State v. Wilson

884 S.E.2d 298, 315 Ga. 613

• Court: Supreme Court of Georgia
• Decided: February 21, 2023
• Docket: S22A0967
• Status: Published

Opinion

315 Ga. 613 FINAL COPY

S22A0967. THE STATE v. WILSON.

COLVIN, Justice.

The State appeals from the grant of defendant Roceam

Wilson’s motion to suppress.1 The State contends that the trial court

erred in concluding that the search warrant issued for Wilson’s cell

phones was overbroad and authorized a general search in violation

of the Fourth Amendment to the United States Constitution. In

reviewing the trial court’s grant of the motion to suppress, “we apply

the well-established principles that the trial court’s findings as to

disputed facts will be upheld unless clearly erroneous and the trial

court’s application of the law to undisputed facts is subject to de novo

review.” State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009)

(citation and punctuation omitted). Applying that standard here,

1 Wilson was indicted for, among other things, murder in connection with

the shooting death of Bradly Jordan. The State appeals the trial court’s pretrial ruling pursuant to OCGA § 5-7-1 (a) (5), and we have jurisdiction to consider this appeal. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. III (8). we see no error in the trial court’s order. Accordingly, we affirm.

The record shows that, on January 28, 2021, Bradly Jordan

was shot and killed while performing pest control services at an

apartment complex. After conducting an investigation at the crime

scene, officers determined that the shooter was a “black male”

driving a teal green “[1990]s model Ford Aerostar van” with a

missing hubcap. Utilizing a license plate tracking system, officers

located a van matching this description a few miles from the incident

location. Wilson was listed as the registered owner of the vehicle.

Officers conducted a traffic stop on the Ford Aerostar and spoke with

Wilson, who was in the driver’s seat. After answering some

questions, Wilson was arrested and officers impounded his vehicle,

which was later searched pursuant to a warrant. During that

search, officers located, among other things, two cell phones, both of

which belonged to Wilson.

One of the lead investigators subsequently sought a second

search warrant “for a forensic examination” of the cell phones. The

investigator completed a sworn affidavit and submitted it to the

2 magistrate in support of the search warrant application. Other than

the information contained in the search warrant affidavit, no other

material or testimony was provided to the magistrate.

The magistrate subsequently issued a warrant that authorized

a forensic search of Wilson’s cell phones “to be completed in order to

obtain any and all stored electronic information, including but not

limited to; user account information, stored phone information,

images, text messages, videos, documents, e-mails, internet activity,

call logs, contact information, phonebook information, or any deleted

data.” The warrant further included preprinted form language

stating that “[t]he foregoing described property, items, articles,

instruments, and person(s) to be searched for and seized constitute

evidence connected with the foregoing listed crime(s)[2] and is/are:

(check ALL that are applicable) (OCGA § 17-5-21)[3].” The swearing

2 The search warrant asserted that Wilson was believed to have committed felony murder, aggravated assault, and possession of a firearm during the commission of a felony. 3 This Code section does not reference criminal activity. Instead, it lists

the process by which law enforcement officers must abide when seeking a warrant. 3 officer then checked four boxes on the preprinted form, indicating

that investigators believed the cell phones were: “intended for use in

the commission of the crime(s) herein described”; “used in the

commission of the crime(s) herein described”; “tangible, corporeal or

visible evidence of the commission of the crime(s) set forth above”;

and “intangible, incorporeal or invisible evidence of the commission

of the crime(s) set forth above.”

Wilson challenged the validity of the cell phone search warrant

in a pretrial motion to suppress. After a hearing, the trial court

granted Wilson’s motion, finding that the search warrant was

“overly broad and authorized a general search of [Wilson’s] personal

effects without probable cause in violation of the Fourth

Amendment and OCGA § 17-5-21.” The State alleges that this was

error, contending that the warrant included sufficient probable

cause and sufficient particularity to avoid authorizing a general

search. Pretermitting the issue of probable cause, we agree with the

trial court that the warrant did not meet the particularity

requirement and therefore authorized an impermissible general

4 search.

The Fourth Amendment to the United States Constitution

“require[s] that a search warrant particularly describe the article or

articles sought.” Dobbins v. State, 262 Ga. 161, 164 (3) (415 SE2d

168) (1992). In addition to requiring that officers have enough

guidance to locate and seize only those items the warrant authorizes

them to seize, see Fair v. State, 284 Ga. 165, 170 (3) (a) (664 SE2d

227) (2008), this particularity requirement also prevents general

searches — that “general, exploratory rummaging in a person’s

belongings” by the government that has been rejected since the

founding as a violation of “fundamental rights.” Coolidge v. New

Hampshire, 403 U.S. 443, 467 (II) (C) (91 SCt 2022, 29 LE2d 564)

(1971), holding modified by Horton v. California, 496 U.S. 128 (110

SCt 2301, 110 LE2d 112) (1990); Marron v. United States, 275 U.S.

192, 195 (1) (48 SCt 74, 72 LE 231) (1927) (“General searches have

long been deemed to violate fundamental rights. It is plain that the

[Fourth] Amendment forbids them.”). See also Groh v. Ramirez, 540

U.S. 551, 559 (II) (124 SCt 1284, 157 LE2d 1068) (2004); Wayne R.

5 LaFave, 2 Search & Seizure § 4.6 (a) (6th ed. 2022). The

particularity requirement is “applied with a practical margin of

flexibility, depending on the type of property to be seized, and a

description of property will be acceptable if it is as specific as the

circumstances and nature of activity under investigation permit.”

