State v. LEDBETTER (And Vice Versa)

899 S.E.2d 222, 318 Ga. 457

• Court: Supreme Court of Georgia
• Decided: March 5, 2024
• Docket: S23A0900, S23X0901
• Status: Published

Opinion

318 Ga. 457 FINAL COPY

S23A0900, S23X0901. THE STATE v. LEDBETTER; and vice versa.

WARREN, Justice.

In October 2018, John Ledbetter was indicted for murder and

other crimes associated with the January 2016 shooting death of

Jeremy Miller and the unrelated February 2015 shooting death of

Damian Stinchcomb. Before trial, Ledbetter filed two motions to

suppress evidence. One motion sought to suppress evidence related

to Miller’s shooting provided to Detective Kevin Leonpacher by

Ledbetter’s previous attorney, Dennis Scheib, on the ground that the

information was protected by attorney-client privilege. The other

motion sought to suppress cell phone records related to Miller’s

shooting and cell phone records related to Stinchcomb’s shooting on

the ground that the two warrants authorizing the search of his cell

phone records were defective in several respects, including not being

supported by probable cause. The trial court granted the first motion to suppress, and the State appeals. See OCGA § 5-7-1 (a) (5)

(permitting the State to appeal from a pretrial order excluding

evidence under certain conditions). The trial court denied the second

motion to suppress, and Ledbetter cross-appeals. See OCGA § 5-7-1

(b) (“In any instances in which any appeal is taken by and on behalf

of the State of Georgia in a criminal case, the defendant shall have

the right to cross appeal.”). For the reasons explained below, we

affirm both orders. Because each appeal has its own relevant facts

and legal issues, we discuss them separately, addressing the State’s

pretrial appeal first.

1. The State’s Appeal, Case No. S23A0900

(a) Miller was shot during a drug transaction on January 19,

2016, and later died in the hospital.1 During the investigation into

the shooting, Scheib, Ledbetter’s attorney at the time, contacted law

enforcement, and on February 5, 2016, he met with Detective

Leonpacher about the investigation and gave the detective

1 Stinchcomb’s murder is not at issue in the State’s appeal and will be

discussed below in Division 2, which pertains to Ledbetter’s cross-appeal. 2 information about the shooting, as well as physical evidence related

to the shooting. Ledbetter was later arrested for Miller’s murder.

After Ledbetter changed attorneys, his new trial counsel

moved to suppress “all evidence provided to law enforcement” by

Scheib based on attorney-client privilege.2 At a hearing on this

motion, the following evidence about Scheib’s meeting with

Detective Leonpacher was presented.

Detective Leonpacher testified that Scheib contacted him

shortly after Miller’s shooting, “essentially gauging what the police

knew about the incident.” Scheib was “very clear about having some

limited information from his client and he proffered some

generalized details of the incident . . . in somewhat hypothetical

terms.” In a second call later that day, Scheib stated that Ledbetter

was his client. The detective then met with Scheib at Scheib’s office.

2 Ledbetter also argued to the trial court that the evidence should be

suppressed based on Scheib’s providing ineffective assistance of counsel, but that is not the ground on which the trial court relied in granting Ledbetter’s motion to suppress, and Ledbetter does not pursue that argument on appeal. 3 The meeting at Scheib’s office was audio-recorded by the

detective, and the recording was played at the hearing. Scheib first

gave the detective information about the vehicle involved in the

shooting. He explained that it was a rental car and gave the

detective the name and number of the person at the rental car

company to contact about the car. Scheib then provided the following

account of the shooting.3 Ledbetter knew Miller “from before,” and

he and Miller arranged to meet each other in the parking lot to “talk

about” a marijuana transaction. In the parking lot, Miller got into

the passenger’s side of Ledbetter’s car and then pulled out a “chrome

and black automatic pistol.” Ledbetter put his hands up in the air

and then reached out and grabbed the gun. They struggled. As

Ledbetter pushed the gun away, it went off. Miller told Ledbetter

that he had another gun. Ledbetter threw himself over Miller, and

as soon as Ledbetter had control over the gun, he “fired twice.”

3 During this account, Scheib repeatedly prefaced statements about the

shooting with “he said” or “he told me,” indicating that Ledbetter had given him this information. 4 Scheib also gave the detective physical evidence, including a

backpack that Ledbetter said Miller was carrying when he entered

the vehicle, the clothes Ledbetter was wearing on the night of the

shooting, and two guns, at least one of which Scheib indicated

Ledbetter had taken from Miller.4 At the end of the meeting, Scheib

told Detective Leonpacher that Ledbetter had said that if the

detective secured an arrest warrant for Ledbetter, Ledbetter would

turn himself in within 24 hours because he did not want the “fugitive

squad” looking for him. Scheib further explained that Ledbetter had

said, “I’m not gonna run,” and “I gotta deal with this.” Scheib never

stated that Ledbetter had waived attorney-client privilege or given

Scheib permission to share any of this information.

Detective Leonpacher testified that when talking to Scheib, he

was under the impression that Scheib was acting as an agent for

4 When describing the incident to the detective, Scheib said Ledbetter

described the gun Miller had as a “chrome and black automatic pistol,” and then said, “I’ll show you the gun that my client gave me.” After Scheib gave the detective the gun, he said, “He’s given you the weapon, and he’s described it as a silver and black weapon.” Scheib also gave the detective socks, a cap, a necklace, a receipt, and a shell casing. 5 Ledbetter, noting that Scheib used Ledbetter’s and Miller’s names

in his description of the incident, rather than using hypothetical

names. The detective also recalled that as Scheib was providing

details, Scheib referred to his notes, leading the detective to

“presume[ ] . . . that [Scheib] had spoken with his client and made

some notes and was trying to reproduce to me the information

provided by his client to him.” Scheib did not provide and the

detective never saw “anything that said that there was some sort of

waiver of attorney-client privilege” allowing Scheib to provide this

proffer.

Scheib testified that he was trying to use “hypotheticals” to

“guide [Detective Leonpacher] toward looking into Mr. Miller as a

robber” who had a weapon. Scheib explained, “I was using

hypotheticals because I knew I couldn’t say my client has actually

said this without my client giving up the attorney-client privilege.”5

Scheib testified that Ledbetter had not waived attorney-client

5 The recording of the interview does not reflect that Scheib spoke in

hypotheticals.

6 privilege or given him permission to share what Ledbetter told

Scheib with “the police, the prosecution, or anybody else”; Scheib

also did not have authority from Ledbetter to say that any of the

items he gave the detective came from Ledbetter. Scheib further

testified that Ledbetter wrote him a letter with specific information

about what he wanted to do “as far as turning himself in.”6

Ledbetter testified that he never gave Scheib permission to

reveal private communications or share physical evidence. When he

learned in 2018 that Scheib had given information to Detective

Leonpacher, he “contact[ed] the fee arbitration people” because he

“felt like [Scheib] needed to be disbarred and I needed my money

6 During cross-examination, the prosecutor asked Scheib if he remembered telling the prosecutor that Ledbetter had “signed a document that was in [Scheib’s] file that allowed [Scheib] to say certain things to Detective Leonpacher about the case.” Scheib did not state whether he recalled making that statement, but testified that he “may have misspoken” and clarified that Ledbetter wrote him “several letters as to what to do and what not to do,” but Scheib did not have any letters allowing him “to go in and give certain things.”

7 returned.”7 And Ledbetter hired a different attorney to represent

him going forward.

(b) On December 6, 2021, the trial court granted Ledbetter’s

motion to suppress evidence provided by Scheib, finding, based on

the evidence presented at the hearing that

Scheib obtained privileged information from Defendant Ledbetter during the course of legal representation. This information included statements as well as physical evidence. Attorney Scheib, unilaterally and without knowledge or permission of Defendant Ledbetter, and in violation of the attorney-client privilege, violated this [s]tatutory privilege and unlawfully shared this privileged information/evidence with law enforcement. This was error.

Citing OCGA § 24-5-501 (a) (2) and several cases, the trial court

therefore ruled that “[i]n order to cure this error, the prosecution as

well as all of its witnesses are hereby notified that they are not to

use, directly or indirectly, any privileged evidence obtained from

Attorney Scheib which includes, but is not limited to, Defendant’s

statements as well as physical evidence provided by Attorney Scheib

7 It is not clear from the record whether Ledbetter was referencing the

fee arbitration program at the State Bar, the General Counsel’s office at the State Bar, or some other person or entity. 8 to Homicide Detective Leonpacher.” The order further held that “it

cannot be mentioned that Attorney Scheib even met with the police

. . . and Attorney Scheib cannot be called as a witness at trial by the

State.”

The State appeals the trial court’s grant of Ledbetter’s motion

to suppress, arguing that Ledbetter has not shown a violation of

attorney-client privilege through any of Scheib’s communications.

