The State v. New

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

March 12, 2015

In the Court of Appeals of Georgia
A14A1876. THE STATE v. NEW.

RAY, Judge.

The State appeals from the grant of a motion to suppress filed by Kevin Charles

New after he was indicted for his alleged possession of methamphetamine with intent

to distribute, possession of methamphetamine, and possession of marijuana, all

pursuant to OCGA § 16-13-30; theft by receiving, in violation of OCGA § 16-8-7;

and possession of a drug-related object under OCGA § 16-13-32.2. The State

contends that the trial court erred in granting the motion because law enforcement

acted reasonably under the totality of the circumstances and OCGA § 17-5-30 only

requires suppression of evidence seized during an unlawful search; law enforcement

acted in good faith; and the purposes of the exclusionary rule are not served in this
case by suppressing the evidence. For the reasons that follow, we are constrained to

affirm.

[T]hree fundamental principles . . . must be followed when conducting
appellate review of a trial court’s ruling on a motion to suppress. First,
when a motion to suppress is heard by the trial judge, that judge sits as
the trier of facts. The trial judge hears the evidence, and [her] findings
based upon conflicting evidence are analogous to the verdict of a jury
and should not be disturbed by a reviewing court if there is any evidence
to support them. Second, the trial court’s decision with regard to
questions of fact and credibility must be accepted unless clearly
erroneous. Third, the reviewing court must construe the evidence most
favorably to the upholding of the trial court’s findings and judgment.
These principles apply equally whether the trial court ruled in favor of
the State or the defendant.

(Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2)

(750 SE2d 148) (2013). To the extent that “the evidence at a suppression hearing is

uncontroverted and the credibility of witnesses is not in question, we conduct a de

novo review of the trial court’s application of the law to the undisputed facts.”

(Citation omitted.) Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012).

The undisputed evidence adduced at the motion to suppress hearing shows that

on or about November 15, 2012, law enforcement officers with Hall County’s Multi-

2
Agency Narcotics Squad (“MANS Unit”) learned from a Gwinnett County police

officer that New possessed or was selling drugs. An officer with the MANS Unit at

the time of the search testified that he did not know the source of the Gwinnett

officer’s information, and that he could not have gotten a search warrant because

“[w]e didn’t have any probable cause” and because “[t]here was no . . . evidence to

back up that [New] was actually selling” drugs.

Prior to initiating the search, Agent Casey Ivey, who was working with the

MANS Unit, contacted the Gainesville Probation Office to verify New’s probation

status. He was given a copy of New’s sentence, which included a waiver of New’s

Fourth Amendment rights against search and seizure. Officers then went to New’s

address. He walked out from the area near his detached garage to meet them, but

when the officers told him they were there to search him pursuant to his Fourth

Amendment waiver, New told them his probation had been terminated early. Agent

Ivey showed New the copy of his sentence, which said he had waived his Fourth

Amendment rights through the remainder of his probation. According to those

documents, his probation was not scheduled to end for another three years. New told

officers at least three times that he was no longer on probation, so prior to initiating

any search, two other officers each separately verified New’s probation status. One

3
officer called Hall County Dispatch, which checked both the National Crime

Information Center (“NCIC”) and the Georgia Crime Information Center (“GCIC”)

databases and confirmed that New was on probation; the other officer contacted a

representative from the probation office, who also confirmed that New was on

probation and had a valid Fourth Amendment waiver.

The agents, without seeking or obtaining New’s consent, then searched his

person, the curtilage of his home, and a detached garage and the apartment above it.

They found a glass smoking device containing methamphetamine residue in New’s

left front pocket. When agents retraced the path New walked from his garage to meet

them, they discovered a butane lighter and a “hide-away can,” labeled as an energy

drink, that contained methamphetamine and marijuana. Agents also found in an

apartment above the garage a large sum of money and a GPS device that checked out

as stolen.

However, New’s probation for the drug offenses to which he had pled guilty

had indeed been terminated early and his Fourth Amendment waiver was no longer

valid. Nicole Johnson, a Hall County probation officer, had completed and submitted

New’s early termination papers, and on March 14, 2012 – eight months prior to the

search in question – a judge issued an order approving the early termination of New’s

4
probation without a court adjudication of guilt pursuant to the Probation for First

Offenders Act, OCGA § 42-8-60, et seq.

