Marvin Civil v. State

• Court: Court of Appeals of Georgia
• Decided: February 12, 2025
• Docket: A24A1289
• Status: Published

Opinion

FOURTH DIVISION DILLARD, P. J., BROWN and PADGETT, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

February 12, 2025

In the Court of Appeals of Georgia A24A1289. CIVIL v. THE STATE.

PADGETT, Judge.

Marvin Civil was found guilty by a jury and convicted of computer pornography

and criminal attempt to commit a felony (child molestation). On appeal, Civil

challenges his convictions and the denial of his amended motion for new trial,

contending that the trial court erred in denying his motion to suppress evidence

obtained pursuant to a search warrant for his cell phone records. Specifically, Civil

argues the warrant was overbroad, not sufficiently particularized as to the items to be

searched for and seized, and the execution of the warrant exceeded the scope of the

warrant. For the reasons that follow, we affirm. Viewed in the light most favorable to the jury’s verdict, Jackson v. Virginia, 443

US 307 (99 SCt 2781, 61 LE2d 560) (1979), the record shows that in May 2020, the

Cherokee County Sheriff’s Office began an undercover operation by posting an ad

purportedly of a “girl” on an internet site that was widely known to be frequented by

escorts and those seeking escorts. The ad included general information about the

“girl” but the telephone number listed on the site as a contact number was actually

provided by the GBI. That number was monitored by an undercover law enforcement

officer who responded to communications as if the officer was a fourteen year old girl.

Several times throughout the month, Civil used his work phone with an assigned

number ending in 7097 to reach out to the “girl.”

On May 18, 2020, using the 7097 number, Civil sent a text message asking if the

“girl” was available and the undercover agent responded affirmatively. After

communicating back and forth about meeting for a “QV,”1 the undercover officer sent

a message to Civil at the 7097 number stating “Iam 14. . . . [sic]” After discussing how

the transaction would be illegal if the “girl” was really only 14 years old, Civil stopped

communicating with the officer using the 7097 number. About 15 minutes later, Civil

1 The officer testified that “QV” was a “term for quick visit which is typically a sexual term for oral sex or something similar that’s really quick.” 2 contacted the “girl” again using a phone number ending in 4338. They resumed

discussing a possible transaction, and the undercover officer sent a message to the

4338 number stating “and your cool with me being almost 15[?] [sic]” Civil responded

“you know that’s illegal right,” and without any further elaboration, sent another

message a few minutes later saying “Ok fine let’s meet. . . .” The “girl” repeatedly

told Civil that she would be in route soon and that she was attempting to think up an

excuse to provide to her mom to justify her leaving home. The “girl” also notified

Civil that she would be walking to the proposed meeting location because she could

not drive due to her purported age. Civil arranged to meet the “girl” at an aquatic

center, but when he arrived and learned that the facility was closed, he changed the

location to a nearby convenience store and told the “girl” they would meet at the

convenience store and have sex in the car. Meanwhile, officers were waiting at the

convenience store in an unmarked blue SUV. Upon arriving at the convenience store,

Civil messaged the “girl,” alerting her that there were police in an unmarked blue

SUV at the convenience store. After fleeing the convenience store, Civil continued

messaging the “girl” and asked her to go into the bathroom of the convenience store

to take a photo of her breasts and send it to him, indicating he would pay an additional

3 sum of money for the photograph. In response, the “girl” asked him to send a photo

of his current location and car so that she could ensure he was not merely trying to

obtain a free photo of her breasts. Civil then sent a picture of him sitting in a maroon

SUV in front of a Home Depot. One of the officers looked at the photo sent by Civil

and recognized the Home Depot where the maroon SUV was parked.2 The officers

also noted that when Civil had driven through the parking lot of the convenience store

and changed the meeting location after he saw there were police present at the store,

they noted that he had something hanging from his rear view mirror.

The officers then drove to the Home Depot, and, upon noticing the maroon

SUV with something hanging from the rear view mirror, made contact with Civil.

