WINSLOW v. THE STATE.
S22A0498.
In the Supreme Court of Georgia
Decided: November 2, 2022
BETHEL, Justice.
SUPREME COURT OF GEORGIA November 2, 2022 The Honorable Supreme Court met pursuant to adjournment. The following order was passed: Upon consideration, the Court has revised the deadline for motions for reconsideration in this matter. It is ordered that a motion for reconsideration, if any, including motions submitted via the Court’s electronic filing system, must be received in the Clerk’s Office by 2 p.m. on Wednesday, November 9, 2022. SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta I certify that the above is a true extract from the minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk
For the reasons set forth below, we affirm Winslow‘s convictions. However, because the trial court should have sentenced Winslow on only one count and merged the remaining counts for sentencing, see Edvalson, 310 Ga. at 8, 10, we vacate the sentences imposed by the trial court and remand for resentencing. And, because we vacate these sentences, we do not reach Winslow‘s as-applied challenge to
1. Viewed in the light most favorable to the verdicts, the
After arriving at the store, Sergeant Asbell approached Winslow, whom the Sergeant already knew, and asked to speak with him outside the store. Winslow told Sergeant Asbell that the photos were of members of Winslow’s family, but Sergeant Asbell knew Winslow’s family and testified that he knew that these children were not members of Winslow’s family. Sergeant Asbell then asked
Winslow if he had ‘any other photos that would be images that he shouldn’t have,’ and more specifically, whether he had any other pictures of children. Winslow responded that he did not, and he told Sergeant Asbell that he could check. Sergeant Asbell asked if he could open Winslow’s bag to check. Winslow said ‘yes’ but that there was ‘nothing there.’
When Sergeant Asbell looked in the bag, he noticed a laptop computer. While present with Winslow, Sergeant Asbell attempted to turn the laptop on but was unable to access any information on the computer because it
Continuing his search of the contents of Winslow’s bag, Sergeant Asbell found seven thumb drives. Sergeant Asbell asked Winslow if there was anything on the thumb drives, and Winslow responded that the thumb drives were empty but that Sergeant
Asbell could check them. Sergeant Asbell then checked three of the thumb drives by plugging them into his own laptop. The first drive only contained an installer program for Microsoft windows, and the second thumb drive was blank. The third thumb drive, however, contained a folder labeled ‘Billy’s porn’ with two media files in it. The first file contained photographs of Winslow. Sergeant Asbell described the second file as containing multiple images of naked children. After viewing these photos, Sergeant Asbell ended his search of the thumb drives and arrested Winslow for sexual exploitation of children.
The GBI searched Winslow’s laptop roughly 14 months later following the issuance of a warrant. The GBI attributed the delay in searching the laptop to a backlog of other tasks. During that search, an agent found two videos containing what the agent considered to be child pornography. Digital records showed that both videos were downloaded to Winslow’s laptop on September 15, 2018 at 1:15 a.m.
Winslow moved to suppress all of the electronic evidence, arguing that the search was conducted without his consent and with
an invalid warrant. More specifically, he argued that his consent did not extend to a full forensic search of the laptop and had long expired. Additionally, Winslow argued that the warrant2 had expired before the GBI search of the laptop commenced because of a ten-day execution requirement both within the warrant itself and pursuant to
Following a hearing, the trial court denied the motion to suppress. The court determined that Winslow consented to the search of his laptop, that his consent was never withdrawn, that the search was valid, and that the search was conducted in a reasonable amount of time.
2. Winslow challenges the trial court’s denial of his motion to
suppress, arguing that he did not consent to the search of his laptop and that the State did not have a valid search warrant for the laptop because the warrant had expired, it was issued in a different county than where the evidence was located, and the supporting affidavit lacked probable cause. For the reasons explained below, we conclude that the court did not err in finding that Winslow consented to the search.
It is well settled that a valid consent to a search eliminates the need for either probable cause or a search warrant. In order to justify a warrantless search on the grounds of consent, the State has the burden of proving that the consent was freely and voluntarily given under the totality of the circumstances. It is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced.
(Citations and punctuation omitted.) Brooks v. State, 285 Ga. 424, 425-426 (677 SE2d 68) (2009). ‘[T]he standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness – what would a typical reasonable person have understood by the exchange between the officer and the suspect?’ (Punctuation omitted.) State v. Turner, 304 Ga. 356, 360
(1) (a) (818 SE2d 589) (2018). Further, constrained by that limitation, ‘[o]nce consent is legally obtained, it continues until it is either revoked or withdrawn.’ Woods v. State, 258 Ga. 540, 542 (2) (371 SE2d 865) (1988).
construes the evidence most favorably to upholding the trial court’s findings and judgment and will not disturb the trial court’s findings of fact if there is any evidence to support them.’ Id. ‘[T]he trial court’s application of the law to undisputed facts is subject to de novo review. . . .’ (Citation omitted.) State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009).
