State v. Islam

912 S.E.2d 632, 321 Ga. 30

• Court: Supreme Court of Georgia
• Decided: February 18, 2025
• Docket: S24G0707
• Status: Published

Opinion

321 Ga. 30 FINAL COPY

S24G0707. THE STATE v. ISLAM.

BETHEL, Justice.

After police executed a search warrant at his business and

seized, among other things, Delta-8 THC gummies, Md Nazmul

Islam was charged with possession of a Schedule I controlled

substance with intent to distribute. Islam subsequently filed a

motion pursuant to OCGA § 17-5-30, which sought exclusion of the

seized property as evidence against him and the return of the

property. The trial court granted Islam’s motion, finding that the

seizure of the property was “unlawful” and ordering the State to

return “all property seized during the execution of the search

warrant[.]” Relying on OCGA § 5-7-1 (a) (4), which permits the State

to take an appeal from an order excluding evidence on the ground

that it was unlawfully seized, the State filed a timely notice of

appeal to the Court of Appeals. The Court of Appeals dismissed the

State’s appeal, however, concluding that the appeal was not authorized by OCGA § 5-7-1 (a) (4) because, though the trial court’s

order required the property’s return, it did not expressly exclude any

evidence. We granted certiorari to determine whether the Court of

Appeals correctly dismissed the State’s appeal.1 We now reverse the

decision of the Court of Appeals and remand for consideration of the

merits of the State’s appeal.

“Appeals by the State in criminal cases are limited to the issues

listed and the circumstances identified under OCGA § 5-7-1[.]” State

v. Stephens, 310 Ga. 57, 61 (2) (849 SE2d 459) (2020). As such,

Georgia’s “appellate courts do not have jurisdiction to entertain an

appeal filed by the State in a criminal case that falls outside the

ambit of that provision.” State v. Arroyo, 315 Ga. 582, 583 (883 SE2d

781) (2023) (citation and punctuation omitted). In this case, the

State cited OCGA § 5-7-1 (a) (4) as the basis for its appeal. That

paragraph provides in pertinent part that the State may appeal

[f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized . . . in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever

1 The case was orally argued before this Court on November 6, 2024.

2 occurs first[.]

OCGA § 5-7-1 (a) (4). Consistent with the plain meaning of the

statutory text, this Court has recognized that “OCGA § 5-7-1 (a) (4)

authorizes the State to take appeals from pretrial orders that

suppress or exclude evidence on the ground that it was obtained in

violation of law.” State v. Rosenbaum, 305 Ga. 442, 448 (1) (826 SE2d

18) (2019) (citation and punctuation omitted). The question

presented in this case, then, is whether the trial court’s order

granting Islam’s motion under OCGA § 17-5-30 is an order

“excluding evidence” on the ground that it was “illegally seized.”

We have previously characterized OCGA § 17-5-30 as “a

procedural statute, establishing a mechanism for the application of

an exclusionary rule” for evidence obtained by way of an unlawful

search and seizure. Mobley v. State, 307 Ga. 59, 72 (4) (a) (834 SE2d

785) (2019). Pursuant to OCGA § 17-5-30 (a), “[a] defendant

aggrieved by an unlawful search and seizure may move the court for

the return of property, the possession of which is not otherwise

unlawful, and to suppress as evidence anything so obtained” on the

3 basis that the search and seizure were conducted without a warrant

or, where a warrant was issued, on one of three statutory grounds:

“the warrant is insufficient on its face, there was not probable cause

for the issuance of the warrant, or the warrant was illegally

executed.” The statute further provides that, “[i]f the motion is

granted the property shall be restored, unless otherwise subject to

lawful detention, and it shall not be admissible in evidence against

the movant in any trial.” OCGA § 17-5-30 (b) (emphasis supplied).

Pointing to the statutory language emphasized above, the

State argues that an order granting a motion brought under OCGA

§ 17-5-30 is necessarily an order “excluding evidence.” And because

the only basis for granting such a motion is that the property at issue

was obtained as the result of an unlawful search and seizure, the

State asserts that the order on appeal clearly constitutes an order

“excluding evidence illegally seized,” OCGA § 5-7-1 (a) (4), from

which the State is authorized to appeal. Islam, for his part, largely

focuses on the fact that the trial court’s order is silent as to the

exclusion of the seized property and contends that it should be

4 construed as ruling only on the issue of the property’s return from

which the State has no right of appeal. But the mere fact that the

order does not speak expressly to the exclusion of the seized property

does not lead to an inescapable conclusion that the order is not one

excluding evidence. Rather, it is well settled that “the appealability

of an order is ultimately determined by its substance and effect, not

its nomenclature.” State of Ga. v. Singh, 291 Ga. 525, 526 (1) (731

SE2d 649) (2012). And determining the substance and effect of the

trial court’s order in this case requires an examination of OCGA §

17-5-30, which provided the basis for Islam’s motion.

