State v. Wilson ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: February 21, 2023
S22A0967. THE STATE v. WILSON.
COLVIN, Justice.
The State appeals from the grant of defendant Roceam
Wilson’s motion to suppress. 1 The State contends that the trial court
erred in concluding that the search warrant issued for Wilson’s cell
phones was overbroad and authorized a general search in violation
of the Fourth Amendment to the United States Constitution. In
reviewing the trial court’s grant of the motion to suppress, “we apply
the well-established principles that the trial court’s findings as to
disputed facts will be upheld unless clearly erroneous and the trial
court’s application of the law to undisputed facts is subject to de novo
review.” State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009)
Wilson was indicted for, among other things, murder in connection with
1
the shooting death of Bradly Jordan. The State appeals the trial court’s
pretrial ruling pursuant to OCGA § 5-7-1 (a) (5), and we have jurisdiction to
consider this appeal. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. III (8).
(citation and punctuation omitted). Applying that standard here,
we see no error in the trial court’s order. Accordingly, we affirm.
The record shows that, on January 28, 2021, Bradly Jordan
was shot and killed while performing pest control services at an
apartment complex. After conducting an investigation at the crime
scene, officers determined that the shooter was a “black male”
driving a teal green “[1990]s model Ford Aerostar van” with a
missing hubcap. Utilizing a license plate tracking system, officers
located a van matching this description a few miles from the incident
location. Wilson was listed as the registered owner of the vehicle.
Officers conducted a traffic stop on the Ford Aerostar and spoke with
Wilson, who was in the driver’s seat. After answering some
questions, Wilson was arrested and officers impounded his vehicle,
which was later searched pursuant to a warrant. During that
search, officers located, among other things, two cell phones, both of
which belonged to Wilson.
One of the lead investigators subsequently sought a second
search warrant “for a forensic examination” of the cell phones. The
2
investigator completed a sworn affidavit and submitted it to the
magistrate in support of the search warrant application. Other than
the information contained in the search warrant affidavit, no other
material or testimony was provided to the magistrate.
The magistrate subsequently issued a warrant that authorized
a forensic search of Wilson’s cell phones “to be completed in order to
obtain any and all stored electronic information, including but not
limited to; user account information, stored phone information,
images, text messages, videos, documents, e-mails, internet activity,
call logs, contact information, phone information, or any deleted
data.” The warrant further included preprinted form language
stating that “[t]he foregoing described property, items, articles,
instruments, and person(s) to be searched for and seized constitute
evidence connected with the foregoing listed crime(s)[2] and is/are:
(check all that are applicable) (OCGA § 17-5-21)3.” The swearing
2 The search warrant asserted that Wilson was believed to have
committed felony murder, aggravated assault, and possession of a firearm
during the commission of a felony.
3 This code section does not reference criminal activity. Instead, it lists
3
officer then checked four boxes on the preprinted form, indicating
that investigators believed the cell phones were: “intended for use in
the commission of the crime(s) herein described;” “used in the
commission of the crime(s) herein described;” “tangible, corporeal or
visible evidence of the commission of the crime(s) set forth above,”
and “intangible, incorporeal or invisible evidence of the commission
of the crime(s) set forth above.”
Wilson challenged the validity of the cell phone search warrant
in a pretrial motion to suppress. After a hearing, the trial court
granted Wilson’s motion, finding that the search warrant was
“overly broad and authorized a general search of [Wilson’s] personal
effects without probable cause in violation of the Fourth
Amendment and OCGA § 17-5-21.” The State alleges that this was
error, contending that the warrant included sufficient probable
cause and sufficient particularity to avoid authorizing a general
search. Pretermitting the issue of probable cause, we agree with the
the process by which law enforcement officers must abide when seeking a
warrant.
4
trial court that the warrant did not meet the particularity
requirement and therefore authorized an impermissible general
search.
The Fourth Amendment to the United States Constitution
“require[s] that a search warrant particularly describe the article or
articles sought.” Dobbins v. State, 262 Ga. 161, 164 (3) (415 SE2d
168) (1992) (citations omitted). In addition to requiring that officers
have enough guidance to locate and seize only those items the
warrant authorizes them to seize, see Fair v. State, 284 Ga. 165, 170
(3) (a) (664 SE2d 227) (2008), this particularity requirement also
prevents general searches—that “general, exploratory rummaging
in a person’s belongings” by the government that has been rejected
since the founding as a violation of “fundamental rights.” Coolidge
v. New Hampshire, 403 U.S. 443, 467 (II) (C) (91 SCt 2022, 29 LE2d
564) (1971), holding modified by Horton v. California, 496 U.S. 128(110 SCt 2301, 110 LE2d 112) (1990); Marron v. United States, 275
U.S. 192, 195 (1) (48 SCt 74, 72 LE 231) (1927) (“General searches
have long been deemed to violate fundamental rights. It is plain that
5
the [Fourth] Amendment forbids them.”). See also Groh v. Ramirez,
540 U.S. 551, 559 (II) (124 SCt 1284, 157 LE2d 1068) (2004); Wayne
R. LaFave, 2 Search & Seizure § 4.6 (a) (6th ed. 2022). The
particularity requirement is “applied with a practical margin of
flexibility, depending on the type of property to be seized, and a
description of property will be acceptable if it is as specific as the
circumstances and nature of activity under investigation permit.”
