Georgia Supreme Court Reverses Court of Appeals on Cell Phone Search Warrant Issue

After granting certiorari, the Georgia Supreme Court vacated the denial of the defendant’s motion to suppress and remanded the case back to the trial court. In doing so, the Court reversed the decision of the Court of Appeals which found the search of the defendant’s phone to be lawful.

Procedural and Factual Background

We previously reported on Tatum v. State when the Court of Appeals issued its decision last year.

The defendant had been approached by police officers who were responding to a “Peeping Tom” complaint of a man taking pictures outside of a girl’s bedroom window. During the encounter, the police took the defendant’s cell phone “to preserve evidence” and briefly scrolled through the phone’s camera roll.

The police later obtained a search warrant for the phone which was based, in part, on a video the officer observed while he was scrolling through the phone.

The defendant filed a motion to suppress evidence which was denied by the trial court and that denial was affirmed by the Court of Appeals. Citing the independent source doctrine, the appellate court held that even if the discovery of the video was unlawful and that information was removed from the search warrant affidavit, there was still sufficient information (obtained prior to the unlawful search) to establish probable cause for the issuance of the warrant.

The Georgia Supreme Court granted certiorari to review the Court of Appeals’ decision.

Supreme Court’s Analysis

In their brief to the Supreme Court, the defense conceded that the police officer’s initial seizure of the phone was lawful. The officer claimed that it appeared as if the defendant was attempting to delete evidence from the phone. So, the phone was seized due to exigent circumstances to prevent the destruction of evidence. The only remaining issue was the validity of the search warrant.

In reviewing the Court of Appeals’ decision, the primary question addressed by the Supreme Court was:

“Does the independent source doctrine allow the admission of cell-phone evidence obtained via search warrant without consideration of whether the decision to seek the search warrant was prompted by a prior, warrantless search of that cell-phone?”

At the outset, the Court pointed out that the U.S. Supreme Court has held that the independent source doctrine does not apply if the decision to seek the search warrant “was prompted” by information obtained during a prior unlawful search or if information obtained during that unlawful search “was presented to the Magistrate and affected his decision to issue the warrant.”

The Court then cited to the Eleventh Circuit and its two-part test for determining whether the independent source doctrine can save an otherwise defective search warrant.

The first part of the test is essentially what the Court of Appeals did here: remove from the search warrant affidavit any information gained during the illegal search and determine whether the remaining information in the affidavit supports a finding of probable cause.

If it does, the court then applies the second part of the test which is whether the officer’s decision to obtain the search warrant was “prompted by” what he observed during the illegal search. Basically, whether the officer would have sought the search warrant anyway even if he had not engaged in the prior unlawful search.

The Court recognized that it had never expressly held that this second question was a necessary part of the independent source doctrine inquiry. But, after reviewing its prior decisions and the precedent from the Eleventh Circuit, it held that this question must be answered in the negative in order for the doctrine to apply.

Therefore, if the decision to obtain the search warrant was prompted by what was observed during the illegal search, the independent source doctrine cannot be used to save the warrant. The rationale is that “if the second search was prompted by the original unlawful search, then the evidence must be excluded so that the State does not benefit from its unlawful conduct.”

Because this question had not been addressed initially by the trial court, the Supreme Court vacated the order denying the motion to suppress and remanded the case back to the trial court for it to determine whether the officer’s decision to get the search warrant was prompted by the evidence that was viewed during the initial illegal search of the phone.

This is an important decision as it now changes the analysis that trial courts must engage in when determining whether the independent source doctrine can save evidence obtained from a defective search warrant.