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Maria Ramirez

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1. MOBLEY v. STATE, 2019 GA S. Ct. Briefs LEXIS 250

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Maria Ramirez

MOBLEY v. STATE

No. S18G1546

Supreme Court of Georgia

April 24, 2019

Reporter 2019 GA S. Ct. Briefs LEXIS 250 *

VICTOR MOBLEY, Appellant, v. THE STATE, Appellee.

Type: Brief

Prior History: On Writ of Certiorari to the Court of Appeals of Georgia in A18A0500.

Counsel

[*1] BRANDON A. BULLARD, Ga. Bar No. 109207, JAMES C. BONNER JR., Ga. Bar No. 067400, APPELLATE DIVISION, Georgia Public Defender Council, Atlanta, Georgia, MARGARET E. BULLARD, Ga. Bar No. 815530, PUBLIC DEFENDER'S OFFICE, Atlanta Judicial Circuit, Atlanta, Georgia, Counsel for Appellant.

Title

Brief of Appellant

Text

STATEMENT OF THE CASE

This case involves the admissibility at trial of data downloaded from the airbag-control module of Appellant Victor Mobley's car. 1

[*2]

Crash & Warrantless Download of Data

Police downloaded the data without a warrant at the scene of a crash wherein Mobley had struck another car, killing its driver and passenger. (T. 7-8, 18, 35, 39-40, 130-31; see R. 5-6; T. 41.) To download the data, police entered the cabin of Mobley's car and attached a cable to its diagnostic port. (T. 9-11, 49-50, 58-59.)

The data revealed, among other things, the precise speed that Mobley's car was traveling just before the crash (97 miles per hour). (T. 18.) Before downloading it, the police believed that Mobley had been traveling at 45-50 miles per hour, which would have supported a charge of second-degree vehicular homicide. (T. 35, 39, 46); seeOCGA § 40-6-393(c). Relying on the downloaded data, however, the police charged Mobley with first-degree vehicular homicide. (R. 5; T. 15-18, 130-31); seeOCGA § 40-6-393(a). The next day, the police applied for and received a warrant to remove the airbag-control module from Mobley's car on the basis that it would disclose evidence to support the charge of first-degree vehicular homicide. (T. 8-10, 12, 14-15, 130-31); seeOCGA § 40-6-393(a).

1 An airbag-control module is a type of event-data recorder. The Court of Appeals referred to it as an ACM. See Mobley v. State, 346 Ga. App. 641, 641 n.1. (2018). The record also refers to the same device as an electronic-control module or ECM. See id. And the opinions of other courts refer to the device as a black box. See California v. Diaz, 213 Cal. App. 4th 743, 752 (Cal. Ct. App. 2013);Florida v. Worsham, 227 So. 3d 602, 605 (Fla. Ct. App. 2017),cert. denied, 138 S. Ct. 264 (2017). For convenience, this brief uses airbag-control module throughout.

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Though police removed the [*3] airbag-control module from Mobley's car, they did not download the data from it a second time. (T. 26.)

Motion to Suppress & Bench Trial

Mobley moved to exclude the data from evidence as having been the fruit of an unlawful warrantless search under the Fourth Amendment. (R. 51-52.) The Superior Court overruled Mobley's motion, concluding that, regardless of whether police had unlawfully obtained the data, the inevitable-discovery exception to the exclusionary rule would have allowed it in evidence. 2 (R. 87-89.) Mobley was convicted at a bench trial on stipulated facts and sentenced in the aggregate to 15 years (7 to serve). (R. 90.) 3

[*4]

Opinion Below

The Court of Appeals affirmed Mobley's convictions. Mobley v. State, 346 Ga. App. 641 (2018). The lead opinion concluded that Mobley had no reasonable expectation of privacy in the airbag-control module data, so there was no search. Id. at 644-46. The first concurrence agreed that no search had occurred but concluded that the panel need not have reached that question because the Superior Court was right about the inevitable-discovery exception. Id. at 647-51 (Dillard, J. concurring). The second did not reach the search question at all, having concluded, as did the first concurrence, that the inevitable-discovery exception would have permitted admission of the data in any event. Id. at 652 (Doyle, J. concurring).

