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Mobley v. State

Court of Appeals of Georgia, Fourth Division

June 27, 2018


          DILLARD, C. J., DOYLE, P. J., and MERCIER, J.

          MERCIER, JUDGE.

         On December 15, 2014, the vehicle driven by Victor Lamont Mobley collided with a vehicle driven by W. M. W. M. and the passenger in his vehicle, C. F., were killed in the collision. Mobley was charged with reckless driving, two counts of homicide by vehicle in the first degree (alleging that he caused the deaths of W. M. and C. F. through the act of reckless driving), and speeding (alleging that he drove a vehicle at a speed of 97 miles per hour in a 45-mile-per-hour zone). Mobley moved to suppress evidence that was obtained from the airbag control module[1] ("ACM") in the vehicle he was driving, which showed that the vehicle was traveling at a speed of 97 miles per hour five seconds before airbag deployment. After conducting a hearing the trial court denied his motion. In its order denying Mobley's motion to suppress, the trial court found that it did not have to reach the issue of whether a search warrant was required to access the data from the ACM in the vehicle driven by Mobley, because a search warrant was obtained the day after the data was accessed and the data in the ACM would have inevitably been discovered "when the ACMs were properly removed from the vehicle pursuant to the search warrant[]." Following a bench trial on June 6, 2017, Mobley was found guilty on all counts. He appeals from the judgment of conviction entered in this case.

         1. Mobley contends that the trial court erred in denying his motion to suppress. He argues that a search warrant was required for law enforcement to access the data in the ACM in the vehicle he was driving because he had a subjective expectation of privacy in the data; that a law enforcement officer misled the magistrate judge by applying for a search warrant without indicating that the information sought had already been obtained; that the trial court erred in relying on the inevitable discovery exception to the warrant requirement; and that the exigent circumstances exception to the warrant requirement did not apply. Whether a search warrant is required to retrieve the data from a vehicle's ACM is an issue of first impression in Georgia. Because we find that a search warrant was not required here, we affirm Mobley's convictions. See generally Fi ncher v. State, 276 Ga. 480, 481 (2) (578 S.E.2d 102) (2003) ("[A] trial court's ruling on a motion to suppress will be upheld if it is right for any reason.").

         OCGA § 17-5-30 (a) pertinently provides 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 . . . [t]he search and seizure without a warrant was illegal[.]" OCGA § 17-5-30 (b) pertinently provides that "the burden of proving that the search and seizure were lawful shall be on the [S]tate."

When 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. To the extent an issue concerns a mixed question of fact and law, we accept the trial court's findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts.

State v. Wright, 344 Ga.App. 881 (812 S.E.2d 86) (2018) (footnote omitted).

         Here, the evidence at the hearing on the motion to suppress included testimony from three law enforcement officers with the Henry County Police Department who were involved in the investigation of the collision (Sergeant D. G., Investigator J. H., and Officer B. T.).

         Sergeant D. G. assisted with the investigation immediately following the collision and contacted Investigator J. H. to retrieve the data from the vehicle's ACMs at the scene of the collision.[2] Investigator J. H. downloaded the data from the ACMs in Mobley's and W. M.'s vehicles at the collision scene. The next day, Officer B. T. applied for and obtained a warrant to search and seize the ACMs, which devices were in the vehicles at an impound facility. All three officers testified that at the time of their investigation of the collision, they believed that they were not required to obtain a search warrant in order to retrieve data from the ACMs while the vehicles and the officers were still at the scene of the collision.

         Sergeant D. G. testified as follows. The collision occurred on a Monday at approximately 1:00 p.m. The magistrate court was open when officers began their investigation and they could have obtained a search warrant on that day. Witnesses to the collision told Sergeant D. G. at the scene that W. M.'s vehicle had "pulled out" in front of the vehicle driven by Mobley. None of the witnesses provided Sergeant D. G. with any information about the speeds of the vehicles. The speed limit at the location of the collision was 45 miles per hour, and based on the evidence on the roadway, it appeared to Sergeant D. G. that the vehicle speed at the time of the collision was 45 to 50 miles per hour.

         It was not uncommon for Sergeant D. G. to decide to download the information from ACMs at a collision scene as he did in this case, particularly when the collisions involved serious injuries or fatalities. He testified that in this case, "[a]s in any other fatality that we work, we'll try to investigate the whole thing through and through. So the crash . . . appeared to be a 45- to 50-something-mile-an-hour crash, but with two people being deceased, we knew that we needed to go farther with the investigation on it." He further explained that this was the case because "two people [were] dead" and investigators needed "to find out if there [were] any other extenuating circumstances that caused the collision itself." Sergeant D. G. chose to download the ACM data at the collision scene without first obtaining a search warrant because "we were still on-scene" of a fatal collision and "we had the resources available at the time . . . to go ahead and just gather all the data that we could while we're on-scene." A short time later, the vehicles were towed from the scene by a towing service, and officers instructed the towing service to hold the vehicles for investigation.

