KENNEBREW v. THE STATE.
S18A0711
Supreme Court of Georgia
September 10, 2018
304 Ga. 406
PETERSON, Justice.
FINAL COPY
Phillip Warren Kennebrew brings this interlocutory appeal of the trial court‘s denial of his motion to suppress certain physical evidence the State wishes to introduce in prosecuting him for murder. We previously reversed Kennebrew‘s convictions for malice murder and other crimes on the ground that he received ineffective assistance of counsel at trial, including counsel‘s failure to pursue suppression of the evidence in question. See Kennebrew v. State, 299 Ga. 864 (792 SE2d 695) (2016). When new counsel filed a motion to suppress on remand, the trial court denied the motion, finding that the evidence — obtained from two backpacks seized from the dorm room of Kennebrew‘s girlfriend when he was arrested there — “would have inevitably been discovered through a lawful inventory search.” Kennebrew argues that our ruling in his prior appeal constitutes law of the case precluding denial of his motion to suppress. Alternatively, he argues that the trial court was wrong on the merits because the evidence was not admissible under an inevitable discovery theory. Whether or not our prior opinion precluded the trial court from denying the motion to suppress, the trial court‘s ruling was wrong on the merits, and we reverse.
As we previously explained, Kennebrew was tried with two others for robbing and murdering Breyon Alexander. DNA evidence and witness testimony placed Kennebrew at the victim‘s apartment at the time of the crimes, and Kennebrew pursued a mere presence defense. But several pieces of evidence recovered from two backpacks belonging to Kennebrew undermined this defense, particularly a knife the State suggested had been used in the stabbing of the victim, shotgun shells like some that had been stolen from the victim‘s apartment and recovered from a co-defendant‘s house, and bullets like some that had been stolen from the victim‘s apartment. Id. at 869 (2) (a) (1). Police seized the backpacks from the college dorm room of Kennebrew‘s girlfriend
We reversed Kennebrew‘s convictions on appeal, based on two areas of ineffectiveness by his trial counsel: (1) counsel‘s failure to object when the prosecutor commented during closing argument on Kennebrew‘s silence; and (2) counsel‘s failure to pursue suppression of the evidence recovered from Kennebrew‘s backpacks. We noted that the police seized the backpacks only after Kennebrew had been handcuffed and removed from the room and did not search the backpacks until six days later, meaning that the State could not avoid the
On remand, new counsel filed a motion to suppress evidence collected from Kennebrew‘s backpacks. Denying the motion in a June 2017 order, the trial court concluded that the seizure of Kennebrew‘s backpack was “reasonable based upon facts and circumstances presented by the State at the hearing and furthermore that the items inside the backpack would have inevitably been discovered through a lawful inventory search.” The trial court found that, after police handcuffed Kennebrew and removed him from his girlfriend‘s dorm room on October 20, 2011, she gave police her consent to search her room. She also identified Kennebrew‘s belongings to police, the trial court found. The trial court recounted testimony by DeKalb Police Sgt. Neal that, based on department policy, he could not have left Kennebrew‘s items with the girlfriend, because police are responsible for those items in the possession of an arrested person and the girlfriend could have destroyed or hidden items. The trial court also relied on DeKalb Police testimony that for safety of police, chain of custody purposes, and to protect the department from potential false claims of theft, DeKalb Police policy mandates that closed containers be inventoried prior to their submission to the property room. The trial court found that Kennebrew‘s backpack “was briefly inventoried by Sgt. Neal at the scene for officer safety and then secured by CSI Woolford” and noted that the State conceded that CSI Woolford “searched” the backpack six days later, i.e., October 26, 2011.1 We agreed to hear Kennebrew‘s interlocutory appeal of that ruling.
On appeal, Kennebrew argues both that our decision in his prior appeal precluded the trial court from denying his motion to suppress and that the discovery of the evidence in the backpacks cannot be justified as “inevitable” through a lawful inventory search.2
In reviewing a ruling on a motion to suppress, we review the trial court‘s factual findings for clear error and its legal conclusions de novo. See Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). In addition, in reviewing such a ruling,
an appellate court must construe the evidentiary record in the light most favorable to the trial court‘s factual findings and judgment. An appellate court also generally must limit its consideration of the disputed facts to those expressly found by the trial court.
Caffee v. State, 303 Ga. 557, 557 (814 SE2d 386) (2018) (citations and punctuation omitted).
The State argues for affirmance of the trial court‘s order under either an inventory search or inevitable discovery theory. Specifically, the State argues that DeKalb Police performed two inventory searches — once at the scene of the seizure of the backpacks on October 20, and again on October 26. We consider each of these possibilities in turn.
1. The United States Supreme Court has held that an inventory search — i.e., the search of the personal property of a person under lawful arrest as part of a routine administrative procedure incident to booking and jailing the suspect — is an exception to the warrant requirement. See Illinois v. Lafayette, 462 U.S. 640 (103 S. Ct. 2605, 77 L. Ed. 2d 65) (1983). In order to qualify as an inventory search, the search must be carried out in accordance with standardized procedures. See Florida v. Wells, 495 U. S. 1, 3-4 (110 S. Ct. 1632, 109 L. Ed. 2d 1) (1990) (“standardized criteria or established routine must regulate the opening of containers found during inventory searches“) (citations omitted); Colorado v. Bertine, 479 U. S. 367, 375-376 (107 S. Ct. 738, 93 L. Ed. 2d 739) (1987) (police discretion in conducting inventory search must be “exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity“); Lafayette, 462 U. S. at 648 (“[I]t is not ‘unreasonable’ for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession in accordance with established inventory procedures.“). This rule “is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence.” Wells, 495 U. S. at 4. The State bears the burden of showing that the requirements of an exception to the warrant requirement have been met. Coolidge v. New Hampshire, 403 U. S. 443, 455 (91 S. Ct. 2022, 29 L. Ed. 2d 564) (1971), overruled on other grounds by Horton v. California, 496 U. S. 128 (110 S. Ct. 2301, 110 L. Ed. 2d 112) (1990).
