MOBLEY v. THE STATE.
A18A0500
In the Court of Appeals of Georgia
June 27, 2018
MERCIER, Judge.
FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration must be physically received in our clerk‘s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
1. Mobley contends that the trial court erred in denying his motion to suppress. He argues that a search warrant was required for law enforcement to access the data in the ACM in the vehicle he was driving because he had a subjective expectation of privacy in the data; that a law enforcement officer misled the magistrate judge by applying for a search warrant without indicating that the information sought had already been obtained; that the trial court erred in relying on the inevitable discovery exception to the warrant requirement; and that the exigent circumstances exception to the warrant requirement did not apply. Whether a search warrant is required to retrieve the data from a vehicle‘s ACM is an issue of first impression in Georgia. Because we find that a search warrant was not required here, we affirm Mobley‘s convictions. See generally Fincher v. State, 276 Ga. 480, 481 (2) (578 SE2d 102) (2003) (“[A] trial court‘s ruling on a motion to suppress will be upheld if it is right for any reason.“).
When the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court‘s application of the law to the undisputed facts. To the extent an issue concerns a mixed question of fact and law, we accept the trial court‘s findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts.
State v. Wright, 344 Ga. App. 881 (812 SE2d 86) (2018) (footnote omitted).
Here, the evidence at the hearing on the motion to suppress included testimony from three law enforcement officers with the Henry County Police Department who were involved in the investigation of the collision (Sergeant D. G., Investigator J. H., and Officer B. T.).
Sergeant D. G. assisted with the investigation immediately following the collision and contacted Investigator J. H. to retrieve the data from the vehicle‘s ACMs at the scene of the collision.2 Investigator J. H. downloaded the data from the ACMs in Mobley‘s and W. M.‘s vehicles at the collision scene. The next day, Officer B. T. applied for and obtained a warrant to search and seize the ACMs, which devices were in the vehicles at an impound facility. All three officers testified that at the time of their investigation of the collision, they believed that they were not required to obtain a search warrant in order to retrieve data from the ACMs while the vehicles and the officers were still at the scene of the collision.
Sergeant D. G. testified as follows. The collision occurred on a Monday at approximately 1:00 p.m. The magistrate court was open when officers began their investigation and they could have obtained a search warrant on that day. Witnesses to the collision told Sergeant D. G. at the scene that W. M.‘s vehicle had “pulled out” in front of the vehicle driven by Mobley. None of the witnesses provided Sergeant D. G. with any information about the speeds of the vehicles. The speed limit at the location of the collision was 45 miles per hour, and based on the evidence on the roadway, it appeared to Sergeant D. G. that the vehicle speed at the time of the collision was 45 to 50 miles per hour.
It was not uncommon for Sergeant D. G. to decide to download the information from ACMs at a collision scene as he did in this case, particularly when the collisions involved serious injuries or fatalities. He testified that
Investigator J. H. testified as follows. He arrived at the scene of the collision at approximately 2:00 p.m. on the day that the collision occurred. He confirmed that both vehicles involved in the collision were “able to be imaged,” and he obtained the data from the ACMs in both vehicles while the vehicles were still at the collision scene. He then provided the data he obtained to another investigator. Investigator J. H. testified that he could have used the same procedure to download the information the day after the accident, after a search warrant was obtained. Officers removed the ACMs from both vehicles at the towing company‘s lot on the day after the collision, placed the devices into evidence storage, and did not access the data again.
Officer B. T. testified as follows. He assisted in the investigation of the collision on December 16, 2014, the day after the collision occurred. On December 16, 2014, he completed the affidavit for a search warrant for the ACMs based on information provided to him by other officers. The purpose of obtaining the search warrant was to remove the ACMs from the vehicles and place them “into property and evidence.” In applying for the search warrant, he did not tell the magistrate that law enforcement officers had already collected the data from the ACMs. He further testified that, if the data had not been downloaded from the ACMs at the scene of the collision, he would have obtained a search warrant and downloaded the data at the impound lot.