Rickman v. State, 309 Ga. 38, 42 (2) (842 SE2d 289) (2020) (citation

and punctuation omitted). “The uniformly applied rule is that a

search conducted pursuant to a warrant that fails to conform to the

particularity requirement of the Fourth Amendment is

unconstitutional.” Groh, 540 U.S. at 559 (II) (quoting Stanford v.

Texas, 379 U.S. 476 (85 SCt 506, 13 LE2d 431) (1965) (punctuation

omitted)).

While the State concedes that the warrant “broadly target[s]

the data” in Wilson’s cell phones, the State argues that, when read

as a whole, the warrant sufficiently limits the search of the phones

to evidence connected with the crimes. We disagree. As the State

acknowledges, the search warrant broadly authorizes the seizure of

“any and all stored electronic information” on the phones, “including

6 but not limited to” various kinds of electronic information. The State

points to the preprinted form language following this sweeping

authorization as “limiting” in nature. However, that language

clearly states that “[t]he foregoing described property” — that is,

“any and all stored electronic information” on the phones —

“constitutes evidence connected with the crimes.” This language

cannot plausibly be read, as the State suggests, to limit the

otherwise limitless authorization to search for and seize any and all

data that can be found on Wilson’s cell phones. Indeed, the

warrant’s complete absence of limiting language distinguishes it

from other warrants we have upheld in prior cases based on the

presence of so-called “residual clauses” or other limiting language.

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

(2021) (search warrant authorizing search and seizure of, among

other things, “cell phones (to include all data contained therein) . . .

which are being possessed in Violation of Georgia Law(s): O.C.G.A.

[§] 16-5-1 Murder” was sufficiently particularized when, reading the

warrant as a whole and “in a common-sense fashion,” it sufficiently

7 “listed classes of items that, as a practical matter, were likely to be

found relevant” to the crimes in the warrant, and it further limited

those “classes of items to those relevant to the crime” (citation and

punctuation omitted; emphasis supplied)); Westbrook v. State, 308

Ga. 92, 97-98 (3) (a) n.5 (839 SE2d 620) (2020) (search warrant for

“electronic data” on defendant’s cell phone was sufficiently

particularized “to enable a prudent officer to know to look for

photographs and videos” because the language of the warrant

“limited the scope of the search to evidence pertaining to the

commission of the murder” (emphasis supplied)); and Rickman, 309

Ga. at 42 (2) (warrants that included language authorizing officers

to search cell phones for “messages, photographs, videos, contacts,

and any other application data, or any other evidence of the crime of

murder” were sufficiently particularized because the language of the

warrants limited the search of the cell phones “to items reasonably

appearing to be connected to [the victim’s] murder.” (emphasis

supplied)). Because the warrant in this case was not sufficiently

particularized, the trial court did not err in concluding that the

8 warrant authorized an impermissible general search of Wilson’s cell

phones.

The State also contends that the evidence obtained from

Wilson’s cell phones is admissible under the Davis4 good-faith

exception to the exclusionary rule. This good-faith exception applies

to “searches conducted [by police officers] in objectively reasonable

reliance on binding appellate precedent that is later overruled.”

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

(citation and punctuation omitted). The State asserts that the

search here was lawful under current Georgia precedent, and that if

we conclude otherwise, we would be “revising” our precedent.

However, the State incorrectly assumes that this Court must

overrule Georgia precedent in order to affirm the trial court’s order.

As shown above, well-established legal precedent supports our

conclusion that the trial court properly suppressed the cell phone

evidence in this case. As a result, Davis does not apply and the

4 Davis v. United States, 564 U.S. 229, 241 (III) (131 SCt 2419, 180 LE2d

285) (2011). 9 State’s argument fails. Accordingly, we affirm the trial court’s order

granting Wilson’s motion to suppress.

Judgment affirmed. All the Justices concur, except LaGrua, J., who concurs in judgment only.

PETERSON, Presiding Justice, concurring.

I fully agree that the trial court correctly suppressed evidence

derived from the general warrants issued in this case. I write

separately to highlight that our cases involving so-called “residual

clauses” (i.e., boilerplate language purporting to limit officers to

searching and seizing “other related items to the crime [at issue],”

Reaves v. State, 284 Ga. 181, 185 (2) (d) (664 SE2d 211) (2009)) may

be unduly complicating the issue.

“The problem posed by the general warrant is not that of

intrusion per se, but of a general, exploratory rummaging in a

person’s belongings. The Fourth Amendment addresses the problem

by requiring a ‘particular description’ of the things to be seized.”

Andresen v. Maryland, 427 U.S. 463, 480 (96 SCt 2737, 49 LE2d 627)

10 (1976) (cleaned up) (quoting Coolidge v. New Hampshire, 403 U.S.

443, 467 (91 SCt 2022, 29 LE2d 564) (1971)). In practice, that

requirement means that the warrant allows the officer to identify

the object of the search or seizure “definitely and with reasonable

certainty.” Hourin v. State, 301 Ga. 835, 844 (3) (b) (804 SE2d 388)

(2017) (citation and punctuation omitted). Naturally, the degree of

specificity required “will vary with the circumstances involved.” Id.

(citation and punctuation omitted).

