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Shirley v. State

Court of Appeals of Georgia

November 21, 2014

SHIRLEY
v.
THE STATE

Reconsideration denied December 16, 2014.

Page 492

Motion to suppress. Gwinnett Superior Court. Before Judge T. Davis.

Crawford & Boyle, Eric C. Crawford, for appellant.

Daniel J. Porter, District Attorney, Richard C. Armond, Assistant District Attorney, for appellee.

RAY, Judge. Andrews, P. J., Doyle, P. J., Boggs and Branch, JJ., concur. Barnes, P. J., and McFadden, J., dissent. BARNES, Presiding Judge, dissenting.

OPINION

Page 493

Ray, Judge.

After a Gwinnett County grand jury indicted Michael Scott Shirley on 17 counts of sexual exploitation of children (OCGA § 16-12-100), he filed a motion to suppress. The trial court denied Shirley's motion, and we granted his interlocutory appeal. Shirley contends that the trial court erred in denying his motion because the warrant affidavit and application were not supported by probable cause and because the information supporting the warrant was stale. For the reasons that follow, we affirm.

Viewing the evidence to uphold the trial court's findings and judgment, Henson v. State, 314 Ga.App. 152, 153 (723 S.E.2d 456) (2012), the record shows that on January 20, 2011, the Federal Bureau of Investigation's Safe Child Task Force (" FBI" ) received information from an investigation by German authorities regarding a website used to distribute child pornography. The German authorities identified several internet protocol (" IP" ) addresses, including one from which 150 full- and thumbnail-sized image files had been accessed on July 22, 2009. In response to a federal administrative subpoena, AT& T Internet Services identified the IP address from which the images had been accessed as belonging to Shirley and located at a particular residential address. On February 18, 2011, two police officers, including the one who signed the warrant affidavit, attempted to make contact with Shirley at that address, but received no answer. They left a business card, and later that evening, Shirley left two voicemail messages for one of the officers. On February 21, 2011, Shirley came to the Lawrenceville police department for an interview. He asked that his wife not be interviewed because of her [330 Ga.App. 425] stress level. During the interview, Shirley stated that he did not look at pornography on the internet, and that he had one desktop computer and one laptop that he had purchased for his son.[1] When asked about his knowledge of someone accessing a German website to view child pornography, he invoked his right to remain silent until he could speak with an attorney.

In the search warrant affidavit, the officer listed " Possession Of Child Pornography" pursuant to OCGA § 16-12-100 (b) (8) as the offense at issue, described the role of the computer as an instrumentality for obtaining and storing child pornography, and sought a warrant for Shirley's residence, including any computers and electronic devices that could possibly contain child pornography. The magistrate indicated on the face of the warrant that she did not consider the officer's oral testimony in granting the warrant. The warrant was sworn, issued, and executed on February 21, 2011. Shirley filed a motion to suppress, which the trial court denied. This appeal followed.

In State v. Palmer, 285 Ga. 75 (673 S.E.2d 237) (2009), our Supreme Court described the standards applicable to the various levels of judicial scrutiny involved in the warrant process. A magistrate determines if probable cause exists to issue a warrant by making

a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [her], including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment's strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate's decision to issue a search warrant based on a finding of probable cause. ... Our appellate courts will review the search warrant to determine the existence of probable cause using the totality of the circumstances analysis ... [and] to determine if the magistrate had a substantial basis for concluding that probable cause ...

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