State v. Rosenbaum

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Beth G,1

Complainant,

v.

Elaine L. Chao,

Secretary,

Department of Transportation

(Federal Aviation Administration),

Agency.

Appeal No. 0120171429

Agency No. 2016-27082-FAA-06

DECISION

Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 16, 2017, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, OCGA § 17-5-30. See Strickman, 253 Ga. at 288. This Court rejected the requirement of a specific nomenclature as "runes and sigils," Tuggle v. Tuggle, 251 Ga. 845 (310 SE2d 224) (1984), and looked at the plain language of OCGA § 5-7-1 (a) (4), holding that "evidence 'illegally seized' is seized illegally, whether its seizure violates the provisions of the Fourth Amendment, or, as in this case, laws and regulations respecting the Department of Public Safety." Strickman, 253 Ga. at 288. It then added the observation that the statute should be construed liberally as "remedial in nature." Id. More recent opinions of this Court, however, held that OCGA § 5-7-1 is to be construed strictly against the State. See, e.g., Andrade, 298 Ga. at 464, citing State v. Cash, 298 Ga. 90, 91 (1) (a) (779 SE2d 603) (2015). To the extent that the statement that OCGA § 5-7-1 is to be construed liberally may be considered a holding and not dicta, this Court's more recent statements impliedly overruled this portion of Strickman. See White v. State, ___ Ga. ___, slip op. at 20 n. 10, (Case No. S18G0365, decided Feb. 4, 2019) ("When a high court finds discordant opinions among its own horizontal precedents . . . [the court] generally follows its decision in the most recent case, which must have tacitly overruled any truly inconsistent holding") (Citations and punctuation omitted.). And, as we observed in Johnson v. State, 304 Ga. 369, 373 (2) (818 SE2d 601) (2018), the General Assembly in Ga. L. 2013, p. 222, §§ 3, 21 enacted OCGA § 5-7-6 ("This chapter shall be liberally construed to effectuate the purposes stated in this chapter") and made it applicable to offenses which occur on or after July 1, 2013.

2. We now turn to the trial court's ruling on appellees' motion to suppress. In reviewing such a ruling, we apply three fundamental principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. On numerous occasions the appellate courts of this state have invoked these three principles to affirm trial court rulings that upheld the validity of seizures. These same principles of law apply equally to trial court rulings that are in favor of the defendant.

(Citation and footnote omitted.) Miller v. State, 288 Ga. 286, 286-287 (1) (702 SE2d 888) (2010). In Miller, we further noted that this standard of review requires us to focus on the findings of fact made by the trial court in its order and the evidence supporting those findings, rather than other evidence gleaned from the record, construing it in favor of upholding the trial court's order. See id. at 289 (2).

The State asserts that a de novo standard of review must be applied here. However, as Miller explicitly notes, that standard is inapplicable to a trial court's findings of fact on disputed evidence or credibility issues. 288 Ga. at 287-288 (1).

While, as noted above, no Georgia authority addresses the question raised in this appeal, the Eleventh Circuit has established a substantial body of law on this issue, issuing more opinions on the question of unreasonable delay than any other federal circuit cited by the parties or the trial court. Though these decisions are not binding, this Court may consider them as persuasive authority. See Perez v. State, 283 Ga. 196, 198 (657 SE2d 846) (2008). We agree with the trial court that the analytical framework established by the Eleventh Circuit is reasonable, comprehensive, and thorough, and we adopt it for the analysis of this issue.

In Mitchell, supra, the Eleventh Circuit considered unreasonable delay in obtaining a search warrant, using as its starting point the United States Supreme Court's holding in United States v. Jacobsen, 466 U. S. 109 (104 SCt 1652, 80 LE2d 85) (1984), that "a seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment's prohibition on 'unreasonable searches.'" Id. at 124 (III), citing United States v. Place, 462 U. S. 696, 709 (III) (103 SCt 2637, 77 LE2d 110) (1983). From this, the Eleventh Circuit reasoned that

even a seizure based on probable cause is unconstitutional if the police act with unreasonable delay in securing a warrant. The reasonableness of the delay is determined in light of all the facts and circumstances, and on a case-by-case basis. The reasonableness determination will reflect a careful balancing of governmental and private interests.