But a general, catch-all phrase (a “residual clause”) in the

description of places to be searched or things to be seized does not

necessarily invalidate an otherwise proper warrant. In Andresen,

the United States Supreme Court rejected an argument that

warrants that were otherwise “models of particularity . . . were

rendered fatally ‘general’ by the addition . . . of the phrase ‘together

with other fruits, instrumentalities, and evidence of crime at this

(time) unknown.’” 427 U.S. at 479. The petitioner argued that this

clause, read in isolation, permitted the search for and seizure of any

evidence of any crime. See id. But the Court read the phrase in

11 context, explaining that “the challenged phrase” — that is, the

residual clause — “must be read as authorizing only the search for

and seizure of evidence relating to the crime of false pretenses

[alleged in that case].” Id. at 480 (citation and punctuation omitted).

“The warrants, accordingly, did not authorize the executing officers

to conduct a search for evidence of other crimes but only to search

for and seize evidence relevant to the crime [charged.]” Id. at 481-

82. Thus, Andresen teaches that residual clauses do not necessarily

render an otherwise particularized warrant an unconstitutional

general warrant.

For a time, we correctly applied that holding. See Lance v.

State, 275 Ga. 11, 21 (19) (b) (560 SE2d 663) (2002) (the warrant was

sufficiently particularized despite using the phrase “‘any other fruits

of the crime of murder’” where those words were preceded by a list

of specified items, because “[t]he quoted phrase [was best]

understood as limiting the search to items . . . reasonably appearing

to be connected to the specific crime delineated in the warrant” and

“the nature of the probable evidence”), disapproved on other grounds

12 by Willis v. State, 304 Ga. 686, 706 (11) (a) n.3 (820 SE2d 640) (2018);

Reaves, 284 Ga. at 184-88 (2) (d) (four search warrants specifying

certain items followed by different residual clauses covering “any

other item of evidence,” “any other item of evidentiary value,” and

“any other trace evidence” that would show that the named crime

had been committed were not impermissible general warrants, and

so “provided [adequate] guidelines for the officers conducting the

search”) (citation and punctuation omitted); see also Lawler v. State,

276 Ga. 229, 233 (4) (c) (576 SE2d 841) (2003) (objects of a search

warrant for “‘guns, ammunition, clothing, shoes, and other related

items to the crime of murder,’” were “described with sufficient

particularity”).

But in the last few years, our cases have begun to suggest that

an otherwise general warrant might be made particularized by a

residual clause. In Rickman v. State, 309 Ga. 38, 42 (2) (842 SE2d

289) (2020), for example, we cited Reaves (our seminal residual

clause case) for the proposition that “warrants containing residual

clauses limiting the items to be seized to those relevant to the crimes

13 identified are sufficiently particular and do not authorize a general

search in violation of the Fourth Amendment.” But when we applied

that principle to the facts in that case, we held that “the warrants

[there], read as a whole,” sufficiently “limited the search of the

contents of Rickman’s cell phones to items reasonably appearing to

be connected to [the victim’s] murder.” Id. In other words, we seemed

to suggest that the residual clause of the warrant (covering “any

other evidence of the crime of murder” after a list of specific items

like messages, photographs, and videos) was a reason to find the rest

of the description sufficiently particular. See also Palmer v. State,

310 Ga. 668, 675 (2) (c) (853 SE2d 650) (2021) (“‘Read in a common-

sense fashion and in the context of the preceding list of items and

the residual clause,’ warrants limiting items to be seized to those

relevant to enumerated crimes ‘have sufficient specificity, satisfying

the particularity requirement of the Fourth Amendment.’” (quoting

Reaves, 284 Ga. at 188 (2) (d))); Westbrook v. State, 308 Ga. 92, 97-

98 (3) (a) & n.5 (839 SE2d 620) (2020) (search warrant describing

“Phone identification data, Phone number assigned to the unit,

14 Address book, Incoming and outgoing call logs, Incoming and

outgoing SMS text logs,” and “Electronic data” on cell phone was

sufficiently particularized in context “to enable a prudent officer to

know to look for photographs and videos stored on Westbrook’s cell

phone,” especially because the warrant “limited the scope of the

search to evidence pertaining to the commission of the murder” —

so ineffectiveness claim failed since the objection would have been

meritless); Leili v. State, 307 Ga. 339, 343-44 (2) (a) (834 SE2d 847)

(2019) (a warrant that authorized search and seizure of “all

electronic devices which are capable of analyzing, creating,

displaying, converting, transmitting or storing electronic or

computer impulses or data” was sufficiently particularized because

“when read as a whole, ‘the warrant here must be understood as

limiting the search to items (in addition to the items specifically

mentioned in the warrant) reasonably appearing to be connected to

the specific crimes delineated in the warrant.’” (citations and

punctuation omitted)).

I joined each of these decisions. But upon further consideration,

15 I am concerned that we may have mistaken the import of the

relevant principles.

First, the Supreme Court in Andresen held only that an

otherwise particularized warrant was not made unconstitutionally

general by the presence of residual language — instead, the residual

clause had to be read in the light of the language before it. 427 U.S.

at 480-482. But the inverse does not follow; the logic of Andresen

does not support the idea that an otherwise general warrant, lacking

particularity in the places to be searched or things to be seized, can

be saved by this sort of boilerplate language.5 Taking the warrants

in this case as an example, a warrant that fails to give any

parameters “for a forensic examination” of cell phones is not

narrowed by the empty assurance that the search will only be

5 This misstep may have stemmed from a slight ambiguity in the wording

of Reaves. We held that “[t]he residual clauses in the search warrants at issue in this case limit the items which may be seized to evidence of cruelty to children and . . . murder.” 284 Ga. at 185 (2) (d). In context, that meant that the residual clauses themselves were limited to evidence of those crimes. See id. But it’s easy enough to see how one might mistakenly read this language — specifically the direct object, “items” — to mean the list of items preceding the residual clauses. And indeed, that seems to be what we’ve done in recent years. 16 looking for evidence of a particular crime. Perhaps such a warrant

may once have been sufficient, when cell phones had a fraction of

the functionality and storage capacity that they do now. But today,

a caveat that the search is limited to evidence of a particular crime

might narrow the object of the search, but it gives little or no clarity

to an officer as to where to look, for what to look, or how to look for

it. See Hourin, 301 Ga. at 844 (3).