Questions Presented Mobley petitioned for a writ of certiorari, which this Court granted, 4 posing these questions: 5

I. Did the search and seizure of the airbag-control module violate the Fourth Amendment?

II. If so, was the evidence obtained admissible under the inevitable-discovery exception to the exclusionary rule as a matter of federal constitutional [*5] law?

III. If so, did § 17-5-30, as construed by this Court inGary v. State, 262 Ga. 573 (1992), preclude admission of the evidence?

IV. And if so, should this Court continue to followGary in construing § 17-5-30?

ARGUMENT

I. Downloading the data from the airbag-control module in Mobley's car was a search because it violated Mobley's property rights and privacy expectations.

The Fourth Amendment "right … to be secure in [one's] perso[n], hous[e], papers, and effects, against unreasonable searches," U. S. Const. Amend. IV, embraces two interrelated sets of interests: property and privacy. See United States v. Jones, 565 U.S. 400, 406-07 (2012); [*6] see also Byrd v United States, 138 S. Ct. 1518, 1526 (2018) (explaining that Fourth Amendment protections for privacy "supplement[ed], rather than displace[d], 'the traditional property-based understanding of the Fourth Amendment'" (quoting Florida v. Jardines, 569 U.S. 1, 11 (2013)). Thus police conduct a Fourth Amendment search when (A) they trespass into a constitutionally protected space, even if the information gathered there was not private. Jones, 565 U.S. at 410. Police also conduct a Fourth

2 The inevitable-discovery exception to the exclusionary rule persists in Georgia notwithstanding this Court's opinion in Gary v. State, 262 Ga. 573 (1992), that the suppression statute, § 17-5-30, permits no exceptions to the exclusionary rule.

3 The electronic record on file in this Court does not reflect that the transcript from Mobley's bench trial was sent up. Nothing in that transcript is necessary to decide the questions presented, however.

4 This Court has jurisdiction under Article VI, § VI, P V of the Georgia Constitution of 1983 to review "by certiorari cases in the Court of Appeals which are of gravity or great public importance."

5 This Court granted Mobley until April 24 to file his brief. A copy of this Court's order is attached.

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Amendment search when (B) they gather certain private information, even if they did not have to trespass to do so. See Carpenter v. United States, 138 S. Ct. 2206, 2216-19 (2018). It goes without saying that the police conduct a Fourth Amendment search when they do both (trespass and gather private information) at the same time. See Jones, 565 U.S. at 413-18 (Sotomayor, J. concurring).

The police here did both when they downloaded data from the airbag-control module in Mobley's car. To download the data, the police (A) had to physically intrude into Mobley's car and attach a cable to its diagnostic [*7] port. (T. 49, 58-59; see T. 9-10, 50.) And (B) the data that the police downloaded, which depict Mobley's movement and actions within the car immediately before the crash, were of the type in which Mobley "exhibited an actual expectation of privacy … that society is prepared to recognize as reasonable." Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J. concurring); see Florida v. Worsham, 227 So. 3d 602, 604-07 (Fla. Ct. App. 2017),cert. denied, 138 S. Ct. 264 (2017).

A. Downloading the data was a search because police trespassed into a constitutionally protected space to get it.

The police engage in a Fourth Amendment search when they trespass-physically intrude upon-a constitutionally protected area (one's person, house, papers, or effects). 6 Jones, 565 U.S. at 407;see Collins v Virginia, 138 S. Ct. 1663, 1671-73 (2018);see also Jardines, 569 U.S. at 7-10. That a car is an effect and that its interior is a constitutionally protected area are beyond cavil. Jones, 565 U.S. at 404;New York v. Class, 475 U.S. 106, 114-15 (1986). [*8] The only question is whether connecting a cable from the crash-data-retrieval unit to the diagnostic port inside Mobley's car was a trespass. It was.

Even a minor physical intrusion into a private [*9] space is a trespass, and thus a search if done by the police. See Jones, 565 U.S. at 404-05. In Jones, police installed a GPS tracking device into the undercarriage of the defendant's Jeep. Id. at 403. That "physica[l] occup[ation of] private property for the purpose of obtaining information," the Court explained, would "no doubt … have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted." Id. at 404-05.