Here, the trial court found that Winslow consented to the search of his bag and all of its contents, including digital information contained on the laptop, and that this consent was never withdrawn. The record contains evidence supporting those findings. Specifically, the evidence shows that Winslow knew that Sergeant Asbell was searching for photographs of children and Winslow gave him permission to check his bag, which contained his laptop. When searching the bag in the presence of Winslow, Sergeant Asbell attempted to search the digital contents of Winslow’s laptop, and there is nothing in the record that indicates that Winslow ever complained or told Sergeant Asbell that he could not search the laptop itself. See United States v. Harris, 928 F.2d 1113, 1117-1118
(IV) (11th Cir. 1991) (noting that ‘importantly, [the defendant] was physically present while [the officer] searched the car, and had ample opportunity to limit the scope of the search, or request that it be discontinued’ while concluding that the district court reasonably found that the defendant’s consent extended to a search of luggage in the trunk of a car); Lance v. State, 275 Ga. 11, 20 (19) (560 SE2d 663) (2002) (rejecting a claim that a search was unlawful because a signed form granting consent to search was too generalized and noting that the appellant ‘attended the actual search and never withdrew his consent’), disapproved on other grounds by Willis v. State, 304 Ga. 686, 706 (11) (a) n.3 (820 SE2d 640) (2018); Bohannon v. State, 251 Ga. App. 771, 773 (2) (555 SE2d 112) (2001) (concluding that no error occurred where the trial court concluded that the defendant’s consent to search a garage encompassed a locked toolbox located inside the garage, noting that the appellant was ‘present and watching . . . [but] did not register any objection to the officers’
search’).4
The record also shows that, moments later, in response to Sergeant Asbell’s query concerning the contents of the thumb drives, Winslow gave express permission to search the drives, which had also been in the bag. After observing images of naked children stored on one of the thumb drives, Sergeant Asbell seized Winslow’s belongings, including
The laptop was searched by the police roughly 14 months later. There is no evidence that Winslow made any attempt to withdraw or revoke his consent at any point during the roughly 14 months that the State had custody of the laptop before it was searched or that he ever indicated to Sergeant Asbell or anyone else that he had not
consented to a search of the laptop.
Thus, in light of Winslow’s consent for Sergeant Asbell to search all of the contents of his bag, containing the laptop, for pictures of children; Winslow’s express consent for Sergeant Asbell to search the thumb drives contained within the bag; and the lack of evidence that Winslow objected or did anything while Sergeant Asbell attempted to search his laptop in his presence, it was not error for the trial court to determine that a reasonable officer would have understood Winslow’s statements and actions to constitute consent to a search of his laptop. Cf. Florida v. Jimeno, 500 U. S. 248, 250-251 (111 SCt 1801, 114 LE2d 297) (1991) (holding that a defendant’s consent to ‘search his car [for narcotics] . . . [without] any explicit limitation on the scope of the search’ extended to a search of a paper bag on the floor of the car because a ‘reasonable person may be expected to know that narcotics are generally carried in some form of a container’); United States v. Plascencia, 886 F3d 1336, 1342-1343 (11th Cir. 2018) (concluding that the district court did not err in finding that the defendant’s consent for law
enforcement to conduct a ‘complete search of his boat and to [the] seizure of its contents for any legitimate law enforcement purpose’ was not exceeded by law enforcement conducting a forensic analysis of a GPS found on the boat (punctuation omitted)); Berry v. State, 318 Ga. App. 806, 808-809 (1) (734 SE2d 768) (2012) (concluding that a search of hidden compartments within a car did not exceed consent provided because the appellant was aware that the officer was looking for ‘illegal or dangerous items within the truck’ and therefore the consent extended to ‘even hidden compartments in the truck to find contraband’); Varriano v. State, 312 Ga. App. 266, 269 (718 SE2d 14) (2011) (concluding that the trial court did not clearly err in denying the appellant’s motion to suppress because the consent to search was not exceeded by the officer opening closed packages and containers because the officer ‘inquired about the presence of drugs’ and obtained ‘consent to search the entire vehicle’); McGaughey v. State, 222 Ga. App. 477, 479 (474 SE2d 676) (1996) (concluding that a reasonable person could have understood the scope of appellant’s consent to include a search of a medicine
bottle within her purse when, in response to an inquiry about her presence in a ‘drug area,’ appellant told an officer that he could ‘search [her]’ while holding up her purse).