(Citations, punctuation, and parenthetical omitted.) Mitchell, supra, 565 F3d at 1350-1351. Balancing the "substantial possessory interest" of the defendant in his computer hard drive against the fact that "there was no compelling justification for the [21-day] delay" in seeking a warrant for examination of its contents, the court concluded that the defendant's motion to suppress should have been granted and reversed the district court. Id. at 1352.

The Eleventh Circuit further elaborated on this analysis in Laist, supra, establishing a framework for balancing governmental and private interests under the "totality of the circumstances":

In the past, courts have identified several factors highly relevant to this inquiry: first, the significance of the interference with the person's possessory interest; second, the duration of the delay; third, whether or not the person consented to the seizure; and fourth, the government's legitimate interest in holding the property as evidence.

(Citations and parenthetical omitted.) 702 F3d at 613-614 (II). As the trial court noted, Laist and other decisions elaborate on these four factors, but "[g]iven the complex interactions of these factors, this balancing calculus is fact-intensive." Id. at 614 (II). The factors may overlap or be inapplicable to a particular case, depending upon the trial court's analysis of the totality of the relevant circumstances. Here, the trial court relied upon the Laist factors to complete this task. In reviewing the trial court's decision, we review its factual findings for clear error and its legal conclusions de novo. Kennebrew v. State, 304 Ga. 406, 409 (819 SE2d 37 (2018).

(a) Significance of interference with possessory interest.

The trial court noted that federal courts, in evaluating this factor, have considered the degree of possessory interest in the subject property, the duration of the delay as it affects that interest, and the efforts of defendants to secure the return of the items.

The State concedes that appellees have a substantial possessory interest in the electronic devices, given the significance of personal computers and similar devices, such as cell phones or tablets, as "unique possession[s] . . . in which individuals may have a particularly powerful possessory interest." Laist, supra, 702 F3d at 614 (II) (computer and hard drives); United States v. Burgard, 675 F3d 1029, 1034 (II) (B) (7th Cir. 2012) (cell phone). See also Riley v. California, 573 U.S. 373, 393-397 (III) (B) (1) (134 SCt 2473, 189 LE2d 430) (2014). Nor does the State contend that the length of the delay - approximately a year and a half - militates in its favor with respect to this factor. The State argues, however, that the trial court erred in finding appellees' demands for the return of their property "sufficiently robust" to prevent any diminishment of their interest in the property.

In Burgard, the Seventh Circuit observed,

[I]t can be revealing to see whether the person from whom the item was taken ever asserted a possessory claim to it - perhaps by checking on the status of the seizure or looking for assurances that the item would be returned. If so, this would be some evidence (helpful, though not essential) that the seizure in fact affected her possessory interests. [Cit.]

675 F3d at 1033 (II) (A).

The State asserts that no evidence in the record supports the trial court's finding. But this assertion overlooks the long-standing rule that, with regard to a hearing,

[a]ttorneys are officers of the court and a statement to the court in their place is prima facie true and needs no further verification unless the same is required by the court or the opposite party. . . . See also Rank v. Rank, 287 Ga. 147, 149 [(2)] ( 695 SE2d 13) (2010) ("In the absence of an objection, counsel's evidentiary proffers to the trial court during a hearing will be treated on appeal as the equivalent of evidence.")