And second, we appear to have lost sight of the fact that the

actual words of the warrant matter; not all clauses do the same

work. In fact, several of these cases do not actually involve “residual

clauses” at all, at least as Andresen and Reaves used that term. The

warrant in Palmer “authorized the search and seizure of ‘[a]ny

fingerprints, any and all firearms, any and all ammunition, shell

casings, identification cards, receipts, photos, hand written

statements, cell phones (to include all data contained therein),

currency, and any and all blood evidence, and DNA, which are being

possessed in Violation of Georgia Law(s): O.C.G.A. [§] 16-5-1

Murder.’” 310 Ga. at 675 (2) (c) (emphasis supplied); see also Leili,

17 307 Ga. at 343 (2) (a) (the warrant used broad language like “all

displaying, converting, transmitting or storing electronic or

computer impulses or data,” but no catch-all residual clause);

Westbrook, 308 Ga. at 97-98 (3) (a) & n.5 (the warrant described,

among other things, “electronic data,” and “limited the scope of the

search to evidence pertaining to the commission of the murder”). So

the language at the end of the Palmer warrant modifies the rest of

the list, it does not add items to it. And yet this group of cases relies

on residual clause precedents like Reaves, misunderstanding their

holdings and muddying the waters on the effect of a true residual

clause.

The warrants in Andresen and Reaves, by contrast, featured

catch-all language, not a modifying clause. Andresen, 427 U.S. at

479 (“together with other fruits, instrumentalities, and evidence of

crime at this (time) unknown”); Reaves, 284 Ga. at 184 (2) (d)

(residual clause covering “‘any other item(s) that tend to lead to

probable cause that a [particular] crime has been committed’”). So it

18 is a different matter to say that the search warrants in cases like

Palmer are not “general” because they “list[ ] classes of items that,

as a practical matter, were likely to be found relevant to the shooting

. . . and the removal of [the victim’s body] to the location where it

was found.” 310 Ga. at 675 (2) (c). In that context, a phrase like

“[items] which are being possessed in Violation of Georgia Law(s)”

actually does modify (and perhaps in some marginal sense could

limit) the enumerated items.6 Id. It seems to me, therefore, that the

words of the warrant matter more than our recent cases reflect.

Our “residual clause” cases, in short, have started to suggest a

different proposition than the principle upon which they are based,

and applied it to a broader spectrum of language than the principle

covers. The Court today properly rejects the State’s bid to save the

warrants here by reference to pre-printed language only distantly

resembling a residual clause. But in an appropriate case, we may

6 Although I’m skeptical that this was the case with the actual language

used in Palmer. What it means to possess an item in violation of the law prohibiting murder is wholly unclear to me; that statute does not prohibit the possession of anything. Once again, it matters what actual language a warrant uses. 19 need to reconsider some of our related precedent.

I am authorized to state that Chief Justice Boggs, and Justice

Warren, Justice Bethel, Justice Colvin, and Justice Pinson join in

this concurrence.

PINSON, Justice, concurring.

We need to talk about cell phones.

In Riley v. California, 573 U.S. 373 (134 SCt 2473, 189 LE2d

430) (2014), the United States Supreme Court took a small step

down the road of applying the Fourth Amendment to the modern cell

phone. Riley addressed the question whether the police could,

without a warrant, search digital information on a cell phone seized

from someone who’d been arrested. The answer was no: to search a

cell phone incident to arrest, you generally need to “get a warrant.”

Id. at 403. That holding was important on its own, and it gave

needed guidance to both law enforcement and courts. See, e.g.,

Hawkins v. State, 290 Ga. 785 (723 SE2d 924) (2012) (pre-Riley,

20 holding that police could search a cell phone incident to an arrest

without a warrant), abrogated by Riley, 573 U.S. 373.

But there is more to Riley. Along the way to its straightforward

holding, Riley addressed the nature of modern cell phones and how

to view them for purposes of applying the Fourth Amendment. This

reasoning was central to Riley’s holding, and it demands careful

attention in cases like this one and others in which the Fourth

Amendment and cell phones intersect.

Before Riley, courts (including ours) often applied the Fourth

Amendment to cell phones as if they were little different from

articles or containers found on or near someone’s person. See, e.g.,

Hawkins, 290 Ga. 785; United States v. Finley, 477 F3d 250, 260 (5th

Cir. 2007), overruled by Riley, 573 U.S. 373; United States v. Deans,

549 FSupp.2d 1085, 1094 (D. Minn. 2008), overruled by Riley, 573

U.S. 373. That was why courts would conclude that police could

search them without a warrant if they were seized incident to an

arrest: United States Supreme Court precedent had long allowed

such warrantless searches of personal property — like clothes,

21 cigarette packs, wallets, and purses — found on or near an arrestee.

See United States v. Robinson, 414 U.S. 218 (94 SCt 467, 38 LE2d

427) (1973); Chimel v. California, 395 U.S. 752 (89 SCt 2034, 23

LE2d 685) (1969).

