Perez v. State ( 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: May 31, 2023
S23A0276. PEREZ v. THE STATE.
WARREN, Justice.
Geovanni Perez was convicted of felony murder and a firearm
offense in connection with the shooting death of Rahmier Gardner. 1
The crimes occurred on July 29, 2018. In December 2018, a Gwinnett
1
County grand jury indicted Perez, Estefania Castro, and Khalid Bays,
individually and as parties to the crime, for two counts of felony murder (based
on armed robbery and conspiracy to commit armed robbery), armed robbery,
and conspiracy to commit armed robbery. Perez and Bays were also indicted
for malice murder, felony murder (based on aggravated assault), aggravated
assault, and possession of a firearm during the commission of a felony; Castro
was also indicted for tampering with evidence. Perez alone was tried from
September 13 to 20, 2021; the jury found him guilty of voluntary manslaughter
as a lesser offense of malice murder and of the remaining crimes. The trial
court sentenced him to serve 20 years for voluntary manslaughter, a
consecutive sentence of life in prison without the possibility of parole for felony
murder based on armed robbery, and five consecutive years for possession of a
firearm during the commission of a felony. The remaining counts were merged
or vacated by operation of law. The trial court later amended the final
disposition form to reflect that the voluntary-manslaughter verdict was
vacated by operation of law. The record does not indicate how Castro’s and
Bays’s cases were resolved.
Perez filed a timely motion for new trial, which he later amended
through new counsel. After a hearing, the trial court denied the motion in
In this appeal, Perez contends that the evidence was constitutionally
insufficient to support his conviction for felony murder based on
armed robbery, that the trial court erred by denying his motions to
suppress certain evidence, and that he was improperly sentenced.
Seeing no error, we affirm.
1. Viewed in the light most favorable to the verdicts, the
evidence presented at Perez’s trial showed the following. Around
11:20 p.m. on July 29, 2018, investigators responded to a 911 call
reporting a shooting in the parking lot of a bowling alley on
Lawrenceville Highway in Lilburn. Law enforcement officials found
Gardner, who had been shot multiple times, dead in the parking lot,
with money sticking out of his shorts pockets. The medical examiner
who later performed Gardner’s autopsy determined that he had been
shot at least six times at “close range” and “contact range,” resulting
in wounds to his chest; head; chin; upper and middle back; and left
October 2022. Perez filed a timely notice of appeal directed to the Court of
Appeals, which properly transferred the appeal to this Court, where the case
was docketed to the term beginning in December 2022 and submitted for a
decision on the briefs.
2
upper arm, elbow, and forearm. The examiner removed two .380
bullets and a .45-caliber bullet from Gardner’s body.
A witness to the shooting heard what she thought were
“firecrackers” and then saw Gardner’s body on the ground as a silver
Nissan Sentra sped out of the parking lot. The lead investigator for
the case obtained a surveillance video recording from the parking
lot, which was played for the jury at trial. The investigator testified
that the recording, the quality of which he described as poor, showed
that at 11:03 p.m., Gardner, who appeared to be talking on a cell
phone, left the bowling alley and walked to the parking lot, where
he stood by his truck. At 11:07 p.m., a car pulled into the parking
lot and backed into a parking space; Gardner then walked to the car,
and a few minutes later, there was “some movement . . . at the car”
before the car sped away. The recording did not contain any other
information relevant to the investigation.
After Gardner’s murder, the investigator searched Gardner’s
truck and found marijuana and cocaine. He also obtained Gardner’s
cell phone records, which showed that a phone number ending
3
in -1131 contacted Gardner’s phone at 10:14, 11:02, and 11:07 p.m.
on the night of the shooting.
The investigator then obtained search warrants for the cell
phone records, including cell site location information (“CSLI”),
connected to the -1131 phone number. The records showed that four
days after the shooting, the -1131 phone number was changed to a
phone number ending in -9983, and that both numbers were
associated with an address on South Elizabeth Place in Atlanta. The
CSLI showed that the cell phone associated with the -1131 number
was in Atlanta at 10:14 p.m., in Lilburn at 11:02 p.m., near the
bowling alley on Lawrenceville Highway at 11:07 p.m., and then in
Atlanta again at 12:02 a.m.2
At some point, investigators identified Estefania Castro as a
suspect in connection with the shooting; she was arrested in October
2018. During a search of her silver Nissan Sentra, investigators
found blood inside the rear passenger-side door and under the
2 A disc containing the cell phone records was admitted into evidence at
trial.
4
passenger-side backseat; testing later showed that the blood was
Gardner’s. Investigators also found a .45-caliber bullet under the
backseat. A firearms examiner determined that this bullet and the
.45-caliber bullet that was removed from Gardner’s body had been
fired from the same .45-caliber pistol. He also concluded that the
two .380 bullets that were removed from Gardner’s body were fired
from the same .380 pistol.
Investigators interviewed Castro, who implicated Perez in the
shooting. The lead investigator then obtained a warrant to search
the house on South Elizabeth Place. Investigators found Perez there
and arrested him; they also found his cell phone, which was
associated with the -1131 and -9983 phone numbers. The lead
investigator then obtained a search warrant for the phone; a
download of the phone’s contents showed the following. At 7:08 p.m.
on the day before the shooting, Perez’s phone sent a text message
saying “U tryna hit a lick” to Castro’s phone. Around 1:30 p.m. on
the day of the shooting, a phone number associated with Khalid
Bays sent text messages to Perez’s phone saying, “I got everything
5
set up”; “U tryna do it today wen u get off”; and “He green asf.”3
Perez’s phone responded, “im just tryna c wat Steph say.” Perez’s
phone and Castro’s phone then exchanged messages about when
they planned to leave, and Perez’s phone sent a message to Bays’s
phone saying, “She said she ready.” Perez’s phone and Bays’s phone
exchanged messages agreeing to “go” sometime after 8:00 p.m. At
8:15 p.m., Bays’s phone sent a message saying, “I just want
everything to go as plan.” Perez’s phone replied, “u sure he gone
alone”; Bays’s phone responded, “Yea I’m sure and if he not who give
a fu** we got this.”
