Motion to suppress. Clarke Superior Court. Before Judge Sweat.
Pate Law Firm, Page A. Pate, Jess B. Johnson, for appellant.
Kenneth W. Mauldin, District Attorney, Jon R. Forwood, Assistant District Attorney, for appellee.
ELLINGTON, Presiding Judge. Phipps, C. J., and McMillian, J., concur.
Ellington, Presiding Judge.
Daniel Brown stands charged with driving under the influence of alcohol to the extent that it was less safe to drive, OCGA § 40-6-391 (a) (1); driving under the influence of alcohol while having a blood alcohol concentration of 0.08 grams or more, OCGA § 40-6-391 (a) (5); [330 Ga.App. 489] and 12 counts of possessing a lewd depiction of a minor child in violation of OCGA § 16-12-100 (b) (8). After a hearing, the Superior Court of Athens-Clarke County denied Brown's motion to suppress evidence seized as a result of a warrantless search of his cell phone. Following our grant of his application for interlocutory review, Brown appeals, contending, inter alia, that the warrantless search of the digital contents of his cell phone violated his Fourth Amendment right to be free from unlawful searches. We agree and reverse.
" [W]here the facts relevant to a suppression motion are undisputed, ... and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review." (Citation, punctuation and footnotes omitted.) State v. Underwood, 283 Ga. 498, 500 (661 S.E.2d 529) (2008).
Viewed in favor of the trial court's ruling, the evidence shows that at 2:00 a.m. on December 30, 2012, Brown drove his vehicle into the path of oncoming traffic and forced an unmarked police car off the road. The Athens-Clarke County police officer stopped Brown's vehicle and began a DUI investigation. As the officer questioned Brown, he observed that Brown smelled of alcohol, had slurred speech, and had bloodshot, glassy eyes. Brown admitted to recently drinking alcohol. After a second officer arrived in a patrol car to assist with the traffic stop, the first officer arrested Brown for DUI and confined him in the back of the patrol car.
The second officer sat in the front seat of the patrol car, while the arresting officer continued his investigation. Brown's cell phone, which the officer had on the front seat beside him, rang several times. Brown asked the officer to answer the phone and talk to his father, but the officer simply muted the phone each time it rang. The last time Brown's phone rang, the officer muted it and then opened the pictures application on the phone. The officer decided " to look through the phone to see if there was any evidence ... that would substantiate the stop or [show Brown] previously drinking before the stop." The officer began scrolling through the photographs stored on the phone and went through ten to twelve images. After the first couple of pictures, there was a picture of a nude adult woman, and within the next few pictures the officer saw images that appeared to be child pornography.
At the hearing on Brown's motion to suppress, the officer explained his reason for opening the pictures application as follows. He testified that, in his experience, some people who are out drinking and [330 Ga.App. 490] partying use their phones to capture the moment or send text messages about what they are doing. He testified that, because of this, phones have yielded evidence in cases involving a minor in possession of alcohol. In addition, he testified that phones have contained evidence
of suspects possessing guns or gang-related paraphernalia. On cross-examination, the officer admitted that he had never looked for or found evidence of DUI on an arrestee's phone. Aside from his " general experience as an officer," the officer testified he did not have " any [particular] reason to believe" that Brown had evidence on his cell phone that he had committed the offense of driving under the influence of alcohol. He testified specifically that he " never saw [Brown] text on his cell phone" ; " never saw him input data on his cell phone" ; " never saw him take a picture" with his cell phone; and " never received any intelligence" from anyone else that there was evidence of DUI on Brown's cell phone.
Based solely on information the officer provided about images he observed on Brown's phone, a detective applied for and obtained a search warrant to look for evidence of sexual exploitation of a child on the phone. A cyber-crime and digital forensics examiner executed the search warrant and found the images that formed the basis for the 12 counts of sexual exploitation of a child. Subsequent ...