Even though the trial court’s determination that Winslow consented to a search of his laptop is supported by the record, we must also consider whether the trial court properly considered the 14-month delay between when Sergeant Asbell seized the laptop and when the GBI forensically searched the laptop. The record does not reveal an explicit trial court finding either way with respect to whether the scope of the consent Winslow provided extended beyond the initial encounter with Sergeant Asbell to include the following 14 months leading up to the actual search of the laptop by the GBI. Rather, in finding that the search was valid on the basis of Winslow’s consent, the trial court stated when issuing its oral ruling at the hearing that Winslow’s ‘consent was never withdrawn.’
While, as noted above, we have stated that ‘[o]nce consent is legally obtained, it continues until it is either revoked or withdrawn,’ see Woods, 258 Ga. at 542 (2), that statement should
not be understood to allow a potentially infinite duration whenever a person’s consent to a search is obtained.5 Instead, the duration of
laptop extended beyond that interaction, to include a forensic search of the laptop by the GBI 14 months later.
In conducting its review of the scope of Winslow’s consent, the trial court was not only authorized to consider the circumstances recounted above surrounding Winslow’s consent but also that Winslow could reasonably be found to be aware that his laptop was already in the possession of law enforcement and could be in the State’s continuous possession from that point on. Therefore, there was evidence to support a finding that a reasonable person would have understood Winslow’s consent to include a delay for the laptop to be forensically searched. See Turner, 304 Ga. at 360 (1) (a).
Additionally, once the trial court determined that the scope of Winslow’s consent encompassed a later search of the laptop, the trial court was authorized to consider that there was no evidence that Winslow ever attempted to withdraw or revoke this consent and find that his consent was ongoing at the time the GBI searched the laptop 14 months later. Woods, 258 Ga. at 542 (2).
Of course, we presume that trial judges ‘know the law and
apply it in making their decisions, absent some indication in the record suggesting otherwise.’ (Citation and emphasis omitted.) State v. Abbott, 309 Ga. 715, 719 (2) (848 SE2d 105) (2020). Here, the trial court made its findings and denied Winslow’s motion to suppress subject to Turner’s articulated standard that the ‘scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness. . . .’ 304 Ga. at 360 (1) (a). Therefore, given the lack of any indication in the record to the contrary, we presume that the trial court properly applied that standard when reviewing the scope and duration of Winslow’s consent here. Thus, we presume that the consent the trial court found to have been obtained and not withdrawn included the duration of the 14-month delay, and we review this factual finding for clear error. See Holmes v. State, 311 Ga. 698, 705-706 (3) (859 SE2d 475) (2021) (noting that this Court ‘presume[d that] the trial court knew and applied’ a holding by the Supreme Court of the United States because the case was decided before the trial court made its ruling); Doleman, 304 Ga. at 743 (2) (stating that a trial court’s factual findings on a motion to suppress
are reviewed for clear error); Hughes v. State, 296 Ga. 744, 747 (1) (770 SE2d 636) (2015) (‘[W]e generally must presume that the absence of a finding of a fact that would tend to undermine the conclusion of the trial court reflects a considered choice to reject the evidence offered to prove that fact, especially where there were grounds upon which the trial court properly could have assigned no weight to such evidence.’).
Like us, the dissent recognizes our obligation to review the record in a way that upholds trial court findings of fact where any evidence was presented to support them. And we acknowledge that the question of whether there are sufficient facts in the record to support the trial court’s finding that Winslow consented to the forensic search of his laptop is close. However, we believe that the ‘the highly deferential ‘any evidence’ standard’ is met here. (Emphasis supplied.) Morrell v. State, 313 Ga. 247, 251 (1) (869 SE2d 447) (2022). The record contains evidence supporting a finding that Winslow was aware that Sergeant Asbell was looking for images of children; he offered a physical search of
his laptop for images of children; he witnessed Sergeant Asbell take possession of the bag and all of its contents, including his laptop; he witnessed Sergeant Asbell’s failed attempt to gain access to the data on his laptop; and he expressly consented to Sergeant Asbell searching the flash drives that were also in his bag after it was unclear whether he would regain possession of his items within the bag, including the laptop. All of these facts together create a far more extensive picture of Winslow’s consent than the dissent’s focus on Winslow responding ‘sure’ to Sergeant Asbell’s request to search his bag. These facts, in our view, satisfy the requirement that ‘any evidence’ be present to support a finding that Winslow consented to a thorough search of the digital media the government had taken into its possession. Further, Winslow witnessed Sergeant Asbell locate images of children on one of the flash drives that he had represented were empty, and he knew that his laptop remained in the possession of law enforcement. While these facts, which we also consider favorably to the trial court’s disposition, do not inform the scope of the consent Winslow provided, they are relevant to the trial court’s consideration of whether that consent was withdrawn.