On July 31, two days after the shooting, Castro’s phone sent
Perez’s phone a text that said, “You know that boy car Key was still
in my car, I had to destroy it cause I heard that those have trackin.”
Later that day, Castro’s phone sent texts to Perez’s phone saying:
“Don’t speak on nothing that happened”; “To no one”; “Don’t brag
about it or nothing”; “Ima change everything inside my car and fix
it”; “And report my tags stolen”; “Ima fix my car first”; and “Help me
3 The lead investigator testified that “asf” meant “as fu**.”
6
pay it.” On August 1, Castro’s phone sent Perez’s phone texts
saying: “Change your number Geo”; “They can contact the company
and get your number”; “Asap.” In addition, Perez’s phone contained
a five-second-long video from July 30, 2018, which showed Perez and
Bays pointing handguns toward the phone’s camera. 4
Castro testified at trial as follows. On July 28, Perez sent her
a text message asking if she wanted to “hit a lick.” The next day,
Perez and Bays called her and again asked her to “take them to rob
someone.” She picked them up in her silver Nissan Sentra, and they
told her to drive to the bowling alley on Lawrenceville Highway.
Bays used Perez’s phone to call someone “to buy some marijuana,
but, really, [Perez and Bays] were going to rob them.” When they
arrived at the bowling alley around 11:00 p.m., a man, whom Castro
identified at trial as Gardner, got in the passenger-side backseat of
the Sentra; Perez was in the passenger seat, and Bays was in the
4 Perez’s cell phone, a disc containing all of the downloaded content from
the phone, printouts showing the text messages between Perez’s phone and
Castro’s and Bays’s phones, and the video were admitted into evidence. The
lead investigator read the text messages aloud, and the video was played for
the jury.
7
driver-side backseat. Gardner had marijuana in his lap, and Perez
and Bays told him to weigh it. When Gardner asked for money,
Perez pulled out a gun. Gardner pulled out his own gun and “pistol-
whipp[ed]” Perez and Bays. 5 Perez then shot Gardner several times,
got out of the car, and pulled Gardner out. 6 Perez and Bays told
Castro to “drive off,” and she drove them to her apartment in
Atlanta. Bays “had grabbed the marijuana[,] [a]nd then when [they]
got to Atlanta, [they] split it.” They also cleaned the Sentra, because
there was “a lot of blood” in it. She later found in the Sentra a “key
fob” that belonged to Gardner, which she destroyed. She then
instructed Perez to change his phone number.
Perez did not testify at trial. His defenses were that Castro
5 During an interview with investigators, Castro initially said that
Gardner pulled out a gun first and “pistol-whipp[ed]” Perez, but she later
admitted during the interview that Perez pulled out his gun first. In addition,
Castro testified that she was charged with felony murder and armed robbery
and could potentially receive sentences to serve life in prison for those crimes,
that she had not made any plea deals in exchange for her testimony, but that
she “wanted . . . to make a deal.”
6Castro testified that Bays also had a gun that night, but she was not
asked whether he fired it.
8
was “the mastermind behind the[e] whole thing”; that he acted in
self-defense; and, in the alternative, that the killing amounted only
to voluntary manslaughter.
2. Perez contends first that the evidence presented at his trial
was constitutionally insufficient to support his conviction for felony
murder based on armed robbery.7 We disagree.
In evaluating the sufficiency of the evidence as a matter of
constitutional due process, we view all of the evidence presented at
trial in the light most favorable to the verdict and ask whether any
rational juror could have found the defendant guilty beyond a
reasonable doubt of the crime of which he was convicted. See
Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781, 61 LE2d 560)
(1979); Drennon v. State, 314 Ga. 854, 861 (880 SE2d 139) (2022).
We leave to the jury “‘the resolution of conflicts or inconsistencies in
the evidence, credibility of witnesses, and reasonable inferences to
7 Perez also contends that the evidence did not support his “conviction”
for armed robbery. Perez was found guilty of armed robbery, but he was not
convicted of or sentenced for that crime, so this contention is moot. See Rich
v. State, 307 Ga. 757, 759 n.2 (838 SE2d 255) (2020).
9
be derived from the facts.’” Drennon, 314 Ga. at 861 (citation
omitted).
To support Perez’s conviction for felony murder, the evidence
presented at trial had to show that he proximately caused Gardner’s
death, either directly or as a party to the crime, while in the
commission of an armed robbery. See OCGA § 16-5-1 (c). See also
OCGA § 16-2-20 (defining parties to a crime). “A person commits
the offense of armed robbery when, with intent to commit theft,
he . . . takes property of another from the person or the immediate
presence of another by use of an offensive weapon[.]” OCGA § 16-8-
41 (a). To convict a defendant of armed robbery, the State must
prove beyond a reasonable doubt that the defendant’s use of the
weapon occurred “prior to or contemporaneously with the taking.”
Tyler v. State, 311 Ga. 727, 732 (859 SE2d 73) (2021) (citation and
punctuation omitted).
The indictment in this case alleged that Perez, individually and
as a party, committed armed robbery by using a handgun to take
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marijuana from Gardner’s “immediate presence.”8 As Perez points
out, the State was thus required to prove beyond a reasonable doubt
that his use of the handgun occurred prior to or contemporaneously
with the taking of the marijuana. Contrary to Perez’s arguments,
however, the jury was authorized to conclude that the State made
such a showing here.