Riley rejected this understanding of cell phones. Indeed, the

Riley Court supposed treating cell phones like other physical items

that could be found on a person was “like saying a ride on horseback

is materially indistinguishable from a flight to the moon. Both are

ways of getting from point A to point B, but little else justifies

lumping them together.” Riley, 573 U.S. at 393. That is because

“[m]odern cell phones, as a category, implicate privacy concerns far

beyond those implicated by the search of a cigarette pack, a wallet,

or a purse.” Id. Today’s “phones” are “in fact minicomputers” that

serve not only as telephones, but also as “cameras, video players,

rolodexes, calendars, tape recorders, libraries, diaries, albums,

televisions, maps, or newspapers”; they have “immense storage

capacity” to support these functions and store other data like

“Internet search and browsing history,” “[h]istoric location

22 information,” and other “app” data; and they collect these “many

distinct types of information” “in one place,” dating “back to the

purchase of the phone, or even earlier.” Id. at 393-396.

Based on all of this, the Court reasoned that the “consequences

for privacy” of searching a cell phone are substantial. Unlike a

search of a wallet or purse or cigarette pack, searching a cell phone

can allow police to “reconstruct” “the sum of an individual’s private

life” going back months or even years, potentially revealing

someone’s “private interests or concerns,” “specific movements down

to the minute, not only around town but also within a particular

building,” and a “montage of the user’s life” from whatever apps the

person happens to use. Riley, 573 U.S. at 394-396. And cell phones

are “now such a pervasive and insistent part of daily life that the

proverbial visitor from Mars might conclude they were an important

feature of human anatomy.” Id. at 385; see also id. at 395 (“[I]t is no

exaggeration to say that many of the more than 90% of American

adults who own a cell phone keep on their person a digital record of

nearly every aspect of their lives — from the mundane to the

23 intimate.”); Carpenter v. United States, ___ U.S. ___ (138 SCt 2206,

2211, 201 LE2d 507) (2018) (“There are 396 million cell phone

service accounts in the United States — for a Nation of 326 million

people.”).

In light of these unique characteristics of modern cell phones

and their “consequences for privacy,” the Court held that police

generally need to “get a warrant” to search one. Riley, 573 U.S. at

394, 403. But it is pretty hard to read all of the reasons Riley gave

for this holding and come away thinking that the rest of the Fourth

Amendment is business as usual when it comes to cell phones.

Again, the big premise of Riley was that searching a cell phone is

not much at all like searching a pocket or a purse. “Indeed, a cell

phone search would typically expose to the government far more

than the most exhaustive search of a house: A phone not only

contains in digital form many sensitive records previously found in

the home; it also contains a broad array of private information never

found in a home in any form — unless the phone is.” Id. at 396-397

(emphasis supplied). And as a general matter, the Fourth

24 Amendment “was the founding generation’s response to the reviled

‘general warrants’ and ‘writs of assistance’ of the colonial era, which

allowed British officers to rummage through homes in an

unrestrained search for evidence of criminal activity.” Id. at 403. The

issue is apparent. If a cell phone is a handheld “house” and may hold

the sum total of one’s private “papers” and “effects,” then a search of

that device or a seizure of its contents that lacks appropriate

restraints seems little different from the general searches that the

Fourth Amendment unequivocally forbids.7

Take the search warrant in this case. As far as I can tell, that

warrant allowed the search and seizure of the data from two cell

phones on the theory that (1) they were found in the suspect’s van,

and (2) criminals commonly use cell phones to talk about crimes.

And the scope of the authorized search and seizure looks unlimited:

7 The nature of cell phones also raises questions about how to apply OCGA § 17-5-21, which describes the kinds of things that a warrant can authorize seizure of. For example, that statute treats “private papers” differently than some other types of evidence. See OCGA § 17-5-21 (a) (5), (b). What information on a cell phone, if any, counts as “private papers” subject to this statute’s limitations? 25 police could search and seize the entire contents of the phones, with

no apparent restrictions on the type or category of data or

information that could be seized, or on how any of that data or

information could be used. A warrant supported by such generic

“probable cause” to search someone’s house and seize the entirety of

its contents, with no restrictions on their use, would never fly. See,

e.g., Bryant v. State, 301 Ga. 617, 619-620 (2) & n.3 (800 SE2d 537)

(2017) (warrant that named house and cars to be searched but did

not specify items or evidence sought violated particularity

requirement); United States v. Travers, 233 F3d 1327, 1330 (11th

Cir. 2000) (warrant that authorized seizure of all “material

reflecting identity” and “anything reflecting potential fraud”

violated particularity requirement); State v. Rothman, 779 P2d 1, 3,

9, 10-11 (Haw. 1989) (holding that warrant that authorized the

seizure of all items in a home that related to the defendant’s

financials or that tended to show his identity violated particularity

requirement and explaining, “If the authorities have only to say ‘I

have reason to believe that X has committed a crime based on what

26 Y has told me’ to get authorization to search X’s home for anything

and everything X possesses, then no one’s papers or possessions are

safe”). Yet I suspect that such warrants for cell-phone data remain

all too common, even in Riley’s wake.