(a) The State contends that the trial court‘s finding that “the backpack in this case was briefly inventoried by Sgt. Neal at the scene” amounts to a finding that an inventory search was performed on October 20. But this factual finding is clearly erroneous: the record contains no evidence whatsoever that Sgt. Neal searched or conducted any sort of inventory of any backpack on October 20. The State seeks to salvage the core of this finding by claiming that the record shows that Sgt. Neal was present while CSI Woolford searched the backpacks when they were seized on October 20. But even if the trial court‘s statement were meant to reflect a finding that law enforcement actually opened the bags and searched their contents on that date, such a finding would find no support in the record.
(b) The State also argues that an inventory search of the backpacks was performed on October 26. Again, the State has failed to meet its burden of proving that the requirements of the inventory search exception have been met as to the October 26 search.
Here, the trial court apparently credited DeKalb Police testimony that for the safety of police, chain of custody purposes, and to protect the department from potential false claims of theft, DeKalb Police policy mandates that closed containers be inventoried before their submission to the property room. Indeed, Sgt. Neal testified that department policy required such to ensure “a bomb or anything else is not put in the property room” — a purpose that would be achieved only if it required items be inventoried prior to their submission to the property room. But the trial court made no findings as to whether the October 26 search took place before the backpacks were placed in the property room or as to the location of the backpacks during the six days prior to that search. And the State points to no record evidence that the October 26 search took place before the backpacks were placed in the property room. The State thus has not shown that the October 26 search was done in accordance with standard, established inventory procedures. See Clay v. State, 290 Ga. 822, 830 (2) (A) (725 SE2d 260) (2012) (State failed to meet its burden that evidence inevitably would have been discovered in inventory search where it presented no evidence that such searches were invariable, routine county procedure).
Addressing the six-day gap between seizure of the backpacks and the purported inventory search on October 26, the State contends that a “delayed” inventory is not an unconstitutional inventory. In support, the State cites Cooper v. California, 386 U. S. 58 (87 S. Ct. 788, 17 L. Ed. 2d 730) (1967), wherein the United States Supreme Court held that a warrantless search of the defendant‘s vehicle one week after it had been impounded by police upon the defendant‘s arrest was not unreasonable under the
Here, the evidence credited by the trial court shows that the applicable procedure mandated the inventory be performed before the backpacks were submitted to the property room. The State has not met its burden of proving that the evidence in question was discovered in accordance with that procedure, and thus has not proven that the search conducted on October 26 was a valid inventory search rather than a rummaging to discover incriminating evidence.
2. Perhaps recognizing the flaws in the State‘s inventory search theory, the trial court premised denial of the motion to suppress on its conclusion that the evidence in question inevitably would have been discovered through a lawful inventory search. But an inevitable discovery theory is not supported by the trial court‘s findings, either.
Inevitable discovery is an exception to the exclusionary rule that applies in circumstances in which “exclusion of the evidence puts the police in a worse position than they would have been absent any error or misconduct because the evidence . . . would have been discovered as a matter of course if independent investigations were allowed to proceed.” Teal v. State, 282 Ga. 319, 324 (2) (647 SE2d 15) (2007) (citation and punctuation omitted); see also Nix v. Williams, 467 U. S. 431 (104 S. Ct. 2501, 81 L. Ed. 2d 377) (1984). “Under the exception for inevitable discovery, the government may introduce evidence that was obtained by an illegal search if the government can establish a reasonable probability that the evidence in question would have been discovered by lawful means.” United States v. Johnson, 777 F3d 1270, 1274 (11th Cir. 2015) (citation and punctuation omitted). “The government must also establish that the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct.” Id. (citation and punctuation omitted); see also Clay, 290 Ga. at 828 (2) (A). Here, the government did not meet its burden of establishing a reasonable probability that the evidence in question would have been discovered via a lawful inventory search. To the extent that the State means to suggest that the evidence was discovered during an illegal search on October 20, but nonetheless is admissible because it inevitably would have been discovered later through a proper inventory search, that argument is based on the false premise that any search took place on October 20. And to the extent that the State somehow means to argue that the evidence was discovered in an illegal search on October 26 but is nonetheless admissible because it would have been discovered eventually through a later, proper inventory search, that argument fails. The record would not support a finding that the October 26 search took place somewhere other than the DeKalb Police property room.7 Given the DeKalb Police policy‘s requirement that an inventory search be conducted before submission to the property room, no later search would have qualified as an inventory search. The State thus has not met its burden to avoid application of the exclusionary rule under the inevitable discovery exception. Compare Johnson, 777 F3d at 1274-1277 (shotgun obtained in admittedly illegal search of
Judgment reversed. Melton, C. J., Nahmias, P. J., Benham, Hunstein, Blackwell, and Boggs, JJ., concur.
Decided September 10, 2018.
Murder. DeKalb Superior Court. Before Judge Flake.
Coxen & Worthington, Beau A. Worthington, Sr., for appellant.
Sherry Boston, District Attorney, Sheila A. Ross, Assistant District Attorney; Christopher M. Carr, Attorney General, Patricia B. Attaway Burton, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.