Viewed in the light most favorable to the verdict, the evidence
presented at trial—which included the text messages sent from
Perez’s, Castro’s, and Bays’s phones and also Castro’s testimony—
8 The indictment also alleged that Perez committed armed robbery by
taking Gardner’s cell phone. Perez argues that the State failed to present any
evidence that he and his co-defendants took the cell phone, but we need not
decide that issue, because as discussed below, the evidence was sufficient to
prove that he took the marijuana. See, e.g., Avila v. State, 322 Ga. App. 225,
226-227 (744 SE2d 405) (2013) (holding that evidence that the appellant took
a watch and bracelet from the victim was sufficient to support his conviction
for armed robbery, even though the indictment alleged that the appellant took
jewelry, cash, and a camera, and explaining that “[t]he State is not required to
prove theft of all the items the indictment alleged were taken from the victim”)
(emphasis in original); Booker v. State, 242 Ga. App. 80, 82 (528 SE2d 849)
(2000) (concluding that evidence that the appellant took money from the victim
was sufficient to support his armed-robbery conviction, even though the
indictment alleged that he took money and cocaine, and explaining that “[a]n
over-inclusive list of items alleged to have been taken in an indictment for
armed robbery is not fatal to the validity of the conviction”). Cf. Davis v. State,
281 Ga. 871, 874 (644 SE2d 113) (2007) (“Where a single victim is robbed of
multiple items in a single transaction, there is only one robbery.”).
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showed that Perez, Castro, and Bays planned to rob Gardner (on the
pretext of buying marijuana); when they arrived at the bowling
alley, Gardner got in Castro’s Sentra, put the marijuana in his lap,
and asked for money, and Perez then pulled out his gun and shot
Gardner multiple times, killing him; Bays “grabbed the marijuana”;
and Perez, Castro, and Bays fled to Atlanta, where they split the
marijuana among them. This evidence authorized the jury to infer
that Perez shared with Castro and Bays a common criminal intent
to rob Gardner. See McIntyre v. State, 312 Ga. 531, 534 (863 SE2d
166) (2021) (“‘[C]riminal intent may be inferred from presence,
companionship, and conduct before, during, and after the offense.’”)
(citation omitted). The jury also could have reasonably concluded
that Perez used his gun prior to or contemporaneously with Bays’s
taking of the marijuana, such that the State met its burden to prove
that Bays took the marijuana during or soon after the fatal
confrontation. The jury was therefore authorized to conclude that
the State proved beyond a reasonable doubt that Perez was a party
to the crime of armed robbery, which proximately caused Gardner’s
12
death. Accordingly, the evidence was constitutionally sufficient to
support Perez’s conviction, at least as a party to the crime, for felony
murder based on armed robbery. See, e.g., Tyler, 311 Ga. at 732
(holding that the evidence, which showed that the appellant shot the
victim before the taking of property, was constitutionally sufficient
to support his conviction for armed robbery and explaining that “[a]
defendant may be convicted of committing a robbery if he kills the
victim first and then takes property in his possession”); Waller v.
State, 311 Ga. 517, 522-523 (858 SE2d 683) (2021) (concluding that
the evidence—which showed that the appellant and his co-
defendants planned to rob the victim of a backpack containing cash
and that after the victim was shot, he was no longer in possession of
the backpack—was constitutionally sufficient to support the
appellant’s conviction for felony murder based on armed robbery,
and explaining that the jury was authorized to infer that the
appellant used force against the victim contemporaneously with the
taking of the backpack); Lumpkin v. State, 310 Ga. 139, 146 (849
SE2d 175) (2020) (holding that the evidence was sufficient to
13
support the appellant’s armed-robbery conviction and explaining
that there was no evidence that the taking of a laptop occurred
before the assailants’ use of force against the victim).
3. Perez also contends that the trial court erred by denying
three pretrial motions he filed seeking to suppress certain evidence.
We address each of the motions in turn.
(a) Perez’s first motion sought to suppress evidence derived
from the execution of two search warrants on the grounds that the
warrants violated the Fourth Amendment to the United States
Constitution because they lacked probable cause and sufficient
particularity. See U.S. CONST. amend. IV (stating, in pertinent part,
that “no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized”). The first warrant,
which was issued on August 3, 2018, five days after the shooting,
authorized investigators to obtain real-time geolocation information
and real-time CSLI so that they could “track” the cell phone
associated with the -1131 number until the investigation ended or
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for 45 days, whichever occurred sooner. The warrant also
authorized investigators to obtain phone records associated with the
-1131 number for 45 days, beginning on August 3. The second
search warrant, which was issued on August 20, 2018, authorized
investigators to obtain phone records for the -1131 phone number
from July 1 to 31, 2018, including, among other things, information
regarding the date, time, and phone numbers associated with
incoming and outgoing phone calls; incoming and outgoing text
messages, without content; subscriber information; and historical
CSLI. After a hearing, the trial court denied Perez’s motion.
In this Court, Perez maintains his arguments that the search
warrants lacked probable cause and sufficient particularity. 9 We
9 United States Supreme Court precedent makes clear that the
acquisition of Perez’s cell phone records, including historical CSLI, constituted
a Fourth Amendment search for which the lead investigator was required to
obtain a warrant. See Carpenter v. United States, ___ U.S. ___ (201 LE2d 507,
138 SCt 2206, 2220-2221 & n.3) (2018) (holding that the acquisition of seven
days of historical CSLI constitutes a Fourth Amendment search for which the
government generally must obtain a search warrant supported by probable
cause); Riley v. California, 573 U.S. 373, 403 (134 SCt 2473, 189 LE2d 430)
(2014) (holding that in order to search the digital information on a suspect’s
cell phone incident to his arrest, investigators are generally required to obtain
a warrant). But neither that Court, nor this one, has addressed whether the
15
address first Perez’s claim that the warrants lacked probable cause.