So too would have been the physical intrusion into Mobley's car. 7 That intrusion was no less a trespass into Mobley's car than the attachment of a GPS device to the Jeep in Jones. It was thus no less a Fourth Amendment search. See Missouri v. West, 548 S. W. 3d 406, 417-18 (Mo. Ct. App. 2018) (holding attaching a cable inside a car to obtain airbag-control-module data was a search under a trespass rationale). And there is no crime-scene exception to the Fourth Amendment. Flippo v. West Virginia, 528 U.S. 11, 13-14 (1999);Mincey v. Arizona, 437 U.S. 385, 395 (1978). [*10]

B. Downloading the data was a search because it violated Mobley's reasonable expectation of privacy.

Even without the physical trespass into Mobley's car, the police would still have violated the Fourth Amendment by downloading the airbag-control-module data. That is because, in addition to property rights, the Fourth Amendment

6 The Court of Appeals' lead opinion considers only whether downloading the data through the diagnostic port inside Mobley's car was a privacy-rationale search. Mobley v. State, 346 Ga. App. 641, 644-47 (2018). The only reference to its being a property-rationale search was in Chief Judge Dillard's concurrence, where it remained undeveloped. Id. at 650-51. Mobley, however, argued both rationales in the Superior Court. (T. 81-91, 102.) And this Court did not limit its inquiry on certiorari to the privacy rationale. See State v. Royal, 247 Ga. 309, 312 (1981) ("While ordinarily this court, in granting certiorari, does not undertake to dispose of issues not reached by the Court of Appeals in its decision, it is not precluded from doing so" (internal citation omitted)).

7 The car was registered to Mobley's wife, not to Mobley himself. (T. 7, 16.) But, even "[i]f [Mobley] was not the owner he had at least the property rights of a bailee. … [A]nd the [State did] not challeng[e]" below whether Mobley had standing to raise a Fourth Amendment objection. United States v. Jones, 565 U. S. 400, 404 n.2 (2012). In any event, a driver in lawful possession and control of a car generally has Fourth Amendment standing to challenge a search. See Byrd v. United States, 138 S. Ct. 1518, 1528-29, 1531 (2018).

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protects what one "'seeks to preserve … as private,' [if that] expectation of privacy is 'one that society is prepared to recognize as reasonable.'" Carpenter, 138 S. Ct. at 2209 (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)).

The perimeter of protected privacy is not regular, but it is not undeterminable.

Although no single rubric definitively resolves which expectations of privacy are entitled to protection, the analysis is informed by historical understandings of what was deemed an unreasonable search and seizure when the Fourth Amendment was adopted. On this score, our cases have recognized some basic guideposts. First, that the Amendment seeks to secure the privacies of life against arbitrary power. Second, and relatedly, that a central aim of the Framers was to place obstacles in the way of a too [*11] permeating police surveillance.

Id. at 2213-14 (cleaned up). 8

The Fourth Amendment's privacy protections have been the subject of many recent opinions. Technology has empowered police to surveil us in ways that were unimagined 20 years ago and unimaginable at the Founding, cellphones and GPS being the most noteworthy. All the while the Supreme "Court has sought to 'assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.'" Id. at 2206 (quoting Kyllo v. United States, 533 U.S. 27, 34 (2001)). So five years ago, the Court recognized that the Fourth Amendment protects the contents of modern cellphones-both smart and otherwise. Riley v. California, 573 U. S. 373, 393, 397-98, 403 (2014). And last year, it recognized that the Fourth Amendment protects data revealing an individual's location at particular [*12] times-even though the individual's cellphone communicated that data to a third party. Carpenter, 138 S. Ct. at 2217-19. At the core of the former holding were cellphones' ubiquity and their capacity, "[w]ith all they contain and … may reveal, [to] hold for many Americans 'the privacies of life.'" Riley, 573 U.S. at 403 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). At the core of the latter holding was individuals' "reasonable expectation of privacy in the whole of their physical movements." Carpenter, 138 S. Ct. at 2217;see Jones, 565 U.S. at 430 (Alito, J. concurring).