Rickman v. State, 309 Ga. 38, 42 (2) (842 SE2d 289) (2020) (citation
and punctuation omitted). “The uniformly applied rule is that a
search conducted pursuant to a warrant that fails to conform to the
particularity requirement of the Fourth Amendment is
unconstitutional.” Groh, 540 U.S. at 559 (quoting Stanford v. Texas,
379 U.S. 476 (85 SCt 506, 13 LE2d 431) (1965) (punctuation
omitted)).
While the State concedes that the warrant “broadly target[s]
the data” in Wilson’s cell phones, the State argues that, when read
as a whole, the warrant sufficiently limits the search of the phones
to evidence connected with the crimes. We disagree. As the State
6
acknowledges, the search warrant broadly authorizes the seizure of
“any and all stored electronic information” on the phones, “including
but not limited to” various kinds of electronic information. The State
points to the preprinted form language following this sweeping
authorization as “limiting” in nature. However, that language
clearly states that “[t]he foregoing described property”—that is, “any
and all stored electronic information” on the phones—“constitutes
evidence connected with the crimes.” This language cannot
plausibly be read, as the State suggests, to limit the otherwise
limitless authorization to search for and seize any and all data that
can be found on Wilson’s cell phones. Indeed, the warrant’s complete
absence of limiting language distinguishes it from other warrants
we have upheld in prior cases based on the presence of so-called
“residual clauses” or other limiting language. Compare Palmer v.
State, 310 Ga. 668, 675 (1) (c) (853 SE2d 650) (2021) (search warrant
authorizing search and seizure of, among other things, “cell phones
(to include all data contained therein) . . . which are being possessed
in violation of Georgia law(s): OCGA § 16-5-1 Murder” was
7
sufficiently particularized when, reading the warrant as a whole and
“in a common-sense fashion,” it sufficiently “listed classes of items
that, as a practical matter, were likely to be found relevant” to the
crimes in the warrant, and it further limited those “classes of items
to those relevant to [the crime]” (emphasis supplied)); Westbrook v.
State, 308 Ga. 92, 97-98 (3) (a) (839 SE2d 620) (2020) (search
warrant for “electronic data” on defendant’s cell phone was
sufficiently particularized “to enable a prudent officer to know to
look for photographs and videos” because the language of the
warrant “limited the scope of the search to evidence pertaining to the
commission of the murder” (emphasis supplied)); and Rickman, 309
Ga. at 42 (warrants that included language authorizing officers to
search cell phones for “messages, photographs, videos, contacts, and
any other application data, or any other evidence of the crime of
murder” were sufficiently particularized because the language of the
warrants limited the search of the cell phones “to items reasonably
appearing to be connected to [the victim’s] murder.” (emphasis
supplied)). Because the warrant in this case was not sufficiently
8
particularized, the trial court did not err in concluding that the
warrant authorized an impermissible general search of Wilson’s cell
phones.
The State also contends that the evidence obtained from
Wilson’s cell phones is admissible under the Davis4 good-faith
exception to the exclusionary rule. This good-faith exception applies
to “searches conducted [by police officers] in objectively reasonable
reliance on binding appellate precedent that is later overruled.”
Outlaw v. State, 311 Ga. 396, 400 (2) (b) (858 SE2d 63) (2021)
(citation and punctuation omitted). The State asserts that the
search here was lawful under current Georgia precedent, and that if
we conclude otherwise, we would be “revising” our precedent.
However, the State incorrectly assumes that this Court must
overrule Georgia precedent in order to affirm the trial court’s order.
As shown above, well-established legal precedent supports our
conclusion that the trial court properly suppressed the cell phone
4Davis v. United States, 564 U.S. 229, 241 (III) (131 SCt 2419, 180 LE2d
285) (2011).
9
evidence in this case. As a result, Davis does not apply and the
State’s argument fails. Accordingly, we affirm the trial court’s order
granting Wilson’s motion to suppress.
Judgment affirmed. All the Justices concur, except LaGrua,
J., who concurs in judgment only.
10
PETERSON, Presiding Justice, concurring.
I fully agree that the trial court correctly suppressed evidence
derived from the general warrants issued in this case. I write
separately to highlight that our cases involving so-called “residual
clauses” (i.e., boilerplate language purporting to limit officers to
searching and seizing “other items related to the crime [at issue],”
Reaves v. State, 284 Ga. 181, 185 (2) (d) (664 SE2d 211) (2009)), may
be unduly complicating the issue.
“The problem posed by the general warrant is not that of
intrusion per se, but of a general, exploratory rummaging in a
person’s belongings. The Fourth Amendment addresses the problem
by requiring a ‘particular description’ of the things to be seized.”
Andresen v. Maryland, 427 U.S. 463, 480 (96 SCt 2737, 49 LE2d 627)
(1976) (cleaned up) (quoting Coolidge v. New Hampshire, 403 U.S.
443, 467 (91 SCt 2022, 29 LE2d 564) (1971)). In practice, that
requirement means that the warrant allows the officer to identify
the object of the search or seizure “definitely and with reasonable
certainty.” Hourin v. State, 301 Ga. 835, 844 (3) (b) (804 SE2d 388)
11
(2017) (citation and punctuation omitted). Naturally, the degree of
specificity required “will vary with the circumstances involved.” Id.But a general, catch-all phrase (a “residual clause”) in the
description of places to be searched or things to be seized does not
necessarily invalidate an otherwise proper warrant. In Andresen,
the United States Supreme Court rejected an argument that
warrants that were otherwise “models of particularity . . . were
rendered fatally ‘general’ by the addition . . . of the phrase ‘together
with other fruits, instrumentalities, and evidence of crime at this
(time) unknown.’” 427 U.S. at 480. The petitioner argued that this
clause, read in isolation, permitted the search for and seizure of any
evidence of any crime. See id. at 479. But the Court read the phrase
in context, explaining that “the challenged phrase” — that is, the
residual clause — “must be read as authorizing only the search for
and seizure of evidence relating to the crime of false pretenses
[alleged in that case].” Id. at 480 (internal quotation marks omitted).