Of course, part of the reason for that is Riley itself. Riley’s “get

a warrant” holding was more or less a mic drop, and the Court has

yet to return for an encore.8 But in the meantime, people haven’t

stopped using cell phones or committing crimes (would that it were

so!). And cell-phone technology keeps advancing, adding both to the

value of cell phones for law enforcement seeking to combat crime,

and to the privacy consequences the Court worried about.9 The Court

may say more someday about just how the Fourth Amendment

applies to and limits warrants for cell-phone data, but until then,

8 To be fair, the Court has since Riley addressed related questions about

cell-site location information, or CSLI. See Carpenter, 138 SCt at 2220 (holding that acquiring CSLI is a search and generally requires a warrant supported by probable cause). 9 For example, the Riley Court pointed out at the time that “[t]he current

top-selling smart phone has a standard capacity of 16 gigabytes,” which “translates to millions of pages of text, thousands of pictures, or hundreds of videos.” Id. at 394. Some popular smart phones today come with up to one terabyte — 1,000 gigabytes — of storage capacity. 27 our courts must grapple with these questions, in light of Riley,

ourselves.

Today’s decision is a start. The Court holds that a warrant to

search and seize “any and all” data stored on a cell phone, not even

limited to evidence of the crime at issue, with no specificity about

how any of the data could be used, violates the Fourth Amendment’s

particularity requirement. To be sure, the warrant here has a veneer

of particularity to it: the description of the “things to be seized” listed

“any and all stored electronic information, including but not limited

to” specific kinds of data like images, text messages, videos, and

Internet activity. In a way, this description arguably “enabled a

prudent officer to locate” the things to be seized “definitely and with

reasonable certainty,” which is how the particularity requirement

typically prevents the fishing expeditions that the Fourth

Amendment protects against. See Fair v. State, 284 Ga. 165, 170 (3)

(a) (664 SE2d 227) (2008) (cleaned up). See also Orin S.

Kerr, Executing Warrants for Digital Evidence: The Case for Use

Restrictions on Nonresponsive Data, 48 Tex. Tech L. Rev. 1, 3 (2015)

28 (citing Stanford v. Texas, 379 U.S. 476, 480-486 (85 SCt 506, 13

LE2d 431) (1965) (explaining that the idea behind the Fourth

Amendment’s particularity requirement was to prevent the general

search by “limiting where agents can go and what they can take”)).

But if an officer could understand what to search for and seize from

the phones here, that was only because the sheer breadth of the

warrant’s description didn’t allow for the officer to be wrong: the

warrant “specified” that the “things to be seized” included every bit

of data an officer might find on the phone. Our rejection of that basis

for demonstrating particularity is rooted in the unique nature of

modern cell phones, including their “immense” capacity to store

information of all kinds — analogous to cramming the entirety of

one’s life into a small slab of plastic, metal, glass, and silicon. When

we view cell phones through that lens, the closest analogy I can come

up with is a warrant to search a house and seize “any and all atoms

of matter stored within, including but not limited to matter in solid,

liquid, and gaseous states.” I suppose an officer would know what to

search for and seize based on that description, too. But both that

29 hypothetical warrant and its digital equivalent here authorize a

forbidden general search, and our decision today rightly concludes

as much.

But there are plenty more questions where that one came from.

Stay with particularity for a moment. Some of this Court’s post-Riley

decisions have concluded that warrants with similarly broad

descriptions of the cell-phone data to be searched and seized were

sufficiently particular because the warrant as a whole could be read

to narrow the scope of the search to evidence of the crimes in

question. See Rickman v. State, 309 Ga. 38 (842 SE2d 289) (2020);

Westbrook v. State, 308 Ga. 92 (839 SE2d 620) (2020); Leili v. State,

307 Ga. 339 (834 SE2d 847) (2019). But none of these decisions even

mentions, much less accounts for, the characteristics of modern cell

phones that Riley found critical to its Fourth Amendment analysis.10

As the Presiding Justice notes in his concurrence, it is not clear that

warrants that allow police to search every bit of data on a cell phone

10 Only one of these decisions cited Riley, and then only because it relied

on our decision in Hawkins, 290 Ga. 785, which was abrogated by Riley. See Westbrook, 308 Ga. at 98 (3) (a). 30 necessarily avoid an unconstitutional general search merely by

telling police to look only for unspecified evidence of the crime in

question. At the least, we ought to be looking at questions like this

through the same lens Riley did — that is, one that accounts for the

uniquely expansive and complex nature of cell-phone data. See, e.g.,

Kerr at 3 (“The facts of computer storage threaten [the particularity

requirement’s] limiting role. They create the prospect that computer

warrants that are specific on their face will resemble general

warrants in execution simply because of the new technological

environment.”).

Then there’s probable cause. I would not be surprised if many

warrants to search cell phones are based on a set of facts much like

the one here: the police have enough evidence to suspect someone of

a crime; they know that person has a cell phone, or they find one in

his vicinity or possession; and an officer avers that based on her

training and experience, criminals commonly use cell phones to plan

or talk about crimes. On its face, it is not crazy to think that a

warrant application along these lines could support probable cause.

31 The probable-cause question is a “practical, common-sense decision

whether, given all the circumstances set forth in the affidavit before

[the magistrate], there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” Willis v.

State, 315 Ga. 19, 29-30 (4) (c) (880 SE2d 158) (2022) (punctuation

omitted). If the evidence in a given case is good enough to suspect

someone of a crime, it may well be true that the person did plan or

talk about or otherwise put evidence of the crime on his cell phone,

and I do not doubt that the experience of many police officers bears

that out. And in fact, quite a few courts have upheld probable-cause

determinations on similar bases — albeit ones with perhaps a bit

more specificity than the warrant application offered in this case.

