Tatum v. State

903 S.E.2d 109

TATUM

v.The STATE.

S23G0955

Supreme Court of Georgia.

Decided: June 11, 2024

Superior Court, Madison County, Jeffery S. Malcom, Judge

John Jay McArthur, McArthur & McArthur, P.A, P. 0. Box 893, Athens, Georgia 30603-0893, for Appellant.

David Parks White, District Attorney, Northern Judicial Circuit District Attorney’s Office, P.O. Box 515, Hartwell, Georgia 30643, Michael Martin Coveney, ADA, Northern Judicial Circuit District Attorney’s Office, P.O. Box 843, Danielsville, Georgia 30633, Jeffrey Lee, Chief Senior D.A., Office of the Elbert County District Attorney, P.O. Box 247, Elberton, Georgia 30635, for Appellee.

Brandon A. Bullard, The Bullard Firm, LLC, 1827 Powers Ferry Road SE, Building 11, Suite 250, Atlanta, Georgia 30339, Virginia Natasha Perdew Silas, Federal Defender Program Inc., 215 Church Street, Suite 111, Decatur, Georgia 30030, Hunter Joseph Rodgers, 3939 Atlanta Rd., Smyrna, Georgia

30080, Mazie Lynn Guertin, Georgia Association of Criminal Defense Lawyers, 215 Church Street, Suite 111, Decatur, Georgia 30030, Cory H. Isaacson, ACLU Foundation of Georgia, 1100 Spring Street NW, Atlanta, Georgia 30309, for Amicus Appellant.

Colvin, Justice.

Appellant Mark Joseph Tatum was convicted of a "peeping Tom" violation and invasion of privacy in relation to his surreptitious recording of a female neighbor through her window.¹ Appellant was stopped within several minutes of the neighbor’s call to 911, and his cell phone was lawfully seized.² Appellant was not placed under arrest, however, until after the arresting officer viewed the contents of Appellant’s cell phone without a warrant. Information from this warrantless search was then used in an affidavit to obtain a warrant for the search of Appellant’s cell phone, the contents of which the arresting officer had already seen, at least in part. Appellant moved to suppress evidence obtained from the warrantless and warrant-authorized searches of his cell phone under the Fourth Amendment to the United States Constitution and Article I, Section I, Paragraph XIII of the Georgia Constitution,³ but the trial court denied his motion, and the Court of Appeals affirmed. See Tatum v. State, 367 Ga. App. 439, 886 S.E.2d 845 (2023). In its analysis, the Court of Appeals assumed without deciding that the arresting officer’s warrantless viewing of the video on Appellant’s cell phone constituted an illegal search, but it nevertheless concluded that evidence from Appellant’s cell phone was admissible under the independent source doctrine. Id. at 442, 886 S.E.2d 845. The Court of Appeals reasoned that the affidavit made in support of the warrant application contained evidence sufficient to support a finding of probable cause even after excising information gleaned from the arresting officer’s warrantless search. See id. at 442-443, 886 S.E.2d 845.

We granted certiorari and posed the following question:

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

Appellant argues, and the State concedes,⁴ that courts must consider whether the State’s decision to seek a search warrant was so prompted. Because the record on appeal does not reflect that the trial court considered whether the warrant application was prompted in this way, we vacate the decision of the Court of Appeals and remand with direction to vacate the judgment of the trial court and to remand to that court for further proceedings Consistent with this opinion.

1. (a) At the pre-trial motion to suppress hearing, the State called Deputy Will Townsend, who testified regarding his arrest of Appellant and the circumstances surrounding it. Deputy Townsend’s body-worn camera recorded his interactions with Appellant, as described further below. This video was admitted into evidence at the motion to suppress hearing and played for the court. Following the trial court’s denial of Appellant’s motion to suppress, the parties filed stipulations concerning essentially all of the factual issues in the case, including the victim’s call to 911, Deputy Townsend’s encounter with and arrest of Appellant, Deputy Townsend’s warrantless viewing of an incriminating video on Appellant’s phone, facts relating to the warrant application, and a description of photographs and of a video of the victim obtained pursuant to the warrant-authorized search. Rather than reintroduce Deputy Townsend’s testimony and the recording from his body-worn camera at trial, the State relied entirely upon these stipulations. Accordingly, no evidence was admitted by either party during the guilt phase of Appellant’s bench trial.