“The warrants, accordingly, did not authorize the executing officers
to conduct a search for evidence of other crimes but only to search
12
for and seize evidence relevant to the crime [charged.]” Id. at 481-
82. Thus, Andresen teaches that residual clauses do not necessarily
render an otherwise particularized warrant an unconstitutional
general warrant.
For a time, we correctly applied that holding. See Lance v.
State, 275 Ga. 11, 21 (19) (b) (560 SE2d 663) (2002) (the warrant was
sufficiently particularized despite using the phrase “‘any other fruits
of the crime of murder’” where those words were preceded by a list
of specified items, because “the quoted phrase [was best] understood
as limiting the search to items . . . reasonably appearing to be
connected to the specific crime delineated in the warrant” and “the
nature of the probable evidence”), disapproved on other grounds by
Willis v. State, 304 Ga. 686, 706 n.3 (11) (a) (820 SE2d 640) (2018));
Reaves, 284 Ga. at 184-88 (2) (d) (four search warrants specifying
certain items followed by different residual clauses covering “‘any
other item of evidence,” “any other item of evidentiary value,” and
“any trace evidence” that would show that the named crime had
been committed were not impermissible general warrants, and so
13
“provided [adequate] guidelines for the officers conducting the
search”) (citations omitted); see also Lawler v. State, 276 Ga. 229,
233 (4) (c) (576 SE2d 841) (2003) (objects of a search warrant for
“‘guns, ammunition, clothing, shoes, and other related items to the
crime of murder,’” were “described with sufficient particularity”).
But in the last few years, our cases have begun to suggest that
an otherwise general warrant might be made particularized by a
residual clause. In Rickman v. State, 309 Ga. 38, 42 (2) (842 SE2d
289) (2020), for example, we cited Reaves (our seminal residual
clause case) for the proposition that “warrants containing residual
clauses limiting the items to be seized to those relevant to the crimes
identified are sufficiently particular and do not authorize a general
search in violation of the Fourth Amendment.” But when we applied
that principle to the facts in that case, we held that “the warrants
[there], read as a whole,” sufficiently “limited the search of the
contents of Rickman’s cell phones to items reasonably appearing to
be connected to [the victim’s] murder.” Id. In other words, we seemed
to suggest that the residual clause of the warrant (covering “any
14
other evidence of the crime of murder” after a list of specific items
like messages, photographs, and videos) was a reason to find the rest
of the description sufficiently particular. See also Palmer v. State,
310 Ga. 668, 675 (2) (c) (853 SE2d 650) (2021) (“‘Read in a common-
sense fashion and in the context of the preceding list of items and
the residual clause,’ warrants limiting items to be seized to those
relevant to enumerated crimes ‘have sufficient specificity, satisfying
the particularity requirement of the Fourth Amendment.’” (quoting
Reaves, 284 Ga. at 188)); Westbrook v. State, 308 Ga. 92, 97-98 & n.5
(3) (a) (839 SE2d 620) (2020) (search warrant describing “Phone
identification data, Phone number assigned to the unit, Address
book, Incoming and outgoing call logs, Incoming and outgoing SMS
text logs,” and “Electronic data” on cell phone was sufficiently
particularized in context “to enable a prudent officer to know to look
for photographs and videos stored on Westbrook’s cell phone,”
especially because the warrant “limited the scope of the search to
evidence pertaining to the commission of the murder” — so
ineffectiveness claim failed since the objection would have been
15
meritless); Leili v. State, 307 Ga. 339, 344 (2) (a) (834 SE2d 847)
(2019) (a warrant that authorized search and seizure of “all
electronic devices which are capable of analyzing, creating,
displaying, converting, transmitting or storing electronic or
computer impulses or data” was sufficiently particularized because
“when read as a whole, ‘the warrant here must be understood as
limiting the search to items (in addition to the items specifically
mentioned in the warrant) reasonably appearing to be connected to
the specific crimes delineated in the warrant.” (citations and
punctuation omitted, cleaned up)).
I joined each of these decisions. But upon further consideration,
I am concerned that we may have mistaken the import of the
relevant principles.
First, the Supreme Court in Andresen held only that an
otherwise particularized warrant was not made unconstitutionally
general by the presence of residual language — instead, the residual
clause had to be read in the light of the language before it. 427 U.S.
at 480-482. But the inverse does not follow; the logic of Andresen
16
does not support the idea that an otherwise general warrant, lacking
particularity in the places to be searched or things to be seized, can
be saved by this sort of boilerplate language.5 Taking the warrants
in this case as an example, a warrant that fails to give any
parameters “for a forensic examination” of cell phones is not
narrowed by the empty assurance that the search will only be
looking for evidence of a particular crime. Perhaps such a warrant
may once have been sufficient, when cell phones had a fraction of
the functionality and storage capacity that they do now. But today,
a caveat that the search is limited to evidence of a particular crime
might narrow the object of the search, but it gives little or no clarity
to an officer as to where to look, for what to look, or how to look for
it. See Hourin, 301 Ga. at 844.