After the search, New moved to suppress the evidence, and the trial court

granted his motion. The State appeals.

1. The State first contends that the trial court erred in granting the motion to

suppress because law enforcement acted reasonably under the “totality of the

circumstances;” thus, it argues that the search was lawful and that OCGA § 17-5-30

requires suppression only during an unlawful search.

OCGA § 17-5-30 (a) provides, in pertinent part, that: “[a] defendant aggrieved

by an unlawful search and seizure may move the court . . . to suppress as evidence

anything so obtained on the grounds that: (1) ...[t]he search and seizure without a

warrant was illegal[.]”

It is undisputed that New was not on probation and that there was not a valid

waiver of his Fourth Amendment rights at the time of the search. Thus, in the context

of this enumeration, we must examine whether the warrantless searches of New’s

property and of New himself, in his capacity as a former probationer with full Fourth

Amendment rights, were reasonable and lawful.

5
 “Ordinarily, a search by a police officer must be supported by a search warrant,

consent, or exigent circumstances.” (Citation omitted.) Prince v. State, 299 Ga. App.

164, 170 (3) (b), n. 7 (682 SE2d 180) (2009).1 “It is well established that searches

conducted outside the judicial process, without prior approval by judge or magistrate,

are per se unreasonable under the Fourth Amendment – subject only to a few

specifically established and well-delineated exceptions.” (Citations and punctuation

omitted.) Davis v. State, 262 Ga. 578, 580 (1) (422 SE2d 546) (1992).

The State concedes that officers neither sought nor received New’s consent to

search, and that there was no probable cause to justify a search warrant. The State

does not argue that any exigent circumstances existed to justify the searches. See

Brown v. State, __ Ga. App. __, *2 (1) (767 SE2d 299) (Case No. A14A2284, decided

December 16, 2014) (exigencies could include preventing imminent destruction of

evidence, pursuing a fleeing suspect, or helping people who are injured or threatened

with imminent injury). Also, New was not searched incident to a lawful arrest. See

OCGA § 17-5-1. See generally Lindsey v. State, 282 Ga. App. 644, 649 (639 SE2d

1
In its reply brief, the State contends that officers had a “good-faith suspicion
for the search based upon information from a law enforcement officer in Gwinnett
County that [New] was in possession [of] and distributing drugs.” However, this
standard applies to probationers in certain contexts, and New was not on probation
at the time of the search. See Prince, supra at 169-170 (3) (b), n. 7.

6
584) (2006) (where no probable cause existed to believe defendant had committed a

crime and where officer lacked any reason to believe a search was necessary for

safety, a full search of defendant’s person was an unreasonable intrusion).

Given that New was not a probationer and had not waived his Fourth

Amendment rights, the searches and seizures were not valid.

2. The State next argues that the trial court erred in granting the motion to

suppress because law enforcement officers acted in good faith when conducting the

searches given their reasonable belief that New was on probation and subject to a

Fourth Amendment waiver of rights; thus, it contends, the search was reasonable and

legal.

However, our Supreme Court has found that Georgia recognizes no good faith

exception to the exclusionary rule. In Gary v. State, 262 Ga. 573, 575 (422 SE2d 426)

(1992), our Supreme Court held that the good faith exception to the exclusionary rule

of United States v. Leon, 468 U. S. 897 (104 S.Ct. 3405, 82 LE2d 677) (1984), does

not apply in Georgia. Gary involved the seizure of tangible evidence pursuant to a

search warrant that was later found to lack probable cause. Gary, supra at 573-574,

577. The Gary court reasoned that the Leon good-faith exception stemmed from the

federal judiciary’s modification of a judicially-created exclusionary rule, but because

7
Georgia’s legislature had codified a specific exclusionary rule in OCGA § 17–5–30,

“infusion of the Leon good-faith exception into the statute would be tantamount to

judicial legislation.” (Footnote omitted.) Gary, supra at 575.