(Citations, punctuation, and emphasis omitted.) Sherman v. City of Atlanta, 293 Ga. 169, 173-174 (4) (744 SE2d 689) (2013); see also Anthony v. State, 298 Ga. 827, 830 (2) (785 SE2d 277) (2016) (attorney's proffer not proper substitute for evidence when State objected and insisted on proof). The State neither objected nor offered opposing evidence at the hearing on June 23, 2017, when defense counsel stated that she had been seeking the return of the devices for a year and a half. Counsel made a similar statement at the hearing on appellees' motion to suppress, and while the State did not object to her statement, it did offer testimony from one witness, the original assistant district attorney, whose testimony - as the trial court noted - was not a positive denial that the request occurred but rather a lack of recollection. The State did not call any other witness to testify that no such request occurred. In addition, the unsuccessful inquiry by Detective Thompson to the property and evidence room on March 23, 2017 was made only a few days after the March 16 hearing on the motion to recuse, one of the occasions on which appellees' counsel stated that she requested return of the devices. Some evidence of appellees' demands therefore was presented, sufficient to avoid diminishing their possessory interest. Moreover, as Laist notes, even if a possessory interest was diminished, "the Fourth Amendment still obligated the [State] to diligently obtain a warrant. [Cit.]" 702 F3d. at 616 (II).

While the State argues that we can infer from other portions of this witness' testimony that defense counsel made no demand, in reviewing the trial court's order we look to the findings in that order, not other evidence, and we do not revisit the credibility judgments of the trial court. Miller, supra, 288 Ga. at 286-287 (1).

(b) Duration of delay.

The trial court found that the duration of the delay in this case "weighed strongly in favor of the Defendants." Here, the delay between seizure of the devices and searches of their contents pursuant to the warrants was significantly longer than the delay in cases decided by the Eleventh Circuit and cases from other circuits upon which the Eleventh Circuit and the trial court relied. The State in its appellate brief cites several additional cases, but none involved so lengthy a delay, and the circumstances underlying the delays differ substantially from those presented in the case before us. Moreover, in each of those cases, the trial court made the fact-specific determination that the delay was reasonable. In contrast, in cases involving no earlier warrant, consent, or agreement under a probation order, and no other extenuating factors such as complexity of investigation, lack of manpower, or other showing of police diligence justifying delay, the delay complained of is measured in days or weeks - rather than months.

Decisions cited by the trial court in addition to Mitchell, supra, 565 F3d at 1351 (finding Fourth Amendment violation where delay was 21 days), and Laist, supra, 702 F3d at 613 (II) (no violation where delay was 25 days), include Burgard, supra, 675 F3d at 1030 (same, six days); United States v. Stabile, 633 F3d 219, 235 (III) (A) (3) (3rd Cir. 2011) (same, three months); United States v. Martin, 157 F3d 46, 54 (II) (B) (2nd Cir. 1998) (same, 11 days); United States v. Mayomi, 873 F2d 1049, 1054 (II) (7th Cir. 1989) (same, 48 hours). See also United States v. Morgan, 713 Fed. Appx. 829 (11th Cir. 2017) (17 days); United States v. Brooks, 648 Fed. Appx. 791 (11th Cir. 2016) (ten months); United States v. Sparks, 806 F3d 1323 (11th Cir. 2015) (23 days); United States v. Calixte, 591 Fed. Appx. 929 (11th Cir. 2015) (11 months); United States v. Shaw, 531 Fed. Appx. 946 (11th Cir. 2013) (three months); United States v. Emanuel, 440 Fed. Appx. 881 (11th Cir. 2011) (34 days); United States v. Whaley, 415 Fed. Appx. 129 (11th Cir. 2011) (indeterminate but approximately three months); United States v. Vallimont, 378 Fed. Appx. 972 (11th Cir. 2010) (45 days).

In United States v. Gregoire, 638 F3d 962 (8th Cir. 2011), a laptop was searched one year after its seizure, but was seized pursuant to a warrant that specifically authorized the seizure of "financial records . . . and all computers on the property." The Eighth Circuit agreed with the district court that this warrant "clearly contemplates at least a limited search of the computer's contents without the need of a second warrant." (Punctuation omitted.) Id. at 967-968 (I) (A). In United States v. Howe, 545 Fed. Appx. 64 (2nd Cir. 2013), affirming the district court's denial of the defendant's motion to suppress, the police officer swore out an application for a state search warrant the day after seizing the computer but did not obtain the federal warrant until 13 months later. In United States v. Christie, 717 F3d 1156 (10th Cir. 2013), the Tenth Circuit affirmed the district court, holding inter alia that a five-month delay was reasonable because the computer was seized with the consent of the defendant's husband and the defendant did not object. And in United States v. Phillips, 2017 U.S. Dist. LEXIS 199720 (E.D. Mo. Nov. 6, 2017), a magistrate judge determined that Phillips, a federal probationer, had consented to various conditions of probation, including permitting the search of his computers and informing his probation officer of the acquisition of any computers or electronic equipment, including cell phones. After Phillips reoffended, concurrent state and federal investigations were opened. The magistrate considered that the "seven-week period between the seizure and the subsequent search by state law enforcement officials, and a six-week period between the receipt of the phones by federal agents and their application for a federal search warrant," was not unreasonable delay under the circumstances. Id. at 31-32.

