George v. State

865 S.E.2d 127

GEORGE

v.The STATE.

S21G0429

Supreme Court of Georgia.

Decided: November 2, 2021

Eric C. Crawford, Crawford & Boyle, LLC, 306 S. Hammond Drive, Monroe, Georgia 30655, for Appellant.

Randal Matthew McGinley, A.D.A., Jacqueline Payne Fletcher, Kristen Nicole Smith, Alcovy Judicial Circuit District Attorney's Office, 303 South Hammond Drive, Suite 334, Monroe, Georgia 30655, for Appellee.

Boggs, Presiding Justice.

After a 2018 jury trial, Harold William George was convicted of two counts of child molestation and related offenses. He appealed to the Georgia Court of Appeals, which affirmed his convictions in an unpublished opinion. See George v. State , 357 Ga. App. XXIV (Case No. A20A0993, decided Oct. 23, 2020). In addressing one of George's four enumerations of error, the Court of Appeals rejected his argument that the search of his home exceeded the scope of the relevant search warrant, agreeing with the trial court that "[t]he police officers were not compelled to overlook relevant evidence simply because it was not specifically listed in the search warrant." (Citations and punctuation omitted.) Id., slip op. at 8 (1) (b). Both the trial court and the Court of Appeals cited Walsh v. State , 236 Ga. App. 558, 560 (1) (b), 512 S.E.2d 408 (1999), for this proposition.

We granted George's petition for certiorari, posing the following question: "Did the Court of Appeals err in affirming the trial court's denial of the motion to suppress as to the evidence seized beyond the scope of the search warrant?" For the reasons discussed below, we conclude that the Court of Appeals did err, as neither that court nor the trial court applied the correct legal standard for a constitutional Fourth Amendment challenge to the seizure of evidence beyond the scope of a search warrant. We therefore vacate the relevant part of the Court of Appeals’ judgment and remand this case for further proceedings consistent with this opinion.

The facts underlying this case were set forth by the Court of Appeals as follows. George, who was a youth minister at a church in Walton County, touched the victim's genitals on multiple occasions under the pretext of taking measurements of his body while supervising a physical conditioning program. The victim, who turned 16 during the course of the ongoing molestation, told his mother what had occurred, and the authorities were notified. After a forensic interview of the victim, the lead investigator for the Walton County Sheriff's Office obtained a search warrant for certain electronic devices in George's possession.¹ Notes, papers, and other materials also were seized by the State during the search pursuant to the warrant.

George filed a pretrial motion to suppress, asserting, among other things, that the seizure of non-electronic items, such as measuring tapes, a bag, notepads, and other papers, exceeded the scope of the search warrant. The trial court denied the motion, and with respect to this specific assertion found that

the items taken during the search did not exceed the scope of the search warrant. While the warrant specifically authorized certain items to be seized, the officers were entitled to seize other evidence, including papers not listed in the warrant, as they were not compelled to overlook relevant evidence simply because it was not listed in the warrant. See Walsh v. State , 236 Ga. App. 558, at 560 [512 S.E.2d 408] (1999). The search was not unlawful just because the officers seized items not listed. Id. Here, the measuring tape[s], papers, and notepads could all be considered relevant evidence to the officers, as the Affidavit for Search Warrant specifically mentioned Defendant measuring the victim with measuring tape and writing down such measurements. As such, the Court finds these items were not illegally seized and thus not suppressible in any trial of the Defendant.

No witnesses testified at the hearing on George's motion to suppress, and the trial court did not conduct a hearing on George's motion for new trial. But "[i]n determining the legality of a search, this Court can consider all evidence of record, including that found in pretrial, trial and post-trial proceedings." (Citations omitted.) Fritzius v. State , 225 Ga. App. 642, 645, 484 S.E.2d 743 (1997). See also Wright v. State , 294 Ga. 798, 802 (2), 756 S.E.2d 513 (2014) (In reviewing order denying motion to suppress identification testimony, "this court may consider the evidence adduced both at the suppression hearing and at trial." (Citation and punctuation omitted.)).

