DILLARD, C. J., DOYLE, P. J., and MERCIER, J.
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 ("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.
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.").
§ 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
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).
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.).
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. 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.
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.
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.
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.
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.
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).
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.
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
"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).
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
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 ...