Command College Annual Legal Issues Update 2015! Presented by: J. Dale Mann [email protected].

Command College Annual Legal Issues Update 2015!

Presented by:J. Dale Mann

[email protected]

SB 94 Criminal Procedure

• SB 94 requires law enforcement agencies that conduct live lineups, photo lineups, or showups, to adopt written policies for using such procedures. These policies must contain the following requirements: if using a live lineup procedure, a person who does not know the identity of the suspect must be the one to conduct the procedure; or if using a photo lineup, the person conducting the procedure must either not know the identity of the suspect or use a procedure that randomly places photographs in folders so that the conductor cannot physically see which photograph is being viewed by the witness until the procedure is complete.


• In either case, the witness must be instructed that the perpetrator of the alleged crime may or may not be present in the lineup. There must be at least four individuals who are not suspects ("fillers") in live lineups and at least five in photo lineups. These fillers must generally resemble the witness's description of the perpetrator. The witness who makes the identification, whether at a live lineup, photo lineup, or showup, must make and document a clear statement in their own words about their confidence level in the identification. These policies will be subject to public disclosure. If an agency fails to comply with these requirements, the judge may consider such failure, but is not required to exclude identification evidence obtained.

SB 94 Criminal Procedure17-20-2. (a) Not later than July 1, 2016, any law enforcement agency that conducts live lineups, photo lineups, or showups shall adopt written policies for using such procedures for the purpose of determining whether a witness identifies someone as the perpetrator of an alleged crime.

SB 94 Criminal Procedure(b) Live lineup, photo lineup, and showup policies shall include the following: (1) With respect to a live lineup, having an individual who does not know the identity of the suspect conduct the live procedure;(2) With respect to a photo lineup, having an individual:(A) Who does not know the identity of the suspect conduct the photo

lineup; or (B) Who knows the identity of the suspect use a procedure in which

photographs are placed in folders, randomly shuffled, and then presented to the witness so that the individual conducting such procedure cannot physically see which photograph is being viewed by the witness until the procedure is complete;

(3) Providing the witness with instruction that the perpetrator of the alleged crime may or may not be present in the live lineup or photo lineup; (4) Composing a live lineup or photo lineup so that the fillers generally resemble the witness's description of the perpetrator of the alleged crime;


• SB 94 also amends the law regarding search and seizure. 1) Search Incident to Arrest - The bill first revises the Code section regarding search incident to a lawful arrest. Most of the changes in this section are stylistic. For example, the bill allows an officer to search the individual arrested, as well as the area within the person's immediate presence, for the purposes of…

SB 94 Criminal Procedure• The bill also changes language regarding

exactly what an officer may seize in the course of a search incident to arrest. Also, the bill strikes language about what may be seized in a search incident to arrest and replaces it with the defined term "contraband." The definition of contraband is the same as the language that the term replaced.

SB 94 Criminal Procedure• Title 17 of the Official Code of Georgia Annotated,

relating to criminal procedures is amended by revising paragraph (5) of subsection (a) and subsection (b) of Code Section 50 17-5-21, relating to grounds for issuance of search warrant and scope of search warrant, as follows:

• "(5) Any item, substance, object, thing, or matter, other than the private papers of any person, which is tangible instruments, articles or things, any information or data, and anything that is tangible or intangible, corporeal or incorporeal, visible or invisible evidence of the commission of the crime for which probable cause is shown, other than the private papers of any person."

SB 94 Criminal Procedure"(b) When the peace officer is in the process of effecting a lawful search, nothing in this Code section shall be construed to preclude him such officer from discovering or seizing any stolen or embezzled property, any item, substance, object, thing, or matter, the possession of which is unlawful, or any item, substance, object, thing, or matter, other than the private papers of any person, which is tangible evidence of the commission of a crime against the laws of this state, the United States, or another state. Other personnel, sworn or unsworn, acting under the direction of a peace officer executing a search warrant may assist in the execution of such warrant. While in the process of effecting a lawful arrest or lawful search, nothing in this Code section nor in Code Section 16-11-62 shall be construed to preclude the use of any device, as such term is defined in Code Section 16-11-60, by the peace officer executing the search warrant or other personnel assisting in the execution of such warrant."