The State further argues that, even if there was a violation of

Ledbetter’s attorney-client privilege, the physical evidence provided

by Scheib to Detective Leonpacher should not be suppressed, and

the State should be permitted to present evidence of the source of

the physical evidence, i.e., that it came from Scheib, Ledbetter’s

attorney. Finally, the State argues that the trial court erred by

suppressing “derivative evidence”—that is, evidence derived from

Scheib’s statements to Detective Leonpacher.

For the reasons discussed below, we agree with the trial court

that Ledbetter has shown that his attorney-client privilege was

violated through Scheib’s disclosures to Detective Leonpacher. And

9 because Ledbetter concedes that physical evidence is not suppressed

by the trial court order at issue in this appeal, we need not decide

whether the trial court could have suppressed the physical evidence

Ledbetter gave to Scheib based on attorney-client privilege.

However, we conclude that the trial court’s order properly prohibits

the State from presenting evidence to the jury that Scheib,

Ledbetter’s attorney, was the source of the physical evidence given

to law enforcement. Finally, we conclude that the trial court order

does not suppress “derivative evidence” as protected by attorney-

client privilege. We therefore affirm the trial court’s order granting

Ledbetter’s motion to suppress the evidence provided by Scheib.8

8 The State and Ledbetter both mention certain videos of interviews with

potential witnesses that Scheib allegedly gave to Detective Leonpacher. Evidence in the record indicates that Scheib provided these videos to the detective at some point after his recorded meeting with the detective. These videos were briefly mentioned by Detective Leonpacher at the motion to suppress hearing, but no clear evidence was presented about their contents or when and how they were given to the detective. Ledbetter now argues that these recordings must be suppressed as protected attorney work product. We do not address that argument, however, because it appears that it was not raised by Ledbetter in the trial court, and it was not ruled on in the suppression order at issue in this appeal.

10 (c) “The attorney-client privilege is ‘the oldest of the privileges

for confidential communications known to the common law,’” and

“has long been recognized in Georgia.” St. Simons Waterfront, LLC

v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419, 421 (746 SE2d

98) (2013) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (101

SCt 677, 66 LE2d 584) (1981)). To that end, OCGA § 24-5-501 (a) (2)

prevents evidence protected by the attorney-client privilege from

being introduced as evidence: “There are certain admissions and

communications excluded from evidence on grounds of public policy,

including, but not limited to, the following: . . . Communications

between attorney and client.” See also St. Simons Waterfront, 293

Ga. at 421 (explaining that the “attorney-client privilege” is

“currently codified” in OCGA § 24-5-501 (a) (2)).9

9 As noted in St. Simons Waterfront, “[p]rior to the adoption of the 2013

Georgia Evidence Code, there were four different statutes in our Evidence Code addressing the attorney-client privilege.” Id. at 421 n.1. The current Evidence Code “greatly simplified the statutory language constituting the privilege and eliminated certain awkward language in the prior statutes,” but “the rules governing the privilege in Georgia generally remain the same.” Id. (citation and punctuation omitted). Neither party has argued that any aspect of attorney-client privilege at issue in this case changed with the introduction of the current Evidence Code, and we conclude that at least as to the issues raised

11 “The [attorney-client] privilege generally attaches when legal

advice is sought from an attorney, and operates to protect from

compelled disclosure any communications, made in confidence,

relating to the matter on which the client seeks advice.” St. Simons

Waterfront, 293 Ga. at 421-422. See also Rogers v. State, 290 Ga. 18,

20 (717 SE2d 629) (2011) (“[T]he attorney-client privilege protects

communications between the client and the attorney that are

intended to be confidential[.]”) (citation and punctuation omitted).

Ledbetter, as “the proponent of the privilege,” has the burden “to

establish that the privilege exists.” St. Simons Waterfront, 293 Ga.

at 429. “[T]he privilege belongs to the client, not the attorney,”

Moclaire v. State, 215 Ga. App. 360, 363 (451 SE2d 68) (1994)

(citation and punctuation omitted), and the client can waive the

here, Georgia cases decided before the enactment of our current Evidence Code remain applicable law. Compare Volkova v. State, 311 Ga. 187, 194-195 (855 SE2d 616) (2021) (treating the rule about when attorney-client privilege is waived as to communications with “an expert engaged by the attorney” as a “judicially created exclusionary rule[ ] based on an interpretation of Georgia’s old Evidence Code” that has been “statutorily abrogated by the enactment of our current Evidence Code”) (emphasis omitted). 12 privilege explicitly or implicitly, see Hill, Kertscher & Wharton, LLP

v. Moody, 308 Ga. 74, 79 (839 SE2d 535) (2020).

(i) Attorney-Client Communications

In granting Ledbetter’s motion to suppress evidence that was

shared in violation of Ledbetter’s attorney-client privilege, the trial

court found that Scheib “obtained privileged information from

Defendant Ledbetter during the course of legal representation,” and

that Scheib shared this information “unilaterally and without

knowledge or permission of Defendant Ledbetter.” We review these

fact-findings for clear error. See State v. Wilson, 315 Ga. 613, 613

(884 SE2d 298) (2023) (“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.”) (citation and

punctuation omitted).

The State does not dispute that Scheib obtained information

from Ledbetter as part of his representation of Ledbetter and that

13 Scheib then conveyed that information to Detective Leonpacher.

And the trial court’s findings that Scheib acted “unilaterally” and

“without knowledge or permission” of Ledbetter were supported by

ample evidence that Ledbetter did not waive his attorney-client

privilege, including Scheib’s testimony that he did not have any

waiver or permission to share information from Ledbetter and

Ledbetter’s testimony that he never gave Scheib permission to share

any information with the detective and did not learn about Scheib’s

disclosures until 2018.

The State argues, however, that Scheib did not share the

information “unilaterally” and without Ledbetter’s “knowledge or

permission” because, in fact, Ledbetter intended for Scheib to share

the information he provided with Detective Leonpacher and thereby

implicitly waived his attorney-client privilege. In support of this

contention, the State points to “[t]he fact that Scheib disclosed this

information while pursuing [a] favorable outcome for Ledbetter.”

But in the absence of any evidence that the client knew about and

approved of the disclosure, an attorney’s disclosure alone, even if it

14 was intended to benefit the client, does not establish that such

disclosure was authorized. See Moclaire, 215 Ga. App. at 363 (“The

mere fact that the attorney discussed the communications with

others, without evidence that [the client] authorized those

discussions, does not prove that [the client] waived the attorney-

client privilege.”) (citation and punctuation omitted); McKie v. State,

165 Ga. 210, 210 (140 SE 625) (1927) (“Communications between

client and attorney are excluded from public policy, and are

incompetent as evidence against the client upon her trial for the

homicide of her husband; and this is so whether such letters [written

by the client to her attorney] were voluntarily produced by the

attorney to be used against the client, or were surreptitiously or

otherwise taken from the possession of the attorney.”). See also

Rouse v. State, 275 Ga. 605, 607 & n.12 (571 SE2d 353) (2002)

(affirming the trial court’s denial of admission into evidence a tape

recording of a witness talking to his attorney, where the “record

fail[ed] to establish conclusively” how the defendant obtained the

recording but where the attorney “apparently . . . inadvertently

15 disclosed” the recording and the record was “devoid of any evidence

that shows that [the witness] authorized the release of this tape to

anyone”).10

The State further argues that Scheib’s testimony that

Ledbetter said, “I gotta deal with this” and indicated that he would

turn himself in if he heard that there was an arrest warrant is

evidence that Ledbetter knew about and implicitly authorized

Scheib’s meeting with and disclosures to Detective Leonpacher. This

argument—that Ledbetter saying he wanted to “deal with this” and

avoid pursuit from the “fugitive squad” is an implicit waiver of

attorney-client privilege—is strained at best. See Kennestone Hosp.