And second, we appear to have lost sight of the fact that the
5 This misstep may have stemmed from a slight ambiguity in the wording
of Reaves. We held that “[t]he residual clauses in the search warrants at issue
in this case limit the items which may be seized to evidence of cruelty to
children and . . . murder.” 284 Ga. at 215. In context, that meant that the
residual clauses themselves were limited to evidence of those crimes. See id.
But it’s easy enough to see how one might mistakenly read this language —
specifically the direct object, “items” — to mean the list of items preceding the
residual clauses. And indeed, that seems to be what we’ve done in recent years.
17
actual words of the warrant matter; not all clauses do the same
work. In fact, several of these cases do not actually involve “residual
clauses” at all, at least as Andresen and Reaves used that term. The
warrant in Palmer “authorized the search and seizure of ‘[a]ny
fingerprints, any and all firearms, any and all ammunition, shell
casings, identification cards, receipts, photos, hand written
statements, cell phones (to include all data contained therein),
currency, and any and all blood evidence, and DNA, which are being
possessed in Violation of Georgia Law(s): O.C.G.A. [§] 16-5-1
Murder.’” 310 Ga. at 675 (2) (c) (emphasis supplied); see also Leili,
307 Ga. at 344 (the warrant used broad language like “all electronic
devices which are capable of analyzing, creating, displaying,
converting, transmitting or storing electronic or computer impulses
or data,” but no catch-all residual clause); Westbrook, 308 Ga. at 97-
98 & n.5 (the warrant described, among other things, “electronic
data,” and “limited the scope of the search to evidence pertaining to
the commission of the murder”). So the language at the end of the
Palmer warrant modifies the rest of the list, it does not add items to
18
it. And yet this group of cases relies on residual clause precedents
like Reaves, misunderstanding their holdings and muddying the
waters on the effect of a true residual clause.
The warrants in Andresen and Reaves, by contrast, featured
catch-all language, not a modifying clause. Andresen, 427 U.S. at
480 (“together with other fruits, instrumentalities, and evidence of
crime at this (time) unknown”); Reaves, 284 Ga. at 185 (residual
clause covering “‘any other item(s) that tend to lead to probable
cause that [a particular] crime has been committed’”). So it is a
different matter to say that the search warrants in cases like Palmer
are not “general” because they “list[] classes of items that, as a
practical matter, were likely to be found relevant to the shooting . .
. and the removal of [the victim’s body] to the location where it was
found.” 310 Ga. at 675 (2) (c). In that context, a phrase like “[items]
which are being possessed in Violation of Georgia Law(s)” actually
does modify (and perhaps in some marginal sense could limit) the
19
enumerated items. 6 Id. It seems to me, therefore, that the words of
the warrant matter more than our recent cases reflect.
Our “residual clause” cases, in short, have started to suggest a
different proposition than the principle upon which they are based,
and applied it to a broader spectrum of language than the principle
covers. The Court today properly rejects the State’s bid to save the
warrants here by reference to pre-printed language only distantly
resembling a residual clause. But in an appropriate case, we may
need to reconsider some of our related precedent.
I am authorized to state that Chief Justice Boggs, Justice
Warren, Justice Bethel, Justice Colvin, and Justice Pinson join in
this concurrence.
6 Although I’m skeptical that this was the case with the actual language
used in Palmer. What it means to possess an item in violation of the law
prohibiting murder is wholly unclear to me; that statute does not prohibit the
possession of anything. Once again, it matters what actual language a warrant
uses.
20
LAGRUA, Justice, concurring in judgment only.
In Riley, the United States Supreme Court provided clear
guidance: “Our answer to the question of what police must do before
searching a cell phone seized incident to an arrest is accordingly
simple—get a warrant.” Riley, 573 U.S. at 403 (IV). Warrants, of
course, require probable cause. See id. at 381 (quoting U.S. Const.,
amend. IV). “To determine whether probable cause exists, the
magistrate must review the search-warrant application and make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, there is a fair
probability that contraband or evidence of a crime will be found in a
particular place.” Willis v. State, ___ Ga. ___ (4) (c) (880 SE2d 158,
168) (Oct. 25, 2022) (citation and punctuation omitted).
I am quite skeptical that the warrant in this case contained
sufficient probable cause because it merely stated that a suspect had
been arrested, a cell phone was discovered in his vehicle, and in the
law enforcement officer’s general “knowledge, training, and
experience investigating violent crimes and homicides, [he was]
21
aware that perpetrators commonly use their cell phones to
communicate about crimes.” This case illustrates a troublesome
issue post-Riley, which is that many law enforcement officers believe
that when a cell phone is discovered during the course of an
investigation, probable cause simply exists to search it. I remind the
government that the affidavit in support of the search warrant
application should establish a link showing that the phone was used
to facilitate, commit, or cover up the crime. See United States v.
Mathis, 767 F3d 1264, 1276 (II) (A) (1) (11th Cir. 2014) (“[A]n
affidavit should establish a connection between the defendant and
the property to be searched and a link between the property and any
criminal activity.” (abrogated on other grounds by Lockhart v.