SB 94 Criminal Procedure• 2) Issuance of Search Warrants - Under current law, when

seeking a search warrant, an officer is required to establish by probable cause that a crime is being or has been committed. This bill adds an option for an officer to establish by probable cause that a crime "is about to be committed." The bill expands which judges are allowed to issue search warrants. Under current law, the only judicial officers authorized to issue search warrants are those "authorized to hold a court of inquiry to examine into an arrest of an offender against the penal laws" as well as retired, senior, or emeritus judges if the active judge authorizes such judges to issue warrants. This bill allows "any judge of a court of this state" to issue warrants.

SB 94 Criminal Procedure• 3) What A Search Warrant May Be Issued For - A judicial officer

may issue a warrant for "stolen" property, but the bill strikes the word "embezzled." Also, the bill allows a search warrant to be issued for the seizure of any property that is evidence of the commission of the crime. The bill removes the exemption for private papers that are only tangible evidence of the commission of the crime. A warrant may also be issued for the search or seizure of an individual who has been kidnapped "or unlawfully restrained." Finally, if an individual has a warrant for his/her arrest and is located within another person's property, a warrant may be issued for the search of that other person's property. The changes for what may be seized in a search incident to arrest are also applied to the provisions regarding what may be seized when effecting a valid search warrant.

SB 94 Criminal Procedure• 4) Use of Certain Devices in Search Warrant

Execution - This bill allows other personnel acting on behalf of a peace officer to assist in the execution of a warrant. The bill also allows the use of a "device" when executing a warrant. A device means an electronic instrument used for overhearing sounds or for observing images. This also includes instruments that can be used to intercept a wire, oral, or electronic communication. Certain instruments are excluded from the definition of device, such as hearing aids or "trap and trace" devices.

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• 5) Records of Search Warrants and Supporting Documents - This bill prevents search warrants from being subject to public inspection until they are executed or returned as not executed. This applies to the documents supporting the warrant as well.

SB 94 Criminal Procedure• 6) Ex Parte petition for Sealing of Search Warrants and Supporting

Documentation - SB 94 allows a prosecuting attorney to petition the court ex parte for a search warrant and supporting documentation to be filed under seal with the clerk. The prosecutor must show "reasonable cause" to believe that disclosure of such materials may endanger the life of an individual, cause an individual to flee from prosecution, lead to destruction of evidence/ intimidation of a witness, or otherwise jeopardize an investigation or delay a trial. A judge may order such sealing for up to 60 days, and the period of sealing cannot extend beyond the return of indictment or filing of accusation where evidence seized may be admitted. If an individual is not available, a copy of the warrant must be left in a conspicuous place. If the warrant has been ordered to be sealed, however, a copy may not be left in a conspicuous place.

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SB 94 Criminal Procedure• 7) Written Return of Property Seized -

Current law allows a written return of property seized to be made before any judicial officer named in the search warrant or before "any court of competent jurisdiction." This bill requires such report to be made before a judicial officer of the same court as the judicial officer who issued the search warrant.


• 8) Special Masters in Serving Search Warrants - Current law requires an attorney to serve as a special master and accompany a peace officer when serving a search warrant. This bill provides that an attorney shall not be appointed if there is a significant risk that his/her own interests or duties to another client will be affected by such appointment.

SB 94 Criminal Procedure• 9) Prosecuting Attorney May Designate Individual

to Observe Search Warrant Execution - If practicable, the peace officer serving the search warrant should not participate in the search, but should only accompany the special master who is conducting the search. This bill allows the prosecuting attorney to designate an attorney or investigator to observe the execution of the search warrant.