Additionally, while the dissent suggests the need for Winslow’s consent to have been found more specifically for a GBI forensic search of the laptop 14 months after its seizure, that demands too much of consent. The standard is what a reasonable person would have believed the consent to encompass. Whether it was the GBI or an IT professional in the police department, Winslow could reasonably be understood to have known that Sergeant Asbell would seek help in completing his failed search of the laptop at some point after his laptop was seized. And whether the search was a forensic search or not, this record supports a finding that Winslow knew that Sergeant Asbell was going to continue his search for images. And the trial court was authorized to find that a reasonable person would understand that the subsequent search may include a forensic search. Additionally, whether the search took place the day, week, month, or year following the items being seized was of no meaningful consequence to Winslow, who did not have possession of the items on any of those days. A reasonable person could be found to have
understood that the items would be subsequently searched and that there may be a delay before law enforcement is able to do so. The fact that this evidence does not seem like enough to convince the dissent that the scope of Winslow‘s consent extended to the search of his laptop is a separate question from whether there is any evidence to support such a finding.
Because the implicit finding that Winslow consented to a subsequent forensic search of his laptop after it was seized is supported by evidence in the record, we cannot say that the trial court erred in denying Winslow‘s motion to suppress. And because we conclude that the trial court did not err in denying the motion to suppress on the basis of Winslow‘s consent to the search in question, we need not consider the necessity or propriety of a valid search warrant. See Brooks, 285 Ga. at 425. Accordingly, there is no need to review Winslow‘s remaining arguments on this enumeration.
3. Winslow next argues that the statutory sentencing scheme for possession of child pornography under
Winslow argues that the mandatory minimum and the maximum sentence provided for possession of child pornography under
We have recognized that both the
[A] court engages in a two-step inquiry to determine whether [a] sentence is grossly disproportionate. First, a court compares the gravity of the offense and the severity of the sentence. If this threshold comparison leads to an inference of gross disproportionality, the court proceeds to the next step and compares the defendant‘s sentence with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions.
(Citations and punctuation omitted.) Conley v. Pate, 305 Ga. at 336 (3). Additionally, when reviewing a claim of cruel and unusual punishment under the
Winslow complains that the punishment for possession of child pornography imposed under
involving the sale, distribution, or manufacturing of child pornography. He argues that crimes involving possession of child pornography should carry a lighter sentence because they are nonviolent crimes and because other criminal statutes, such as
However, even though there is no such distinction in
See also Gordon, 257 Ga. at 440 (Gordon); Johnson v. State, 276 Ga. 57, 62 (5) (573 SE2d 362) (2002). Therefore, given “the requisite deference to the legislative branch‘s authority to impose punishment based on the mores of society at the time of the crime,” we hold that the sentencing parameters in
4. Finally, Winslow argues that the trial court erred in failing to merge Counts 1 and 2, which were based on Winslow‘s simultaneous possession of two videos found on his laptop, for sentencing. The State concedes that this was error, and we agree.
Winslow was found guilty of four counts of sexual exploitation of children. The trial court merged Count 3 with Count 1, which were
both based on his possession of the first video but on different dates. The trial court also merged Count 4 with Count 2, which were similarly both based on his possession of the second video on different dates. However, the trial court declined to merge Count 1 and Count 2, and sentenced Winslow to 15 years in confinement on Count 1 and five years in confinement with 15 years of probation on Count 2 to run consecutively with Count 1. This was error.
In Edvalson, 310 Ga. at 8, 10, this Court held that
depicted therein.” 310 Ga. at 8, 10. See also
Judgment affirmed in part and vacated in part, and case remanded for resentencing. All the Justices concur, except Boggs, C. J., Peterson, P. J., Warren and Pinson, JJ., who dissent.
PETERSON, Presiding Justice, dissenting.
Imagine that you‘re talking with a police officer at a Walmart. The officer asks whether you have inappropriate images on your laptop. You say no. He asks, “can I check?” And you say, “sure.” I am skeptical that your “sure” can reasonably be understood as consent to a GBI forensic search of the laptop 14 months later. The majority presumes that the trial court‘s oral ruling (which said nothing of the sort) must have implicitly made such a finding. If it had done so explicitly, on this record, I would probably determine that was wrong. But because I think that the trial court should at least have the chance to articulate any such finding for itself before I conclude it was wrong, I would vacate and remand for the trial court to determine for itself whether it believes such a finding is appropriate. I respectfully dissent.