The airbag-control module in Mobley's car lies at the intersection of those two concerns. Like cellphones, airbag- control modules are "minicomputers." Riley, 573 U.S. at 393. Like cellphone location information, the information that an airbag-control module collects implicates a driver's physical movements both on and off the public roadways. See Carpenter, 138 S. Ct. at 2217;Jones, 565 U.S. at 430 (Alito, J. concurring). When a crash happens, they record information [*13] about the car's operation immediately beforehand, including

. Speed;

. Engine speed;

. Brake status;

. Throttle position;

. Engine revolutions;

. Driver's seatbelt status;

. Brake switch status;

. The time from maximum deceleration to impact;

. The time from vehicle impact to airbag deployment; and

. Diagnostic information on the car's systems.

Mobley, 346 Ga. App. at 644;see49 CFR §§ 563.7 and 563.9.

8 See Jack Metzler, Cleaning Up Quotations, 18 J. APP. PRAC. & PROC. 143, 155-56 (2017).

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The lead opinion below disagreed on those points. It concluded that, though the data collected by the airbag-control module was more precise than what an outside observer could see, Mobley had "no reasonable expectation of privacy in such information because an [he] knowingly expose[d it] to the public." Mobley, 346 Ga. App. at 646;accord California v. Diaz, 213 Cal. App. 4th 743, 757 (Cal. Ct. App. 2013);see also United States v. Knotts, 460 U.S. 276, 281-82 (1983) (noting that "[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another). The lead opinion's conclusion [*14] might have been different, it said, had Mobley's airbag-control module collected GPS data or if it recorded information on a long-term basis. Mobley, 346 Ga. App. at 646-47. But Mobley's airbag-control module did not, so the lead opinion determined that Mobley had no reasonable expectation of privacy in its data.

In reaching that conclusion, however, the lead opinion disregarded the Fourth Amendment concerns that animated the decision in Carpenter: "secur[ing] 'the privacies of life' against 'arbitrary power' … and … 'plac[ing] obstacles in the way of a too permeating police surveillance.'" 138 S. Ct. at 2206 (quoting Boyd, 116 U.S. at 630 and United States v. Di Re, 332 U.S. 581, 595 (1948)). Even if Mobley's airbag-control module data expressed (if more precisely) information that Mobley knowingly exposed to the public, there was no member of the public there to observe it. Unregulated access to airbag-controlmodule data is equivalent to placing police officers at regular intervals along every stretch of road in the State. In no other way could the police reliably obtain the information from nearly every [*15] crash as airbag-control modules now allow them to. See Worsham, 227 So. 3d at 605 (noting that "[a]pproximately 96% of cars manufactured since 2013 are equipped with event data recorders"). Assuring the preservation of that degree of privacy against government that existed at the Founding would require an obstacle between the people and so permeating a police surveillance. That obstacle is the Fourth Amendment.

Further to the point, Congress has recognized an individual's expectation of privacy in the contents of an airbag- control module. The Driver Privacy Act of 2015 makes "[a]ny data retained by an [airbag-control module] … the property of the [car's] owner, or, … lessee" as a matter of federal law. 49 USC § 30101 note sec. 24302(a) (2015). Under the Act, "[d]ata recorded or transmitted by an [airbag-control module] … may not be accessed by [anyone] other than an owner or a lessee … unless, [relevant here,] … a court or other judicial or administrative authority having jurisdiction … authorizes the retrieval of the data [or] … [the] owner or a lessee … provides … consent ...." Id. at (b).

Admittedly, [*16] the Driver's Privacy Act may cut both ways. On the one hand, one could perceive the statute's passage as a ratification of the Fourth Amendment interest, as did the panel majority of Florida's Fourth District Court of Appeals. Worsham, 227 So. 3d at 607. On the other hand, one could perceive the statute as having created an additional right beyond the Fourth Amendment's, as did one judge of the Florida court in dissent. Id. at 611 (Forst, J. dissenting); see generally Jones, 565 U.S. at 427-30 (Alito, J. concurring) (noting that Congress did not leave issues of wiretapping law to courts in the wake of Katz and that "[i]n circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative").