SB 94 Criminal Procedure - PART 2 Search and Seizure of Wire and Electronic Communications

• 1) Subpoena, Court Order, or Warrant requiring Disclosure of Wire/Electronic Communications - This bill first states that a peace officer, prosecuting attorney, or attorney general may require wire/electronic communications to be disclosed by subpoena, court order, or search warrant as provided by the laws of the United States. A subpoena may be issued if it is shown that the material relates to a pending criminal investigation. A provided or electronic communication service must provide the contents of and records pertaining to such communications when there is a request made that complies with the laws of the United States. If a search warrant requires the production of wire/electronic communications, it shall have state-wide application or application as provided by federal law when issued by a judicial officer with jurisdiction over the crime under investigation. If allowed under federal law, judges having jurisdiction over the crime being investigated may issue orders requiring production of such communications. These orders shall have state-wide application or application as provided by federal law. A person violating this section may be subject to contempt.


• 2) Installation of Tracking Device by Issuance of Search Warrant - The bill allows, by search warrant, the installation of a tracking device on a physical object provided that the warrant identifies the object and specifies a reasonable length of time, which cannot exceed 45 days, that the device will be used. The instillation of the device must take place in the county within the jurisdiction of the warrant-issuing judge. The device can be monitored from any location in the state. The warrant must mandate that the installation is completed within 10 days of the warrant's issuance. The officer must also make a written return of such warrant to the judicial officer named in the warrant or before any court of competent jurisdiction to the judge named in the warrant. On the return, the officer must enter the exact date and time the device was installed or monitoring began if no installation was required. They must also list the dates and times the devices were used. The warrant must be returned within 10 days of the tracking ending. Also within 10 days of the termination of tracking, the officer must serve the search warrant on the person or owner of the physical object being tracked. A judge may order this service be delayed if he finds certain circumstances exist, such as endangerment or flight of the individual.


• 3) Pen Register and Trap and Trace Device - A district attorney or attorney general is authorized to apply for an order authorizing the use or extension of a Pen Register or Trap and Trace device. The application must be to a judge of the superior court of the district attorney's judicial circuit or any judicial circuit if the applicant is an Attorney General. The judge may enter such order if authorized by the law of the United States and the order shall have state-wide application. An officer designated in writing by the attorney general or district attorney may install and use a pen register or trap and trace device before obtaining an order authorizing such installation and use if: he/she determines there are grounds upon which an order could be granted; within 48 hours of installation, an order approving the installation and use is issued; or he/she reasonably determines that a situation exists that involves danger of death or injury or conspiratorial activities indicative of organized crime.


• 4) Inapplicable to Officers Ferreting Out or Watching Suspected Criminals for the Purposes of Apprehension - Except when using a device in a way that would constitute a violation of the eavesdropping statute (OCGA §16-11-62), the provisions of this bill do not apply to officers ferreting out offenders or suspects for the purposes of apprehending those individuals.


• 5) Investigation Warrants - A judge of a superior court having jurisdiction over prosecution of a crime under investigation may issue an investigation warrant permitting the use of a device for surveillance of an individual or place to the extent such surveillance is consistent with and subject to terms and procedure of federal law. The warrant issued shall have state-wide application. Any evidence obtained is only admissible in courts that have misdemeanor AND felony jurisdiction. An individual acting in good faith reliance on a court order or legislative authorization will have a complete defense to a criminal or civil action brought under this or any other law.


• 6) Emergency Situations - Notwithstanding the requirements of this bill, a district attorney or attorney general may intercept wire/electronic communications or record an individual's activities without a court authorization if: they determine that there is an emergency situation which requires such interception or recording; and grounds exist upon which an investigation warrant could be issued, and they apply for such warrant within 48 hours of the surveillance or monitoring begins. If such warrant is granted, the execution must comply with this bill and must cease after the emergency situation stops. If the warrant is denied, the evidence obtained prior to it is confidential and may not be used in court.


• (7) Consent to interception - Notwithstanding the other provisions of this bill, wire/electronic communication may be intercepted when the party intercepting is party to the communication OR when one of the parties consents to interception.


