Kennebrew v. State, 304 Ga. 406

Background

Phillip Kennebrew was arrested pursuant to a warrant in his girlfriend’s dorm room; police seized two backpacks belonging to him but did not open them until six days later.
At trial, items from those backpacks (a knife, shotgun shells, bullets) materially undermined Kennebrew’s mere-presence defense in a murder prosecution.
On direct appeal the Georgia Supreme Court reversed his convictions for ineffective assistance of counsel, in part because trial counsel failed to move to suppress the backpack evidence; the case was remanded for retrial.
On remand new counsel moved to suppress the backpack evidence; the trial court denied the motion, finding (1) the bags were briefly inventoried at the scene and (2) the items would have inevitably been discovered in a lawful inventory.
The Georgia Supreme Court granted interlocutory review and reversed the trial court, holding the State failed to prove either that an inventory search occurred consistent with standardized procedures or that the evidence would inevitably have been discovered.

Issues

Issue	Kennebrew	State	Held
Whether the Court’s prior opinion was law of the case preventing denial of suppression (preservation uncertain)	Prior opinion should preclude denial because it found the backpacks were not properly searched incident to arrest	Trial court not bound; disputed whether law of the case applies	Court did not decide law-of-the-case issue because it reversed on the merits (State failed on inventory/inevitable-discovery)
Whether an inventory search occurred at the scene on Oct. 20	No—bags were seized but not opened on Oct. 20	Argued CSI Woolford conducted an inventory at seizure	Held: no evidence supports an inventory/opening on Oct. 20; State failed its burden
Whether an inventory search was lawfully performed on Oct. 26 (while bags were in police custody)	Oct. 26 search was not shown to comply with required, standardized inventory procedures	Argued department policy required inventories of closed containers and that any delay is permissible	Held: State failed to show the Oct. 26 search complied with standardized procedures or occurred before property-room submission, so cannot be treated as a valid inventory
Whether evidence is admissible under inevitable-discovery doctrine	Evidence would not have been discovered by lawful means because inventory procedure required earlier inventory; no proof lawful means were actively pursued	Argued evidence would inevitably have been discovered in a proper inventory even if initial search was flawed	Held: inevitable-discovery not proved—the State did not show a reasonable probability the items would have been discovered by lawful means or that lawful means were actively pursued prior to the illegal conduct

Key Cases Cited

Illinois v. Lafayette, 462 U.S. 640 (inventory-search exception to warrant requirement)
Florida v. Wells, 495 U.S. 1 (container openings in inventory searches must follow standardized criteria)
Colorado v. Bertine, 479 U.S. 367 (police discretion in inventories must be guided by standard criteria)
Cooper v. California, 386 U.S. 58 (delayed vehicle inventory may be reasonable when consistent with procedures)
Nix v. Williams, 467 U.S. 431 (doctrine of inevitable discovery)
Coolidge v. New Hampshire, 403 U.S. 443 (burden on government to prove an exception to the warrant requirement)
Teal v. State, 282 Ga. 319 (Georgia discussion of inevitable-discovery exception)
Clay v. State, 290 Ga. 822 (State must prove inventories are routine and invariable to justify inevitable discovery)