There is reason to credit the former view, however. Some scholars and Justices have suggested that positive law may inform individuals' Fourth Amendment rights. See, e.g., Carpenter, 138 S. Ct. at 2265-66, 2268, 2270-71 (Gorsuch, J. dissenting); William Baude & James Y. Stern, The Positive Law Model of the Fourth Amendment, 129 HARV. L. REV. 1821, 1831-33 (2016); [*17] Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV. 503, 516-19 (2007). The Court often looks to enacted law to aid in its interpretation of other constitutional provisions. See, e.g., Ruckleshaus v. Monsanto Co., 467 U. S. 986, 1001-03 (1984) (takings clause). And the Court has looked to federal law in the past to determine whether certain expectations of privacy were reasonable. See Florida v. Riley, 488 U.S. 455, 451 & n.3 (1989);California v. Ciraolo, 476 U.S. 207, 213 (1986).

In any event, the Driver Privacy Act is not dispositive. What is dispositive is that to obtain the data from Mobley's airbag-control module police had to both trespass into the interior of his car and violate his reasonable expectation of privacy. The satisfaction of either condition makes what the police did here a search. Because downloading the data was a search, it was unreasonable (and prohibited by the Fourth Amendment) if done without either a warrant or an exception to the warrant rule. See Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971). It is undisputed that the police downloaded [*18] the data from Mobley's airbag-control module without a warrant. (T. 9.) And

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neither the Superior Court nor the Court of Appeals held that any exception to the warrant rule applied. (R. 87-89.) Mobley, 346 Ga. App. at 641-42 (lead opinion), 647-51 (Dillard, J. concurring), 651-52 (Doyle, J. concurring).

II. The inevitable-discovery exception did not apply because the State did not prove that the airbag-control module data would have been lawfully discovered.

When a search violates the Fourth Amendment, the federal exclusionary rule generally bars States from introducing the fruits of that search at trial. See Mapp v. Ohio, 367 U.S. 643, 654-55 (1961). The federal exclusionary rule is not absolute, though. The rule's purpose is "to deter police misconduct." United States v. Leon, 468 U. S. 897, 916 (1984). It has no application to evidence untainted by an unlawful search. See Wong Sun v. United States, 371 U.S. 471, 484-86 (1963);Silverthorne Lumber Company Co. v. United States, 251 U. S. 385, 391-92 (1920). And it includes exceptions that limit its application to its deterrent purpose. [*19] See Herring v. United States, 555 U.S. 135, 140-43 (2009). So a State may introduce challenged evidence if, for instance, it can prove

. Attenuation: "That the connection between unlawful conduct and the discovery of evidence is sufficiently attenuated to dissipate the taint," Utah v. Strieff, 136 S. Ct. 2056, 2062 (2016) (cleaned up);

. An independent source: That the challenged evidence was also the lawful product of an independent source, free from the constitutional taint, see Murray v. United States, 487 U. S. 533, 538-41 (1988);

. Good faith: That in conducting the search the police reasonably relied in objective good faith on, among other, things, what they believed to be a lawfully issued and valid warrant, Leon, 468 U.S. at 922-24; a warrant that, though quashed, was maintained in records by clerical error, Arizona v. Evans, 514 U.S. 1, 10-16 (1995); a warrant from another jurisdiction that, though recalled, was negligently maintained in police records, Herring, 555 U.S. at 143-47; a statute authorizing the search, though it is later invalidated [*20] Illinois v. Krull, 480 U.S. 340, 349-55 (1987); or thenbinding judicial precedent authorizing the search, though that precedent is later overturned, Davis v. United States, 564 U.S. 229, 239-41 (2011); or

. Inevitable discovery: Relevant here, that the fruits of the unlawful search "ultimately or inevitably would have been discovered by lawful means," Nix v. Williams, 467 U.S. 431, 444 (1984).

A. The inevitable-discovery doctrine did not apply because police did not have and were not pursuing a warrant when they conducted the unlawful search.

Before the inevitable-exception to the exclusionary rule will permit the introduction of the fruits of an unlawful search, a State must prove that the challenged evidence "would have been discovered in a lawful manner, had the prior illegality not occurred, by virtue of ordinary investigations of evidence or leads already in their possession." United States v. Brookins, 614 F. 2d 1037, 1048 (CA 5 1980);accord Taylor v. State, 274 Ga. 269, 274-75 (2001) (adopting the inevitable-discovery test enunciated in Brookins from Eleventh Circuit opinions [*21] that followed it). The State must further show that "police … were … actively pursu[ing those leads] prior to the occurrence of the illegal conduct." United States v. Terzado-Madruga, 897 F. 2d 1099, 1114 (CA 11 1990);accord Teal v. State, 282 Ga. 319, 326 (2007).

