A Lumpkin man, who now faces about a half-dozen criminal charges, is the latest person to get caught in a massive gang activity crackdown that stretches across most of Georgia.
The investigation began after Lumpkin Police officers conducted a traffic stop involving the man and a minor. According to the GBI, the man briefly attempted to flee the scene before he stopped for the officer. A subsequent search of the initial stop location led officials to a bookbag containing marijuana, cocaine, and prescription opioid pills. Officers also found several illegal firearms, including an AR-15 rifle, and a Glock Model 22 .40 caliber handgun.
Investigators also determined that the man, who was booked into the Randolph County Jail on multiple charges, belonged to a local street gang.
The man in this story faces a number of extremely serious charges. However, based on the facts from the above story, these charges might never see the light of day, especially if this man has a tenacious Marietta criminal defense lawyer.
Officers must have reasonable suspicion to detain suspects. Basically, reasonable suspicion is an evidence-based hunch of criminal activity. It appears that officers initially pulled over the defendant in this story because a minor passenger was in the car. That’s suspicious but certainly not out of the ordinary.
This same issue often comes up if a suspect makes furtive movements, such as nervous glances into a rear-view mirror when a squad car appears or sudden movements, such as attempts to conceal something in a passenger seat. Courts have consistently ruled that these movements don’t constitute reasonable suspicion. In fact, to many people, it’s a good sign for people to be nervous when officers are nearby. This nervousness means an officer’s mere presence has a deterrent effect.
Back to the stop in this story. A minor passenger isn’t reasonable suspicion. If officers had a report of a runaway or a missing child matching the passenger’s description, that’s different. However, that additional information opens another can of worms.
Informer tips, if they come from non-officers, are almost per se unreliable in Cobb County criminal courts. Most informers have ulterior motives when they squeal. They often expect money or leniency in another matter. Sometimes, they just want certain individuals to get in trouble.
The subsequent search is almost as troubling. Officers almost certainly didn’t have a warrant when they opened the discarded backpack. Again, based on the available facts, no search warrant exceptions appear to apply.
- Consent: If owners consent to searches, these searches are legal. In Georgia, criminal consent is an affirmative and voluntary act. If owners are already in police custody, either formally or informally, any consent is clearly involuntary.
- Plain View: Officers don’t need warrants to seize contraband they see in plain sight. The backpack was in plain sight. Most likely, officers had to open the backpack to find the drugs, weapons, drug paraphernalia, and other illegal contents inside it.
- Automobile Exception: Normally, officers don’t need warrants to search vehicles, if they have probable cause. That’s a higher standard than reasonable suspicion, which as discussed above, most likely isn’t present in this situation.
Usually, evidence seized in violation of the Fourth Amendment is inadmissible in court, under the exclusionary rule.
Search and seizure law is very narrow and defendant-friendly, although the Supreme Court has diluted some Fourth Amendment rights in recent years. Gang activity law is different, mostly because of the 2021 Georgia Street Gang Terrorism and Prevention Act. We’re not exactly sure how politicians linked gangs and terrorism, but somehow, they did it.
This law is a bit like the 1970 RICO (Racketeer Influenced and Corrupt Organizations) Act, a law which federal authorities used to prosecute organized crime leaders. Before then, reputed mob bosses vaguely instructed their underlings to commit crimes. Since the bosses technically didn’t commit crimes, if the underlings got caught, the bosses were untouchable. Under RICO, if one person in a criminal organization commits a felony, everyone in that organization, from the highest to the lowest, can also be charged with a felony.
Georgia’s street gang law, much like similar laws in other states, criminalizes a laundry list of activities, such as:
- Gang member who conducts or participates in criminal gang activity through the commission of a crime,
- Non-members who commit offenses with the intent to obtain or earn gang membership, or current members who commit crimes to improve their gang standing,
- Acquiring or maintaining, directly or indirectly, any real or personal property of any nature through criminal gang activity,
- Organizers, supervisors, or any other managers or leaders who engage in, directly or directly, or conspire to engage in, criminal gang activity,
- Causing, encouraging, soliciting, recruiting, or coercing another to join a criminal street gang, to participate in a criminal street gang, or to conduct or participate in criminal gang activity, and
- Communicating, directly or indirectly, any threat of injury or property damage with the intent to keep the person in a criminal street gang, retaliate against the person, or prevent such person from communicating to any law enforcement authority.
This law broadly defines “criminal gang activity” to include most criminal offenses committed after 2006. Additionally, the law defines “criminal street gang” as any formal or informal association of three or more people. That association could be solely for the purposes of one act, like a convenience store robbery.
Defendants who violate §16-15-4 (a)-(c) may spend between five years and twenty years, pay a fine between $10,000.00 and $15,000.00, or both. Probation is available in some cases.
Additionally, the Court will also impose a special condition that the accused not knowingly have contact of any kind or interact with any other member or association of a criminal street gang. The court also orders the defendant not to participate in any criminal gang activity, and in cases involving a victim, shall not knowingly contact of any kind or character with any such victim or any member of any such victim’s family or household.
The broad nature of this statute makes it very difficult for a Marietta criminal defense lawyer to refute the gang participation enhancement. So, it’s usually best to focus on the underlying robbery, assault, or other offense, which the state must prove beyond any reasonable doubt.
Under a new law, accused gang members face serious charges, regardless of their status in the organization. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Virtual, home, after-hours, and jail visits are available.