In determining whether probable cause exists to issue a
search warrant, the magistrate’s task “is simply to 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.” “The test for probable
cause is not a hypertechnical one to be employed by legal
technicians, but is based on the factual and practical
considerations of everyday life.” “On appellate review,
our duty is to determine if the magistrate had a
‘substantial basis’ for concluding that probable cause
existed to issue the search warrant.” The decision of a
magistrate “to issue a search warrant based on a finding
of probable cause is entitled to substantial deference by a
reviewing court[,] and even doubtful cases should be
resolved in favor of upholding a magistrate’s
determination that a warrant is proper.” “The probable
cause test requires only a fair probability—less than a
certainty but more than a mere suspicion of possibility—
which by no means is to be equated with proof by even so
much as a preponderance of the evidence.”
collection of real-time geolocation information or real-time CSLI qualifies as a
Fourth Amendment search. See Carpenter, 138 SCt at 2220 (noting that the
Court expressed no view on real-time CSLI). And we need not decide that issue
today, because the lead investigator did obtain a warrant authorizing him to
track the cell phone (and to obtain certain records), and as discussed below,
the warrant was supported by probable cause and was sufficiently particular.
We will therefore assume, without deciding, that the portion of the warrant
permitting the tracking was required in the first place. See, e.g., United States
v. Gibson, 996 F3d 451, 460 (7th Cir. 2021) (assuming without deciding that
using real-time GPS location data to track a cell phone was a Fourth
Amendment search); United States v. Sheckles, 996 F3d 330, 338 (6th Cir.
2021) (assuming without deciding that tracking a cell phone through real-time
CSLI was a Fourth Amendment search).
16
Copeland v. State, 314 Ga. 44, 49 (875 SE2d 636) (2022) (citations
omitted).
In the affidavits supporting the two search warrants at issue
here, the lead investigator attested, in pertinent part, as follows.
After the shooting, investigators found marijuana and cocaine,
which were packaged for sale, in Gardner’s truck in the bowling
alley parking lot, and two people who were at the bowling alley that
night admitted that they had purchased drugs from Gardner.
Gardner’s cell phone records showed that he received a call from the
-1131 phone number at 10:14 p.m. He received another call from
that number at 11:02 p.m., and surveillance video showed that at
11:03 p.m., Gardner appeared to be on his cell phone as he left the
bowling alley and walked to his truck in the parking lot. Gardner
received another call from the -1131 number at 11:07 p.m. The
surveillance video showed that a “sedan” pulled into the parking lot
around that time and that Gardner got into the sedan. Several
minutes later, the video showed Gardner fall out of the car and to
the ground as the sedan sped away. The lead investigator stated
17
that, based on the events on the night of the shooting, there was
reason to believe that the person using the -1131 number or an
accomplice of that person called Gardner about a drug deal, luring
him to the sedan, and that the person then shot and killed Gardner,
or participated in the shooting as an accomplice in the crimes.
The facts outlined in the affidavits authorized the judge who
issued the warrants 10 to infer that someone associated with the
sedan used the -1131 phone number to call Gardner to communicate
about purchasing drugs in the bowling alley parking lot, and that
during the drug deal, the caller or one of his accomplices shot and
killed Gardner. Given the totality of the circumstances set forth in
the affidavits, the judge had a substantial basis for concluding that
there was a fair probability that the real-time and historical location
of the cell phone associated with the -1131 number and the records
for that number would lead to relevant evidence with respect to the
identities and whereabouts of the shooter and any accomplices, thus
10 We note that a Gwinnett County superior court judge issued the two
search warrants at issue here; magistrate judges issued the warrants
discussed in Divisions 3 (b) and (c) below.
18
facilitating their apprehension, as well as evidence of their location
and communications with each other and Gardner around the time
of the crimes. Accordingly, the judge had a substantial basis for
concluding that probable cause existed to issue the search warrants.
See, e.g., Copeland, 314 Ga. at 49-51 (holding that probable cause
supported a warrant to obtain the appellant’s cell phone records,
because the affidavit set forth facts showing that another suspect,
who investigators believed was “on the run,” called the appellant
before and after the shootings and that her phone pinged near the
crime scene and then became stationary near the appellant’s
address; these facts authorized the magistrate to infer that the
appellant’s cell phone records would contain information about his
communications with the suspect near the time of the crimes);
United States v. Gibson, 996 F3d 451, 460-462 (7th Cir. 2021)
(holding that court orders that met the requirements for a search
warrant and authorized investigators to use real-time GPS location
data to track a cell phone used by the appellants were supported by
probable cause, because the affidavits set forth facts indicating that
19
the phone was used to conduct drug deals, investigators did not
know who the users of the phone were, and tracking the phone would
facilitate the apprehension of the drug traffickers); United States v.
Sheckles, 996 F3d 330, 338-339 (6th Cir. 2021) (determining that a
warrant authorizing investigators to track a cell phone number
(later determined to belong to the appellant) through real-time CSLI
was supported by probable cause, because the affidavit underlying
the warrant set forth facts showing that the phone number belonged
to a drug distributor, whose identity was not yet known, and the
phone’s location would therefore “likely yield useful evidence of
criminal activity, including the distributor’s identity”); United
States v. Bass, 785 F3d 1043, 1049 (6th Cir. 2015) (holding that the
magistrate properly concluded that there was probable cause to
support a warrant to search the appellant’s cell phone, because the
affidavit underlying the warrant “showed a fair probability that
evidence of fraud—including contacts between co-conspirators—
would be found within the cell phone”).
We now turn to Perez’s claim regarding the Fourth
20
Amendment’s particularity requirement. As an initial matter, it is
unclear whether Perez challenges both search warrants or only the
second warrant, which authorized investigators to obtain phone
records for the -1131 phone number from July 1 to 31, 2018, on this
ground. He appears to assert that both warrants authorized the
disclosure of his cell phone’s real-time tracking information and his
cell phone records for an overly broad period of time, and were
therefore insufficiently particular, but he also seems to make
arguments pertaining only to the second warrant’s date range of
July 1 to 31, 2018. We will assume, however, that Perez’s claim here
relates to both warrants, and that he properly preserved this claim
for ordinary appellate review, because it fails in any event.
