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Green v. State

Court of Appeals of Georgia

March 30, 2015

GREEN
v.
THE STATE

Cert. applied for.

Motion to suppress. Cobb Superior Court. Before Judge Green.

Forrest K. Shealy, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

OPINION

Page 519

Boggs, Judge.

Following a bench trial, Fred Green was found guilty of burglary. He appeals, asserting that the trial court erred by (1) denying his motion to suppress evidence obtained through the use of a Global Positioning System (" GPS" ) device placed on his co-defendant's truck by the police; and (2) failing to make an inquiry or establish on the record that he validly waived his right to a jury trial. For the reasons explained below, we disagree and affirm.

" On appellate review of a ruling on a motion to suppress, the trial court's findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject [331 Ga.App. 802] to de novo review." (Citations and punctuation omitted.) Brown v. State, 295 Ga. 695, 697 (2) (763 S.E.2d 710) (2014).

So viewed, the record shows that on March 26, 2012, surveillance cameras recorded two black males in a light-colored, extended cab pickup truck leaving a Sandy Springs neighborhood where a burglary had taken place. Two days later, surveillance video showed the same color and type truck leaving an apartment complex following a burglary. When another burglary occurred in the same area on April 3, 2012, a detective began reviewing a license tag reader at an intersection in close proximity to the burglary locations for a light-colored, extended cab pickup truck around the time of the April 3 burglary.

This review revealed a truck matching this description traveling in the direction of the apartment complex with an empty truck bed at 4:43 a.m. At 5:18 a.m., the tag reader showed the same light-colored extended cab pickup truck returning through the intersection with what appeared to be an air conditioning unit in the truck bed. At 5:21 a.m., the police were notified of a burglary at the apartment complex in which a four-ton air conditioning unit was taken.

A police detective determined that the truck observed by the tag reader was registered to Lester Thompkins who resided in Clayton County. On April 5, the police observed Thompkins leave his residence dressed all in black around 1:30 a.m. and return around 5:00 a.m. Later the same day, they obtained an order from the Clayton County Superior Court for placement and monitoring of a GPS tracking device on Thompkins' truck. A detective placed the device on Thompkins' truck at 11:00 p.m. the same day.

Page 520

A multi-jurisdictional burglary task force organized six of its members to conduct surveillance on the truck from the evening of April 5 through the early morning hours of April 6. Investigators were assigned to various locations so that the truck could be watched almost continuously. At 2:26 a.m., the truck left Thompkins' home and then stopped at 2:48 a.m. near Green's residence, where a member of the task force saw " a black male, dressed all in black g[e]t into the passenger side of the pickup truck while it was stopped."

A combination of GPS monitoring and task force surveillance showed that the truck traveled in and out of various apartment complexes located near Cumberland Parkway in Cobb County. Task force members did not have the vehicle in sight at all times. A task force member saw the truck approaching an apartment complex located at 50 Adams Lake Boulevard while occupied by two black males, but lost sight of the truck before it entered the front gate; GPS monitoring showed that the truck entered the apartment complex. The police officer notified the Cobb County police department to [331 Ga.App. 803] assist them in entering the gated apartment complex. By the time the Cobb County officers arrived ten or fifteen minutes later, GPS monitoring showed that the truck had left the apartment complex.

When a Cobb County police officer entered the apartment complex, he discovered forced entry into a maintenance shed. Police asked an on-call maintenance technician for the complex to come to the shed and make a list of missing items. The technician informed them that two tool boxes had been taken and that these items had been present less than 12 hours earlier.

Approximately one hour after entering the Adams Lake Boulevard complex, the truck returned to Thompkins' Riverdale address, where a police officer saw it back into the driveway. Thompkins and Green got out of the truck and began to unload various items from the truck bed, including what appeared to be a red air compressor and two very large toolboxes. After unloading the truck, the men re-entered it, and Thompkins drove it through various locations in south Fulton County, Riverdale, and Clayton County for approximately 90 minutes.

When the truck returned to Thompkins' home, officers stopped it as it was backing into the driveway and detained both men by placing them in the back of a patrol car in handcuffs. After obtaining a search warrant for Thompkins' residence, the task force discovered an identification card for the Adams Lake Boulevard apartment's maintenance technician inside a drawer of the large toolbox previously unloaded from the truck bed. The GPS monitoring of the truck lasted a total of eight hours.

Thompkins and Green were indicted in Cobb County for the Adams Lake Boulevard burglary and were tried together. Before trial, Thompkins filed a written motion to suppress evidence illegally acquired through use of the GPS tracking device in violation of his Fourth Amendment rights. He also contended that the Clayton County Superior Court's order was " unlawful" and " illegally acquired." His assertions included that: (1) the order authorizing installation of the GPS device and GPS monitoring was not supported by probable cause; and (2) the ...


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