United States, 577 U.S. 347 (136 SCt 958, 194 LE2d 48) (2016)
(citation and punctuation omitted; emphasis supplied)). And, judges
are entrusted to uphold the law requiring this link. But, because I
agree with the majority opinion’s ultimate conclusion affirming the
trial court’s order granting Wilson’s motion to suppress, I concur in
judgment only.
22
PINSON, Justice, concurring.
We need to talk about cell phones.
In Riley v. California, 573 U.S. 373 (134 SCt 2473, 189 LE2d
430) (2014), the United States Supreme Court took a small step
down the road of applying the Fourth Amendment to the modern cell
phone. Riley addressed the question whether the police could,
without a warrant, search digital information on a cell phone seized
from someone who’d been arrested. The answer was no: to search a
cell phone incident to arrest, you generally need to “get a warrant.”
Id. at 403. That holding was important on its own, and it gave
needed guidance to both law enforcement and courts. See, e.g.,
Hawkins v. State, 290 Ga. 785 (723 SE2d 924) (2012) (pre-Riley,
holding that police could search a cell phone incident to an arrest
without a warrant), abrogated by Riley, 573 U.S. 373.
But there is more to Riley. Along the way to its straightforward
holding, Riley addressed the nature of modern cell phones and how
to view them for purposes of applying the Fourth Amendment. This
reasoning was central to Riley’s holding, and it demands careful
23
attention in cases like this one and others in which the Fourth
Amendment and cell phones intersect.
Before Riley, courts (including ours) often applied the Fourth
Amendment to cell phones as if they were little different from
articles or containers found on or near someone’s person. See, e.g.,
Hawkins, 290 Ga. 785; United States v. Finley, 477 F3d 250, 260 (5th
Cir. 2007), overruled by Riley, 573 U.S. 373; United States v. Deans,
549 FSupp.2d 1085, 1094 (D. Minn. 2008), overruled by Riley, 573
U.S. 373. That was why courts would conclude that police could
search them without a warrant if they were seized incident to an
arrest: United States Supreme Court precedent had long allowed
such warrantless searches of personal property—like clothes,
cigarette packs, wallets, and purses—found on or near an arrestee.
See United States v. Robinson, 414 U.S. 218 (94 SCt 467, 38 LEd2d
427) (1973); Chimel v. California, 395 U.S. 752 (89 SCt 2034, 23
LE2d 685) (1969).
Riley rejected this understanding of cell phones. Indeed, the
Riley Court supposed treating cell phones like other physical items
24
that could be found on a person was “like saying a ride on horseback
is materially indistinguishable from a flight to the moon. Both are
ways of getting from point A to point B, but little else justifies
lumping them together.” Riley, 573 U.S. at 393. That is because
“[m]odern cell phones, as a category, implicate privacy concerns far
beyond those implicated by the search of a cigarette pack, a wallet,
or a purse.” Id. Today’s “phones” are “in fact minicomputers” that
serve not only as telephones, but also as “cameras, video players,
rolodexes, calendars, tape recorders, libraries, diaries, albums,
televisions, maps, or newspapers”; they have “immense storage
capacity” to support these functions and store other data like
“Internet search and browsing history,” “[h]istoric location
information,” and other “app” data; and they collect these “many
distinct types of information” “in one place,” dating “back to the
purchase of the phone, or even earlier.” Id. at 393-396.
Based on all of this, the Court reasoned that the “consequences
for privacy” of searching a cell phone are substantial. Unlike a
search of a wallet or purse or cigarette pack, searching a cell phone
25
can allow police to “reconstruct” “the sum of an individual’s private
life” going back months or even years, potentially revealing
someone’s “private interests or concerns,” “specific movements down
to the minute, not only around town but also within a particular
building,” and a “montage of the user’s life” from whatever apps the
person happens to use. Id. at 394-396. And cell phones are “now such
a pervasive and insistent part of daily life that the proverbial visitor
from Mars might conclude they were an important feature of human
anatomy.” Id. at 385; see also id. at 395 (“[I]t is no exaggeration to
say that many of the more than 90% of American adults who own a
cell phone keep on their person a digital record of nearly every
aspect of their lives—from the mundane to the intimate.”);
Carpenter v. United States, 138 SCt 2206, 2211 (201 LE2d 507)
(2018) (“There are 396 million cell phone service accounts in the
United States—for a Nation of 326 million people.”).
In light of these unique characteristics of modern cell phones
and their “consequences for privacy,” the Court held that police
generally need to “get a warrant” to search one. Riley, 573 U.S. at
26
394, 403. But it is pretty hard to read all of the reasons Riley gave
for this holding and come away thinking that the rest of the Fourth
Amendment is business as usual when it comes to cell phones.
Again, the big premise of Riley was that searching a cell phone is
not much at all like searching a pocket or a purse. “Indeed, a cell
phone search would typically expose to the government far more
than the most exhaustive search of a house: A phone not only
contains in digital form many sensitive records previously found in
the home; it also contains a broad array of private information never
found in a home in any form—unless the phone is.” Id. at 396-397
(emphasis added). And as a general matter, the Fourth Amendment
“was the founding generation’s response to the reviled ‘general
warrants’ and ‘writs of assistance’ of the colonial era, which allowed
British officers to rummage through homes in an unrestrained
search for evidence of criminal activity.” Id. at 403. The issue is
apparent. If a cell phone is a handheld “house” and may hold the
sum total of one’s private “papers” and “effects,” then a search of that
device or a seizure of its contents that lacks appropriate restraints
27
seems little different from the general searches that the Fourth
Amendment unequivocally forbids. 7
Take the search warrant in this case. As far as I can tell, that
warrant allowed the search and seizure of the data from two cell
phones on the theory that (1) they were found in the suspect’s van,
and (2) criminals commonly use cell phones to talk about crimes.