When the officers approached Civil, he exclaimed “[h]ow did you find me?” and

“how did you know it was me?” The officers then called the phone number ending

in 4338 and the phone rang inside of the maroon SUV. Upon a search incident to

arrest, the officers found two phones in the maroon SUV. Officers later obtained a

search warrant seeking permission to search the phones found in Civil’s possession

2 There were a number of other communications making clear that Civil wanted to have sexual relations with the “girl,” but are not all recounted here as they are not relevant to the question presented in this appeal. 4 and recover certain data from the phones. The search warrant also indicated that law

enforcement officials were seeking the listed data “[w]hich is evidence that a crime

has been or is being committed, to wit: 16-4-1 Criminal Attempt to Commit a Felony-

16-4-1.” The officer included in his affidavit the fact that due to his knowledge,

training and experience, including his work with the GBI Crimes Against Children

taskforce for several years, that he believed relevant evidence would be found on these

phones. The warrant application affidavit recounted the facts of the case, including

the date of the offense and many of the facts set forth above.

Civil was arrested and eventually indicted for one count of attempt to commit

a felony (child molestation) and for one count of computer pornography. Before trial,

Civil filed a motion to suppress evidence obtained through the search warrants for his

cell phones, alleging that the search warrant affidavits lacked sufficient probable cause,

sufficient particularity as to data to be searched for and seized, the search warrants

were overbroad, and were improperly executed. Following a hearing, the trial court

denied Civil’s motion to suppress and the case proceeded to trial.

At trial, the undercover officer, a digital forensic analyst, a geographical

information analyst, and Civil all testified. Evidence from the phones was introduced,

5 including text messages exchanged between Civil and the “girl,” geolocation data

showing Civil’s cell phones were located at the convenience store and aquatic center

on the day in question, and information indicating Civil was the owner of both phones.

Following the trial, the jury found Civil guilty of criminal attempt to commit a felony

and computer pornography.3

1) On appeal, Civil argues the trial court erred in denying his motion to

suppress evidence obtained from the search warrants. Civil argues the warrant was not

particularized as to the items to be searched for and seized, and the warrant was

overbroad. We disagree.

When considering the denial of a motion to suppress, we view the evidence “in

favor of the court’s ruling, and we review de novo the trial court’s application of the

law to undisputed facts.” Creamer v. State, 337 Ga. App. 394, 395 (788 SE2d 69)

(2016) (citation and punctuation omitted).

Where the basis for the issuance of a search warrant has been challenged, [the Supreme Court of Georgia] has stated

3 Civil was sentenced to 5 years in confinement followed by 5 years on probation on one count of criminal attempt to commit a felony (child molestation) and 5 years in confinement followed by 10 years on probation for the computer pornography count, those sentences to be served concurrently. 6 that doubtful cases should be resolved in favor of upholding the determination that issuance of a warrant was proper, reflecting both a desire to encourage use of the warrant process by police officers and a recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case.

Reyes-Castro v. State, 352 Ga. App. 48, 59-60 (1) (b) (833 SE2d 735) (2019) (citation

and punctuation omitted).

Our Supreme Court has repeatedly reiterated that searches of cell phones are

governed by the Fourth Amendment and that a search warrant which authorizes the

search of a cell phone “require[s] that a search warrant particularly describe the article

or articles sought.” State v. Wilson, 315 Ga. 613, 614 (884 SE2d 298) (2023) (citation

omitted). This particularity requirement is intended to prevent general, exploratory

searches of personal property which have always been rejected as constituting a

violation of the Fourth Amendment. Marron v. United States, 275 U. S. 192, 195 (1),

(48 SCt 74, 72 LE 231) (1927). “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

7 nature of activity under investigation permit.” Wilson, at 615 (citation and

punctuation omitted).

Our Supreme Court has also made it clear that when a search warrant for

electronic devices lists the items for which law enforcement officers are authorized to

search, that the request should be read in context and as a whole as opposed to reading

the items that the officer is seeking to discover in isolation. See Perez v. State, 316 Ga.

433, 448 (3) (c) (888 SE2d 526) (2023). Citing United States v. Reichling, 781 F3d 883,

887 (7th Cir.) (2015), the Perez Court noted 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.” Perez, 316 Ga. at 449 (3) (c).

In this case, the warrant listed eight categories of information which were

believed to be found on Civil’s two phones and which were relevant to the crime that

the affidavit alleged that Civil has committed - criminal attempt to commit a felony.

That list included: all texts, all video files and photographs, all applications, all files

that would show ownership, all search history, all call logs, all files that contain data,

8 and all e-mails including Facebook messenger. However, the list was followed by the

following limiting language: “[w]hich is evidence that a crime has been or is being

committed, to wit: 16-4-1 Criminal Attempt To Commit A Felony - 16-4-1.” This

additional language is quite similar to that we approved of in Reyes-Castro, 352 Ga.