As we have explained before, “[w]hen we consider the meaning

of a statute, we must presume that the General Assembly meant

what it said and said what it meant.” Deal v. Coleman, 294 Ga. 170,

172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted).

“To that end, we must afford the statutory text its plain and ordinary

meaning, we must view the statutory text in the context in which it

appears, and we must read the statutory text in its most natural and

reasonable way, as an ordinary speaker of the English language

5 would.” Id. at 172-173 (1) (a) (citations and punctuation omitted).

The most natural and reasonable understanding of OCGA § 17-

5-30 is the one that the State proposes: an order granting a motion

brought under this statute, regardless of nomenclature, is an order

“excluding evidence.” When such a motion is granted, the statute

requires that property “shall be restored, unless otherwise subject

to lawful detention, and it shall not be admissible in evidence”

against the defendant. OCGA § 17-5-30 (b). By providing that the

seized property “shall not be admissible in evidence,” subsection (b)

makes exclusion of the seized property mandatory.2 See Hall County

Bd. of Tax Assessors v. Westrec Properties, 303 Ga. 69, 75 (3) (809

SE2d 780) (2018) (“The word ‘shall’ is generally construed as a word

of command. The import of the language is mandatory.” (citation and

punctuation omitted)). So where a trial court grants such a motion,

2 This Court has recognized that, though “shall” generally indicates a

mandatory directive, it can be permissive depending on the context in which it appears. See Bell v. Hargrove, 313 Ga. 30, 34 (2) n.5 (867 SE2d 101) (2024). But in this case, “we discern no contextual basis for concluding that the word ‘shall,’” as used in OCGA § 17-5-30, “does not function as a mandatory directive.” Id. 6 the seized property at issue is excluded by operation of law, and a

trial court has no discretion to order otherwise. See Republic Claims

Svc. Co. v. Hoyal, 264 Ga. 127, 128 (441 SE2d 755) (1994)

(construing OCGA § 9-2-60 (b), which states that “[a]ny action . . . in

which no written order is taken for a period of five years shall

automatically stand dismissed,” and concluding that “[t]he

provisions of this section are mandatory,” “dismissal occurs by

operation of law,” and “a trial court is without authority to order the

action reinstated” (citation and punctuation omitted; emphasis

supplied)). Cf. Benton v. State, 314 Ga. 498, 502 (2) (877 SE2d 603)

(2022) (construing statute providing for revocation of first-offender

status based upon a probation violation and concluding that,

because statute provides that a court “may enter an adjudication of

guilt and proceed to sentence the defendant” following a probation

violation, such violation “does not automatically result in a

conviction or preclude [the defendant’s] exoneration by operation of

law” but rather “gives the court discretion to enter an adjudication

of guilt” (citation and punctuation omitted; emphasis in original)).

7 Islam urges a contrary reading of this statutory language,

seizing on subsection (b)’s caveat that, where a motion brought

under OCGA § 17-5-30 is granted, the seized property “shall be

restored, unless otherwise subject to lawful detention . . . .”

(Emphasis supplied.) As Islam views it, this qualifying phrase

demonstrates that there are two distinct grounds upon which a

motion made under OCGA § 17-5-30 may be granted and, his

argument goes, authorizes a trial court to order the return of

property without concomitantly ordering its exclusion. But Islam’s

argument ignores elementary rules of statutory construction. This

qualifying phrase, which follows the requirement that the seized

property “shall be restored” and precedes the requirement that the

property “shall not be admissible in evidence,” OCGA § 17-5-30 (b),

plainly has no effect on the mandatory nature of that latter

requirement. See Scott v. State, 299 Ga. 568, 572 (2) (788 SE2d 468)

(2016) (“Under the canon of statutory construction known as the

‘rule of the last antecedent,’ a qualifying phrase should ordinarily be

read as modifying only the noun or phrase that it immediately

8 follows.” (citation and punctuation omitted)). Rather, this phrase

simply indicates that return of the seized property under OCGA §

17-5-30 (b) is not automatic and instead depends on whether the

seized property, as the statutory qualifying phrase further reflects,

is “otherwise subject to lawful detention.”