The Fourth Amendment to the United States
Constitution “require[s] that a search warrant
particularly describe the article or articles sought.” In
addition to requiring that officers have enough guidance
to locate and seize only those items the warrant
authorizes them to seize, th[e] 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.” The particularity
requirement is “applied with a practical margin of
21
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.”
State v. Wilson, 315 Ga. 613, 614-615 (884 SE2d 298) (2023)
(citations omitted).
Perez cites no authority to support his argument that the date
ranges in the two warrants were overbroad, and as explained below,
we conclude that they were sufficiently particular under the
circumstances. The lead investigator obtained the first search
warrant on August 3, 2018, five days after the shooting; he obtained
the second warrant on August 20, 2018, about three weeks after the
shooting. As discussed above in relation to Perez’s probable-cause
claim, at the time the warrants were issued, the facts of the
investigation, as set forth in the underlying affidavits, indicated that
on July 29, 2018, the shooter or “an accomplice to the shooter” used
the -1131 phone number to call Gardner to communicate about
purchasing drugs in the bowling alley parking lot; arrived at the
parking lot in a sedan; met with Gardner; and then shot and killed
22
him. At that time, investigators had not yet located the sedan,
identified or apprehended any of the assailants, determined their
relationship to or prior contact with Gardner, or uncovered their
motive for killing him. Nor did investigators know the exact time
period during which the unidentified assailants communicated with
each other or Gardner.
Given these circumstances, the date ranges set forth in the two
search warrants—from August 3 to September 17 (45 days, or with
respect to the tracking information, sooner if the investigation ended
before September 17) in the first warrant and July 1 to 31 (30 days)
in the second warrant—were sufficiently limited, thus preventing
an impermissible general search of data. See id. at 614. Because,
using a practical margin of flexibility, the date ranges in the search
warrants were as specific as the circumstances and nature of the
activity under investigation permitted, the warrants were not
overbroad and insufficiently particular in this respect. See id. at
615. For these reasons, the trial court did not err by denying Perez’s
motion to suppress evidence obtained from the two search warrants
23
discussed above.
(b) Perez also challenges the trial court’s denial of his second
motion, which sought to suppress evidence garnered from the
execution of a warrant to search his house on South Elizabeth Place.
The warrant, which was issued on September 24, 2018, about two
months after the shooting, authorized investigators to search for and
seize “[a]ll firearms, all ammunition, all cellular telephones,
keys/key fob to the victim’s Nissan Titan, [and] clothing containing
blood sp[]atter.” During the search, investigators seized, among
other things, Perez’s driver’s license and his cell phone, which, as
discussed above, was associated with the -1131 and -9983 phone
numbers and yielded incriminating evidence. Perez argues that the
search warrant was not based on probable cause. He also seems to
assert that the warrant was overbroad because it authorized
investigators to search for car keys and a driver’s license. These
claims are meritless.
As to probable cause, the affidavit in support of the search
warrant set forth facts that were substantially similar to the facts
24
presented in the affidavits underlying the two search warrants
discussed in Division 3 (a) above, and added the following. The
phone records for the -1131 phone number showed that the number
was associated with an address on South Elizabeth Place, and the
lead investigator learned that the -1131 number was changed on
August 2, 2018, four days after the shooting; he also learned through
the Georgia Crime Information Center that the -1131 number was
used by Perez, who lived at the address on South Elizabeth Place.
The investigator interviewed a friend of Bays, who said that Bays
had admitted that he and another man shot someone during a
marijuana deal in Lilburn. The investigator then interviewed Bays,
who had turned himself in to investigators; Bays admitted that he
and Perez shot Gardner in the car in the parking lot of the bowling
alley. The lead investigator also attested that based on his
experience and training, the close-range shooting in the car likely
would have resulted in the transfer of Gardner’s blood to Perez’s
clothing.
These facts in the affidavit showed that Perez (or an
25
accomplice) used his cell phone to contact Gardner shortly before
Perez shot and killed Gardner. The affidavit also connected Perez
and the cell phone to the house on South Elizabeth Place. Given all
of these circumstances, the magistrate was authorized to conclude
that there was a fair probability that evidence related to the
shooting would be found at the house. See Copeland, 314 Ga. at 49.
Perez argues that the warrant lacked probable cause because
the affidavit failed to provide the magistrate with a substantial basis
for crediting the statements made by Bays and Bays’s friend. But
the magistrate was authorized to conclude that the facts set forth in
the affidavit that were obtained during the interview of the friend
were corroborated by Bays, who had turned himself in to law
enforcement officials and implicated himself (and Perez) in the
shooting. And the magistrate could have reasonably determined
that other information in the affidavit—including information
obtained from the crime scene, the surveillance video, and Gardner’s
phone records—corroborated Bays’s account. See, e.g., Willis v.
State, 315 Ga. 19, 30 (880 SE2d 158) (2022) (holding that trial
26
counsel’s failure to file a motion to suppress on the ground that a
search warrant was not supported by probable cause did not
constitute deficient performance, because the affidavit showed that
the appellant’s co-defendant gave a statement to police admitting
that he and the appellant were involved in shooting the victim; the
statement was “against [the co-defendant’s] penal interest and
based on his personal knowledge”; and that was enough in itself to
provide the magistrate with a substantial basis for concluding that
probable cause existed); Graddy v. State, 277 Ga. 765, 766 (596 SE2d
109) (2004) (explaining that “[w]hen a named informant makes a
declaration against penal interest and based on personal
observation, that in itself provides a substantial basis for the
magistrate to credit that statement”) (citation, punctuation, and
emphasis omitted). See also Illinois v. Gates, 462 U.S. 213, 244-245
(103 SCt 2317, 76 LE2d 527) (1983) (“It is enough, for purposes of
assessing probable cause, that ‘corroboration through other sources
of information reduced the chances of a reckless or prevaricating
tale,’ thus providing ‘a substantial basis for crediting the hearsay.’”)