App. at 60. The limiting statement only authorized a search for the eight categories

of information that were also related to the crime identified within the warrant

application - a crime that had been fully described within the attached affidavit. See

Palmer v. State, 310 Ga. 668, 675 (2) (c) (853 SE2d 650) (2021); Westbrook v. State,

308 Ga. 92, 97 (3) (a) n.5 (839 SE2d 620) (2020). The inclusion of the limiting

language which connected all of the items for which law enforcement officials were

authorized to search to the underlying crime for which probable cause had been

established within the affidavit makes this case factually distinguishable from Wilson,

315 Ga. at 615-616.

The warrant specifically provided that the issuing judge had concluded that

there was probable cause to believe that a crime had been committed based on the

officer’s affidavit. That conclusion was reached after evaluation of the detailed

description of the crime, the involvement of the cell phones with that crime, the dates

9 of the crime, and the locations of the crime as attested to by the affiant. This Court has

stated that “the particularity requirement [of a search warrant] only demands that the

executing officer be able to identify the property sought with reasonable certainty.”

Henson v. State, 314 Ga. App. 152, 155 (723 SE2d 456) (2012) (citation and

punctuation omitted). Here, given the warrant’s reference to the specific phones, the

crime at issue, and to the specific date on which the crime was allegedly committed,

as contained within the affidavit, we conclude that the warrant was sufficiently

particular to notify the detective, the analyst, and/or any other executing officer of

what evidence he or she was authorized to obtain from Civil’s phones and to prevent

a general exploratory search of the other downloaded content for evidence of

unrelated crimes or other unauthorized purposes. See Reyes-Castro, 352 Ga. App. at

60-61 (1) (b) (search warrant that authorized the search of “any and all of the phone’s

content” was sufficiently particular where affidavit included the property to be

searched, the crime committed, and the dates the crimes were committed)

(punctuation omitted).

We note that the evidence that Civil now alleges was recovered from his cell

phones improperly was largely duplicative of other admissible evidence that was

10 obtained from other sources and introduced during trial. For example, the geolocation

data recovered by the cell phones showed that, on the date in question, Civil’s cell

phones were located at the convenience store and the Home Depot at the relevant

time period. Officers testified that they were personally present and saw Civil at both

locations on the date and time in question. The text messages that were recovered

from Civil’s phones were also fully documented on the cell phone that was in the

possession of the officer who posed as the “girl” during this investigation. Whether

the information contained within the text exchanges were obtained from Civil’s

phones or the phone used by the undercover officer is largely immaterial.

For the foregoing reasons, we find that the trial court did not err in denying

Civil’s motion to suppress based upon particularity concerns. This enumeration of

error is without merit.

2) Civil further argues on appeal that the execution of the warrant exceeded

the scope of the warrant. Specifically, he argues the warrant did not authorize the

seizure of any “location data” or “KML files” from his phone. The record reflects

Civil filed a pre-trial motion to suppress the items seized in the search on the ground

that the search warrant was not sufficiently particularized. The written motion, as

11 amended, did not allege that the officers exceeded the scope of the search authorized

by the search warrant. In the motion hearing, counsel for Civil only argued that the

warrant violated the particularity requirement and never raised any issue involving the

resulting search exceeding the scope of the search authorized by the warrant. The

record shows that the trial court only ruled on probable cause and particularity, but

did not make any finding relating to whether the execution of the warrant exceeded

the scope of the authorized search. Further, Civil failed to object to the geolocation

data being admitted into evidence when it was offered during the trial. It is well settled

that

issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.

Stembridge v. State, 331 Ga. App. 199, 203 (770 SE2d 285) (2015). In short, we cannot

consider this argument raised for the first time on appeal. Castillo v. State, 281 Ga.

579, 581 (2) (642 SE2d 8) (2007) (citation and punctuation omitted).

12 However, even if Civil had sought a pretrial ruling on the geolocation data being

admitted during the pretrial hearing or at the time it was tendered at trial, such an

objection would have been fruitless. It is undisputed that any geolocation data located

on the phones would fall within the definition of “all files that could contain data . .

.” related to the commission of the crime of criminal attempt to commit the felony of

child molestation on the dates listed within the search warrant affidavit. As addressed

above, that evidence was properly secured via the search warrant. This argument

would have been meritless even if it had been preserved for appellate review.

For the reasons outlined above, we affirm.

Judgment affirmed. Dillard, P. J., and Brown, J., concur.