v. Hopson, 273 Ga. 145, 148 (538 SE2d 742) (2000) (explaining that

10 In support of this argument, the State cites United States v. Tyerman,

701 F3d 552, 559 (8th Cir. 2012), and United States v. Beltramea, 2015 U.S. Dist. LEXIS 121195 (N.D. Iowa Sept. 11, 2015). Even assuming we would follow these federal cases in deciding an issue about attorney-client privilege, both cases are distinguishable: there was evidence in both that the defendants knew about their attorneys’ disclosures. See Tyerman, 701 F3d at 559 (explaining that during plea negotiations, Tyerman helped his attorney find the gun “[a]t the Court’s request” and “the County Attorney’s request,” and concluding that Tyerman implicitly waived the attorney-client privilege as to that information); Beltramea, 2015 U.S. Dist. LEXIS 121195 at *17-24 (concluding that the defendant waived attorney-client privilege with respect to information that his attorney shared in open court at his sentencing hearing). 16 “[a]n implied waiver is one shown by a party’s decisive, unequivocal

conduct reasonably inferring the intent to waive,” and concluding

that there was no implicit waiver in that case) (citation and

punctuation omitted). We cannot say that the trial court’s finding

that Scheib acted without Ledbetter’s knowledge or permission was

clearly erroneous.11 We therefore affirm the trial court’s holding that

Ledbetter’s communications with Scheib were protected by the

11 The State also argues in its reply brief that the statement of Ledbetter’s new attorney at an August 2020 bond hearing that Ledbetter “had engaged the services of an attorney, Dennis Scheib, and in fact was cooperating and providing information and physical evidence to Detective Leonpacher” shows that Ledbetter authorized the disclosures Scheib made to the detective. First, we note that it does not appear the State made this argument to the trial court, and evidence about what was said during the bond hearing was not introduced into evidence at the hearing on the motion to suppress. See Middleton v. State, 316 Ga. 808, 810 n.3 (890 SE2d 713) (2023) (declining to consider an argument that was “never raised in proceedings below”). Even if we did consider this argument, however, we would reject it. This statement from Ledbetter’s counsel was not a clear representation on Ledbetter’s behalf that he had waived his attorney-client privilege in relation to Scheib’s earlier meeting with Detective Leonpacher, and later in the bond hearing, Ledbetter’s counsel indicated to the court that Scheib’s disclosure of evidence to law enforcement was “among some of the things” that Ledbetter would be raising before the trial court. Even if counsel’s assertion that Ledbetter “was cooperating” with the State through Scheib was inconsistent with Ledbetter’s assertion that he did not authorize Scheib to make any disclosures to law enforcement, it does not constitute a sufficiently clear statement that Ledbetter authorized Scheib’s disclosures to cause us to conclude that the trial court’s fact-finding was clearly erroneous.

17 attorney-client privilege and should be suppressed under OCGA

§ 24-5-501 (a) (2).

(ii) Physical Evidence

The State also argues that even if evidence about the

communications between Ledbetter and Scheib that Scheib shared

with Detective Leonpacher should be suppressed based on attorney-

client privilege, the trial court order should be reversed to the extent

it also suppresses physical evidence Scheib gave the detective, such

as guns. Notably, however, in his brief and at oral argument before

this Court, Ledbetter asserted that the trial court’s order does not

categorically suppress physical evidence itself and has conceded that

the physical evidence is not covered by attorney-client privilege and

may be admissible.12 In other words, the State and Ledbetter agree

12 Specifically, in one of his appellate briefs before this Court, Ledbetter

asserted: “The trial court did not exclude the physical evidence from being introduced at trial but it did exclude all privileged evidence that was obtained by the prosecution in violation of Appellee’s rights. Thus, if the prosecution can find a lawful way to introduce the physical evidence at trial, same would not violate the trial court’s Order.” And at oral argument, Ledbetter’s counsel was asked: “[I]t seems like you concede that the physical evidence is not covered by attorney-client privilege or any other privilege. Is that your position?” And counsel answered, “In this particular case, yes.” 18 on this point. We accept Ledbetter’s interpretation of the trial court

order and hold that the order does not suppress the physical

evidence Scheib provided to Detective Leonpacher.13

However, if the physical evidence is admitted at trial, it should

not be linked to Scheib as Ledbetter’s attorney.14 Ledbetter asserts—

and we agree—that although the trial court’s order does not

suppress the physical evidence itself, the trial court order does

prohibit the State from identifying Scheib—as Ledbetter’s

attorney—as the source of any physical evidence the State might

seek to introduce. Specifically, the trial court’s order prohibits “the

prosecution as well as all of its witnesses” from using “directly or

13 To the extent language in the order could be read to suppress the physical evidence itself, we reject that reading. And because this Court’s interpretation of the trial court’s order is now law of the case, Ledbetter may not later attempt to rely on that order in an effort to suppress the physical evidence at issue in this appeal. See Cartwright v. Caldwell, 305 Ga. 371, 382 (825 SE2d 168) (2019) (“Under [the law of the case] doctrine, ‘any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals.’ OCGA § 9-11-60 (h). It is well-established that the law of the case doctrine applies to holdings by appellate courts in criminal cases.”) (citation and punctuation omitted).

14 We do not evaluate how the State may be able to admit this physical

evidence, such as through a different theory of authentication. 19 indirectly, any privileged evidence obtained from Attorney Scheib

which includes . . . physical evidence provided by Attorney Scheib.”

The State would violate this prohibition if it introduced at trial the

physical evidence Ledbetter gave to Scheib accompanied by

testimony or other evidence that the items originated from Scheib

(who was serving as Ledbetter’s attorney). This is so because the

evidence presented at the motion to suppress hearing indicated that

Ledbetter (as a client) gave the physical evidence to Scheib

(Ledbetter’s attorney) as part of his attorney-client communications

with Scheib.

Scheib’s explanation of the “chrome and black” gun he gave

Detective Leonpacher, which is reflected in the recording of the

meeting played at the motion to suppress hearing, helps illustrate

this point. Scheib’s statements to Detective Leonpacher indicate

that when Ledbetter gave Scheib this gun, Ledbetter told Scheib it

was the gun Miller had when he arrived at the drug transaction and

that Miller and Ledbetter struggled over it, eventually resulting in

Miller’s shooting and death. If the State sought to introduce that

20 gun into evidence at trial and mentioned that law enforcement

officials obtained the gun through Ledbetter’s attorney, Scheib, that

would constitute an indirect use of “privileged evidence obtained

from Attorney Scheib” and would violate the trial court’s order. That

would be so even if neither Ledbetter’s nor Scheib’s statements

about the gun were repeated to the jury and even if the fact of

Scheib’s conversations with Ledbetter and Detective Leonpacher

were not otherwise made known to the jury. Evidence that

Ledbetter’s attorney gave law enforcement a gun that was linked to

the shooting would be indirect evidence of the communications

Ledbetter had with Scheib (his attorney) when he gave Scheib this

gun, thereby constituting the type of indirect use of “privileged

evidence obtained from Attorney Scheib” the trial court prohibited

in its order.15

15We note that it likely would be difficult to present evidence that Ledbetter’s attorney Scheib gave any physical evidence to Detective Leonpacher without running afoul of the trial court’s directive that “it cannot be mentioned that Attorney Scheib even met with the police.” 21 The State argues that it should be allowed to present evidence

that the gun and other physical evidence came from Scheib and the

trial court erred in deciding otherwise. Responding to the State’s

argument, Ledbetter points to Williams v. State, 258 Ga. 281 (368

SE2d 742) (1988), and maintains that the trial court’s suppression

of any mention of his attorney as the source of any physical evidence

is proper. We agree with Ledbetter. In Williams, the State presented

evidence to the jury that the attorney of Williams, a criminal

defendant, revealed the location of a murder victim’s body to law

enforcement. See 258 Ga. at 284. This Court explained that the

attorney, Flanagan, likely learned this information from Williams

and reasoned that “if the state was not trying to create an inference

that the victim’s body was discovered because Williams had revealed

its location to his attorney, it was not necessary to tell the jury that

Flanagan was Williams’ attorney.” Id. at 285 (emphasis in original).

We therefore disapproved of the State’s presenting evidence that the

defendant’s attorney was the source of the evidence used against the

defendant. See id.

22 It is true, as the State points out, that this Court in Williams

ultimately held that evidence of Williams’s attorney’s involvement

was harmless in light of the strength of the evidence against

Williams. See 258 Ga. at 285. But the reasoning in Williams is

nonetheless persuasive here. As with admitting evidence of the

attorney’s knowledge of the body’s location in Williams, admitting

evidence that Ledbetter’s attorney was the source of the physical

evidence given to Detective Leonpacher would allow the jury to draw

inferences about Ledbetter’s communications with his attorney that

should not be permitted because of the attorney-client privilege. To

put it another way, the only reason Scheib gave Detective

Leonpacher the physical items was because of their connection to

the shooting, and the only reason Scheib was aware of the items’

connection to the shooting was through his privileged

communications with his client. And the information discussed in

those privileged communications—whether presented directly

through Scheib’s statements about what Ledbetter said or presented

indirectly through inferences that can be drawn from the fact that

23 Ledbetter shared physical evidence of the crimes with his attorney—

is what the attorney-client privilege protects from the jury’s view.16

Thus, we affirm the trial court’s suppression of evidence that Scheib

(as Ledbetter’s attorney) was the source of the physical evidence.17

(iii) Derivative Evidence

16 Other states have reached a similar conclusion. For example, in State

v. Olwell, 64 Wash.2d 828 (394 P2d 681) (1964), which Williams cited with approval, the Supreme Court of Washington held that when an attorney surrenders physical “evidence he has in his possession,” the prosecution “should be well aware of the existence of the attorney-client privilege” and “when attempting to introduce such evidence at the trial, should take extreme precautions to make certain that the source of the evidence is not disclosed in the presence of the jury.” Id. at 834. That court reasoned that by “allowing the prosecution to recover such evidence, the public interest is served, and by refusing the prosecution an opportunity to disclose the source of the evidence, the client’s privilege is preserved and a balance is reached between these conflicting interests.” Id. See also Sanford v. State, 21 SW3d 337, 344 (Tex. App. 2000) (explaining that “several other jurisdictions hold that the State may not, when introducing the evidence received from counsel, reveal the source of the evidence in the presence of the jury because it would violate the attorney- client privilege” and concluding that “this balancing of interests is the correct approach”); State v. Abdullah, 348 P3d 1, 103-104 (158 Idaho 386) (2015) (collecting cases prohibiting presenting the defendant’s attorney as the source of physical evidence, but also explaining that if the location of physical evidence “was revealed to defense counsel by a non-client third party, then the attorney-client privilege does not prohibit the State from proving . . . where and how the evidence was located”).