Evidence from Deputy Townsend’s testimony, his body-worn camera, and the parties’ stipulations was largely consistent and shows the following. On July 15, 2018, at 10:34 p.m.,⁵ the Madison County 911 call center received a call regarding an unknown individual taking photographs of an 18-year-old female through a bedroom window. The caller described the individual’s cell phone as having a camera lens in the back center of the phone. Deputy Townsend was on duty in the area and was dispatched to respond to the call.

Within minutes of the 911 call, Deputy Townsend encountered Appellant walking in the vicinity of the home from which the call had been made. According to Deputy Townsend, who stated that he regularly patrolled this portion of Madison County, it was unusual for there to be foot traffic in the area at this time of night. Upon encountering Appellant, Deputy Townsend got out of his vehicle and spoke to him. Deputy Townsend told Appellant about the 911 call and asked Appellant if he had a cell phone with him. Though Appellant denied having a cell phone on him, Deputy Townsend observed the outline of an object that appeared to be a cell phone in Appellant’s front pants pocket. When Deputy Townsend asked Appellant about the object, Appellant pulled out his cell phone and stated that he had forgotten that he had it with him. Deputy Townsend noticed that Appellant was shaking and that he appeared extremely nervous. Deputy Townsend also noticed that Appellant’s phone had a camera lens in the back center of the phone, as described in the 911 call.

Deputy Townsend asked if Appellant would show him the last photograph he had taken. Appellant initially declined, but after Deputy Townsend told Appellant that he could detain him and obtain a search warrant, Appellant agreed. As Appellant was pulling up the gallery of photos on his phone, he tilted his phone away from the deputy, preventing the deputy from seeing its screen.

According to Deputy Townsend, Appellant appeared as if he was trying to delete something, and so Deputy Townsend "grabbed the phone out of his hand" to "preserve the evidence." Immediately after seizing Appellant’s phone, and without interacting with it further, Deputy Townsend saw that the phone’s camera roll was displayed, and he observed a thumbnail image of a young woman standing in a room through a window. Deputy Townsend put Appellant’s phone down on the front seat of his patrol vehicle, handcuffed Appellant, and placed him in the back of the vehicle but left the door open. When placing Appellant in the back seat of his patrol vehicle, Deputy Townsend stated, "You are not under arrest at this point, but you are being detained right now." Once Appellant was seated, Deputy Townsend picked up Appellant’s cell phone, clicked on the thumbnail image he had seen while seizing Appellant’s phone and watched the corresponding video, which depicted a female standing in a bedroom, with her breasts exposed, folding laundry. Deputy Townsend then locked the screen and did not search the cell phone any further. Deputy Townsend then closed the back door of his patrol car, placed Appellant under arrest, and provided him with a Miranda warning. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Following Appellant’s arrest, law enforcement officers drafted a search warrant application for the phone’s digital contents. The affidavit in support of the warrant included much of the information summarized above, including the fact that Deputy Townsend viewed a video on Appellant’s phone, which depicted "a topless white female inside her room being videoed from outside." The warrant application was granted, and, on execution of the warrant, investigators found photographs and a video of the victim on Appellant’s phone.

(b) As recounted above, the trial court denied Appellant’s motion to suppress by means of summary order, which included no findings of fact. Following Appellant’s bench trial, the court found Appellant guilty of a "peeping Tom" violation (Count 1) and invasion of privacy (Count 2), but not guilty of tampering with evidence (Count 3). Appellant then appealed his conviction to the Court of Appeals.

The Court of Appeals affirmed the trial court’s denial of Appellant’s motion to suppress. See Tatum, 367 Ga. App. at 443-444, 886 S.E.2d 845. Quoting Brundige v. State, 291 Ga. 677, 682, 735 S.E.2d 583 (2012), the Court of Appeals stated that "[w]hen faced with potentially improperly obtained evidence, the question becomes whether, excising the evidence improperly obtained, probable cause nonetheless exists to issue a warrant." Id. at 442, 886 S.E.2d 845 (citation and punctuation omitted). In applying this rule, the Court of Appeals assumed without deciding that Deputy Townsend’s warrantless viewing of the video on Appellant’s cell phone constituted an unlawful search.⁶ See id. It then considered other facts contained in the affidavit, including Appellant’s proximity to the scene of the crime, his dishonesty about having his phone with him, and his furtive movements in an apparent attempt to delete evidence, and concluded that these facts — all of which occurred prior to Deputy Townsend’s unlawful viewing...