The cases relied upon by the Court of Appeals in dismissing

this appeal do not require a different result because neither case

applies here. First, the Court of Appeals pointed to its decision in

State v. McIntyre, 191 Ga. App. 565, 565-566 (382 SE2d 669) (1989),

which also concerned the State’s appeal from the grant of a motion

brought under OCGA § 17-5-30. There, the trial court issued two

separate rulings on the defendant’s motion — the first ordered the

exclusion and the second ordered the return of the property at issue.

On appeal, the State challenged only the second order requiring the

return of the property but expressly declined to challenge the

exclusion ruling contained in the first order. In light of the State’s

failure to challenge the exclusion ruling, the Court of Appeals

concluded that the State was not permitted under OCGA § 5-7-1 (a)

9 (4) to appeal only the return of the property. By contrast, in this

case, the State is challenging both the exclusion of the property at

issue as well as its return. As such, McIntyre is distinguishable from

and thus inapplicable to the case at hand.

The other case cited by the Court of Appeals, King v. State, 264

Ga. 282 (443 SE2d 844) (1994), is likewise inapposite. As an initial

matter, there was no discussion of, let alone analysis of and a

holding on, the issue of the State’s right to appeal an order granting

a motion made under OCGA § 17-5-30. Rather, King merely noted

in a footnote detailing the case’s procedural history that the State’s

prior appeal of an order requiring the return of seized property had

been dismissed based on the “lack of a right to appeal that issue,” id.

at 283 n.1, but the analytical basis for the dismissal of the prior

appeal is unclear. That alone makes King inapplicable here. See

Cook v. State, 313 Ga. 471, 478 (2) (a) (870 SE2d 758) (2022)

(“Decisions of this Court and of the Court of Appeals do not stand for

points that were neither raised by the parties nor actually decided

in the resulting opinion, and questions which merely lurk in the

10 record, neither brought to the attention of the court nor ruled upon,

are not to be considered as having been so decided as to constitute

precedents.” (citation and punctuation omitted)).

Moreover, the facts of this case are distinguishable from the

facts of King. Though King also concerned an appeal from an order

requiring the return of seized property, the order at issue in King

did not follow from the exclusion of evidence under OCGA § 17-5-30.

Instead, the order in King required the return of property as a result

of this Court’s reversal of King’s conviction in King v. State, 262 Ga.

147 (414 SE2d 206) (1992). See King, 264 Ga. at 282-283. And

because the exclusion of evidence was not the basis for ordering the

return of King’s property, OCGA § 5-7-1 (a) (4) was inapplicable. To

the extent either King or McIntyre could be understood to suggest

that the State never has the right to appeal from an order granting

a motion brought under OCGA § 17-5-30, we disapprove any such

reading.

Here, the trial court found that the State’s seizure of the

property at issue was unlawful and, on that basis, granted Islam’s

11 motion brought under OCGA § 17-5-30. Even absent express

language indicating that the seized property would be excluded as

evidence against Islam, exclusion occurred by operation of law and,

thus, was the necessary consequence of the order being appealed.3

Accordingly, the trial court’s order is an order “excluding evidence

illegally seized” for purposes of OCGA § 5-7-1 (a) (4), and the State

is authorized to take an appeal. The judgment of the Court of

Appeals dismissing this appeal is therefore reversed, and this case

is remanded for consideration of the merits of the State’s appeal.

Judgment reversed and case remanded. All the Justices concur.

3 Both in his briefing and at oral argument before this Court, Islam argued that the property at issue was not excluded and that the State was not precluded from seeking to introduce that property into evidence at trial. But, of course, a party’s after-the-fact characterization of an order does not subvert the plain meaning of the controlling statutory language. 12 Decided February 18, 2025.

Certiorari to the Court of Appeals of Georgia — Case No.

A23A1702.

Patsy Austin-Gatson, District Attorney, David J. Ian, Assistant

District Attorney, for appellant.

Arora Law Firm, Manubir S. Arora, Devin A. Rafus, Jennifer

L. Hyman, Nathan L. Pugh, for appellee.