Campbell v. State

337 Ga.App. 7

785 S.E.2d 649

CAMPBELL

v.The STATE.

No. A16A0142.

Court of Appeals of Georgia.

April 27, 2016.

Joseph Scott Key, McDonough, for Appellant.

Kenneth W. Mauldin, Dist. Atty., Brian Vance Patterson, Asst. Dist. Atty., for Appellee.

BARNES, Presiding Judge.

An Athens–Clarke County jury found Kenyatta LaTroy Campbell guilty of trafficking in marijuana, and the trial court denied his motion for new trial. On appeal, Campbell contends that the trial court erred in denying his motion to suppress evidence obtained by the police from his cell phone, and that he was denied the effective assistance of counsel at trial. For the reasons discussed below, we affirm.

1. We apply the following principles in reviewing the denial of Campbell's motion to suppress:

When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts. This principle is a settled one, and this Court has identified three corollaries of the principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts. First, an appellate court generally must accept those findings unless they are clearly erroneous. Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court. And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.

(Citations and footnotes omitted.) Hughes v. State, 296 Ga. 744, 746(1), 770 S.E.2d 636 (2015). As part of our review, “we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.” (Footnote omitted.) Green v. State, 282 Ga.App. 5, 5, 637 S.E.2d 498 (2006). Guided by these principles, we turn to the record in the present case.

On the evening of December 19, 2011, officers with the Athens–Clarke County Police Department executed a search warrant on the house where Dennis Brown lived with his girlfriend and children. The officers discovered almost 200 pounds of marijuana stored throughout the house. The marijuana had a street value of approximately $200,000.

Marijuana found in Brown's bedroom closet was in the process of being broken down into smaller quantities for sale. The closet contained a garbage bag with marijuana in it, “digital scales, different quantities of marijuana broke[n] down on the shelf, [and] sandwich bags used to package.”

The marijuana stored throughout the rest of the house was in bale form and wrapped in layers of plastic wrap, axle grease, and fabric softener. According to a police sergeant involved in executing the search warrant, this unique form of packaging is commonly used in Arizona and other western states in an effort to mask the odor of the drugs. In the bathroom, there was a bale of the uniquely packaged marijuana in a large duffel bag. Duffel bags of the same size and brand were found throughout the house.

Brown was present during the search, and officers detained him and confiscated his cell phone. After he was Mirandized, Brown agreed to be interviewed and told the police sergeant that his girlfriend had nothing to do with the marijuana and that he was responsible for it. Brown admitted that the marijuana in his bedroom closet was his own, but said that he was storing the bales of marijuana that were scattered around the rest of the house for someone else. Brown was hesitant to provide that person's name and stated that he was worried for his own safety. The sergeant was already familiar with Campbell as the potential source of Brown's drug supply based on information that had been provided to him by other detectives, and he asked Brown if Campbell was his drug supplier. Brown nodded his head in the affirmative but did not want to say Campbell's name out loud.

During Brown's interview, the police sergeant noticed that Brown's cell phone kept receiving incoming text messages and phone calls from the same contact, “Head.” The last text message from “Head” asked, “Where u at?” Around the same time, Campbell drove up to Brown's house. Officers informed the sergeant that someone was outside in the driveway, and the sergeant paused his interview with Brown and went outside to see who was there. The sergeant recognized Campbell, who was standing beside his car in the driveway with a cell phone in his hand, and detained him. The sergeant took Campbell's cell phone, which was a “flip phone,” and determined that the telephone number of the phone matched the number of the contact identified as “Head” on Brown's phone.

Shortly thereafter, the police sergeant continued his interview with Brown. When he informed Brown that Campbell had been detained in the driveway, Brown appeared surprised. Brown confirmed that “Head” was Campbell and that he was the source of the marijuana in the house.

Later that night, around 2:00 a.m., officers obtained a search warrant for the house where Campbell lived.¹ Upon executing the warrant, officers discovered marijuana residue and seized three duffel bags. The duffel bags found in Campbell's house were identical to the duffel bags that had been discovered at Brown's house.

As part of their investigation, the police downloaded from Brown's cell phone all of the text messages between Brown and the contact “Head.” According to Brown, many of the text messages were in code to avoid police detection and concerned the delivery of the marijuana to his house.

Further investigation revealed that Campbell had been arrested after attempting to purchase a large shipment of marijuana in Tucson, Arizona, in April 2011 but was out on bond by the time of the search of Brown's house. According to undercover narcotics agents involved in the April 2011 incident, Campbell had attempted to purchase 490 pounds of marijuana for $235,000. Brown later testified that Arizona was the source of Campbell's marijuana, and Brown and his girlfriend both testified that they had seen Campbell driving vehicles with Arizona tags when he delivered marijuana to their house. Additionally, the police saw a car with an Arizona tag parked in Campbell's driveway when they executed the search warrant at his house.

Based on the marijuana seized from Brown's house, Campbell and Brown were charged with trafficking in marijuana. Campbell moved to suppress any evidence obtained from his cell phone, arguing that the police should have obtained a search warrant. Following an evidentiary hearing, the trial court denied the motion, concluding that the warrantless seizure and search of Campbell's cell phone was constitutional.

Brown agreed to plead guilty and testified at Campbell's trial, identifying Campbell as the source of the marijuana. After receiving all the evidence, including the testimony of Brown, his girlfriend, and the various law enforcement officers involved in the instant case and the Arizona case, as well as similar transaction evidence of Campbell's prior involvement in marijuana distribution, the jury found Campbell guilty of the charged offense. Campbell then filed a motion for new trial, which the trial court denied, resulting in this appeal.

On appeal, Campbell contends that the trial court erred in denying his motion to suppress the evidence obtained by the police from his cell phone. Relying upon Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014),² Campbell argues that the officers were required to obtain a search warrant before seizing and searching his phone.

In Riley, the United States Supreme Court held that a search warrant generally is required before police officers may search a suspect's cell phone, even when the phone is seized incident to arrest.³ 134 S.Ct. at 2493(IV). Here, the police sergeant seized Campbell's cell phone and opened it to determine whether the phone number of the cell phone matched the number of the caller identified as “Head” on Brown's phone.⁴ Campbell argues that Riley required the police to obtain a search warrant for his cell phone before seizing the phone and searching it to determine the phone number, while the State argues that the brief examination of a cell phone to determine the phone number is distinguishable from Riley and should not require a warrant.

Pretermitting whether Riley required the police to obtain a search warrant for Campbell's cell phone, we conclude that any error by the trial court in denying Campbell's motion to suppress the contents of his phone was harmless. See generally Ashe v. State, 285 Ga. 359, 361(2), 676 S.E.2d 194 (2009) ( “[T]o be successful, an enumeration of error requires a showing of both harm and error.”). At trial, the State introduced printouts of the inculpatory text messages from the contact “Head” that had been extracted by the police from Brown's cell phone. The printouts also listed the phone number found in Brown's phone associated with the contact “Head.”

The only evidence obtained from Campbell's cell phone that was introduced at trial was the telephone number of his phone, which matched the number for “Head” in Brown's phone. The evidence of the phone number from Campbell's cell phone thus was used by the State to show that he was the contact nicknamed “Head” in Brown's phone...