And the scope of the authorized search and seizure looks unlimited:
police could search and seize the entire contents of the phones, with
no apparent restrictions on the type or category of data or
information that could be seized, or on how any of that data or
information could be used. A warrant supported by such generic
“probable cause” to search someone’s house and seize the entirety of
its contents, with no restrictions on their use, would never fly. See,
e.g., Bryant v. State, 301 Ga. 617, 619-620 & n.3 (2) (800 SE2d 537)
7 The nature of cell phones also raises questions about how to apply
OCGA § 17-5-21, which describes the kinds of things that a warrant can
authorize seizure of. For example, that statute treats “private papers”
differently than some other types of evidence. See id. § (a) (5), (b). What
information on a cell phone, if any, counts as “private papers” subject to this
statute’s limitations?
28
(2017) (warrant that named house and cars to be searched but did
not specify items or evidence sought violated particularity
requirement); United States v. Travers, 233 F3d 1327, 1330 (11th
Cir. 2000) (warrant that authorized seizure of all “material
reflecting identity” and “anything reflecting potential fraud”
violated particularity requirement); State v. Rothman, 779 P2d 1, 3,
9, 10-11 (Haw. 1989) (holding that warrant that authorized the
seizure of all items in a home that related to the defendant’s
financials or that tended to show his identity violated particularity
requirement and explaining, “If the authorities have only to say ‘I
have reason to believe that X has committed a crime based on what
Y has told me’ to get authorization to search X’s home for anything
and everything X possesses, then no one’s papers or possessions are
safe”). Yet I suspect that such warrants for cell-phone data remain
all too common, even in Riley’s wake.
Of course, part of the reason for that is Riley itself. Riley’s “get
a warrant” holding was more or less a mic drop, and the Court has
29
yet to return for an encore.8 But in the meantime, people haven’t
stopped using cell phones or committing crimes (would that it were
so!). And cell-phone technology keeps advancing, adding both to the
value of cell phones for law enforcement seeking to combat crime,
and to the privacy consequences the Court worried about.9 The
Court may say more someday about just how the Fourth
Amendment applies to and limits warrants for cell-phone data, but
until then, our courts must grapple with these questions, in light of
Riley, ourselves.
Today’s decision is a start. The Court holds that a warrant to
search and seize “any and all” data stored on a cell phone, not even
limited to evidence of the crime at issue, with no specificity about
how any of the data could be used, violates the Fourth Amendment’s
8 To be fair, the Court has since Riley addressed related questions about
cell-site location information, or CSLI. See Carpenter v. United States, 138 S.
Ct. 2206, 2220 (201 LE2d 507) (2018) (holding that acquiring CSLI is a search
and generally requires a warrant supported by probable cause).
9 For example, the Riley Court pointed out at the time that “[t]he current
top-selling smart phone has a standard capacity of 16 gigabytes,” which
“translates to millions of pages of text, thousands of pictures, or hundreds of
videos.” Id. at 394. Some popular smart phones today come with up to one
terabyte—1000 gigabytes—of storage capacity.
30
particularity requirement. To be sure, the warrant here has a veneer
of particularity to it: the description of the “things to be seized” listed
“any and all stored electronic information, including but not limited
to” specific kinds of data like images, text messages, videos, and
internet activity. In a way, this description arguably “enabled a
prudent officer to locate” the things to be seized “definitely and with
reasonable certainty,” which is how the particularity requirement
typically prevents the fishing expeditions that the Fourth
Amendment protects against. See Fair v. State, 284 Ga. 165, 170 (3)
(a) (664 SE2d 227) (2008) (cleaned up). See also Orin S.
Kerr, Executing Warrants for Digital Evidence: The Case for Use
Restrictions on Nonresponsive Data, 48 Tex. Tech L. Rev. 1, 3 (2015)
(citing Stanford v. Texas, 379 U.S. 476, 480-486 (85 SCt 506, 13
LE2d 431) (1965) (explaining that the idea behind the Fourth
Amendment’s particularity requirement was to prevent the general
search by “limiting where agents can go and what they can take”)).
But if an officer could understand what to search for and seize from
the phones here, that was only because the sheer breadth of the
31
warrant’s description didn’t allow for the officer to be wrong: the
warrant “specified” that the “things to be seized” included every bit
of data an officer might find on the phone. Our rejection of that basis
for demonstrating particularity is rooted in the unique nature of
modern cell phones, including their “immense” capacity to store
information of all kinds—analogous to cramming the entirety of
one’s life into a small slab of plastic, metal, glass, and silicon. When
we view cell phones through that lens, the closest analogy I can come
up with is a warrant to search a house and seize “any and all atoms
of matter stored within, including but not limited to matter in solid,
liquid, and gaseous states.” I suppose an officer would know what to
search for and seize based on that description, too. But both that
hypothetical warrant and its digital equivalent here authorize a
forbidden general search, and our decision today rightly concludes
as much.
But there are plenty more questions where that one came from.