17 We take no position, however, on the question of whether Ledbetter

could open the door to such evidence by raising a chain-of-custody or similar challenge at trial. 24 The State also argues that the trial court erred by suppressing

“derivative evidence related to Scheib’s disclosures,” such as

testimony from witnesses later located with information Scheib

provided to Detective Leonpacher. See Black’s Law Dictionary (11th

ed. 2019) (defining “derivative evidence” as “[e]vidence that is later

discovered by using evidence that was illegally obtained”). We

disagree, however, with the premise of the State’s argument in this

regard, because the trial court’s order does not suppress such

evidence.

As discussed in subdivision (ii) above, the trial court’s order

prohibits “the prosecution as well as all of its witnesses” from

“indirectly” using “privileged evidence obtained from Attorney

Scheib.” But the order does not otherwise restrict law enforcement’s

use of the privileged information to aid further investigation.

Moreover, the text of the order does not mention “derivative

evidence” and neither OCGA § 24-5-501 (a) (2) nor any of the cases

the trial court cited in the order expressly suppress derivative

25 evidence on the basis of attorney-client privilege.18 The order also

does not hold that Ledbetter’s constitutional rights were violated,

which is often a prerequisite for the suppression of derivative

evidence. See State v. Chulpayev, 296 Ga. 764, 776 (770 SE2d 808)

(2015) (“The broad exclusionary rule, with its fruit of the poisonous

tree extension, operates only in limited circumstances, usually only

where a defendant’s constitutional rights have been violated.”).

Finally, at oral argument before this Court, Ledbetter’s counsel

appeared to acknowledge that the trial court’s order does not

suppress “derivative evidence,” while emphasizing the court’s

prohibition on the indirect use of the privileged information

discussed in subdivision (ii) above.19 We accordingly conclude that

18 We acknowledge that the title of the order broadly describes its contents as an order “GRANTING THE SUPPRESSION OF ANY AND ALL EVIDENCE, AS WELL AS DERIVATIVE EVIDENCE.” However, for the reasons explained in this subdivision, we do not view the nomenclature in the title of the order as prevailing over the substance of the order. See Sotter v. Stephens, 291 Ga. 79, 82 (727 SE2d 484) (2012) (explaining that although it was titled “Final Order and Judgment,” the order was not final because the substance of the order indicated that it was interlocutory).

19 Specifically, when counsel was asked at oral argument about what

derivative evidence was suppressed by the trial court’s order, he answered:

26 the trial court’s order does not prohibit the State from seeking to

introduce evidence that may be obtained from the use of privileged

information Scheib disclosed to Detective Leonpacher, so long as

that evidence does not reveal communications protected by the

attorney-client privilege and so long as the State does not identify

Scheib as the original source of any such evidence.

*

In light of the discussion above, we affirm the trial court’s order

granting Ledbetter’s motion to suppress any evidence that attorney

Scheib gave to Detective Leonpacher that is protected by Ledbetter’s

attorney-client privilege.

2. The Cross-Appeal, Case No. S23X0901

As part of the investigation into the murders, law enforcement

officers completed two search warrants for Ledbetter’s cell phone

I didn’t take derivative the way . . . I thought it was indirect or direct. And by that I meant, OK, we’ll exclude all the statements the trial court is saying. So you can’t say what appellee said to the lawyer. But you can say that the lawyer turned it over to us. And I thought that’s the indirect evidence. . . . And . . . Williams says exactly what to do. Omit everything directly and indirectly that came from the lawyer for the client, and then the prosecution has to figure out a way to get it in. And that’s how I look at it. 27 records. A February 2016 search warrant obtained cell phone

records related to Miller’s murder, and a February 2020 search

warrant obtained cell phone records related to Stinchcomb’s

murder.20 Ledbetter moved to suppress these cell phone records,

arguing, among other things, that the search warrants were not

supported by probable cause. The trial court held a hearing on the

motion to suppress, during which the search warrant affidavits and

applications were admitted into evidence.21 The trial court then

20 The phone records related to Stinchcomb’s murder were first obtained

with an “Order Releasing Cellular Telephone Records” issued in March 2015. The State’s attorney explained to the trial court that law enforcement completed a search warrant for the same phone records in February 2020 due to the United States Supreme Court’s issuing Carpenter v. United States, 585 U.S. 296 (138 SCt 2206, 201 LE2d 507) (2018). Ledbetter raised objections to the March 2015 order in the trial court and again on appeal, but we need not address those because we conclude that Ledbetter’s challenges to the February 2020 warrant fail. Ledbetter does not allege that the March 2015 order supplied any information different from the information gathered with the February 2020 search warrant. Thus, we would still conclude that the trial court properly denied Ledbetter’s motion to suppress these records even if we conclude that the March 2015 order was invalid. See, e.g., McKinney v. State, 307 Ga. 129, 138 (834 SE2d 741) (2019) (explaining that we did not need to decide whether admitting evidence to prove other purposes under OCGA § 24- 4-404 (b) was proper, when we had determined that the evidence was admissible to prove identity).

21 There is no evidence in the record that the magistrates who granted

the warrants were presented with anything more than the applications and

28 denied Ledbetter’s motion to suppress, concluding, among other

things, that the search warrants were supported by probable cause.

Ledbetter appeals this order. As explained more below, we rely on

well-settled precedent applying the Fourth Amendment to the

United States Constitution to conclude the warrants were supported

by probable cause, and we also reject Ledbetter’s other challenges to

the warrants.

A search warrant will issue only based upon an oath or

affirmation stating “facts sufficient to show probable cause that a

crime is being committed or has been committed.” OCGA § 17-5-21

(a). 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”).

affidavits in support of the requested warrants, and Ledbetter and the State agreed that the issues presented in Ledbetter’s motion to suppress should be decided based only on the warrant application and affidavit. See Messerschmidt v. Millender, 565 U.S. 535, 568 n.8 (132 SCt 1235, 182 LE2d 47) (2012) (explaining that a court reviewing the validity of a warrant should consider “only information brought to the magistrate’s attention”). 29 An affidavit supporting a search warrant generally “should

establish a connection between the defendant and the property to be

searched and a link between the property and any criminal activity.”

United States v. Mathis, 767 F3d 1264, 1276 (11th Cir. 2014)

(citation and punctuation omitted). In determining if a warrant is

supported by probable cause, the magistrate must “make a practical,

common-sense decision whether, given all the circumstances set

forth in the affidavit” supporting the warrant “there is a fair

probability that contraband or evidence of a crime will be found” in

the place requested to be searched. Perez v. State, 316 Ga. 433, 440

(888 SE2d 526) (2023) (citation and punctuation omitted). A

magistrate may “draw such reasonable inferences as he will from

the material supplied to him by applicants for a warrant.” Illinois v.

Gates, 462 U.S. 213, 240 (103 SCt 2317, 76 LE2d 527) (1983). See

also State v. Britton, 316 Ga. 283, 286 (888 SE2d 157) (2023).

“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.” Perez, 316 Ga. at 440 (citation and

30 punctuation omitted). “[I]n passing on the validity of a warrant, the

reviewing court may consider only information brought to the

magistrate’s attention.” Messerschmidt v. Millender, 565 U.S. 535,

568 n.8 (132 SCt 1235, 182 LE2d 47) (2012). The magistrate’s

determination of probable cause is “entitled to substantial

deference.” Perez, 316 Ga. at 440 (citation and punctuation omitted).

“[E]ven doubtful cases should be resolved in favor of upholding a

magistrate’s determination that a warrant is proper.” Id. (citation

and punctuation omitted).

(a) February 2016 Search Warrant Related to Miller’s Murder

With the February 2016 search warrant, the State sought

subscriber information, call detail records, cell tower locations, and

other information related to three phone numbers from January 1

through February 3, 2016, to find evidence of murder. Detective

Leonpacher completed the affidavit, providing the following

information under oath. He had been employed by the Atlanta Police

Department since July 2002 and worked in the Homicide Unit.