The State claims that the trial court erred in "tucking away" the analysis of the State's conduct into the Laist delay factor. That contention is without merit. The trial court considered the State's conduct both in its analysis of delay and at the conclusion of its analysis. In addition, the Eleventh Circuit in Laist was not as methodical in its approach as the trial court was in the order before us, and it followed no strict sequence in its consideration of the four factors, once it outlined them. But it is apparent that the Laist court considered the diligence of the police in the context of possible factors contributing to the delay in obtaining a warrant - including the scope of the investigation and complexity of the warrant, the personnel available, and conflicting demands on the investigators' time, see 702 F3d at 614 (II) - and concluded that the delay was not caused by lack of diligence on part of the police. See id. at 617 (II).

Here, in contrast, the State made no showing of particular complexity, difficulty in drafting the warrant, or competing demands on a limited number of officers. Instead, the trial court found multiple errors, failures, and oversights on the part of the State with respect to investigating or even accounting for the devices. Despite the specific listing of each device in the property booking sheets attached to separate reports by Officer Butera and Detective Harrison, which Detective Thompson acknowledged he had in his file but did not read, and despite requests by appellees and at least one direct request to the property and evidence room, police "inexplicably" did not find the devices in their own property and evidence room until after the May 23, 2017 hearing, although the devices had been there since the time of appellees' arrest in 2015. The trial court's conclusion that "the State did not diligently pursue its investigation as it relates to the content of these devices" is amply supported by the record.

(c) Consent or lack of consent to the seizure.

The State asserts that "the trial court properly found that this factor was irrelevant to this analysis, as Appellees did not consent to the seizure," and appellees do not argue this point.

Consent to a search could, on the one hand, affect the calculation of the period of delay, see, e.g., Laist, 702 F3d at 616 (II), or diminish a party's possessory interest in the property. Id. at 618 (II), citing United States v. Stabile, 633 F3d 219, 235 (III.A.3) (3rd Cir. 2011) ("[W]here a person consents to search and seizure, no possessory interest has been infringed because valid consent, by definition, requires voluntary tender of property." (Footnote omitted)). But it also seems likely that a complete lack of consent, rather than a revocation of consent after a period of time, as in Laist, could be weighed in favor of a defendant, just as the giving of consent is weighed in favor of the government. Here, the trial court considered appellees' requests for return of their property in the context of their possessory interest.

(d) The State's legitimate interest in holding the property as evidence.

The State agrees with the trial court that "this factor weighs strongly in favor of the State," and appellees do not address this point.

(e) Conclusion.

In its conclusion, the trial court balanced all these factors, finding:

There was a significant interference with Defendants' possessory interests in their property over the course of the 539-day delay it took for the State to begin to examine it. This delay did not result from the complexities of the case nor any overriding circumstances, but from oversights that caused the State not to pursue their investigation into the contents of the devices with sufficient diligence. While the State's interest in holding Defendants' property as evidence is very high, this Court finds that there was an unreasonable delay between the seizure of their property and the issuance of search warrants and that this delay violated Defendants' Fourth Amendment rights.

"Here, the totality of the circumstances confirms the [trial] court's well-reasoned conclusion." Laist, supra, 702 F3d at 618-619.