See, e.g., State v. Goynes, 927 NW2d 346, 354 (Neb. 2019) (finding

probable cause to search cell phone based on officer’s training and

experience, where officer “explained that cell phone data provides

insight for criminal investigations in that cell phones are used for

communication, access to information, socialization, research,

entertainment, shopping, and other functionality and that these

32 uses are often found to be tools in criminal activity,” that “the data

from cell phones can provide information on the motivation, method,

and participants involved in a crime,” and that “he was aware of

numerous instances where cell phones were used by participants in

crimes to communicate through voice and text messaging, take

photographs of themselves with weapons or illegal narcotics, create

videos of their criminal activity, and research crimes in which they

participated”); Moats v. State, 168 A3d 952, 955, 962-963 (Md. 2017)

(collecting other cases where officer’s expertise was relied on to

establish probable cause that defendant’s cell phone would contain

evidence of crime and finding probable cause where officer, a 17-year

veteran of drug enforcement, stated that he “knows through his

training and experience as a Criminal Investigator that individuals

who participate in such crimes communicate via cellular telephones,

via text messages, call, e-mails etc.”); Stevenson v. State, 168 A3d

967, 975-977 (Md. 2017) (probable cause to search cell phone of

defendant, arrested for robbery-assault, where detective’s affidavit

explained “that suspects in robberies and assaults will sometimes

33 take pictures, videos and send messages about their criminal

activities on their cellular phones”); United States v. Mathis, 767

F3d 1264, 1269, 1275-1276 (11th Cir. 2014) (probable cause to

search defendant’s cell phone about calls years earlier because,

“based on [the officer’s] knowledge, experience, and training,”

individuals who sexually abuse children sometimes keep copies of

communications with their victims “for many years”); State v.

Henderson, 854 NW2d 616, 632 (Neb. 2014) (probable cause to

search defendant’s cell phone where “two men committed the

shootings” and defendant was “seen running from the scene,” as

affiant stated “that in his experience as a detective, he knew that

suspects used cell phones to communicate about shootings they have

been involved in before, during, and after the shootings”).

And yet it is not so easy to square that permissive view of

probable cause for cell-phone search warrants with Riley. First

return to the cell-phones-as-houses analogy: An officer might also

reasonably say that in her experience, criminals often store evidence

of their crimes — cash, weapons, drug paraphernalia, and more —

34 where they live. Yet “[p]robable cause to believe that a man has

committed a crime on the street does not necessarily give rise to

probable cause to search his home.” Commonwealth of Pennsylvania

v. Kline, 335 A2d 361, 364 (Pa. Super. 1975). See also Banks v. State,

277 Ga. 543, 546-547 (2) (592 SE2d 668) (2004) (evidence implicating

defendant in drug dealing was not sufficient to establish probable

cause to search his home for drugs); Shivers v. State, 258 Ga. App.

253, 255 (573 SE2d 494) (2002) (probable cause to believe defendant

was selling crack cocaine did not on its own furnish probable cause

to search his home); Kelleher v. State, 185 Ga. App. 774, 777 (1) (365

SE2d 889) (1988) (holding that even assuming there was “probable

cause for a belief that the appellants were involved in drug

trafficking,” that information did not establish probable cause to

search their residence); United States v. Jones, 994 F2d 1051, 1055

(3d Cir. 1993) (“[P]robable cause to arrest does not automatically

provide probable cause to search the arrestee’s home.”). Instead,

courts typically require something a little more specific and concrete

to provide “a substantial basis for concluding that a search would

35 uncover evidence of wrongdoing” in the suspect’s home. Marlow v.

State, 288 Ga. 769, 771 (2) (707 SE2d 95) (2011) (punctuation

omitted) (finding probable cause existed for search of defendant’s

home for keys to stolen car, where stolen car was in the driveway

locked and with alarm activated and the defendant was seen inside

the home but refused to answer the door). See also, e.g., Boldin v.

State, 282 Ga. App. 492, 493-495 (1) - (2) (639 SE2d 522) (2006)

(concluding probable cause existed for search of defendant’s home

for drugs, where officer detected odor of burning marijuana coming

from open garage door and, when officer approached to identify

himself, defendant grabbed a garbage bag off the floor and ran into

house, dropping a zip-lock bag appearing to contain marijuana

residue); Perkins v. State, 220 Ga. App. 524, 525 (1) (469 SE2d 796)

(1996) (finding probable cause for search of defendant’s home where

confidential informant had conducted controlled buy of marijuana at

the home, as well as probable cause to search defendant’s second

home, based on the results of the search at the first home coupled

with information from the informant that defendant was growing

36 marijuana at both homes); Jones, 994 F2d at 1056 (finding

substantial basis to support probable cause to search arrestee’s

home for money, clothes, and guns because “cash is the type of loot

that criminals seek to hide in secure places like their homes”; two

weeks between the crime and the search was “long enough to enable

the defendants to hide the cash” and “not so long as to dispel the

likelihood that it would still be in their residences”; and “the other

items sought, clothing and firearms, are also the types of evidence

likely to be kept in a suspect’s residence”). Sure, cell phones are not

in fact houses, so the analysis might differ in some particulars. But

after Riley, it is not clear why cell phones would not be treated in

similar fashion.

