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Bourassa v. State

Supreme Court of Georgia

June 28, 2019

BOURASSA
v.
THE STATE.

          Warren, Justice.

         In this criminal case, we granted a writ of certiorari to review the Court of Appeals' ruling that the trial court did not err in denying Jeffrey Alan Bourassa's motion to suppress certain intercepted phone communications. Bourassa was convicted of possessing more than one ounce of marijuana, conspiracy to commit that crime, and violating the Georgia Racketeer Influenced and Corrupt Organizations Act ("RICO") by using a telephone to arrange for the purchase of more than one ounce of marijuana from co-indictee German William Beltran. The evidence supporting these convictions was obtained during a police investigation of Beltran and others that included extensive surveillance and investigation warrants that authorized the interception of electronic and oral communications for several phone numbers, including Beltran's. Neither Bourassa's phone number nor any phone number allegedly used by him was listed as a target in the investigation warrants, and Bourassa's phone number was not known to be associated with any of the phone numbers listed in the investigation warrants as targets. However, the following evidence uncovered in the course of the investigation led police to Bourassa.

         In intercepted phone conversations and text messages between Beltran and a man who identified himself as "J" or "JB"[1] that were surveilled from March 4 to 9, 2013, the two men discussed the exchange of large quantities of marijuana and pills, and ultimately agreed to meet at a residence associated with Beltran on March 9, 2013. When those communications ended, Bourassa and his girlfriend arrived at the residence previously identified in the intercepted communications. Shortly after they left the residence, a law enforcement officer stopped their vehicle (which matched a description of the vehicle police surveillance had spotted arriving at and leaving the residence), obtained consent to search, found 448.5 grams of marijuana and $4, 800 cash inside, and arrested Bourassa and his girlfriend.

         Bourassa moved to suppress the communications intercepted in March 2013, arguing (among other things) that the investigation warrants that resulted in the interception of his phone conversations and text messages violated the laws of Georgia and the Fourth Amendment to the United States Constitution.[2] Bourassa did not testify at the hearing on the motion to suppress or stipulate that he was a party to those conversations and messages, and the State argued that he failed to prove standing. At the suppression hearing, the investigation warrants-including the applications and supporting affidavits-were admitted, and the affiant and sole witness, Sgt. Randy Folsom of the Douglas County Sheriff's Office, confirmed that neither Bourassa nor any phone number associated with him was specified as a target in the warrants. On cross-examination, defense counsel then questioned Sgt. Folsom about the intercepted phone calls:

Q. Was [Bourassa] ever part of the call or party on the call?
A. He was identified - or his phone number was identified as one of the phone numbers [that] was calling us, yes.

         Specifically, Sgt. Folsom testified that police had determined through surveillance of Beltran's phone calls that some of those calls were between Beltran and someone using a phone number that was not in Bourassa's name, but was associated with his girlfriend's Facebook account. Surveillance recordings revealed, however, that the phone number was being used by someone with a male voice. Sgt. Folsom's cross-examination continued as follows:

Q. Okay. So when was the first time that Mr. Bourassa was linked to the actual phone, not just that number, but the actual phone?
A. I believe it was - I have to go back and look at the phone calls, but I believe it's when he called and set up a drug deal and was surveilled, we got pictures of him.
Q. Okay. And so it's your belief and testimony that he was a party to some of the phone calls that were tapped, that were listened to on this tap?
A. Yeah, he was part of the conversations that we received.
Q. Okay. And how was it that you were able to identify his voice as a person on the other end? How did you make that link?
A. Basically, we didn't. I mean, it was just a phone number that he called - a male voice called and set up a drug transaction, he was surveilled to a location. We have photographs of him showing up at the exact same time and we followed him back. You know, all evidence indicated that it was him.

         On redirect examination, Sgt. Folsom testified that he had never met or interviewed Bourassa; that he had no reason to know what Bourassa's voice sounded like; that he believed it was Bourassa's voice on the recorded calls "[b]ased on the evidence we developed"; that "it's basically a guesstimate that that's [Bourassa's] ...


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