslaughter due his negligence. He is well aware that is illegal to drink and drive, he made the decision to do so, and his passenger and friend died because of this negligence.

When concerning an accidental murder, there are two different charges that are on the table: second degree murder and involuntary manslaughter. Depending on the incident itself, there may be no charges allocated to a suspect. Which leaves a prosecutor to rely on the extent of the negligence that occurred. Accidental second-degree murder is also named as implied malice, abandoned and malignant heart murder, and depraved murder.

Self-Defense

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Decatur Criminal Law Lawyer

Causing another person physical harm by striking, shooting or otherwise injuring that person is considered a criminal act in most jurisdictions and the person who committed the violent act will probably face prosecution under criminal statues in the state in which they live.  However, some states have statues in place that allow for one person to injure or even kill another if they are acting in self-defense.

The first thing to keep in mind is that the defensive action had to be reasonable.  For example, if a small woman threatens to beat up a two-hundred-and fifty-pound muscular man and approaches him with her fists, it would not be reasonable for that man to take out a gun and shoot the woman in the head.  If the man tried to use self-defense to explain his actions, the court would not look favorably upon this and the man would probably lose his case. A Decatur criminal law lawyer will sometimes use the expression “you can’t bring a gun to a fist fight” to help clients understand this concept.  Another way to look at it is, while it may be reasonable to push or strike a person who is attacking you with their fists, it may not be reasonable to shoot that person dead.  However, if that same person has a gun and is shooting at you, you may be authorized by the law to shoot them in self-defense.

The ability to claim or demonstrate fear of imminent injury to one’s self or another is critical to a successful claim of self-defense It’s not just that the person claiming self-defense had a right to be really mad or felt really disrespected, they have to have been in fear of their life or afraid for the life of the person they were defending in order to have a valid claim of self-defense.  One exception to this general rule is people suffering from battered person syndrome who act in self-defense. It cases where a person has been abused over a long period of time, the court may be willing to take into consideration the mindset of a person having suffered years of abuse, even if they were not in danger of losing their life at the moment they lashed out.

It is more difficult to establish a defense of property defense, but some states do recognize that a homeowner has not duty to back down if someone is invading their home.  Again, the actions taken by the property owner must be reasonable. If someone is knocking on your door in broad daylight and you shoot them because you don’t want them on your property, this will generally not be considered legitimate defense of property.  However, if you are asleep in your bed at night and you hear a person breaking into your home, you may be justified in shooting that person.

One goal of claiming self-defense is to ensure that the accused person in not convicted of a crime.  However, some states take it one step further than that and offer immunity from even being prosecuted to people who can show they were acting in self-defense.  Speak to your lawyer at Andrew R. Lynch, P.C. about whether your jurisdiction offers the option to have an immunity motion prior to trial. In an immunity motion, the judge listens to evidence of what happened during the incident and makes a ruling of whether the accused person is immune from prosecution because they were acting in self-defense.  If the judge rules that the violent act was an act of self-defense then the prosecution will be barred from pursuing the charges any further.

Polygraph and Psychosexual Evaluation in a Child Molestation Case

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Atlanta Child Molestation Attorney

Being accused of child molestation can be a terrifying thing.  Often, there will be no physical evidence of the alleged events and the case boils down to a swearing contest or “he-said-she-said”.  Suspects or often left wondering, “what can I do to show I did not do this?”. IN cases like these, it is very important to, first, consult with an Atlanta child molestation attorney.  Discuss with your attorney the possibility of doing a polygraph test and a psychosexual evaluation.  

In cases like these it is not unheard of for the defendant to submit to a polygraph test which is also known as a lie detector test.  Here are a few things to keep in mind when it comes to a lie detector test. It is a very bad idea to even consider submitting to a lie detector test without the advice of their attorney.  Attorneys know that lie detector tests are rarely admissible in court unless they are bad for the defendant. For that reason, your attorney may want to arrange for a private lie detector test to be administered.  

If the results of that test would, in any way, negatively impact your defense, your attorney can choose not to ever mention the test again and there is no requirement to inform the prosecutor that the test was conducted.  Conversely, if you are able to obtain favorable results on a lie detector test, then your attorney can use the test as leverage during negotiations with the prosecutor and law enforcement. In essence, your attorney could approach law enforcement and say “look, he has already taken and passed a lie detector test and here it.”  

