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State v. Rosenbaum

Supreme Court of Georgia

March 11, 2019

THE STATE
v.
ROSENBAUM et al.

          BOGGS, JUSTICE.

         This case considers, for the first time in Georgia, the effect of the State's delay in obtaining search warrants for data contained in electronic devices when those devices were originally seized in a warrantless, but lawful, manner by police. The trial court suppressed the evidence derived from the devices, relying on persuasive authority from the United States Court of Appeals for the Eleventh Circuit to find that the delay between the seizure of the devices and the issuance of the search warrants for the data contained in them was unreasonable and thus violated appellees' rights under the Fourth Amendment and Georgia law. From this order, the State appeals. We conclude that the analysis developed by the Eleventh Circuit is appropriate, the trial court's findings of fact are supported by the record, and the trial court did not err in granting the motion to suppress. We therefore affirm the judgment of the trial court.

         On November 17, 2015, Laila Daniel, a two-year-old foster child, died while in the care of appellees Jennifer and Joseph Rosenbaum. Appellees were arrested pursuant to a warrant on December 4, 2015 and subsequently charged in a 49-count indictment for Laila's death and for the alleged physical abuse of M. P., their second foster child and Laila's biological sister.[1] At the time of appellees' arrest, police seized their iPhones, iPad, and MacBook laptop computer without a warrant. Police eventually obtained seven search warrants for the electronic devices, but the first warrants were not issued until May 26, 2017, 539 days after the devices were seized, and the last such warrants were issued on November 6, 2017, 702 days after the seizure.[2]

         The initial investigation into Laila's death was handled by the Henry County Police Department, with Detective Aris Thompson assigned as the lead detective.[3] The devices were seized in two separate incidents. First, during the vehicle stop leading to appellees' arrest, Officer Robert Butera conducted an impound inventory of appellees' vehicle pursuant to department policy. Officer Butera asked Jennifer Rosenbaum "if there was anything of extreme value" in the vehicle, and she informed him about the iPad and MacBook. Officer Butera retrieved the iPad and MacBook from the vehicle and placed them in the property and evidence room at the Henry County Police Department "for safekeeping." Officer Butera filled out a property sheet showing that the iPad and MacBook had been placed in the property room. He did not personally hand a copy of the property sheet to Detective Thompson or any other detective involved in the investigation but instead attached it to his report and gave the report to his supervisor, according to his normal procedure. Detective Thompson acknowledged on cross-examination that, when he reviewed reports, he did not "go through the entire document" but only checked to verify that attachments were present as listed on the document. He acknowledged that property sheets could have been in his file, and he failed to read them.

         The second seizure occurred after the arrest, while appellees were being transported to jail. At that time, Detective Wayne Harrison and his supervisor, Sergeant Peaden, decided that appellees' cellphones would be secured and preserved incident to their arrest.[4] Detective Harrison went to the Henry County Jail and secured the phones, which he placed in the property and evidence room. He listed the purpose of the seizure on the property sheet as "evidence." He did not personally inform Detective Thompson that the phones had been seized or that they were deposited in the property room, but he included that information in his case notes and attached to his notes copies of the property sheet showing that the devices had been seized. He further testified that case notes and property sheets form part of the case file and that the lead detective receives the originals of everything. Detective Thompson denied knowing that the phones had been seized, although he acknowledged that they were "critical evidence." He was aware that another detective was "tasked with obtaining phone records," but he made no inquiry himself as to the whereabouts of the phones nor any effort to obtain them.

         The parties dispute the timing and substance of their communications regarding the electronic devices. According to the State, it was not until a hearing on May 23, 2017, 536 days after appellees were arrested, that the current prosecutor became aware of the possible existence of seized electronic devices. However, Detective Thompson acknowledged that, in a meeting in March 2017, the Cobb County assistant district attorney asked him if "any type of technology" had been found in the case and that he was unable to find anything in the file other than a request for appellees' phone records from the cellular provider.[5] Detective Thompson also acknowledged that he was asked to follow up with the property and evidence room and that he did so. However, the person he contacted said that "there wasn't anything," so he was "not sure if the person didn't know how to look it up in the system or they didn't know what they were doing." The trial court found that the devices "sat in the evidence room undisturbed until May 26, [2017]."