• 8) Recording and Dissemination of a Minor's Communications - Communication of a child under the age of 18 may be recorded and divulged either by court order, parent, guardian, or legal custodian. If sought by a court order, the judge shall only issue such an order if he/she finds by probable cause that a crime has been committed or he/she finds that the child understands that the conversation is to be recorded and the child agrees to participate. A parent or guardian may also record, monitor, or intercept the communications of a child if the communication takes place through a device within the family home. The parent may disclose the contents of communication to the authorities if he/she reasonably believes the conversation is evidence of criminal conduct. Such disclosed evidence is admissible in a judicial proceeding.


• 9) Remedies--Exclusionary and Criminalization - Evidence obtained in a manner that violates this bill is inadmissible. Privileged information is also not admissible notwithstanding anything in this bill. A violation of this bill constitutes a felony.

SB 94 Criminal Procedure“…[Wiretapping and eavesdropping law is also revised by being]further amended by revising paragraph (2) of Code Section 16-11-62, relating to eavesdropping, surveillance, or intercepting communication which invades privacy of another, as follows:• [By adding section D] (D) For a law enforcement

officer or his or her agent to use a device in the lawful performance of his or her official duties to observe, photograph, videotape, or record the activities of persons that occur in the presence of such officer or his or her agent;"

HB 233 Georgia Uniform Forfeiture Procedure Act

• This legislation re-writes Georgia law regarding how forfeitures and "drug" money are seized, allocated and utilized. Under current law, property, money and other things of value linked to certain crimes (e.g., those related to drugs and organized crime) may be seized and a forfeiture action may be commenced by the district attorney. Depending upon the amount of assets, the court may order that the property be sold and distributed or the district attorney may institute a nonjudicial proceeding.


• According to this bill, the time that law enforcement officers have to notify the district attorney's office is increased from twenty to thirty days. A new provision requires law enforcement to provide an inventory and estimated value of the property or risk having the property released to the owner or interest holder. Within sixty days, any money seized must go to the superior court clerk to be deposited in an interest-bearing account in a financial institution with a branch located in the county. The accrued interest will be distributed with the principal.


• In the case of judicial forfeitures (i.e., through the superior court), the proceeds of the sale of property are paid into the registry of the court. Once the costs and expenses are paid, the court will order the pro rata distribution of the remaining funds to the law enforcement agencies and multi-jurisdictional task forces in accordance with the role that each played in the seizure of the property. Current law limits the amount that state law enforcement agencies can receive to 25%. Under this bill, there is no cap on the amount that state law enforcement agencies may receive. The district attorney's office is still entitled to up to 10% of the forfeited property but the county governing authority will no longer be required to approve the district attorney's use of the funds.


The sheriff's office or police department's pro rata share will be paid directly to the law enforcement agency. A copy of the distribution order will be provided to the board of commissioners (or other county governing authority). The bill continues the requirement that law enforcement agencies and multi-jurisdictional task forces receiving forfeiture property provide an annual report to the board of commissioners (or other county governing authority) and district attorney that lists the property received each fiscal year and explains how the property was used when the sheriff's office, police department or multijurisdictional task force makes its budget request to the county. The report is required to be on a form prepared by the Administrative Office of the Courts. If a sheriff's office, police department or multijurisdictional task force fails to provide the annual report or otherwise misuses forfeiture property, they will be unable to receive any forfeiture property for two years.


• The bill retains the provisions that forfeiture money cannot be more than one-third of a law enforcement agency's budget. Forfeiture funds in excess of this amount may be used for indigent defense, drug treatment, mental health treatment, rehabilitation, prevention or education relating to problems created by drug and substance abuse, and victim-witness assistance programs.


• As with current law, county commissioners cannot use forfeiture money to supplant law enforcement budgets. Law enforcement agencies may only use forfeiture money for "official law enforcement purposes," such as law enforcement equipment, training and investigative expenses. It may not be used to pay law enforcement salaries or bonuses. This bill also prohibits a sheriff from expending any forfeiture funds if he is leaving office (not running or lost election) except for expenses for his or her office.