The evidence demonstrates that the ACM in Mobley‘s vehicle was designed to capture data related to a collision or airbag deployment. Accessing the data in the ACMs in the vehicles involved in this case required special equipment, and interpretation of some of the data required special training. Specifically, obtaining the data from an ACM required a “crash data recovery kit” (“CDR“), which involved the use of a laptop, a computer program, an interface box, and a connection cable. Reading the ACM data required special training because some of it was recorded in hexadecimal format (for engineers).
Officer B. T. confirmed that the data captured by the ACM included the status of several aspects of the vehicle at or immediately preceding airbag deployment, including speed, engine speed, brake status, throttle position, engine revolutions, driver‘s seat belt status and brake switch status, as well as time from maximum deceleration to impact, time from vehicle impact to airbag deployment, and diagnostic information on the vehicle‘s systems. A copy of the printed report of the ACM data captured from Mobley‘s vehicle was introduced at the bench trial, and included charts containing several sets of pre-collision data set forth at specific intervals, including “Accelerator Pedal, % Full,” “Engine Throttle, % Full,” “Stability Control,” “Raw Manifold Pressure,” “Yaw Rate,” and “Wheel Speed.” In the indictment and in its opening statement, the prosecution relied upon Mobley‘s “high rate of speed” to prove its case, which evidence was obtained from the ACM.
“The Fourth Amendment proscribes all unreasonable searches and seizures, and searches conducted without prior judicial approval are per se unreasonable under the Fourth Amendment, subject to specifically established and well-delineated exceptions.” Teal v. State, 282 Ga. 319, 322-323 (2) (647 SE2d 15) (2007) (citation omitted). “[A]n individual
Mobley argues that an ACM is analogous to a cell phone with regard to the Fourth Amendment right to privacy. In Riley v. California, 134 SCt 2473 (189 LE2d 430) (2014), which he cites, the Supreme Court of the United States held that there is a reasonable expectation of privacy in the contents of a cell phone, and a warrant generally is required to search such contents, even when the phone is seized incident to arrest. Riley, supra at 2493 (III) (C), 2495 (IV). In balancing the degree to which such a search intrudes upon an individual‘s privacy and the degree to which the search is needed for the promotion of legitimate governmental interests (the test for a warrantless search incident to arrest), the Riley Court found that a search of the digital information on a cell phone does not further the government interests of officer safety and prevention of evidence destruction, and implicates substantially greater individual privacy interests than a brief physical search. Id. at 2484-2485 (III). This is because “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life[.]” Id. at 2494-2495 (IV) (citation and punctuation omitted).
Mobley also contends that we should follow the reasoning employed by a Florida appellate court, which held (in a divided opinion) that a search warrant was required to access ACM data in an impounded vehicle. State v. Worsham, 227 So3d 602, 605, 608 (42 Fla. L. Weekly D 711) (Fla. 4th DCA 2017) (certiorari denied in Florida v. Worsham, (138 SCt 264, 199 LE2d 125) (2017)). The Worsham court found that ACMs “document more than what is voluntarily conveyed to the public and the information is inherently different from the tangible ‘mechanical’ parts of a vehicle.” Id. at 606. Citing Riley, supra and analogizing the ACM to a cell phone, the Worsham court reasoned that because the recorded data is not exposed to the public, and because the data is difficult to retrieve and interpret, there is a reasonable expectation of privacy in the data. Id. at 604, 606.
Meanwhile, an appellate court in California reached the opposite conclusion on this question in People v. Diaz, 213 Cal. App. 4th 743 (153 Cal. Rptr. 3d 90) (2013). The Diaz court held that there was no reasonable expectation of privacy in the speed and braking data taken from the vehicle‘s ACM in that case, because “others could observe [the] vehicle‘s movements, braking, and speed, either directly or through the use of technology such as radar guns or automated cameras.” Id. at 757-758 (III) (F). The Diaz court noted that “technology merely captured information defendant knowingly exposed to the public[.]” Id. (citation omitted). See also People v. Christmann (3 Misc.3d 309, 315, 776 N.Y.S.2d 437) (Just. Ct. 2004) (the immediate warrantless download of information from the defendant‘s ACM did not violate the defendant‘s Fourth Amendment rights).