Miller was shot in Atlanta on January 19, 2016. “A tip from the Cobb

31 County Police Department indicated that . . . Ledbetter admitted to

a third-party that he shot . . . Miller.” After the shooting and before

he died, Miller called his cousin, Shera Lett, from the hospital,

saying that he wanted to talk to her and did not believe he would

survive his injuries. When Lett came to the hospital, Miller told her

that “he met a man he knows as ‘John B’ or ‘Lil’ John’ to purchase

marijuana,” but then “John” “either shorted or provided fake

marijuana” and shot Miller when Miller confronted him; “John” then

drove away with Miller’s backpack.

Detective Leonpacher’s affidavit further averred that Scheib,

Ledbetter’s attorney, met with him and “proffered information on

behalf of his client,” including that Ledbetter met with Miller to sell

marijuana, Miller tried to rob him, and Ledbetter grabbed the gun

and “fired two shots at Miller.” Scheib also “turned over evidence

from his client that was related to the shooting including the firearm

used to shoot the victim and the victim’s light blue Jansport

32 backpack.”22 Detective Leonpacher then obtained arrest warrants

for Ledbetter for murder and other crimes, and Ledbetter turned

himself in.

In light of this information, the application said the following:

It is now requested that a Search Warrant be issued by the Magistrate Court of Fulton County to compel the wireless phone service provider of:

• John Ledbetter (accused) • Jeremy Miller (victim) • Shera Lett (dying declaration witness)

which is T-Mobile/MetroPCS, to produce the call detail records (CDR) associated with those numbers. The records are material, relevant, and evidence in the ongoing criminal investigation into the crime of Murder, which is in violation of OCGA § 16-5-1.

CDR’s, including the cell towers utilized during each call, can be used to aid in approximating the area from which calls were made and received and it is believed that the CDR’s for these three will illustrate that:

22 Ledbetter does not argue that law enforcement’s reliance on statements and physical evidence gathered from Scheib and detailed in the affidavit was improper or is a basis to suppress the cell phone records. We do not decide this issue, but note that, as explained above in Divisions 1 (c) (ii) and (iii), the trial court’s order granting Ledbetter’s motion to suppress information given to Detective Leonpacher by Scheib in violation of Ledbetter’s attorney-client privilege does not also have the effect of suppressing physical or derivative evidence. 33 • John Ledbetter communicated with the victim prior to their meeting during which Ledbetter shot the victim AND that his phone showed activity on cell towers in the same general geographic area as the crime scene at/about the time of the shooting. • Jeremy Miller communicated with Ledbetter prior to the meeting/shooting. • Shera Lett received a call from Grady Hospital prior to hearing the dying declaration from Miller.

The next paragraph listed the information requested, including

subscriber information and call detail records, for:

the MetroPCS/T-Mobile wireless telephone numbers of: 504-223-4160 470-259-8589 404-671-5486

These are the only phone numbers, other than 911, mentioned in the

warrant affidavit and application. The affidavit and application

were presented in the Magistrate Court of Fulton County and were

signed by a judge.

(i) Ledbetter argues that the warrant was not supported by

probable cause because the affidavit and application failed to

connect any of the target numbers to criminal activity or to

Ledbetter. Thus, we must determine whether, “given all the

34 circumstances set forth in the affidavit,” the magistrate had a

“substantial basis” for concluding that there was a fair probability

that evidence of the murder would be found in the records of the

three phone numbers listed in the warrant. Perez, 316 Ga. at 440

(citation and punctuation omitted). We conduct this inquiry keeping

in mind that the magistrate may draw “reasonable inferences” from

the affidavit, Gates, 462 U.S. at 240, and that the magistrate’s

decision is entitled to “substantial deference,” Perez, 316 Ga. at 440

(citation and punctuation omitted).

Here, we have no trouble concluding that the affidavit offered

a substantial basis for the magistrate to conclude that there was a

fair probability that evidence of Miller’s murder would be found on

Ledbetter’s cell phone. According to the affidavit, Miller said that he

met someone named “John” to buy marijuana, and that John shot

him. Further, Ledbetter told someone that he shot Miller, and

Scheib, Ledbetter’s attorney, said that Ledbetter met Miller to sell

marijuana and fired shots at Miller at this meeting. The affidavit

then said that the requested phone records were expected to show

35 that Ledbetter “communicated with the victim prior to their

meeting” and was around the crime scene at the time of the shooting.

These circumstances support the common-sense inference that

Ledbetter used his phone to contact Miller to set up the meeting to

sell Miller drugs, and at that meeting, Ledbetter shot Miller. See

United States v. Eggerson, 999 F3d 1121, 1127 (8th Cir. 2021)

(concluding that “it was not unreasonable for [the state magistrate]

to infer that cell phones were being used in connection with the

alleged drug dealing”) (citation and punctuation omitted).

We further conclude that, although the affidavit and

application did not state expressly that one of the three numbers for

which records were sought was Ledbetter’s phone number, the

magistrate could reasonably infer from the affidavit that one of the

target numbers belonged to Ledbetter. See Taylor v. State, 303 Ga.

57, 61-62 (810 SE2d 113) (2018) (rejecting Taylor’s argument that

the warrant was not supported by probable cause because it failed

to state expressly that the address to be searched (1751 Bergen

Court) was Taylor’s address; in light of the other information

36 contained in the affidavit, “the magistrate, making a practical and

common-sense decision, was entitled to infer that there was a ‘fair

probability’ that Taylor lived at 1751 Bergen Court”); United States

v. Hunter, 86 F3d 679, 681 (7th Cir. 1996) (“The affidavit’s failure to

state explicitly that 510 Palace Court was Hunter’s residence, by

itself, is not a fatal flaw.”).

In particular, the affidavit and application indicated that law

enforcement had opportunities to learn Ledbetter’s phone number

by noting that Scheib “proffered information on behalf of his client”

to Detective Leonpacher and that Ledbetter turned himself in for

arrest. The warrant application then asked the court “to compel the

wireless phone service provider of,” listed three people—Ledbetter,

Miller, and Lett—in separate bullet points, and said their phone

service provider was T-Mobile/MetroPCS. The warrant application

used a similar sequence and format in the next paragraph when

explaining what was expected to be found in the phone records of

“these three.” Again, a bulleted list was used, with one bullet point

corresponding to each person listed above:

37 • John Ledbetter communicated with the victim [Miller] prior to their meeting during which Ledbetter shot the victim AND that his phone showed activity on cell towers in the same general geographic area as the crime scene at/about the time of the shooting. • Jeremy Miller communicated with Ledbetter prior to the meeting/shooting. • Shera Lett received a call from Grady Hospital prior to hearing the dying declaration from Miller.

Importantly, each bullet point listed information that would likely

be found on a particular person’s phone. For example, Ledbetter’s

communication with Miller would be expected to be found on

Ledbetter’s phone, just as Miller’s communication with Ledbetter

would be expected to be found on Miller’s phone. Additionally, the

first bullet point expressly referred to “his phone” in explaining the

expectation that the requested record would show that Ledbetter’s

phone was in the area of the shooting around the time of the

shooting. That is not surprising, given that the location of

Ledbetter’s phone is something one would expect to find in the

records of Ledbetter’s phone number.

38 Finally, the application listed the three “Metro PCS/T-Mobile

wireless telephone numbers” to be searched:

504-223-4160 470-259-8589 404-671-5486

This format mirrors the two earlier bulleted paragraphs that listed

three separate people (Ledbetter, Miller, and Lett, each time listed

in that order), and in this way the format of this request ties the

three listed phone numbers (the only non-emergency phone

numbers mentioned in the warrant) to the three listed people (who

were in two separate places listed in the same order) and with the

sets of information law enforcement expected to find associated with

those three listed people. There was nothing in the affidavit and

application to lead the magistrate to believe that the three phone

numbers were associated with people other than the three listed

people, or that law enforcement was mistaken as to which numbers

belonged to the three people.

In light of “all the circumstances” presented here, the

magistrate could have reasonably inferred that the three target

39 phone numbers belonged to the three listed individuals, meaning—

as relevant to this case—one of those numbers belonged to

Ledbetter.23 See Taylor, 303 Ga. at 61 (concluding that “the

magistrate could easily have inferred a connection between Taylor

and the residence at 1751 Bergen Court” in light of “all the

circumstances,” including that the affidavit and its attachment

described the location to be searched “as the residence located at

1751 Bergen Court,” described the crimes “as occurring at ‘Taylor’s

residence,’” asserted that “‘there is probable cause to believe that a

crime has been committed . . . at said location,’ ” and requested the

warrant to gather evidence from “’the crime scene’ ”) (emphasis in

original); Hunter, 86 F3d at 681-682 (“Attachment A to the search

warrant and affidavit described the place to be searched as ‘the

residence at 510 Palace Court, Schaumburg, Illinois. . . .’ The

23 Ledbetter does not argue that the warrant was not supported by probable cause because it cannot be determined which of the three target numbers belonged to him; he argues only that the warrant did not tie him to any of the target numbers. We note, however, that given the way the information was presented—with Ledbetter coming first in the earlier two sets of bullet points—the magistrate could have reasonably inferred that the first phone number in the final list belonged to him. 40 affidavit referred four times to Hunter’s residence; it made no

reference to any other place connected to Hunter. Although Hunter

correctly notes that the affidavit did not explicitly state that 510

Palace Court was his residence, that is the only logical conclusion

supported by a common-sense reading of the affidavit.”).