Effective July 1, 2015 - This legislation transfers certain responsibilities for juvenile issues from the Department of Human Services (DHS) to the Criminal Justice Coordinating Council (CJCC). It also creates an advisory board to the CJCC for juvenile justice issues, consisting of 33 members appointed by the Governor, that is responsible for creating a three year plan and provide annual reports of progress annually. This legislation was amended to include the transfer of the licensing of domestic violence shelters from DHS to CJCC. This bill will have no fiscal impact on counties, but could create mandates in the future.

HB 263 Expansion of Criminal Justice Coordinating Council (CJCC) to Include an Advisory Board on Juvenile Justice Issues and Planning and Transfer of Licensing of Domestic Violence Shelters to CJCC

HB 310 Consolidation of all Parole, Probation and Misdemeanor Probation Supervision into the Department of

Community Supervision

Effective July 1, 2015 - This legislation creates the Board of Community Supervision to oversee the newly created Department of Community Supervision (DCS) and the Governor's Office of Transition, Support, and Reentry. All offender supervision activities will transfer from the Board of Pardons and Parole and the Department of Corrections to the new DCS. This legislation also transfers the County and Municipal Probation Advisory Council, the agency tasked with registration and oversight of private misdemeanor probation providers and governmental misdemeanor probation providers to DCS.



The bill also includes requirements for increased transparency and financial reporting by the misdemeanor probation providers to the counties of fine collections, which was an ACCG priority. A county commissioner or manager is included as a mandatory board member for the new department. The board will adopt rules and regulations governing the management and treatment of probationers and parolees, and the operation of misdemeanor probation supervision.



• Probation and parole offices will combine (some counties currently provide space to these entities). These offices collect fine revenue from probationers to be processed and sent back to local governments. Misdemeanor probation providers (county and private) will be required to submit an annual report to the county commission that contains the amount of fines and fees collected and the nature of such fees, including probation supervision fees, rehabilitation programming fees, electronic monitoring fees, drug and alcohol detection device fees, substance abuse or mental health evaluation or treatment fees, and drug testing fees; the number of community service hours performed by probationer under supervision; and, a listing of any other service for which a probationer is required to pay to attend.

HB 328 Criminal Justice Reform Council Recommendations Regarding Re-entry and Indigent

Defense Services and Provides Authority for Counties to Contract with Companies to Collect Expired Fines

Effective July 1, 2015; Section 1 and May 5, 2015 - This legislation changes to the parole eligibility. It provides for employment assistance and public assistance eligibility for prisoners released back into the community. A committee substitute was adopted that makes changes to the Public Defender Standards Council, removing the word "standards" from the name of the agency, as well as the statute. This bill also proposes to remove the approval of the council procedures under which indigent defense services are provided.

HB 328 Criminal Justice Reform Council Recommendations Regarding Re-entry and Indigent

Defense Services and Provides Authority for Counties to Contract with Companies to Collect Expired Fines

The council remains the fiscal officers for all CPD offices. This legislation was amended to include the language from HB 377 which clarifies that local governments may contract with a vendor to provide collection of expired fines. As passed this legislation will have no statewide fiscal impact to counties, but for those who contract to collect expired fines, it could generate revenue.

HB 361 Criminal Justice Reform Council Recommended Changes to Juvenile Code

Effective May 5, 2015 - This legislation changes the juvenile code to include recommendations made by the Georgia Council on Criminal Justice. The juvenile code rewrite inadvertently assigned all juvenile traffic cases to juvenile court, which caused a major increase in caseload. Juvenile courts do not have the administrative capability to handle traffic cases. This legislation corrects the statute to transfer jurisdiction for those traffic cases back to other local courts that handle traffic offenses. Additionally, this bill authorizes the district attorney to file petitions and prosecute Child in Need of Services (CHINS) cases in juvenile courts. This legislation enables district attorney's to prosecute juvenile cases.

Effective July 1, 2015 - This legislation addresses catalytic converters and burial objects being sold to secondary metal recyclers. This legislation will have no fiscal impact on counties.