We find that, under the circumstances in this case, Mobley did not have a
Moreover, the types of information contained in Mobley‘s ACM (as described in the hearing on the motion to suppress) are distinguishable from the types of personal information contained in a cell phone and protected by the Fourth Amendment as discussed in Riley, supra. Information regarding the mechanical functioning of the vehicle and its systems is qualitatively different from photographs, financial information, and other such personal data that may be found on a cell phone. We find that Mobley did not have a reasonable expectation of privacy with respect to the data captured by his vehicle‘s ACM, and the retrieval of the data was therefore not a search or seizure protected by the Fourth Amendment. See Bowling, supra.
We recognize that the breadth of information captured by and obtained from an ACM can vary over time, and amongst vehicle manufacturers. For example, an ACM could retain global positioning system information, possibly implicating the Fourth Amendment. The U. S. Supreme Court has held that the government‘s installation of a GPS tracking device to an individual‘s vehicle, and the subsequent use of that device to monitor the vehicle‘s movements on public streets constitutes a search within the meaning of the Fourth Amendment. United States v. Jones, 565 U. S. 400, 404 (II) (A) (132 SCt 945, 181 LE2d 911) (2012); see Hamlett v. State, 323 Ga. App. 221, 227 (1) (a) (753 SE2d 118) (2013). As recognized in Justice Sotomayor‘s concurrence in Jones, “GPS monitoring generates a precise, comprehensive record of a person‘s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Jones, supra at 415 (citation omitted). The evidence in this case does not demonstrate that the ACM in Mobley‘s vehicle was capable of GPS monitoring or the recording of his movements between various locations.
Nor does the evidence here indicate that the ACM in Mobley‘s vehicle recorded information on a long-term basis. Rather, the evidence shows that the purpose of the ACM is to capture information regarding collisions or airbag deployments, that the ACM generally only starts recording information when an event, such as a collision, “triggers” it to record, that the ACM continuously overwrites “nondeployable” events, and that the ACM only saves data permanently when a collision has caused the vehicle‘s airbags to deploy. The collision in this case was a “deployment event” for both vehicles. The only data shown to have been saved permanently by Mobley‘s ACM was the data collected just before and at the time of the airbag deployment.
We therefore limit our holding to the particular facts of this case, and note that future treatment of this issue will likewise depend on the specific facts of the cases under consideration. As such, we reiterate the strong preference for searches to be conducted pursuant to a warrant, see Jones v. State, 337 Ga. App. 545, 548 (1) (788 SE2d 132) (2016), and caution law enforcement officers faced with an investigative need to obtain data from a vehicle‘s ACM to err on the side of caution by obtaining a search warrant before retrieving that information.
Judgment affirmed. Dillard, C. J., and Doyle, P. J., concur specially.
MOBLEY v. THE STATE.
A18A0500
In the Court of Appeals of Georgia
DILLARD, Chief Judge, concurring specially.
I agree that Mobley‘s convictions should be affirmed, but I write separately for two reasons. First, because the trial court correctly concluded that the data from the ACM in Mobley‘s vehicle would inevitably have been lawfully discovered, it is unnecessary for us to address whether the Fourth Amendment prohibits a warrantless seizure of that data. Nevertheless, I feel compelled to echo the majority‘s admonition to law enforcement that the better course of action in cases like this is to obtain a warrant before retrieving ACM data. Indeed, as Fourth Amendment jurisprudence struggles to keep pace with technological advances and the consequent blurring between our private and public lives, novel cases (such as this one) will become increasingly common. And faced with such rapidly evolving challenges affecting the way in which investigations are conducted and evidence is obtained, I agree with the majority that law enforcement will be better served by erring on the side of caution and obtaining a search warrant in such cases.
