In Brown v. State, the Georgia Court of Appeals addressed the admissibility of evidence obtained from a search of a cell phone during a DUI stop. This case references Riley and, to my knowledge, it is the first case to apply it. It is often very important to know whether our appellate courts are receptive to the general principle of exclusion set forth by the U.S. Supreme Court. While my practice is primarily focused on the defense of DUI cases and I am most concerned with the applicability of Brown to Georgia DUI cell phone searches, it should be apparent from Brownand Riley that this case is not limited to DUI cases.
GEORGIA DUI CELL PHONE SEARCH: THE FACTS OF BROWN
Daniel Brown stands charged with driving under the influence of alcohol to the extent that it was less safe to drive, OCGA § 40–6–391(a)(1); driving under the influence of alcohol while having an alcohol concentration of 0.08 grams or more, OCGA § 40–6–391(a)(5); and twelve counts of possessing a lewd depiction of a minor child in violation of OCGA § 16–12–100(b)(8). After a hearing, the Superior Court of Athens–Clarke County denied Brown's motion to suppress evidence seized as a result of a warrantless search of his cell phone. Following our grant of his application for interlocutory review, Brown appeals, contending, inter alia, that the warrantless search of the digital contents of his cell phone violated his Fourth Amendment right to be free from unlawful searches. We agree and reverse.
Brown v. State, No. A14A2284, 2014 WL 7130535, at *1 (Ga. Ct. App. Dec. 16, 2014).
Viewed in favor of the trial court's ruling,1 the evidence shows that at 2:00 a.m. on December 30, 2012, Brown drove his vehicle into the path of oncoming traffic and forced an unmarked police car off the road. The Athens–Clarke County police officer stopped Brown's vehicle and began a DUI investigation. As the officer questioned Brown, he observed that Brown smelled of alcohol, had slurred speech, and had bloodshot, glassy eyes. Brown admitted to recently drinking alcohol. After a second officer arrived in a patrol car to assist with the traffic stop, the first officer arrested Brown for DUI and confined him in the back of the patrol car.
The second officer sat in the front seat of the patrol car, while the arresting officer continued his investigation. Brown's cell phone, which the officer had on the front seat beside him, rang several times. Brown asked the officer to answer the phone and talk to his father, but the officer simply muted the phone each time it rang. The last time Brown's phone rang, the officer muted it and then opened the pictures application on the phone. The officer decided “to look through the phone to see if there was any evidence … that would substantiate the stop or [show Brown] previously drinking before the stop.” The officer began scrolling through the photographs stored on the phone and went through ten to twelve images. After the first couple of pictures, there was a picture of a nude adult woman, and within the next few pictures the officer saw images that appeared to be child pornography.
At the hearing on Brown's motion to suppress, the officer explained his reason for opening the pictures application as follows. He testified that, in his experience, some people who are out drinking and partying use their phones to capture the moment or send text messages about what they are doing. He testified that, because of this, phones have yielded evidence in cases involving a minor in possession of alcohol. In addition, he testified that phones have contained evidence of suspects possessing guns or gang-related paraphernalia. On cross-examination, the officer admitted that he had never looked for or found evidence of DUI on an arrestee's phone. Aside from his “general experience as an officer,” the officer testified he did not have “any [particular] reason to believe” that Brown had evidence on his cell phone that he had committed the offense of driving under the influence of alcohol. He testified specifically that he “never saw [Brown] text on his cell phone”; “never saw him input data on his cell phone”; “never saw him take a picture” with his cell phone; and “never received any intelligence” from anyone else that there was evidence of DUI on Brown's cell phone.
Based solely on information the officer provided about images he observed on Brown's phone, a detective applied for and obtained a search warrant to look for evidence of sexual exploitation of a child on the phone. A cyber-crime and digital forensics examiner executed the search warrant and found the images that formed the basis for the 12 counts of sexual exploitation of a child. Subsequent searches of the phone with new forensic software yielded additional incriminating images and messages.
At the conclusion of the hearing, the trial court announced its decision to deny Brown's motion to suppress. The trial court determined that, under applicable law, a cell phone is a type of container that may be searched for evidence of a crime incident to a driver's arrest and that the search of Brown's phone was reasonable under the circumstances.
Brown contends that a warrantless search of a cell phone, even one that is seized incident to an arrest, is illegal, unless the State can show that exigent circumstances made the needs of law enforcement so compelling that a warrantless search was objectively reasonable under the Fourth Amendment. This is correct.
GEORGIA DUI CELL PHONE SEARCH: THE HOLDING OF BROWN
As the Supreme Court of the United States recently declared, “the search incident to arrest exception does not apply to cell phones[;] … before searching a cell phone seized incident to an arrest … [a law enforcement officer must] get a warrant.” Riley v. California, ––– U.S. ––––(IV), 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014). This is because
[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life[.] The fact that technology now allows an inpidual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.
(Citation and punctuation omitted.) Id.
The holding in Riley does not require that every search of a cell phone be pursuant to a warrant. “[E]ven though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone[,]” such as the exigent circumstances exception. Id. It is well settled that, unlike the search incident to arrest exception to the warrant requirement, this exigent circumstances exception requires a court to examine the particular facts of the case to determine whether an emergency justified a warrantless search under the circumstances. Id. “Such exigencies could include the need to prevent the imminent destruction of evidence …, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury.” Id. In this case, the State did not attempt to show that the particular facts of the case demonstrated that law enforcement had an immediate necessity to search Brown's cell phone and no opportunity to obtain a warrant.2 Thus, the officer's warrantless search of Brown's phone was therefore unconstitutional.
Moreover, the evidence seized from Brown's phone pursuant to the subsequently-issued search warrants must also be suppressed. It is undisputed that the warrants resulted directly from the illegal warrantless search. The exclusionary rule, however “prohibits introduction of … derivative evidence that is the product of the primary evidence” seized during an illegal search. (Citations and punctuation omitted.) Teal v. State, 282 Ga. 319, 323(2), 647 S.E.2d 15 (2007). Where a search warrant is based upon information derived from a previous illegal search, the fruits of the warranted search are tainted by the prior illegality and, unless the information supporting the warrant can be traced to an independent and lawful source, must be suppressed. Clare v. State, 135 Ga.App. 281, 285(5), 217 S.E.2d 638 (1975). All of the evidence seized from Brown's phone is therefore inadmissible under Riley.
Brown v. State, No. A14A2284, 2014 WL 7130535, at *1-4 (Ga. Ct. App. Dec. 16, 2014)
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