         Investigator J. H. testified as follows. He arrived at the scene of the collision at approximately 2:00 p.m. on the day that the collision occurred. He confirmed that both vehicles involved in the collision were "able to be imaged," and he obtained the data from the ACMs in both vehicles while the vehicles were still at the collision scene. He then provided the data he obtained to another investigator. Investigator J. H. testified that he could have used the same procedure to download the information the day after the accident, after a search warrant was obtained. Officers removed the ACMs from both vehicles at the towing company's lot on the day after the collision, placed the devices into evidence storage, and did not access the data again.

         Officer B. T. testified as follows. He assisted in the investigation of the collision on December 16, 2014, the day after the collision occurred. On December 16, 2014, he completed the affidavit for a search warrant for the ACMs based on information provided to him by other officers. The purpose of obtaining the search warrant was to remove the ACMs from the vehicles and place them "into property and evidence." In applying for the search warrant, he did not tell the magistrate that law enforcement officers had already collected the data from the ACMs. He further testified that, if the data had not been downloaded from the ACMs at the scene of the collision, he would have obtained a search warrant and downloaded the data at the impound lot.

         The evidence demonstrates that the ACM in Mobley's vehicle was designed to capture data related to a collision or airbag deployment. Accessing the data in the ACMs in the vehicles involved in this case required special equipment, and interpretation of some of the data required special training. Specifically, obtaining the data from an ACM required a "crash data recovery kit" ("CDR"), which involved the use of a laptop, a computer program, an interface box, and a connection cable. Reading the ACM data required special training because some of it was recorded in hexadecimal format (for engineers).

         Officer B. T. confirmed that the data captured by the ACM included the status of several aspects of the vehicle at or immediately preceding airbag deployment, including speed, engine speed, brake status, throttle position, engine revolutions, driver's seat belt status and brake switch status, as well as time from maximum deceleration to impact, time from vehicle impact to airbag deployment, and diagnostic information on the vehicle's systems. A copy of the printed report of the ACM data captured from Mobley's vehicle was introduced at the bench trial, and included charts containing several sets of pre-collision data set forth at specific intervals, including "Accelerator Pedal, % Full," "Engine Throttle, % Full," "Stability Control," "Raw Manifold Pressure," "Yaw Rate," and "Wheel Speed." In the indictment and in its opening statement, the prosecution relied upon Mobley's "high rate of speed" to prove its case, which evidence was obtained from the ACM.

         "The Fourth Amendment proscribes all unreasonable searches and seizures, and searches conducted without prior judicial approval are per se unreasonable under the Fourth Amendment, subject to specifically established and well-delineated exceptions." Teal v. State, 282 Ga. 319, 322-323 (2) (647 S.E.2d 15) (2007) (citation omitted). "[A]n individual may challenge the legality of a search under the Fourth Amendment . . . only if he or she has manifested a subjective expectation of privacy in the object of the challenged search and society is willing to recognize that expectation as reasonable." Bowli ng v. State, 289 Ga. 881, 883 (2) (a) (717 S.E.2d 190) (2011) (citations and punctuation omitted) (citing Kyllo v. United States, 533 U.S. 27, 33 (II) (121 S.Ct. 2038, 150 L.Ed.2d 94) (2001)). "[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351-352 (88 S.Ct. 507, 19 L.Ed.2d 576) (1967) (citations omitted).

          "A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view." Sevilla-Carcamo v. State, 335 Ga.App. 788, 794 (3) (fn. 25) (783 S.E.2d 150) (2016) (citation omitted). "A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." Devega v. State, 286 Ga. 448, 453 (4) (d) (689 S.E.2d 293) (2010) (citation omitted).

         Mobley argues that an ACM is analogous to a cell phone with regard to the Fourth Amendment right to privacy. In Riley v. California, 134 S.Ct. 2473 (189 L.Ed.2d 430) (2014), which he cites, the Supreme Court of the United States held that there is a reasonable expectation of privacy in the contents of a cell phone, and a warrant generally is required to search such contents, even when the phone is seized incident to arrest. Riley, supra at 2493 (III) (C), 2495 (IV). In balancing the degree to which such a search intrudes upon an individual's privacy and the degree to which the search is needed for the promotion of legitimate governmental interests (the test for a warrantless search incident to arrest), the Ri ley Court found that a search of the digital information on a cell phone does not further the government interests of officer safety and prevention of evidence destruction, and implicates substantially greater individual privacy interests than a brief physical search. Id. at 2484-2485 (III). This is because "[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life[.]" Id. at 2494-2495 (IV) (citation and punctuation omitted).

         Mobley also contends that we should follow the reasoning employed by a Florida appellate court, which held (in a divided opinion) that a search warrant was required to access ACM data in an impounded vehicle. State v. Worsham, 227 So.3d 602, 605, 608 (42 Fla.L.Weekly D 711) (Fla. 4th DCA 2017) (certiorari denied in Florida v. Worsham, (138 S.Ct. 264, 199 L.Ed.2d 125) (2017)). The Worsham court found that ACMs "document more than what is voluntarily conveyed to the public and the information is inherently different from the tangible 'mechanical' parts of a vehicle." Id. at 606. Citing Riley, supra and analogizing the ACM to a cell phone, the Worsham court reasoned that because the ...

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