Therefore, “the magistrate, making a practical and common-

sense decision, was entitled to infer that there was a ‘fair

probability’” that one of the target phone numbers belonged to

Ledbetter and that evidence of the alleged murder would be found

in the phone number’s records. Taylor, 303 Ga. at 62. Of course,

Ledbetter’s argument on this point would have been more easily

resolved if the drafter of the warrant had taken the small, but

important, extra step of expressly linking the three listed people

with the three listed phone numbers.24 But given all of the

24 We encourage law enforcement to provide such information on the face

of the warrant application or affidavit to alleviate any doubt that those aspects of the warrant comply with the United States Constitution and applicable Georgia law. And we emphasize that this case should not be read as a holding that an inference connecting a target phone number with a name listed in a warrant will always be possible or will always support probable cause,

41 circumstances, and especially in light of the “substantial deference”

we owe the magistrate’s determination of probable cause, we

conclude that “the magistrate had a substantial basis for concluding

that probable cause existed to issue the search warrant.” Perez, 316

Ga. at 440 (citation and punctuation omitted).25

particularly when a warrant references multiple phone numbers and multiple people. See Taylor, 303 Ga. at 59, 62 (declining to adopt the “broad rule” that when an affidavit describes one place connected to a suspect and lists a specific address to be searched, a connection between the address and the suspect will always be inferred as “the only logical conclusion supported by a common-sense reading of the affidavit”) (citation and punctuation omitted).

25 The specially concurring opinion argues that this Court should forgo

considering whether this warrant was supported by probable cause, overrule Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992), and apply a good-faith exception to affirm the trial court’s denial of Ledbetter’s motion to suppress the cell phone records. We disagree. The specially concurring opinion contends that we did something similar in Woodard v. State, 296 Ga. 803 (771 SE2d 362) (2015), where we overruled Heard v. State, 261 Ga. 262 (403 SE2d 438) (1991), thereby clarifying that trial counsel’s performance was not deficient, rather than attempting to distinguish Heard or resolve the ineffective-assistance-of- counsel claim on the prejudice prong. See Woodard, 296 Ga. at 810, 814 & n.5. But Woodard explained that, under the circumstances of the case, it was “particularly appropriate” for us to “address whether there was error under Heard, which involve[d] deciding whether Heard [was] good law.” Id. at 810 n.5. This was because, as we explained, it would have been a stretch “to distinguish th[e] case from Heard,” and whether the appellant suffered prejudice from the alleged deficient performance was a “very close” call. Id. at 810, 814 & n.5. Here, by contrast, we can readily resolve the case by applying existing precedent. And because the application of this existing precedent clearly shows that the warrants in this case were supported by probable cause, Ledbetter’s challenges to the warrants fail, and we need not consider whether

42 (ii) Ledbetter next argues that the warrant is invalid under

OCGA § 16-11-66.1 (c), which allows the “state-wide application or

application as provided by the laws of the United States” of search

warrants for production of certain communications and records

“when issued by a judge with jurisdiction over the criminal offense

under investigation and to which such records relate.” Ledbetter

points out that this search warrant was signed by a magistrate

judge, the alleged offense is murder, and magistrate judges do not

have jurisdiction over murder trials. Ledbetter did not, however,

raise this argument in his motion to suppress, and instead raises it

for the first time in this pretrial appeal. Because it was not raised

before the trial court, it was not ruled on in the trial court’s order

denying Ledbetter’s motion to suppress that is the subject of this

appeal. We decline to decide this issue in the first instance. See

Middleton v. State, 316 Ga. 808, 810 n.3 (890 SE2d 713) (2023)

(declining to consider an argument that was “never raised in

to overrule Gary to make a good-faith exception available for warrants that are not supported by probable cause.

43 proceedings below” and was raised for the first time in a pretrial

appeal of a motion to suppress).

(b) February 2020 Search Warrant Related to Stinchcomb’s

Murder26

The February 2020 search warrant sought subscriber

information, call detail logs, cell tower locations, and other

information for the phone number 504-402-6292 (the only non-

emergency phone number mentioned in the warrant) from February

26 The State argues that Ledbetter has not preserved for our review any

of his challenges to the February 2020 search warrant because he did not raise them in a “written motion” in the trial court. See OCGA § 17-5-30 (b) (requiring motions to suppress illegally seized evidence to “be in writing and state facts showing that the search and seizure were unlawful”). However, Ledbetter did raise these challenges in writing. Although they were filed in what was titled a “post-hearing brief,” rather than an express amendment to his motion to suppress, the State raised no objection in the trial court to Ledbetter’s apparent use of this brief to amend his motion, and although the trial court did not expressly address each challenge in its order denying Ledbetter’s motion to suppress, it clearly ruled that the February 2020 warrant was supported by probable cause and thus (at least implicitly) addressed Ledbetter’s challenges to that warrant. See Cowart v. State, 294 Ga. 333, 338 (751 SE2d 399) (2013) (explaining that “[a] brief normally does not amend a motion for new trial to add new grounds,” but the trial court may “in its discretion” allow the motion to be amended “by treating an enumeration of error raised only in the brief as if it had been raised in the motion”). In any event, we need not decide this question definitively, because these challenges all fail for the reasons discussed below.

44 1 through February 28, 2015, to search for evidence related to felony

murder and attempt to sell marijuana. The warrant requested

information “within the custody and control of Verizon Wireless at

180 Washington Valley Road, Bedminster, NJ 07291,” for the target

phone number, which was described as a “Sprint wireless telephone

number(s).” The warrant, signed by a Fulton County superior court

judge,27 said that an affidavit was “made before me by Investigator

Bernice Higgins, an officer charged with the duty of enforcing the

Criminal Laws.” The affidavit was completed under oath by

Investigator Higgins and was based on information she received

“from reports provided by the Atlanta Police Department.”

In the affidavit, Investigator Higgins averred the following.

Stinchcomb was shot in Atlanta on February 13, 2015. After

Stinchcomb was shot, “law enforcement officers received

information” that Ledbetter and Jayvias Lott were involved in a

27 In the legal analysis that follows, we will refer to the judge who signed

the warrant as a “magistrate,” both because much of our law uses that term when discussing the issuance of warrants, and to distinguish the judge who signed the warrant from the judge who denied Ledbetter’s motion to suppress. 45 drug deal. Ledbetter explained that a man to whom he normally

sells marijuana “connected him to a new buyer named ‘Scotty.’”

Ledbetter further “explained that ‘Scotty’ and LEDBETTER began

exchanging phone calls” and eventually set up a meeting for the sale

of marijuana. During this drug transaction, Stinchcomb attempted

to rob the men, and Lott shot Stinchcomb. The next paragraphs

further explained:

Over the course of the investigation, specifically when speaking with JOHN LEDBETTER, it was determined that LEDBETTER communicated with JAYVIAS LOTT, AKA “Scotty,” before and after the homicide via cellphone. Furthermore, it was through this communication that LEDBETTER and the two potential purchasers facilitated this attempted purchase of multiple pounds of marijuana. The evidence we expect to obtain from the cell phone dump includes but not limited to: corroborate JOHN LEDBETTER’S version of events, and to identify other dates and times JOHN LEDBETTER would have been in communication with other involved parties.

(i) Similar to his complaint about the February 2016 search

warrant related to Miller’s shooting, Ledbetter argues that this

search warrant was not supported by probable cause because it

failed to connect the target phone number to the alleged crimes or

46 Ledbetter. Thus, we again consider whether, “given all the

circumstances set forth in the affidavit,” the magistrate had a

“substantial basis” for concluding that there was a fair probability

that evidence of the murder would be found in the records of this

phone number. Perez, 316 Ga. at 440 (citation and punctuation

omitted).

Information in the affidavit and application provided the

magistrate a substantial basis for concluding that Ledbetter’s phone

contained evidence of the charged crimes. According to the affidavit,

Ledbetter said that he and Lott “began exchanging phone calls” and

eventually set up a drug transaction. At this meeting, Stinchcomb

attempted to rob the men, and Lott shot Stinchcomb in the head.