The State argues that the Supreme Court’s later ruling in Harvey v. State, 266

Ga. 671 (469 SE2d 176) (1996), opens the door to a different result. Harvey involved

a search incident to arrest where the officer reasonably believed he was exercising a

valid arrest warrant when, in fact, the warrant had been recalled. Id. at 671-672. The

Harvey court reasoned that because, at the moment the arrest was made, the officer

“knew” there was a valid warrant, probable cause existed to support the arrest

because “probable cause must be measured by current knowledge, i.e., at the moment

the arrest was made and not hindsight.” (Citations and punctuation omitted.) Id. at

672-673.2 Having found that the arrest was supported by probable cause, the Harvey

court determined that Harvey’s motion to suppress had been correctly denied. Most

significantly for our purposes, the court found that “the applicability of the Leon

‘good faith’ exception is not implicated by this case.” (Emphasis supplied.) Id. at 674.

2
We note that the rationale the Harvey 4 - 3 majority employed in order to find
probable cause engendered vehement dissents. See id. at 674-678.

8
 In the instant matter, however, no intermediary action exists – unlike the arrest

in Harvey – that can be deemed valid or supported by probable cause thanks to

officers’ reasonable belief, and which could be used to sidestep the direct application

of the good faith exception to the search and seizure. The only possible justification

for the search and seizure involving New is the officers’ good-faith belief that he was

on probation and subject to a valid Fourth Amendment waiver, and that option is

foreclosed by Gary.3

We find two more recent Georgia Supreme Court cases more closely aligned

with the instant action in that they, too, lack an intermediate event such as an arrest

that was ultimately found to be supported by probable cause and which could be used

as a springboard to justify a later search and seizure. In Harper v. State, 283 Ga. 102,

106-107 (2) (657 SE2d 213) (2008), where an officer relied on a warrant that later

was found to be unsupported by probable cause and a valid warrant was required to

search the defendant’s desk, the evidence seized from the desk had to be suppressed

3
We are not unsympathetic to the State’s assertion that the facts herein are of
sufficient similarity to those in Harvey such that it would be logical to extend the
ruling in Harvey in this context. However, given the pronouncement in Gary against
judicial creation of a good faith exception to the statutory exclusionary rule in
Georgia and our Supreme Court’s apparent conflict in Harvey, we think any extension
of the holding in Harvey is best left to our Supreme Court itself.

9
because Georgia has no good faith exception to the exclusionary rule. Accord Beck

v. State, 283 Ga. 352, 352-353 (1) (658 SE2d 577) (2008) (where officers relied on

a search warrant issued by a person who lacked authority to do so, the warrant was

invalid, the Court of Appeals erred in upholding its validity, and the trial court erred

in denying the motion to suppress because Georgia recognizes no good faith

exception to the exclusionary rule).

More directly on point in the context of warrantless searches is State v. Gallup,

236 Ga. App. 321 (512 SE2d 66) (1999), where, after more than 80 storage units were

vandalized in a single night, police initially searched the units without a warrant. Id.

at 321. However, during that search, one officer opened a refrigerator and saw what

appeared to be marijuana. Another officer then obtained a search warrant and seized

the marijuana. Id. at 322. Citing Gary, we affirmed the trial court’s grant of

defendant’s motion to suppress, reasoning that the officer exceeded the lawful scope

of his investigation of the burglary and vandalism. Id. at 324 (1) (c). We also found

that no exigent circumstances existed to justify the warrantless opening of the

refrigerator and that “[t]here is in Georgia no ‘good faith’ exception to our statutory

exclusionary rule, OCGA § 17-5-30.” Id. at 324 (2).

10
 The State also cites to several cases involving warrantless searches where a

person other than the defendant consents to the search, arguing that an officer’s

reasonable belief that an unauthorized person may consent renders the search valid.

However, both cases cited by the State, Warner v. State, 299 Ga. App. 56, 59 (1) (681

SE2d 624) (2009) (parents consenting to search of adult son’s bedroom in their

house) and Ford v. State, 214 Ga. App. 284, 285 (1) (447 SE2d 334) (1994) (adult

sister consenting to search of her adult brother’s bedroom in her apartment), involved

situations in which the appellate court ultimately determined that there was some

evidence supporting the lower court’s factual finding that the person giving consent

had authority to do so. Those appellate courts were bound by the standard of review:

“[w]hen reviewing a trial court’s ruling on a motion to suppress, we apply the ‘any

evidence’ standard, which means that we sustain all of the trial court’s findings of

fact that are supported by any evidence.” (Citations and punctuation omitted.)

Warner, supra at 58 (1). We, too, are bound by that standard. In the instant case, there

is no evidence that New was actually on probation or had a valid Fourth Amendment

waiver in place at the time of the search and seizure.