Stay with particularity for a moment. Some of this Court’s post-Riley
decisions have concluded that warrants with similarly broad
32
descriptions of the cell-phone data to be searched and seized were
sufficiently particular because the warrant as a whole could be read
to narrow the scope of the search to evidence of the crimes in
question. See Rickman v. State, 309 Ga. 38 (842 SE2d 289) (2020);
Westbrook v. State, 308 Ga. 92 (839 SE2d 620) (2020); Leili v. State,
307 Ga. 339 (834 SE2d 847) (2019). But none of these decisions even
mentions, much less accounts for, the characteristics of modern cell
phones that Riley found critical to its Fourth Amendment analysis. 10
As the Presiding Justice notes in his concurrence, it is not clear that
warrants that allow police to search every bit of data on a cell phone
necessarily avoid an unconstitutional general search merely by
telling police to look only for unspecified evidence of the crime in
question. At the least, we ought to be looking at questions like this
through the same lens Riley did—that is, one that accounts for the
uniquely expansive and complex nature of cell-phone data. See, e.g.,
Kerr at 3 (“The facts of computer storage threaten [the particularity
10Only one of these decisions cited Riley, and then only because it relied
on our decision in Hawkins, 290 Ga. 785, which was abrogated by Riley. See
Westbrook, 308 Ga. at 98 (3) (a).
33
requirement’s] limiting role. They create the prospect that computer
warrants that are specific on their face will resemble general
warrants in execution simply because of the new technological
environment.”).
Then there’s probable cause. I would not be surprised if many
warrants to search cell phones are based on a set of facts much like
the one here: the police have enough evidence to suspect someone of
a crime; they know that person has a cell phone, or they find one in
his vicinity or possession; and an officer avers that based on her
training and experience, criminals commonly use cell phones to plan
or talk about crimes. On its face, it is not crazy to think that a
warrant application along these lines could support probable cause.
The probable-cause question is a “practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before
[the magistrate], there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Willis v.
State, 315 Ga. 19, 29-30 (4) (c) (880 SE2d 158) (2022). If the evidence
in a given case is good enough to suspect someone of a crime, it may
34
well be true that the person did plan or talk about or otherwise put
evidence of the crime on his cell phone, and I do not doubt that the
experience of many police officers bears that out. And in fact, quite
a few courts have upheld probable-cause determinations on similar
bases—albeit ones with perhaps a bit more specificity than the
warrant application offered in this case. See, e.g., State v. Goynes,
927 NW2d 346, 354 (Neb. 2019) (finding probable cause to search
cell phone based on officer’s training and experience, where officer
“explained that cell phone data provides insight for criminal
investigations in that cell phones are used for communication,
access to information, socialization, research, entertainment,
shopping, and other functionality and that these uses are often
found to be tools in criminal activity,” that “the data from cell phones
can provide information on the motivation, method, and participants
involved in a crime,” and that “he was aware of numerous instances
where cell phones were used by participants in crimes to
communicate through voice and text messaging, take photographs
of themselves with weapons or illegal narcotics, create videos of
35
their criminal activity, and research crimes in which they
participated”); Moats v. State, 168 A3d 952, 955, 962-963 (Md. 2017)
(collecting other cases where officer’s expertise was relied on to
establish probable cause that defendant’s cell phone would contain
evidence of crime and finding probable cause where officer, a 17-year
veteran of drug enforcement, stated that he “knows through his
training and experience as a Criminal Investigator that individuals
who participate in such crimes communicate via cellular telephones,
via text messages, call, e-mail etc.”); Stevenson v. State, 168 A3d 967,
975-977 (Md. 2017) (probable cause to search cell phone of
defendant, arrested for robbery-assault, where detective’s affidavit
explained “that suspects in robberies and assaults will sometimes
take pictures, videos and send messages about their criminal
activities on their cellular phones”); United States v. Mathis, 767
F3d 1264, 1269, 1275-1276 (11th Cir. 2014) (probable cause to
search defendant’s cell phone about calls years earlier because,
“based on [the officer’s] knowledge, experience and training,”
individuals who sexually abuse children sometimes keep copies of
36
communications with their victims “for many years”); State v.
Henderson, 854 NW2d 616, 632 (Neb. 2014) (probable cause to
search defendant’s cell phone where “two men committed the
shootings” and defendant was “seen running from the scene,” as
affiant stated “that in his experience as a detective, he knew that
suspects used cell phones to communicate about shootings they have
been involved in before, during, and after the shootings”).
And yet it is not so easy to square that permissive view of
probable cause for cell-phone search warrants with Riley. First
return to the cell-phones-as-houses analogy: An officer might also
reasonably say that in her experience, criminals often store evidence
of their crimes—cash, weapons, drug paraphernalia, and more—
where they live. Yet “[p]robable cause to believe that a man has
committed a crime on the street does not necessarily give rise to
probable cause to search his home.” Commonwealth of Pennsylvania
v. Kline, 335 A2d 361, 364 (Pa. Super. 1975). See also Banks v. State,
277 Ga. 543, 546-47 (2) (592 SE2d 668) (2004) (evidence implicating
defendant in drug dealing was not sufficient to establish probable
37
cause to search his home for drugs); Shivers v. State, 258 Ga. App.
253, 255 (573 SE2d 494) (2002) (probable cause to believe defendant
was selling crack cocaine did not on its own furnish probable cause
to search his home); Kelleher v. State, 185 Ga. App. 774, 777 (1) (365
SE2d 889) (1988) (holding that even assuming there was “probable
cause for a belief that the appellants were involved in drug
trafficking,” that information did not establish probable cause to
search their residence); United States v. Jones, 994 F2d 1051, 1055
(3d Cir. 1993) (“[P]robable cause to arrest does not automatically
provide probable cause to search the arrestee’s home.”). Instead,
courts typically require something a little more specific and concrete
to provide “a substantial basis for concluding that a search would
uncover evidence of wrongdoing” in the suspect’s home. Marlow v.