         On June 23, 2017, appellees filed a motion seeking forensic examination of the contents of the devices within a time certain and return of the devices themselves. The trial court held a hearing, at which counsel for appellees asserted that she had,

since the beginning, been asking for these tapes, these phones, these computers that were seized from our clients. And about a month ago at the last hearing, I asked Mr. Boring [the Cobb County assistant district attorney] for those items. He said if we're through with them, we'll give them to you. And that's exactly what was said to me a year and a half ago by . . . Blair Mahaffey [the Henry County assistant district attorney]. So I'm asking the Court to consider that we have spent a year and a half without access to the most important pieces of evidence, because that contains pictures, e-mails back and forth between the families, and those are very crucial to our defense. We have not had it.

         The trial court instructed the State to complete its examination and return the devices within 45 to 60 days. The devices, however, were still not returned, and appellees asserted that, as of the date of their appellate brief in June 2018, all the devices remained in the custody of the State.[6]

         On January 28, 2018, appellees filed a motion in limine and to suppress the evidence recovered from the devices. At the hearing on the motion, counsel for appellees again stated that she had "repeatedly sought the return of their electronic devices" at every court appearance since appellees' arrest in 2015.[7]Specifically, defense counsel stated that she sought the return of the devices from Blair Mahaffey, the Henry County assistant district attorney initially assigned to the case, shortly after appellees' arrest; again at the March 16, 2016 hearing on the motion to recuse; and again at the September 28, 2016 bond hearing. At the hearing on the motion to suppress, the State questioned Mahaffey regarding whether he had been made aware that the police had custody of the electronic devices, and he responded, "If I was, I do not recall that. My first knowledge that that even existed was when I spoke with you about three weeks ago." On cross-examination of Mahaffey, the following exchange took place:

Q. . . . [I]s it your position as you sit here today that you and I did not have a conversation in Judge McGarity's courtroom where I asked you about the devices and wanted them back for the Rosenbaums?
A. If we had that conversation, I don't remember, no, ma'am.
Q. Okay. So your position here is, you don't remember whether I spoke to you or not?
A. I do not.
Q. So I might have or I might not have according to you; correct?
A. I mean, that is a possibility, but I don't recall.
Q. Those are the two possibilities; correct?
A. Okay.

         An investigator for the DeKalb County district attorney's office testified that appellees' attorney asked her at the May 23, 2017 hearing for the return of the electronic devices and that she contacted the Henry County Police Department and was able to locate the devices. The first warrants issued shortly thereafter.

         The trial court granted the motion to suppress on February 27, 2018, employing the analysis used by the Eleventh Circuit in United States v. Mitchell, 565 F.3d 1347, 1350-1351 (11th Cir. 2009), and United States v. Laist, 702 F.3d 608, 613-614 (II) (11th Cir. 2012), which the trial court found persuasive, to analyze the effect of government delay in securing a warrant. The trial court concluded that the delay in this case was unreasonable and violated appellees' Fourth Amendment rights, and it rejected the State's argument that evidence obtained pursuant to the warrants nevertheless was admissible under the good-faith exception recognized in United States v. Leon, 468 U.S. 897 (104 S.Ct. 3405, 82 L.Ed.2d 677) (1984). In rejecting that argument, the trial court noted that OCGA § 17-5-30, as interpreted by Gary v. State, 262 Ga. 573 (422 S.E.2d 426) (1992), precludes any application of the Leon exception in Georgia. The trial court therefore granted appellees' motion to suppress all evidence derived from their electronic devices. The State filed a notice of appeal on March 1, 2018, and an amended notice of appeal on March 8, 2018.

         1. As a preliminary matter, we address appellees' assertion that the State's appeal should be dismissed because the State failed to comply with the requirements of OCGA § 5-7-1 (a) (5) (B). See Ga. L. 2013, p. 222, effective July 1, 2013. That subsection provides that the State may appeal

(5) From an order, decision, or judgment excluding any other evidence to be used by the state at trial on any motion filed by the state or defendant at least 30 days prior to trial and ruled on prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first, if:
(A) Notwithstanding the provisions of Code Section 5-6-38, the notice of appeal filed pursuant to this paragraph is filed within two days of such order, decision, or judgment; and
(B) The prosecuting attorney certifies to the trial court that such appeal is not taken for purpose of delay and that the evidence is a substantial proof of a material fact in the proceeding[.]

         The State filed its notice of appeal within two days of the trial court's order, and the notice recited that it was filed "under the authority of OCGA § 5-7-1 (a) (4)." It did not include the certification required by OCGA § 5-7-1 (a) (5) (B).[8]The State contends that it correctly filed its notice of appeal under OCGA ยง 5-7-1 (a) (4), permitting an appeal "[f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized . . . in the case of motions made and ...


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