At trial, the lead investigator testified that she was looking for any evidence that would support the victim's statement, "which would be measuring tapes, any kind of electronic devices, notes, measurements, anything that the child mentioned during his forensic interview." She took a measuring tape, a calendar, and other papers from inside George's briefcase or bag, as well as notepads, a book, another measuring tape, and other items from inside several drawers in the residence. The investigator read and examined the contents of the various written or printed materials, including pieces of paper "folded up and slipped into the back" of the notepads. Some of these items contained the names of the other-acts witnesses who testified at trial.

At a jury trial from June 11 to 14, 2018, George was convicted of two counts of child molestation, two counts of enticing a child for indecent purposes, and six counts of sexual battery. He filed a motion for new trial, asserting, among other things, that the trial court erred in denying his motion to suppress items he contended were outside the scope of the search warrant. The trial court considered the motion on the briefs after the parties "agreed that a hearing was unnecessary." In its order denying the motion, the trial court did not further analyze its ruling on the motion to suppress, but simply recited, "For the reasons stated in the Court's previously issued Order denying Defendant's Motion to Suppress, Defendant's Motion was properly denied by the Court."

George appealed to the Court of Appeals, which quoted the trial court's order on the motion to suppress and then stated, "We agree," quoting the same language from Walsh . The Court of Appeals noted that the seized evidence was relevant because "[t]he investigator was aware of George's modus operandi of allegedly taking muscle measurements as a way to get access to the victim's genitalia and that he recorded the measurements on paper and in an electronic device." The court further noted, "The officers were not required to overlook related evidence just because it was not listed in the warrant," citing Allison v. State , 299 Ga. App. 542, 545 (1), 683 S.E.2d 104 (2009).

In effect, the Court of Appeals concluded that the State need only show that evidence was "relevant" or "related" to the matter under investigation to justify the seizure of evidence outside the scope of a search warrant. But that conclusion was erroneous, as was the holding in Walsh , because the seizure of such evidence not subject to any other exception to the warrant requirement must comply with the well-established plain view doctrine.

In describing that doctrine, the United States Supreme Court has explained:

It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed. There are, moreover, two additional conditions that must be satisfied to justify the warrantless seizure. First, not only must the item be in plain view, its incriminating character must also be "immediately apparent." ... Second, not only must the officer be lawfully located in a place from which the object can be plainly seen, but he or she must also have a lawful right of access to the object itself.

(Citations and footnote omitted.) Horton v. California , 496 U. S. 128, 136-137 (II), 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

This Court, applying the plain view doctrine established in Horton , similarly has outlined the requirements for the seizure of evidence under that doctrine:

For evidence to be admissible under that doctrine, the officer collecting the evidence must not have violated the Fourth Amendment in arriving at the place from which he or she sees the evidence. Moreover, the incriminating nature of the object must be "immediately apparent." This requirement means that the officer must have probable cause to believe that the item in question is evidence of a crime or is contraband.

(Citations, punctuation, and footnotes omitted.) Moss v. State , 275 Ga. 96, 104 (14), 561 S.E.2d 382 (2002).

For the plain view exception to apply, the item in question must be clearly visible, and the officer may not manipulate or disturb it in order to acquire probable cause to believe the item is evidence of a crime. In Arizona v. Hicks , 480 U. S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), the United States Supreme Court held that moving a piece of stereo equipment to locate a serial number constituted a new search, distinct from the initial, authorized search, because the state conceded that the officer did not have probable cause to believe that the equipment was stolen until he moved it in order to locate the serial number. 480 U. S. at 326-327 (III), 107 S.Ct. 1149. We noted the Hicks rule in Glenn v. State , 302 Ga. 276, 283 (IV), 806 S.E.2d 564 (2017), but concluded that it did not apply to the facts in Glenn . There, a police officer observed a cell phone in plain view on the floor near the door of the apartment where officers were lawfully executing a search warrant, and the officer "knew that a phone of the same model was missing from the victim's car, and thus had probable cause to believe that the cell phone he saw had been stolen from the victim and was evidence of a crime." Id. at 283 (IV), 806 S.E.2d 564. This probable cause made the seizure of...