Your attorney can also make sure that you use a tester who is reputable, and not biased in favor of or beholden to law enforcement in any way.  You want a tester who feels absolutely no allegiance to the prosecution over a potential suspect because it may bias the way they administer or interpret the test.  Agreeing to a biased lie detector test with the knowledge of the prosecutor could lead to a false-positive on the polygraph test a have a huge negative impact on your defense.  

Another way to gain leverage in your case may be to consider undergoing s psychosexual evaluation.  A psychosexual evaluation often consists of a battery of personality tests and a one on one meeting with an evaluator to fill out questionnaires and determine if you present any risk factors indicating that you may be a sexual predator.  The goal of voluntarily undergoing a psychosexual evaluation is to achieve test results that show you are the very lowest possible risk to the community and do not show signs of being a sexual offender.

As stated above, an experienced attorney at Andrew R. Lynch, P.C. can use his or her connections in the legal community to arrange for you to be evaluated with a reputable provider.  You want to find someone who is fair and unbiased, but also well respected so that any favorable results will not be ignored by the prosecutor in your case. If the test does not go well and the evaluator is of the opinion that you are a threat to the community, discuss this with your lawyer.  It is likely that your lawyer will opt to not use the test and it will never be mentioned as a part of your defense.

Getting Removed from the Sex Offender Registry in Georgia

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Criminal Defense Attorney Atlanta, GA

Most states have some form of a sex offender registry.  The registry requires people who are convicted of a sex related crime to undergo monitoring as well as creating restrictions on where people can work and live.  The Georgia sex offender registry is particularly onerous. Although it is considered a lifelong registry there are ways, provided for under Georgia Law, to be removed from the registry.

There are several statutes that govern registry removal in Georgia.  OCGA 42-1-19 (a)(4), OCGA 17-10-6.2(c)(1)(A) thru (c)(1)(F) and OCGA 42-1-19(c)(2)(B) are widely considered the most relevant statutes that govern the court’s decision to remove a person from the registry.  

Answering the following questions, many of which flow directly from considerations deemed important in the Georgia statutes mentioned above, is a good first step in gathering the information you and your attorney will need to review to determine whether you are eligible to be removed from the sex offender registry.

  1. Have you completed all probation for the offense which required registration? Were there ever any allegations that you used a weapon during the offense that lead to registration?
  2. Were there ever any allegations that you used any form of weapon during the offense?
  3. Were there ever any allegations that the alleged victim sustained serious bodily injury, was threatened with injury, or received an injury of any sort?
  4. Was there ever any allegation of a similar incident against you?
  5. Was there ever any allegation that you committed a similar offense against anyone else?
  6. Did the alleged victim suffer any intentional physical harm during the commission of the offense?
  7. Do you have any criminal history other than the charge that caused you to register?
  8. Have you been arrested before or since the offense that caused you to register?
  9. How long has it been since you completed your sentence?
  10. Have you been assigned a risk level by the Sexual Offender Registration Review Board?
  11. Was the alleged victim restrained during the commission of the offense?
  12. Was the alleged victim moved from one location to another or transported in any way during the commission of the offense?
  13. What is your level of education?
  14. Are you currently employed?
  15. Where are you currently employed?  
  16. How long have you worked at your current place of employment?
  17. Do you participate in any form of community service?  If yes, please describe?
  18. Are you married?
  19. Do you have any children?

Take some time to answer these questions before meeting with a lawyer to discuss being removed from the sex offender registry.  If you do not have all the documentation needed to answer these questions, make an effort to track down the documents that would allow you to answer these questions such as a copy of your sentencing paperwork, any relevant orders or documentation showing you competed probation, a copy of your indictment and any police or detective’s reports relevant to your case.  

Certain answers to the question above can act as disqualifiers to being removed from the sex offender registry.  However, it is very important that you answer these questions honestly. By working with an criminal defense attorney Atlanta, GA relies on at Andrew R. Lynch, P.C. who is experienced in this area of the law you will ensure that you are being given the best possible chance at being removed from the registry.  By answering these basic questions prior to meeting with an attorney, you may find yourself one step closer to your goal of being removed from the sex offender registry.  Even if you are not a good candidate for registry removal at this time, meeting with an attorney can give you a better idea of what, if anything, you could do to increase your chances of successfully being removed.