If not — if this generic “criminals use cell phones, too” logic is

enough for probable cause to get a warrant to search a suspect’s cell

phone — it is hard to imagine a case in which police cannot get that

warrant. As Riley reasoned in declining to apply the search-incident-

to-arrest exception to the warrant requirement, “[i]t would be a

particularly inexperienced or unimaginative law enforcement officer

37 who could not come up with several reasons to suppose evidence of

just about any crime could be found on a cell phone.” Riley, 573 U.S.

at 399. But if that’s enough for probable cause, it would make Riley

little more than a paperwork requirement. Maybe, but I am not so

sure that Riley’s holding is so “hollow.” United States v. Morton, 46

F4th 331, 340 (5th Cir. 2022) (Higginson, J., concurring in judgment)

(“Riley requires that officers first get a warrant, but if the fact that

the arrestee was carrying a cell phone at the time of arrest is

sufficient to support probable cause for a search, then the warrant

requirement is merely a paperwork requirement. It cannot be

that Riley’s holding is so hollow.”) (citation omitted). In any event,

probable cause too requires careful thought when cell phones are the

target.

And what about the “plain view” exception? When an officer

executing an otherwise valid search warrant finds in plain view

incriminating evidence that is outside the scope of the warrant, this

exception says he may still seize the evidence without a warrant and

38 use it even to investigate and prosecute other crimes.11 See, e.g.,

George v. State, 312 Ga. 801, 804-805 (865 SE2d 127) (2021)

(explaining that a police officer may seize evidence outside the scope

of a search warrant if the evidence is in plain view, the officer has

not violated the Fourth Amendment in arriving at the place from

which he sees the evidence, and the incriminating nature of the

evidence is “immediately apparent” (citing Horton v. California, 496

U.S. 128 (110 SCt 2301, 110 LE2d 112) (1990))). How does this

doctrine translate to a forensic search of a cell phone? The nature of

searching electronic data is such that officers executing a carefully

particularized warrant may well have to view a vast amount of

nonresponsive data to find even information they’re properly

authorized to seize — especially when the data they’re looking for is

hidden or obfuscated. See, e.g., Kerr at 16-17. Is all of that

nonresponsive data fair game for seizure and later use? Given the

massive amounts and endless variations of data that cell phones can

11 In Georgia, a person’s “private papers” are carved out from seizure

under this exception by statute. See OCGA § 17-5-21 (b). 39 store, there is no ready analogue in the physical world, and yet

significant consequences for law enforcement and privacy hang in

the balance.12

I could go on, but you get the point: Riley made unmistakably

clear that when it comes to applying the Fourth Amendment,

modern cell phones are not just another physical object. So going

forward, all of the courts of our State (including this one) should

acknowledge and account for their unique nature when questions

like these arise. In doing so, the pace of technological change

requires us to “tread carefully” so we do not “embarrass the future.”

Carpenter, 138 SCt at 2220 (quoting Northwest Airlines, Inc. v.

Minnesota, 322 U.S. 292, 300 (64 SCt 950, 88 LE 1283) (1944)). But

tread we must.

12 For one prominent Fourth Amendment scholar’s view on this issue,

see Kerr generally and at 18-27 (proposing that the “plain view” exception still applies to searches of digital information, but later use of nonresponsive data “renders the ongoing seizure [of that data] unreasonable”). 40 With these things in mind, I concur in the majority’s opinion. I

am authorized to state that Chief Justice Boggs and Justice Warren

join in this concurrence.

LAGRUA, Justice, concurring in judgment only.

430) (2014), the United States Supreme Court provided clear

guidance: “Our answer to the question of what police must do before

searching a cell phone seized incident to an arrest is accordingly

simple — get a warrant.” Id. at 403 (IV). Warrants, of course, require

probable cause. See id. at 381 (II) (quoting U.S. Const., amend. IV).

“To determine whether probable cause exists, the magistrate must

review the search-warrant application and make a practical,

common-sense decision whether, given all the circumstances set

forth in the affidavit before him, there is a fair probability that

contraband or evidence of a crime will be found in a particular

place.” Willis v. State, 315 Ga. 19, 29-30 (4) (c) (880 SE2d 158) (2022)

41 I am quite skeptical that the warrant in this case contained

sufficient probable cause because it merely stated that a suspect had

been arrested, a cell phone was discovered in his vehicle, and in the

law enforcement officer’s general “knowledge, training, and

experience investigating violent crimes and homicides, [he was]

aware that perpetrators commonly use their cell phones to

communicate about crimes.” This case illustrates a troublesome

issue post-Riley, which is that many law enforcement officers believe

that when a cell phone is discovered during the course of an

investigation, probable cause simply exists to search it. I remind the

government that the affidavit in support of the search warrant

application should establish a link showing that the phone was used

to facilitate, commit, or cover up the crime. See United States v.

Mathis, 767 F3d 1264, 1276 (II) (A) (1) (11th Cir. 2014) (“[A]n

affidavit should establish a connection between the defendant and

the property to be searched and a link between the property and any

criminal activity.” (abrogated on other grounds by Lockhart v.

United States, 577 U.S. 347 (136 SCt 958, 194 LE2d 48) (2016)

42 (citation and punctuation omitted; emphasis supplied)). And, judges

are entrusted to uphold the law requiring this link. But, because I

agree with the majority opinion’s ultimate conclusion affirming the

trial court’s order granting Wilson’s motion to suppress, I concur in

judgment only.

Decided February 21, 2023.

Murder, etc. Gwinnett Superior Court. Before Judge Adkins.

Patsy Austin-Gatson, District Attorney, Christopher M. DeNeve,

Kelsey K. Devitto, Assistant District Attorneys; Christopher M. Carr,

Attorney General, Patricia B. Attaway Burton, Deputy Attorney

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

appellant.

Clark & Towne, David E. Clark; The Chancey Law Firm,

LeAnne C. Hicks, for appellee.