GEORGIA CLARIFIES CELL PHONE PRIVACY

  

This may be my 2nd or 3rd column dealing with police searches of cell phones. I suppose that I have written about cell phones because we all have one and they possess a tremendous amount of information about us and other people.
You may remember that I previously wrote about the landmark US Supreme Court case of Riley v. California that dealt with cell phone searches. Then, the Court declared that police almost always need a warrant to search a cellphone.
Recently, the Georgia Court of Appeals issued its first opinion following the Supreme Court’s opinion by excluding allegedly sexually explicit images of minors obtained from a defendant's cellphone. (Of course, there is never any excuse for someone to have these sort of pictures in their possession in the first place. However, this case deals with all people and with all personal information on their phones.)
The case began as a DUI investigation and turned into a felony prosecution. At 2 a.m. on Dec. 30, 2012, Daniel Brown drove his vehicle into the path of oncoming traffic and forced an unmarked police car off the road.
The Athens-Clarke County police officer stopped Brown and questioned him, later saying Brown smelled of alcohol, had slurred speech and had bloodshot, glassy eyes. Brown also admitted he had been drinking alcohol.
After a second officer arrived in a patrol car to assist, Brown was arrested and confined to the back of the patrol car. The second officer sat in the front seat of the patrol car with Brown's cellphone beside him. It rang repeatedly, and Brown asked the officer to answer the phone. However, the officer just let it ring.
The officer eventually decided to pick up the phone and look through its picture application. He later explained that he was looking to see if there were any evidence that showed Brown drinking prior to the stop, while acknowledging that he had never looked for or found evidence of DUI on a driver’s phone before. He looked at about 10 to 12 images and stumbled on the illegal pictures at issue in the case.
Based on those images, a detective obtained a search warrant to look on the phone for evidence of a crime. A forensics examiner executed the warrant and found images that formed the basis for 12 felony offenses.
Brown filed a motion to suppress evidence seized from his phone. Last year, before the U.S. Supreme Court had issued its cellphone ruling, the trial court denied the motion.
Brown appealed the decision.
Think back to June 2014. The United States Supreme Court issued its groundbreaking ruling in Riley. Chief Justice John Roberts, generally considered to be a conservative, rejected prosecutors' argument that warrantless searches were needed to prevent evidence destruction, writing that cellphones "hold for many Americans 'the privacies of life.”
The Georgia Court of Appeals followed the line of thinking in Riley by reversing the trial court and throwing out all of the evidence found on Brown’s cell phone.
Justice Ellington of the Georgia Court of Appeals said, "allowing this evidence to be admitted at Brown's trial would be inconsistent with fairness and the even-handed administration of justice. In light of Riley, doing so would treat similarly situated defendants differently."
Ellington added that “The search of Brown's phone was a ‘fishing expedition,’ given the officer had no specific reason to believe Brown used his phone to take pictures that would corroborate the DUI arrest.”
The bottom line is that in Georgia exceptions to the rule requiring a warrant to search a cellphone will be very limited.
While the defendant may have avoided a serious felony prosecution here (he still faces a DUI prosecution), the most important aspect of this case is how it affects our community as a whole.
The vast majority of Georgians do not have anything illegal on their cell phones. However, as our Founding Fathers felt, many of us do not want government intrusion into our personal property, homes, and other effects without probable cause that a particular crime has been committed.