As the majority correctly explains, the law is that consent continues until withdrawn or
In affirming the denial of Winslow‘s motion to suppress, the majority relies heavily on the presumption that trial judges have understood and followed the law, absent the record indicating otherwise. See Edwards v. State, 301 Ga. 822, 826 (2) (804 SE2d 404) (2017). To have properly applied the law in this case, the trial court‘s finding that consent permitted a GBI search 14 months later would have required two supporting findings: (1) that the duration of Winslow‘s consent at the Walmart for Sergeant Asbell to search his laptop was reasonably understood to be for at least 14 months, and (2) the scope of that consent extended beyond consent to search Winslow‘s laptop in the Walmart parking lot — up to and including that it would have been objectively reasonable to conclude that the scope of that consent extended to a forensic analysis of the computer by the GBI 14 months after Sergeant Asbell seized it. The majority acknowledges that the record does not reveal any trial court finding on either of these points, so any such findings would be merely creatures of our presumption.
I am skeptical that the record would permit us to affirm any
such findings. Sergeant Asbell testified that he asked Winslow “can I check” whether Winslow had other pictures of children on his laptop and thumb drives; Winslow “was, like, sure.” Later in his testimony, Sergeant Asbell also recounted the exchange as asking Winslow if he had anything “on the drives” or had any “pictures of kids that you shouldn‘t have,” and that Winslow consented by saying “you can look” or “I [Sergeant Asbell] could check.” This testimony seems to me strong evidence that Winslow consented to Sergeant Asbell searching the electronics while at the Walmart; it strikes me as wholly inadequate to support a finding that his consent was reasonably understood as continuing for 14 months and extending to a forensic search by the GBI — by a different person, at a different time and place, using different means. See LaFave, supra (“As a general rule, it would seem that a consent to search may be said to have been given on the understanding that the search will be conducted forthwith and that only a single search will be made.“); United States v. Casellas-Toro, 807 F3d 380, 391 (1st Cir. 2015) (observing that three-week delay in search of car in FBI custody “approaches the outer limit of a reasonable time to complete a consent search“); State v. Peterson, 273 Ga. 657, 659 (1) (543 SE2d 692) (2001) (“Additional investigators or officials may enter a citizen‘s property after one official has already intruded legally. . . . Of course, the later officials must confine their intrusion to the scope of the original invasion unless a warrant or one of the exceptions to the warrant requirement justifies a more thorough or wide ranging search.” (quoting United States v. Brand, 556 F2d 1312, 1317 & n.9 (5th Cir. 1977)) (punctuation omitted)).
The majority also focuses on Winslow‘s failure to withdraw his consent to search upon being arrested, suggesting that silence in the face of law enforcement taking his laptop post-arrest was essentially consent. This strikes me not as consent, but acquiescence.
But notwithstanding my misgivings, appellate courts don‘t make factual findings ourselves in the first instance. I would not conclude the trial court was wrong on the basis that a hypothetical finding that Winslow had given consent continuing for 14 months and extending to a forensic search by the GBI is unsupported by the record. Presuming a finding that we ourselves articulate in sufficient detail to assess and then determining that it is unsupported by the record is, for me, too close to making factual findings ourselves, and may wind up being unfair to the trial court. After all, with the benefit of reviewing more than merely the cold record before us, the trial court might have some reason for such a finding that presently escapes my imagination.11
Before concluding that no such supportable finding is possible, I would remand for the trial court to make explicit findings that we could then review.
I‘ll also point out that the only reason we have to resolve this case on consent grounds is that the State may have fouled up the
eventual search warrant for the laptop, and the search performed thereunder, making it difficult to affirm the trial court‘s alternative holding that the search performed was done reasonably and under a valid warrant. I share the majority‘s prudent desire to avoid those hard and novel constitutional questions if not necessary to decide them (which is yet another reason I would vacate). But I would not do so by finding consent where we have little reason to believe that the trial court properly found it. I respectfully dissent from the judgment of the Court. (I do not disagree with anything said in Divisions 3 and 4 of the majority opinion, but I cannot join in the judgment of Division 4 because I would vacate and remand the case as to the motion to suppress, rather than vacating Winslow‘s sentence and remanding for resentencing at this time. To the extent that Division 3 can be said to have a judgment, I join it.)
I am authorized to state that Chief Justice Boggs, Justice Warren and Justice Pinson join in this dissent.