This information supports the common-sense inference that

evidence related to the attempted drug sale and shooting could be

located on Ledbetter’s phone. See Eggerson, 999 F3d at 1127.

Although the February 2020 warrant does not expressly state

that the target number was Ledbetter’s phone number, there was

sufficient information in the affidavit to allow the magistrate to infer

47 that the number belonged to Ledbetter. Specifically, the application

first listed the target phone number (the only non-emergency phone

number mentioned). Then the affidavit said that Ledbetter

“explained that [Lott] and LEDBETTER began exchanging phone

calls” and set up the meeting where the shooting then took place,

showing that law enforcement was interested in Ledbetter’s phone

use and had an opportunity to learn Ledbetter’s phone number when

talking to Ledbetter about his phone calls. The next paragraph then

referenced this information provided by Ledbetter in summarizing

what law enforcement learned from speaking with Ledbetter (that

Ledbetter talked to Lott “before and after the homicide via

cellphone” and set up the drug deal) before explaining what law

enforcement “expect[ed] to obtain from the cell phone dump.” The

anticipated information was information one would expect to find on

Ledbetter’s phone, including information that could “corroborate

JOHN LEDBETTER’S version of the evidence” and “identify other

dates and times JOHN LEDBETTER would have been in

communication with other involved parties.”

48 That the affidavit explained that Ledbetter described to law

enforcement his cell phone use around the time of the shooting and

then said that law enforcement expected that “the cell phone dump”

requested would corroborate Ledbetter’s story and reveal

Ledbetter’s additional contacts further supports the reasonable

inference that the target number belonged to Ledbetter. See Taylor,

303 Ga. at 62 (“[W]hen the attachment says that evidence of the

alleged crimes may be found at ‘said location,’ which was

particularly described as 1751 Bergen Court, and describes Taylor’s

house as the crime scene, we think that the magistrate could have

reasonably inferred the ‘crime scene’ was 1751 Bergen Court.”);

Hunter, 86 F3d at 681.

Thus, in light of all of the information provided to the

magistrate, and again keeping in mind the substantial deference we

owe to the magistrate’s determination, we conclude that “the

magistrate, making a practical and common-sense decision, was

entitled to infer that there was a ‘fair probability’” that the target

phone number belonged to Ledbetter and that evidence of the

49 alleged murder would be found in the number’s phone records.

Taylor, 303 Ga. at 62.

(ii) Ledbetter next argues that the warrant and affidavit failed

to establish probable cause because the target number is identified

as a “Sprint Wireless Telephone Number” but the records to be

searched are alleged to be “located within the control of Verizon

Wireless.” However, this mismatch of cell phone providers is an

example of a “technical irregularity,” and “[n]o search warrant shall

be quashed or evidence suppressed because of a technical

irregularity not affecting the substantial rights of the accused.”

OCGA § 17-5-31. See also Dent v. State, 303 Ga. 110, 117 (810 SE2d

527) (2018) (“Mere typographical or clerical errors do not ordinarily

provide a basis to suppress evidence.”).

Here, the phone number sought to be searched was clearly

provided, and whether it was a number serviced by Sprint or Verizon

did not affect Ledbetter’s rights. See Carson v. State, 314 Ga. App.

515, 516 (724 SE2d 821) (2012) (concluding that the affidavit’s

identification of “another individual as the suspected shooter in a

50 paragraph summarizing the officer’s findings” did not “destroy the

integrity of the affidavit or the validity of the warrant” where Carson

was correctly identified as the suspected shooter in the remainder of

the six-page affidavit). Thus, Ledbetter’s argument fails.

(iii) Ledbetter further argues that the affidavit is faulty

because the “entire substance” of the affidavit is hearsay. However,

hearsay may be used in affidavits in support of search warrants. See

OCGA § 24-1-2 (c) (5) (explaining that generally “[t]he rules of

evidence, except those with respect to privileges” do not apply in

“[p]roceedings for the issuance of . . . search warrants”). It is the duty

of the magistrate in determining if the warrant is supported by

probable cause to consider “the veracity and basis of knowledge of

persons supplying hearsay information.” Britton, 316 Ga. at 286

(citation and punctuation omitted). See also Lewis v. State, 255 Ga.

101, 105 (335 SE2d 560) (1985) (“The rule in Georgia has been that

an affidavit supporting a search warrant may be based on hearsay

information as long as there is a substantial basis for crediting the

hearsay.”). Magistrates may generally presume that “local law

51 enforcement officials participating in common investigation are

reliable informants and their information may be relied on to

establish probable cause for the issuance of search warrants.”

Pollard v. State, 236 Ga. 587, 589 (224 SE2d 420) (1976). See also

Britton, 316 Ga. at 294 (“[W]hen Detective Jackson’s Affidavit

includes information obtained from another officer working on the

investigation, the magistrate was entitled to consider such hearsay

evidence.”).

In this case, the affiant explained that she received the

information in the affidavit “from reports provided by the Atlanta

Police Department.” Ledbetter offers no compelling reason for the

magistrate to doubt the reliability of the officer who completed the

affidavit or the police reports on which she relied, and his argument

fails.28

28 Ledbetter also argues in passing that because the affidavit does not

indicate the dates of the reports relied on by the affiant, there is a risk of “staleness.” However, Ledbetter offers no reason to believe that the phone records sought would no longer contain evidence related to the charged crimes. See Rawls v. State, 310 Ga. 209, 222 (850 SE2d 90) (2020) (“Staleness as [it] relates to probable cause is measured by the probability that the thing to be seized is located at the place to be searched.”) (citation and punctuation omitted). 52 (iv) Finally, Ledbetter argues that the affidavit does not

establish that the affiant, identified as “Investigator Bernice

Higgins, an officer charged with the duty of enforcing the Criminal

Laws,” satisfies OCGA § 17-5-20 (a), which says:

A search warrant may be issued only upon the application of an officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws or a currently certified peace officer engaged in the course of official duty, whether said officer is employed by a law enforcement unit of: (1) The state or a political subdivision of the state; or (2) A university, college, or school.

Although the affidavit clearly identifies Investigator Higgins as “an

officer charged with the duty of enforcing the Criminal Law,”

Ledbetter argues that the warrant was required to identify her as

an “officer of this state.” However, there was no reason for the

magistrate to believe that Investigator Higgins, who swore out this

affidavit “before” this magistrate in this state about a shooting that

happened in this state, was not an officer of this state. Ledbetter’s

“hypertechnical argument” in this regard fails. See Perez, 316 Ga. at

440 (“The test for probable cause is not a hypertechnical one to be

53 employed by legal technicians, but is based on the factual and

practical considerations of everyday life.”) (citation and punctuation

Because none of Ledbetter’s challenges to the February 2016

or February 2020 search warrants has merit, we affirm the trial

court’s denial of his motion to suppress.

Case No. S23A0900 and Case No. S23X0901 affirmed. All the Justices concur, except Boggs, C. J., Peterson, P. J., and LaGrua, J., who concur specially in Divisions 2 (a) (i) and 2 (b) (i).

BETHEL, Justice, concurring.

Because I believe it represents a faithful application of the law,

I join the majority opinion in full. I write separately to note my

agreement with the concerns raised in Presiding Justice Peterson’s

special concurrence regarding the confused state of our decisional

law brought on by our decision in Gary v. State, 262 Ga. 573 (422

SE2d 426) (1992). Like the Presiding Justice, I recognize Gary’s

imperiled and untenable position in our law. While the majority

54 opinion demonstrates that we need not overrule Gary to decide the

case at hand, the “mess” the Presiding Justice describes is due to be

cleaned up.

I am authorized to state that Justice Warren, Justice

McMillian, and Justice Pinson join in this concurrence.

PETERSON, Presiding Justice, concurring specially.

Over 30 years ago, this Court invented a new version of the

exclusionary rule — a version that excluded more evidence than the

federal version. See Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992)

(holding that OCGA § 17-5-30 created a Georgia statutory

exclusionary rule that did not contain the good faith exception to the

federal exclusionary rule recognized in United States v. Leon, 468

U.S. 897 (104 SCt 3405, 82 LE2d 677) (1984)). Several years ago, we

emphatically determined that Gary was wrongly decided. See

Mobley v. State, 307 Ga. 59, 72-75 (4) (a) (834 SE2d 785) (2019). But

we could not overrule Gary’s holding prohibiting Georgia courts from

55 applying Leon, however, because Mobley did not involve a claim to

which Leon could apply. See id. at 76 (4) (a) n.21.

Now, after more than three decades of Georgia courts excluding

evidence due only to our misbegotten invention in Gary, such a case

squarely presents itself. But instead of finishing the job we started

in Mobley (and have taken further in other contexts since then), the

majority chooses to leave Gary’s holding — now admittedly wrong

and based on reasoning no longer followed in any other respect —

binding on all Georgia courts. I cannot and do not agree with that

decision, and so I do not join Divisions 2 (a) (i) and 2 (b) (i). But

because I would overrule whatever vestiges of Gary still remain and

apply Leon’s good faith exception, I concur in the judgment of those

divisions. I join the remainder of the decision of the Court in full.