HB 461 Metal Theft Registry Requirements

Effective July 1, 2015 and Effective January 1, 2017; Section 3 - This legislation creates a $2,500 additional penalty assessed against those found guilty of sex crimes against children. This additional assessment is collected and remitted to the state in the same manner as other court fees and surcharges by the clerk of the superior court. The penalty will be remitted to the Safe Harbor for Sexually Exploited Children Fund to provide rehabilitation and treatment of sexually exploited children.

SB 8 Creation of Safe Harbor For Sexually Exploited Children Fund and Rachel's Law

This bill also includes language from HB 244, which requires all adult entertainment establishments to pay to the Department of Revenue a state operation fee equal to the greater of 1 percent of the previous year's gross revenue or $5,000. This fee is in addition to any other fees required by the county. The fees collected will be remitted to the Safe Harbor for Sexually Exploited Children Fund Commission. Additionally, the legislation provides for forfeiture of property used directly or indirectly for the purposes of prostitution and/or pimping. This legislation will not require additional administrative duties from the counties, but local law enforcement can seize property used for the purposes of prostitution or pimping.

SB 8 Creation of Safe Harbor For Sexually Exploited Children Fund and Rachel's Law

Effective March 10, 2015 - This legislation extends the sunset provision for licensed professional counselors (LPC) to sign involuntary commitment papers for mental health patients (1013s). This legislation also allows LPC's to withdraw involuntary commitment orders. This legislation can potentially save counties money by moving mentally ill inmates out of jail and hospital emergencies rooms quicker and eliminating the need for law enforcement to spend hours waiting on physicians.

SB 53 Authorization for Licensed Professional Counselors to Sign Involuntary Commitment Orders for Mental Health Patients

Effective July 1, 2015 - This legislation changes probate courts' jurisdiction over game and fish code violations. Under current law, probate judges have jurisdiction over violations of the game and fish code except for a first violation of hunting deer at night with the aid of a light and violation of any laws considered to be a high and aggravated nature. This legislation removes these exceptions. This legislation may increase the caseload in probate court, especially in the rural areas.

SB 62 Granting of Full Jurisdiction for Probate Courts over Game and Fish Violations

Effective July 1, 2015 - This legislation was amended to include language from HB 534, which defines relationships between relatives that constitute incest, and HB 578, which changes making harassing telephone calls a crime to make harassing, threatening or harassing telephone calls or electronic communications. The crime may be prosecuted either in the county where the communication is sent or received. This legislation will have no direct fiscal impact on counties.

SB 72 Changes Provisions Regarding Incest, Harassing Communications and Crimes against Police Dogs in Performance of Official Duties

Effective July 1, 2015 - This legislation requires law enforcement agencies to include the fine revenue received from speeding tickets over 20 miles per hour above the speed limit when calculating total speeding fine revenue for the department. Currently, the total revenue from speeding fines under 17 miles per hour cannot be more than 40 percent of the overall budget. This legislation changes that ratio to 35 percent. This bill requires counties and municipalities to include in a separate section, all speeding fine revenue in the annual report submitted to the Department of Community Affairs.

SB 134 Change in Reporting Requirements for Law Enforcement Agencies Using Radar

Effective May 6, 2015 - This legislation restricts access to records of the superior court clerk. It provides that only the clerk of superior court can authorize release of records, thereby eliminating the potential for records request to vendors serving the clerk of court or the Clerk's Cooperative Authority. This bill also provides that the clerk can contract with any governmental agency, vendor, etc., to provide for records storage. This legislation specifically states that it shall have no impact or mandate on local government budgets.

SB 135 Restricted Access to Clerk of Superior Court Records

Command College Annual Legal Issues Update 2015!

Presented by:J. Dale Mann

[email protected]

Command College Annual Legal Issues Update 2015! Presented by: J. Dale Mann [email protected].

Documents

Transcript of Command College Annual Legal Issues Update 2015! Presented by: J. Dale Mann [email protected].