The State also complains of the trial court's factfinding on three additional points, claiming cumulative error. None of those points are directly pertinent to the trial court's decision. The State first complains that the trial court erred in finding that "[o]n May 23, 2017, formally and on the record during a hearing, Defendants requested the return of their property," because the transcript of that hearing does not contain such a request. No decision, however, requires that a defendant's request for the return of property be made formally and on the record during a hearing. Such a request may be made by letter, Laist, supra, 702 F3d at 611 (I) (A), or even by merely "checking on the status of the seizure or looking for assurances," Burgard, supra, 675 F3d at 1033 (II) (A). Moreover, an investigator for the DeKalb County district attorney's office testified that she was present at the hearing on May 23, 2017, when "defense counsel asked us if she could have her clients' cell phones and computers back." In addition, appellees filed a motion seeking return of their property on June 23, 2017. Second, the State complains that the trial court incorrectly found that "[Investigator] Lucas asked [Detective] Thompson to take a second look for the devices," while it was actually Investigator Lucas who instituted the search. However, even assuming that the question of which State actor eventually contacted the property and evidence room is at all relevant, the testimony of Investigator Lucas that she "spoke with Detective Thompson and eventually got to the point where [she] spoke with someone at Henry County police property, and they were able to confirm that they did have those items" is not inconsistent with the trial court's findings. Finally, the State complains of the trial court's finding that the State, as of the time of the trial court's order, was "still unable to recover the records from the Defendants' computer," even though the prosecutor declared at a January 9, 2018 hearing that defense counsel had been provided with a disc containing an "in case view" and "mirror image" of the data. But at the hearing on the motion to suppress, Investigator Lucas' successor testified that the computer was given to another investigator to extract the data, and that "he may still be working on it, to be honest." This provides some evidence to support the trial court's finding.

3. The State asserts that the trial court should have denied the motion to suppress, even if the search warrants were invalid, because the officers sought the warrants in good faith. This Court has held, however, that OCGA § 17-5-30 precludes application of the Leon good-faith exception in Georgia. See Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992). The State urges, as it did in the trial court, that Gary should be overruled and we should recognize the good-faith exception established by federal case law in Leon, supra, 468 U. S. at 913-919 (III), and its progeny. But the circumstances here are not like those in Leon, in which officers acted in objectively reasonable reliance on a neutral magistrate's determination of probable cause pursuant to an affidavit providing some evidence thereof. Id. at 926 (IV). Nor is this a situation such as that presented in Herring v. United States, 555 U. S. 135 (129 SCt 695, 172 LE2d 496) (2009), in which officers obtained evidence in "objectively reasonable reliance" on an arrest warrant from another county, unaware that the warrant had been recalled because the neighboring county sheriff's database still showed it as active. Id. at 146 (II) (B) (4).

The circumstances here more closely resemble those in Burgard, supra, in which the Seventh Circuit determined that the Leon good-faith exception would not apply to an unreasonable delay in obtaining a search warrant, observing that "[a] well-trained officer is presumed to be aware that a seizure must last no longer than reasonably necessary for the police, acting with diligence, to obtain a warrant. When police fail to act with such diligence, exclusion will typically be the appropriate remedy." (Citation and punctuation omitted.) 675 F3d at 1036 (III). The Seventh Circuit also noted:

Furthermore, removing this sort of police misconduct from the ambit of the exclusionary rule would have significant implications: it would eliminate the rule's deterrent effect on unreasonably long seizures. Police could seize any item—a phone, a computer, a briefcase, or even a house—for an unreasonably long time without concern for the consequences, evidentiary and otherwise.

Id. at 1035 (III).

The State has cited no decision allowing a good-faith exception to a seizure determined to be unreasonably long in circumstances similar to those in Burgard or in the case before us, where the facts of the case call reasonable reliance and diligence into question. Therefore, even if we decide to revisit Gary at some point, this is not the case in which to undertake that analysis.

We note that this Court has recently granted a petition for certiorari in which we have asked the parties to address whether the Court should continue to follow Gary. See Mobley v. State, S18C1546 (cert. granted Mar. 4, 2019.) --------

Judgment affirmed. All the Justices concur.