The officers who searched the defendant’s phone did so in good

faith reliance on the search warrant. Under federal law, this renders

the exclusionary rule inapplicable even if the warrant was not

supported by probable cause. See Leon, 468 U.S. at 919-920 (III) (B).

But we held over 30 years ago that OCGA § 17-5-30 requires

56 exclusion of all evidence seized with a warrant unsupported by

probable cause, regardless of whether a federal good faith exception

might have applied. See Gary, 262 Ga. at 574-575. Subsection (a) of

that statute provides as follows:

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 grounds that: (1) The search and seizure without a warrant was illegal; or (2) The search and seizure with a warrant was illegal because the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.

OCGA § 17-5-30 (a). And subsection (b) provides in relevant part

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.”

In Gary, this Court interpreted OCGA § 17-5-30 as an

“unequivocal expression of [the legislature’s] desire that evidence

seized by means of a warrant that is not supported by probable cause

be suppressed.” Gary, 262 Ga. at 575. This interpretation rejected

57 the possibility of exceptions to the exclusionary rule and, in doing

so, rejected the good faith exception, which would otherwise permit

the introduction of evidence that officers obtained by acting in

reasonable reliance on a warrant issued by a neutral and detached

magistrate but that ultimately lacked probable cause. See id. at 574.

This reasoning, of course, did not turn on anything specific to

warrants lacking probable cause. The structure of the statute

applies the statute’s provisions equally to each of the four

enumerated ways in which a search and seizure may have been

unlawful: (1) it was done illegally without a warrant, (2) it was done

illegally with a warrant because the warrant was insufficient on its

face, (3) it was done illegally with a warrant because the warrant

was unsupported by probable cause, and (4) it was done illegally

with a warrant because the warrant was illegally executed. See

OCGA § 17-5-30 (a). Under Gary’s reasoning, if any of these four

enumerated bases of unlawfulness is present, the evidence must be

excluded.

58 Twenty-seven years later, we repudiated Gary’s interpretation

of the statute. In Mobley, we “disavow[ed] the unsound reasoning of

Gary,” limited its application only to the Leon good faith exception

at issue there, and concluded that OCGA § 17-5-30 meant “what it

most naturally and reasonably is understood in context to mean —

it establishes a procedure for applying the exclusionary rule but does

not itself require the suppression of any evidence.” 307 Ga. at 75 (4)

(a). But we could not reach the question of overruling the Leon

holding, because the facts of Mobley would not warrant application

of Leon, and so we concluded that overruling that holding was “a

question that [would] have to await a case involving the reliance of

an officer in good faith on the validity of a search warrant.” Id. at 76

(4) (a) n.21.

Though much of Mobley on this point may have been dicta, we

have since applied its rationale as a holding to admit evidence more

times than we have ever applied Gary to suppress evidence. See

Outlaw v. State, 311 Ga. 396, 400 (2) (b) n.4 (858 SE2d 63) (2021)

(applying Mobley to hold that Gary did not foreclose the application

59 of two other kinds of good faith exception when evidence was

illegally seized without a warrant and to affirm the trial court’s

denial of a motion to suppress evidence); Lofton v. State, 310 Ga.

770, 782-784 (2) nn.17-18 (854 SE2d 690) (2021) (same), disapproved

in part on other grounds by Outlaw, 311 Ga. at 401 (2) (b) n.5;

Swinson v. State, 311 Ga. 48, 54-55 (2) (a) (855 SE2d 629) (2021)

(applying Lofton to affirm the trial court’s denial of a motion to

suppress evidence), disapproved in part on other grounds by Outlaw,

311 Ga. at 401 (2) (b) n.5; Gialenios v. State, 310 Ga. 869, 876-877

(2) (855 SE2d 559) (2021) (same), disapproved in part on other

grounds by Outlaw, 311 Ga. at 401 (2) (b) n.5.

We also noted in Mobley that even before Mobley’s repudiation

of Gary’s reasoning, both this Court and the Court of Appeals had

regularly applied other exceptions to the exclusionary rule without

any consideration of Gary or OCGA § 17-5-30. See Mobley, 307 Ga.

at 74 (4) (a) (citing Teal v. State, 282 Ga. 319, 325 (2) (647 SE2d 15)

(2007) (inevitable discovery exception); Taylor v. State, 274 Ga. 269,

274-275 (3) (553 SE2d 598) (2001) (inevitable discovery exception),

60 disapproved in part on other grounds by State v. Chulpayev, 296 Ga.

764, 783 (3) (b) (770 SE2d 808) (2015); Stephens v. State, 346 Ga.

App. 686, 691-693 (2) (816 SE2d 748) (2018) (independent source

exception); Pinkney v. State, 332 Ga. App. 727, 731 (2) (774 SE2d

770) (2015) (independent source exception); Ansley v. State, 325 Ga.

App. 226, 231 (1) (b) (750 SE2d 484) (2013) (independent source

exception); Schweitzer v. State, 319 Ga. App. 837, 840 (738 SE2d

669) (2013) (inevitable discovery exception); Williams v. State, 308

Ga. App. 464, 468 (2) (708 SE2d 32) (2011) (inevitable discovery

exception); Cunningham v. State, 284 Ga. App. 739, 742 (644 SE2d

878) (2007) (inevitable discovery exception)).

In other words, the current state of Georgia law is that the

statutory text “[a] defendant aggrieved by an unlawful search and

seizure may move the court . . . to suppress as evidence anything so

obtained” and “[i]f the motion is granted the . . . [evidence] shall not

be admissible in evidence against the movant in any trial” somehow

singles out the Leon good faith exception to the exclusionary rule —

alone among all the other exceptions — as uniquely inapplicable in

61 Georgia courts. OCGA § 17-5-30 (a), (b). There is no rational way to

read those words to mean something so strange.

And unless we take the one final step that Mobley could not,

that bizarre result will remain binding on all other Georgia courts.

Whatever force stare decisis might have had before we started

disassembling Gary, it has vanishingly little now. And while I have

often urged this Court to adhere to prior holdings as a matter of that

doctrine, the time for that on this issue has come and gone.29

29 The fact that whether the trial court erred in denying the motion to

suppress can be resolved without addressing the Gary issue does not hinder us from taking that final step here. Indeed, we did the same thing in Woodard v. State, 296 Ga. 803 (771 SE2d 362) (2015), where the case could “be resolved without reaching [the] issue” of whether Heard v. State, 261 Ga. 262 (403 SE2d 438) (1991) was “good law[.]” Woodard, 296 Ga. at 815 (1) (Benham, J., concurring specially). Today’s majority overlooks the fact that the Woodard majority had options: (1) it could attempt to resolve the ineffective assistance of counsel claim on the “very close” question of whether the defendant was prejudiced by any deficient performance, id. at 810 (3) (b) & n.5; (2) it “could endeavor to distinguish [that] case from Heard[,]” id. at 814 (3) (b); or (3) it could “reconsider and overrule Heard[,]” id. at 811-12 (3) (b). And yet the Woodard majority held that “[t]he better course [was] simply to overrule Heard [then], before it [became] any more entrenched” and overruled Heard. Id. at 814 (3) (b). The use of “the better course” itself implies the existence of multiple courses the Court could have taken. Further, similar to the special concurrence in Woodard, the majority makes no attempt to justify keeping in place the mess that we created in Gary. 62 In short: (1) there is no support in the text of OCGA § 17-5-30

for the idea that the statute permits some exceptions to the

exclusionary rule but excludes others; (2) the current state of the

law is a mess of our own making, and we should clean it up; and (3)

until we do, trial courts will be compelled to exclude evidence that

federal law would admit, and the Court of Appeals will be compelled

to affirm that exclusion. And in the face of all of this, the majority

offers no explanation whatsoever for its decision to require all other

Georgia courts to continue applying Gary. I would overrule whatever

traces remain of Gary and affirm the trial court’s denial of his

motion to suppress under the Leon good faith exception to the

exclusionary rule.

I am authorized to state that Chief Justice Boggs and Justice

LaGrua join in this concurrence.

63 Decided March 5, 2024.

Suppression of evidence. Fulton Superior Court. Before Judge

Baxter, Senior Judge.

Fani T. Willis, District Attorney, Michael S. Carlson, Adam R.

Abbate, Kevin C. Armstrong, Mario Kladis, Assistant District

Attorneys; Christopher M. Carr, Attorney General, Beth A. Burton,

Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney

General, for the State.

The Steel Law Firm, Brian Steel; Bruce S. Harvey, for

Ledbetter.