27
(citation omitted).
In sum, given the totality of the circumstances, the magistrate
had a substantial basis for determining that probable cause
supported the search warrant. See, e.g., Moon v. State, 312 Ga. 31,
57-59 (860 SE2d 519) (2021) (concluding that probable cause
supported the issuance of a warrant authorizing a search of the
appellant’s house because the underlying affidavit said that a
surveillance video showed the car used in the shooting, the owner of
the car told investigators that she loaned it to the appellant, and
phone records showed that his cell phone was near the crime scene
around the time of the shooting, and rejecting the appellant’s
argument that the owner of the car was unreliable); Glenn v. State,
302 Ga. 276, 281-282 (806 SE2d 564) (2017) (holding that the
magistrate was authorized to conclude that probable cause existed
for the issuance of a warrant to search the appellant’s residence,
because the affidavit supporting the warrant recounted that the
appellant was identified through surveillance video of the crimes
and another person who was involved in the crimes had identified
28
the appellant as the shooter).11
Perez also briefly argues that the search warrant was
overbroad because it was not probable that two of the items listed in
the warrant—a driver’s license and the keys to Gardner’s Nissan
Titan—were connected to the crimes or that they would be found in
the house on South Elizabeth Place. Contrary to Perez’s assertion,
the warrant did not authorize investigators to search for a driver’s
license, so his contention on this point fails. 12 And with respect to
11 In support of his probable-cause claim, Perez relies on United States v.
Griffith, which held that a warrant authorizing a search of the appellant’s
apartment for cell phones, among other things, was not supported by probable
cause, because the affidavit underlying the warrant failed to set forth any facts
showing that the appellant owned a cell phone, that any cell phones would be
found in the apartment, or that they would contain evidence related to the
crimes, which occurred more than a year before the search. See 867 F3d 1265,
1268-1275 (D.C. Cir. 2017). But the circumstances in this case are dissimilar
to those in Griffith. Here, the affidavit set forth facts indicating that Perez
owned the cell phone associated with the number that contacted Gardner
shortly before Perez shot him; that Perez and his phone were linked to the
house on South Elizabeth Place; and that the phone would contain evidence
related to the crimes, which were committed only two months before the
search.
12 Perez does not contend that the investigators’ seizure of his driver’s
license exceeded the scope of the search warrant, so we do not address that
issue. See, e.g., George v. State, 312 Ga. 801, 804-805 (865 SE2d 127) (2021)
(discussing the appellant’s claim that investigators seized evidence that was
beyond the scope of the search warrant and explaining that the plain-view
exception to the warrant requirement may apply in such circumstances).
29
the car keys, the affidavit underlying the warrant attested that
investigators did not locate “the keys and key fob to [Gardner’s]
Nissan Titan truck[,] which he drove to the bowling alley.” The
magistrate could reasonably infer from this information that Perez
took Gardner’s keys and key fob at the time of the shooting and that
there was a fair probability that those items would be found at
Perez’s house. See, e.g., id. at 282 (holding that the magistrate
properly concluded that it was fairly probable that the items listed
in the search warrant, which included personal effects of the victim
that were not recovered at the crime scene, would be found at the
apartment where the appellant, a suspect in the crime, was residing,
because the fact that the appellant lived at the apartment “meant
that there was at least a ‘fair probability’ that items related to the
crime would be found there”). Accordingly, the trial court did not
err by denying Perez’s motion to suppress evidence obtained from
the search of his house.
(c) Perez also contends that the trial court erred by denying
his third motion, which sought to suppress evidence derived from a
30
warrant that permitted investigators to search his cell phone. The
warrant, which was issued on September 25, 2018, the day after
Perez’s house was searched, authorized the search and seizure of
“call logs, text messages, photos, videos, social media content
(Snapchat, Instagram, Facebook etc.) and any other application or
data that could have been used to communicate with the victim or
other suspects.” After the warrant was issued, investigators
downloaded from Perez’s cell phone the data authorized by the
warrant, which produced incriminating evidence that was admitted
at trial. Perez argues that the trial court should have suppressed
this evidence, because the warrant was not supported by probable
cause and was overbroad, in violation of the particularity
requirement.
With respect to probable cause, the facts set forth in the
affidavit supporting the warrant were substantially similar to the
facts presented in the affidavits described in Divisions 3 (a) and (b)
above, except there was no mention of the information obtained from
Bays and Bays’s friend. The affidavit also added that the -1131
31
phone number was changed to the -9983 number on August 2, 2018;
the CSLI for the phone showed that it was near the bowling alley at
the time of the shooting; Perez was arrested on September 24; and
investigators seized his cell phone, which investigators confirmed
was associated with the -1131 and -9983 phone numbers.
Based on the facts in the affidavit, the magistrate could have
reasonably concluded that Perez or one of his accomplices used
Perez’s cell phone to call Gardner about purchasing drugs in the
bowling alley parking lot; that Perez (and his accomplices) were in
the sedan that Gardner entered just before he was shot; and that
Perez (or an accomplice) was the shooter. Given the totality of the
circumstances presented in the affidavit, the magistrate had a
substantial basis for concluding that there was a fair probability
that the cell phone would contain evidence of the crimes. Thus, the
magistrate had a substantial basis for determining that probable
cause existed to issue the search warrant. See Copeland, 314 Ga. at
49-51. See also Glispie v. State, 300 Ga. 128, 133 (793 SE2d 381)
(2016) (holding that the magistrate had a substantial basis for
32
concluding that probable cause existed to issue a search warrant for
the appellant’s cell phone because the affidavit underlying the
warrant said that police had found drugs, cash, and two cell phones
in the appellant’s possession as part of a lawful search incident to
arrest, which authorized the magistrate to infer that the cell phones
were used as communicative devices with third parties for drug
deals).