11
 Citing Ford, supra at 286-287 (3),4 the Warner court posits in conditional

language, that “[a] warrantless search based on unauthorized consent could

nonetheless be upheld if the law enforcement officer conducting the search

reasonably (albeit erroneously) believed the consent given was valid.” (Footnote

omitted, emphasis supplied, and emphasis in original). Warner, supra at 59 (1).

However, this proposition arguably is dicta in both Ford and Warner as the issue was

squarely before neither court. We cannot base a decision on dicta in the face of

Gary’s mandate. See Walker v. State, 290 Ga. 696, 700 (2) (723 SE2d 894) (2012)

(where obiter dicta was cited in cases that “either failed to mention or failed to

analyze the relevant language” of a statute, the dicta was not binding on the court in

a later case where the issue actually was presented for decision).

4
Ford, supra at 287 (3), also cites Davis, supra. Davis was issued just days
after the Gary decision declaring that Georgia recognizes no good faith exception to
the exclusionary rule. Davis involved a 10-year-old child who consented to a search
of his parents’ home. Id. at 578. The Davis decision was limited by its own terms to
a single issue: “whether, under the particular facts of this case, the consent to search
given by the child in this case was valid[,]” and the Davis court determined that it was
not. Id. at 579, 581 (1). Davis cites Gary in a footnote without comment or context,
but this issue was not squarely before the Davis court, and it rendered no decision on
the interplay of the good-faith exclusion with the evidence gleaned from the illegal
search. See id. at 580 (1), n. (1) and 583 (4). See also Ford, supra at 289 (3)
(Blackburn, J., dissenting).

12
 3. Finally, the State argues that because the primary purpose of the

exclusionary rule is to deter police misconduct, its purposes would not be served in

the instant case where the officers in the field acted in good faith and the trial court

erred in suppressing the evidence.

This argument has some merit, although like many issues, there are two sides

to the story and competing interests are at play.

Indeed, “[t]he primary reason for the exclusionary rule is to deter police

misconduct, whether it be negligent or intentional.” State v. Stringer, 258 Ga. 605,

606 (372 SE2d 426) (1988). As the State contends, where police have acted in good

faith, there would be no deterrent effect. However, as New points out, there may have

been some negligence by officers checking and updating his probationary file. The

record shows that a judge had terminated New’s probation eight months prior to the

search in question; however, his probation records were not fully updated to show his

status until seven months after the search at issue. If this is the result of negligence,

logically, excluding the evidence at issue here could have the requisite deterrent

effect on police misconduct.

Regardless, our decision herein is not dictated by policy, but by OCGA § 17-5-

30 and by Gary. Georgia recognizes no good faith exception. However, our

13
legislature might wish to consider the rationale in Leon. There, the United States

Supreme Court found that a judicially created exception to the exclusionary rule was

permitted given that the Fourth Amendment has no provision “expressly precluding

the use of evidence obtained in violation of its commands, and an examination of its

origin and purposes makes clear that the use of fruits of a past unlawful search or

seizure works no new Fourth Amendment wrong.” (Citation and punctuation

omitted.) Leon, supra at 906 (II) (A). Further, the Leon court recognized that if too

strictly applied, the exclusionary rule exacts certain social costs, including an

interference with the functions of judges and juries.

An objectionable collateral consequence of this interference with the
criminal justice system’s truth-finding function is that some guilty
defendants may go free or receive reduced sentences as a result of
favorable plea bargains. Particularly when law enforcement officers
have acted in objective good faith or their transgressions have been
minor, the magnitude of the benefit conferred on such guilty defendants
offends basic concepts of the criminal justice system. Indiscriminate
application of the exclusionary rule, therefore, may well generate
disrespect for the law and administration of justice.

Id. at 907-908 (II) (A).

14
 From a philosophical standpoint, this rationale is valid. The fact that it is not

accepted in Georgia, because (as outlined in Gary) we have a legislatively created

exclusionary rule rather than a judicially created exclusionary rule, makes it no less

valid. Without a good faith exception in this context, we essentially demand

perfection from police, yet do not require it of prosecutors, defense counsel, or even

judges.

Judgment affirmed. Andrews, P. J., and McFadden, J., concur in the judgment

only.

15