My analysis begins, of course, with the Fourth Amendment to the United States Constitution, which provides, in relevant part, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”1 And the most basic constitutional rule in this area is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”2 One such exception is the inevitable-discovery doctrine, which “allows admission of evidence that was discovered as a result of police error or misconduct if the State establishes by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, without reference to the police error or misconduct.”3 More specifically, there must be a reasonable probability that “the evidence in question would have been discovered by lawful means, and the prosecution must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct.”4
Here, the officers were called to the scene of an automobile collision that resulted in two fatalities. And although Sergeant D. G.‘s initial impression was that Mobley had not significantly exceeded the speed limit (if at all), he also noted that the tragic circumstances surrounding the accident were such that a thorough investigation was still required. Toward that end, both vehicles were towed away, and the officers instructed the towing service to hold the vehicles for investigation. This was not unusual. It was a common practice for these officers to secure ACM data from vehicles involved in serious collisions, even at the scene. Additionally, Officer B. T. testified that if the ACM data had not been obtained at the scene, he would have sought a search warrant and collected such data from the vehicle at the impound lot. Thus, given these particular circumstances, the trial court correctly ruled that there was probable cause to retrieve the ACM data
Notwithstanding the propriety of the trial court‘s ruling, I reiterate the majority‘s admonition that the better practice is for law enforcement to seek a warrant prior to any search or seizure in this type of case. Indeed, a brief glance into the state of flux our Fourth Amendment jurisprudence currently inhabits demonstrates that repeating this exhortation is warranted.
In Katz v. United States,6 the Supreme Court of the United States held that “[t]he Fourth Amendment protects people, not places,” explaining that “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” but “what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.”7 And here, even though I believe it is unnecessary to reach the issue, I agree with the majority‘s determination that Mobley had no reasonable expectation of privacy in the speed and braking data obtained from his vehicle‘s ACM because “others could observe [his] vehicle‘s movements, braking, and speed, either directly or through the use of technology such as radar guns or automated cameras.”8 Suffice it to say, this sort of data—while far more precise (and at times damning) than the naked eye—is hardly comparable to the type of sensitive personal information often contained on a cell phone.9 That said, with technology of this nature rapidly developing, it is easy to imagine future cases presenting much thornier questions. For instance, had the ACM in this case included detailed GPS tracking information or other personal details of Mobley‘s everyday life, a warrantless search may have run afoul of the Fourth Amendment‘s protection of his reasonable expectation of privacy.10
Consequently, law enforcement will find it increasingly tricky to navigate the crossroads of ever-advancing technology and personal privacy as they relate to Fourth Amendment prohibitions. And this difficulty is only exacerbated by the fact that the decisions of the Supreme Court of the United States establish that warrantless searches are typically unreasonable where “a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing.”15 But as the Supreme Court emphasized once again in Carpenter v. United States, there remains a tried and true means of safely traversing these crossroads when law enforcement‘s specific obligations under the Fourth Amendment are in doubt—get a warrant.16 This default position seems especially wise in light of the “equilibrium-adjustment” the Supreme Court of the United States recently made in Carpenter.17 And while obtaining a warrant may not always lend itself to expediency, our republic‘s Fourth Amendment jurisprudence has “historically recognized that the warrant requirement is ‘an important working part of our machinery of government,’ not merely an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.”18 I am confident the vast majority of our law enforcement officers will err on the side of caution and liberty, and get a warrant in cases like the one before us. The law always seems to be several steps behind technology, and this approach strikes me as the most prudent course of action going forward.
MOBLEY v. THE STATE.
A18A0500
In the Court of Appeals of Georgia
DOYLE, Presiding Judge, concurring specially.
Because I agree that Mobley‘s convictions should be affirmed, I concur specially and in
“The exclusionary rule prohibits introduction [of] evidence . . . seized during an unlawful search . . . or that is otherwise acquired as an indirect result of the unlawful search, up to the point where the taint is dissipated by its attenuated connection with the unlawful search. . . .”1 When officers also secure a properly issued search warrant to obtain the challenged evidence, “the appropriate question is whether the evidence at issue has been [obtained] by exploitation of th[e] illegality or instead by [a warrant] sufficiently distinguishable to be purged of the primary taint.”2 Therefore, when the State shows by a preponderance of the evidence “that the information ultimately or inevitably would have been discovered by lawful means [i.e., a warrant], without reference to the police error or misconduct,” the exclusionary rule does not apply.3
Here, even if the roadside scan of the ACM was illegal, the evidence authorized the trial court to find that the data obtained therefrom was not used by the officers to secure the search warrant, the warrant was obtained in the regular course of the continuing investigation, and the ACM‘s data inevitably would have been available to police pursuant to the warrant they later lawfully obtained.4 Accordingly, the trial court did not err by denying the motion to suppress.