Perez also contends that the warrant was overbroad because it
authorized the search and seizure of text messages, social media,
photos, and videos, without showing how this data was connected to
the crimes and without any temporal limitation. As explained
below, we conclude that the warrant was sufficiently particular.
To begin, the warrant did not simply provide an unbounded
description authorizing the search and seizure of any and all data
on the cell phone, without linking that data to the crimes at issue.
Rather, the language of the warrant, in context, makes clear that it
authorized the search and seizure of only those classes of
applications and data that could have been used to communicate
33
with the victim or other suspects.
Specifically, after stating that there was probable cause to
believe that the crimes of felony murder and aggravated assault had
been committed, the warrant listed certain classes of applications
and data to be searched for and seized: “call logs, text messages,
photos, videos, [and] social media content (Snapchat, Instagram,
Facebook etc.).” This series of items was followed by the phrase “and
any other application or data that could have been used to
communicate with the victim or other suspects.” The language “and
any other application or data,” read in proper context with the rest
of the sentence, which contains a lengthy list of particular types of
applications and data, indicates that the phrase “and any other
application or data that could have been used to communicate with
the victim or other suspects” modifies the entire list of items
preceding it. In other words, the warrant authorized the search of
call logs that could have shown communications with the victim or
other suspects, text messages that could have shown
communications with the victim or other suspects, and so on. See
34
Scott v. State, 299 Ga. 568, 572-573 (788 SE2d 468) (2016)
(explaining, in the context of construing the meaning of a statute,
that “a qualifying phrase appearing at the end of a series should be
read to apply to all items in the series ‘when such an application
would represent a natural construction’”) (citation omitted);
Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary (defining “and” in this context as “a function
word to indicate connection or addition especially of items within the
same class or type—used to join sentence elements of the same
grammatical rank or function”; and defining “any other” in this
context as “in addition to the . . . thing just mentioned”). See also
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 147 (2012) (explaining that
“[w]hen there is a straightforward, parallel construction that
involves all nouns or verbs in a series, a . . . postpositive modifier
normally applies to the entire series”).
Thus, reading the warrant as a whole, the phrase “and any
other application or data that could have been used to communicate
35
with the victim or other suspects” is most reasonably understood to
limit all of the listed classes of applications and data to applications
and data that could have been used to communicate with the victim
or other suspects. See Blach v. Diaz-Verson, 303 Ga. 63, 64-66 (810
SE2d 129) (2018) (construing the phrase “‘or other organization held
out to the public as a place of deposit of funds or medium of savings
or collective investment’” at the end of a list of kinds of banks, credit
unions, associations, companies, and funds in a statute defining
“financial institution” as “describ[ing] generally all the entities” in
the preceding list and explaining that the word “or” may be used as
a reiterative term); Alpine Glass, Inc. v. Illinois Farmers Insurance
Co., 643 F3d 659, 665 (8th Cir. 2011) (concluding that the phrase “‘or
any other tangible thing or item of monetary value,’” which followed
a list of prohibited items in a statute, meant that those items
constituted “‘tangible thing[s] or item[s] of monetary value’”). 13
13Several of us recently have expressed concerns about whether catch-
all phrases (or “residual clauses”) in a search warrant—like the phrase “‘any
other evidence of the crime of murder’” after a list of items to be searched for
and seized—can limit the list of items preceding it and thus transform an
36
And contrary to Perez’s argument, the breadth of the search
was supported by the facts set forth in the affidavit, which indicated
that Perez (and, potentially, any accomplices) used his cell phone to
communicate with Gardner about arranging a drug deal in the
bowling alley parking lot, where Perez or an accomplice shot and
killed him. Perez argues that the affidavit stated only that he or an
accomplice used the cell phone to call Gardner, with no mention of
contacting him through text messages, photos, videos, or social
otherwise general warrant into a sufficiently particular one. Wilson, 315 Ga.
at 617-620 (Peterson, P.J., concurring, joined by Boggs, C.J., and Warren,
Bethel, Colvin, and Pinson, JJ.) (suggesting that a catch-all phrase in the
description of things to be seized does not necessarily invalidate an otherwise
particular warrant, but that this Court’s precedent suggesting the inverse—
that a warrant lacking in particularity can be saved by a catch-all phrase—
may be incorrect) (citation omitted). But the phrase “and any other application
or data that could have been used to communicate with the victim or other
suspects” at the end of the list of applications and data described here does not
implicate such concerns. As discussed in our analysis above, read in context
and in its most natural and reasonable way, that phrase modifies the rest of
the list and confines the types of listed applications and data to a specific
category: applications and data that could have been used to communicate with
the victim or other suspects. Thus, in contrast to a catch-all phrase like “any
other evidence of the crime of murder”—which expands a list of certain items
to be searched for and seized to encompass any other sort of evidence of the
crimes at issue—the phrase here restricts the applications and data to be
searched for and seized to applications and data that could have been used to
communicate with the victim or other suspects. See id. at 620 (explaining that
“the words of [a] warrant matter”).