State, 288 Ga. 769, 771 (707 SE2d 95) (2011) (citation and
punctuation omitted) (finding probable cause existed for search of
defendant’s home for keys to stolen car, where stolen car was in the
driveway locked and with alarm activated and the defendant was
seen inside the home but refused to answer the door). See also, e.g.,
38
Boldin v. State, 282 Ga. App. 492, 493-495 (2) (639 SE2d 522) (2006)
(concluding probable cause existed for search of defendant’s home
for drugs, where officer detected odor of burning marijuana coming
from open garage door and, when officer approached to identify
himself, defendant grabbed a garbage bag off the floor and ran into
house, dropping a zip-lock bag appearing to contain marijuana
residue); Perkins v. State, 220 Ga. App. 524, 525 (1) (469 SE2d 796)
(1996) (finding probable cause for search of defendant’s home where
confidential informant had conducted controlled buy of marijuana at
the home, as well as probable cause to search defendant’s second
home, based on the results of the search at the first home coupled
with information from the informant that defendant was growing
marijuana at both homes); Jones, 994 F2d at 1056 (finding
substantial basis to support probable cause to search arrestee’s
home for money, clothes, and guns because “cash is the type of loot
that criminals seek to hide in secure places like their homes”; two
weeks between the crime and the search was “long enough to enable
the defendants to hide the cash” and “not so long as to dispel the
39
likelihood that it would still be in their residences”; and “the other
items sought, clothing and firearms, are also the types of evidence
likely to be kept in a suspect’s residence”). Sure, cell phones are not
in fact houses, so the analysis might differ in some particulars. But
after Riley, it is not clear why cell phones would not be treated in
similar fashion.
If not—if this generic “criminals use cell phones, too” logic is
enough for probable cause to get a warrant to search a suspect’s cell
phone—it is hard to imagine a case in which police cannot get that
warrant. As Riley reasoned in declining to apply the search-incident-
to-arrest exception to the warrant requirement, “[i]t would be a
particularly inexperienced or unimaginative law enforcement officer
who could not come up with several reasons to suppose evidence of
just about any crime could be found on a cell phone.” Riley, 573 U.S.
at 399. But if that’s enough for probable cause, it would make Riley
little more than a paperwork requirement. Maybe, but I am not so
sure that Riley’s holding is so “hollow.” United States v. Morton, 46
F4th 331, 340 (5th Cir. 2022) (Higginson, J., concurring in judgment)
40
(“Riley requires that officers first get a warrant, but if the fact that
the arrestee was carrying a cell phone at the time of arrest is
sufficient to support probable cause for a search, then the warrant
requirement is merely a paperwork requirement. It cannot be
that Riley’s holding is so hollow.”) (citation omitted). In any event,
probable cause too requires careful thought when cell phones are the
target.
And what about the “plain view” exception? When an officer
executing an otherwise valid search warrant finds in plain view
incriminating evidence that is outside the scope of the warrant, this
exception says he may still seize the evidence without a warrant and
use it even to investigate and prosecute other crimes. 11 See, e.g.,
George v. State, 312 Ga. 801, 804-805 (865 SE2d 127) (2021)
(explaining that a police officer may seize evidence outside the scope
of a search warrant if the evidence is in plain view, the officer has
not violated the Fourth Amendment in arriving at the place from
11 In Georgia, a person’s “private papers” are carved out from seizure
under this exception by statute. See OCGA § 17-5-21 (b).
41
which he sees the evidence, and the incriminating nature of the
evidence is “immediately apparent” (citing Horton v. California, 496
U.S. 128 (110 SCt 2301, 110 LE2d 112) (1990))). How does this
doctrine translate to a forensic search of a cell phone? The nature of
searching electronic data is such that officers executing a carefully
particularized warrant may well have to view a vast amount of
nonresponsive data to find even information they’re properly
authorized to seize—especially when the data they’re looking for is
hidden or obfuscated. See, e.g., Kerr at 16-17. Is all of that
nonresponsive data fair game for seizure and later use? Given the
massive amounts and endless variations of data that cell phones can
store, there is no ready analogue in the physical world, and yet
significant consequences for law enforcement and privacy hang in
the balance. 12
12 For one prominent Fourth Amendment scholar’s view on this issue,
see Kerr generally and at 18-27 (proposing that the “plain view” exception still
applies to searches of digital information, but later use of nonresponsive data
“renders the ongoing seizure [of that data] unreasonable”).
42
I could go on, but you get the point: Riley made unmistakably
clear that when it comes to applying the Fourth Amendment,
modern cell phones are not just another physical object. So going
forward, all of the courts of our State (including this one) should
acknowledge and account for their unique nature when questions
like these arise. In doing so, the pace of technological change
requires us to “tread carefully” so we do not “embarrass the future.”
Carpenter, 138 SCt at 2220 (quoting Northwest Airlines, Inc. v.
Minnesota, 322 U.S. 292, 300 (64 SCt 950, 88 LEd 1283 (1944)). But
tread we must.
With these things in mind, I concur in the majority’s opinion. I
am authorized to state that Chief Justice Boggs and Justice Warren
join in this concurrence.
43