37
media. But given all of the facts set forth in the affidavit, the
magistrate was authorized to make a practical, common-sense
determination that Perez, and any other assailants, could have
communicated with Gardner and with each other not only through
phone calls, but also through text messages, photos, videos, or social
media content, and that there was a fair probability that evidence
related to the crimes would be found within that sort of data on
Perez’s cell phone. See United States v. Reichling, 781 F3d 883, 887
(7th Cir. 2015) (explaining, in the context of analyzing whether a
magistrate properly concluded that probable cause supported a
warrant to search his residence for digital and non-digital storage
devices, that “‘a judge is given license to draw reasonable inferences
concerning where the evidence referred to in the affidavit is likely to
be kept, taking into account the nature of the evidence and the
offense,’” and that the probable-cause inquiry must be grounded in
both an understanding of criminal behavior and of modern
technology) (citation omitted). See also Bass, 785 F3d at 1049-1050
(holding that a warrant authorizing a search of the appellant’s cell
38
phone for “any records of communication, indicia of use, ownership,
or possession, including electronic calendars, address books, e-mails,
and chat logs” was sufficiently particular, because the warrant
sought evidence of fraudulent conduct related to the charges of wire
fraud, credit fraud, and identity theft; the affidavit set forth a
substantial basis to believe such evidence existed on the cell phone;
and officers could not have known where such evidence was located
on the phone or in what format).
Perez also complains that the warrant failed to expressly
confine the data to be searched for and seized to a specific date
range. But he cites no authority in support of that argument. And
the facts set forth in the affidavit indicated that at the time the
warrant was issued, investigators were still determining whether
additional suspects, whose identities and whereabouts were
unknown, were involved in the shooting. Under these
circumstances, we cannot say that the warrant was impermissibly
general on the basis that it did not set forth a specific time frame.
For these reasons, Perez’s claim that the search warrant was
39
overbroad, and thus insufficiently particular, fails. Compare
Wilson, 315 Ga. at 613-616 (holding that a warrant that authorized
investigators to search for and seize from the appellant’s cell phone
“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” was
not sufficiently particular, because the warrant failed to limit the
search and seizure to evidence connected to the crimes at issue).
Consequently, the trial court did not err by denying Perez’s
motion to suppress evidence garnered from the search of his cell
phone. Thus, Perez’s claims regarding each of the warrants he
challenges fail.
4. As discussed in footnote 1 above, Perez was found guilty of,
among other crimes, voluntary manslaughter as a lesser offense of
malice murder and felony murder based on armed robbery. The trial
court ultimately vacated the voluntary-manslaughter guilty verdict
and sentenced Perez for the felony-murder count. Perez contends
40
that under the modified merger rule set forth in Edge v. State, 261
Ga. 865 (414 SE2d 463) (1992), the trial court should have sentenced
him for voluntary manslaughter rather than felony murder based
on armed robbery. 14 We disagree.
In rejecting a similar claim in Smith v. State, 272 Ga. 874 (536
SE2d 514) (2000), we explained that
[i]n Edge, this court adopted a modified merger rule,
holding that, when a single aggravated assault is the
basis for felony murder and voluntary manslaughter
charges, the defendant cannot be convicted and sentenced
for felony murder if the jury also finds that the assault is
mitigated by provocation and passion and convicts the
defendant of voluntary manslaughter. We adopted such
a rule because “[t]o hold otherwise would eliminate
voluntary manslaughter as a separate form of homicide
since, in that event, every voluntary manslaughter would
also be a felony murder.” In Edge, we noted that the
problem we were addressing “does not exist if the
underlying felony is independent of the killing itself, such
as burglary, robbery, or even an assault that is directed
against someone other than the homicide victim.”
Id. at 879 (footnotes containing citations omitted). Consequently,
14 Perez also contends that he should have been sentenced for voluntary
manslaughter rather than felony murder based on aggravated assault.
Although the jury found Perez guilty of felony murder based on aggravated
assault, he was not convicted of or sentenced for that crime, so his claim
regarding it is moot. See Williams v. State, 313 Ga. 325, 332 (869 SE2d 389)
(2022).
41
we have held that “the modified merger rule does not apply when
the underlying felony, such as armed robbery, is independent of the
killing itself.” Id. at 879-880. See also Grimes v. State, 293 Ga. 559,
561 (748 SE2d 441) (2013) (reiterating this principle and explaining
that “we generally do not apply the Edge modified merger rule ‘to
any felony murder conviction in which the underlying felony was not
the aggravated assault of the murder victim’”) (citation omitted).
Here, like in Smith, Perez’s felony-murder conviction was
based on an armed robbery that was “independent of the killing
itself.” 272 Ga. at 880. Although Perez’s act of using a handgun to
take marijuana from Gardner proximately caused his death, and
thus supported his conviction for felony murder, the evidence
presented suggested that the act was not integral to the killing.
Thus, Edge’s modified merger rule does not apply, and Perez was
properly convicted of and sentenced for felony murder. See id.;
Grimes, 293 Ga. at 561-562 (rejecting the appellant’s claim that he
should have been sentenced for voluntary manslaughter instead of
felony murder based on attempted armed robbery under the rule in
42
Edge, because the attempted armed robbery was independent of the
killing itself). Compare Sanders v. State, 281 Ga. 36, 37-38 (635
SE2d 772) (2006) (holding that the rule in Edge applied where the
same act of setting the victim on fire resulted in the commission of
all three of the felonies underlying three counts of felony murder—
aggravated assault, aggravated battery, and arson in the first
degree—and caused the death of the victim, so the felonies were
“integral to the killing”).
And to the extent Perez asserts that the jury’s guilty verdicts
of voluntary manslaughter and felony murder based on armed
robbery were mutually exclusive, we reject that argument, just as
we rejected a similar argument in Smith. See 272 Ga. at 880(holding that “[b]ecause the intent relevant to the conviction for
felony murder was the underlying intent for armed robbery and
because intent to kill, as well as mitigating factors such as
provocation and passion, are irrelevant to that intent, the jury’s
verdict of felony murder does not constitute a finding that [the
appellant] did not act with provocation and passion in assaulting the
43
victim and does not conflict with the jury’s verdict of voluntary
manslaughter”).
Judgment affirmed. All the Justices concur.
44