That police already have in their possession and were actively pursuing the leads that would have led to the challenged evidence is key. Otherwise, police could always dodge suppression either by securing a warrant after the fact or claiming that they would have done so. See United States v. Virden, 488 F. 3d 1317, 1322-23 (CA 11 2007).

Because a valid search warrant nearly always can be obtained after the search has occurred, a contrary holding would practically destroy the requirement that a warrant for the search of a home be obtained before the search takes place.

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United States v. Satterfield, 743 F. 2d 827, 846 (CA 11 1984) (emphasis original), superseded on other grounds by statute, 18 USC § 3664(f)(1)(A), as recognized in United States v. Edwards, 728 F. 3d 1286, 1292 (CA 11 2013). [*22]

So in Satterfield, the exception did not apply to a shotgun found during the unlawful search on the theory that it would have been found under authority of a warrant that the police did not have and were not pursuing when the unlawful search occurred. Id. at 846. And in Virden, the inevitable-discovery exception did not apply to drugs, the discovery of which was the result of a dog sniff made possible by the defendant's unlawful detention. 488 F. 3d at 1323-24.

Similarly, the police here did not have and were not pursuing the warrant for Mobley's airbag-control module when the unlawful search occurred. The police downloaded the data from Mobley's airbag-control module at the scene of the crash-a day before they applied for a warrant. (T. 9, 14-15, 20, 130-31.) The magistrate court was open. (T. 39- 40.) But the police did not believe that they needed a warrant to download the data at the scene. (T. 29-30, 39, 50.) On-scene downloads were the unwritten SOP when this crash happened, though police would get warrants later. (T. 27, 29-30, 36; see T. 31, 38, 40, 50.)

What is more, the warrant that the police eventually got was based, at least in [*23] part, on data already unlawfully downloaded from the airbag-control module. Before the unlawful download, the police believed that Mobley was traveling at 45-50 miles an hour in a 45-mile-per-hour zone when the decedents' car pulled out in front of him. (T. 35, 39-40, 46.) On that belief, the police would have charged Mobley with second-degree vehicular homicide. (T. 18.) SeeOCGA § 40-6-393(c). Only the data unlawfully downloaded from Mobley's airbag-control monitor led police to believe that he had been traveling 97 miles an hour. (T. 18.) It was that belief that led the police to charge Mobley with first-degree vehicular homicide. (T. 18.) SeeOCGA § 40-6-393(a). When police sought a warrant for Mobley's airbag-control module, they did so on suspicion of first-degree vehicular homicide. (T. 17-19, 130-31.)

The police testified that they got the warrant based on their experience, that they would have gotten a warrant had they not been able to download data at the scene, and that they could have downloaded the same data. (See T. 9, 31-32.) But none of this is of any moment. The uncontroverted evidence is that when the police unlawfully searched Mobley's airbag-control [*24] module, the warrant was not in the offing. (See T. 9, 14-15, 20, 130-31.) The State did not "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." Satterfield, 743 F. 2d at 846. The inevitable-discovery exception did not apply, and the concurrences below were in error for concluding otherwise. See Mobley v. State, 346 Ga. App. 641, 647-49, 652 (2018).

B. Georgia courts subject the State to a lesser burden of proof than the inevitable-discovery exception requires.

Even if the record would support the Court of Appeals' and Superior Court's conclusion that the inevitable-discovery applied, it is not clear whether the Superior Court held the State to the appropriate standard of proof. To invoke the exception, the State must "establish by a preponderance of the evidence that the [challenged evidence] ultimately or inevitably would have been discovered by lawful means." Williams, 467 U.S. at 444. This Court, however, has (in some cases) imposed only a reasonable-probability standard to invoke the doctrine. [*25] E.g., Kennebrew v. State, 304 Ga. 406, 412 (2018) (explaining that the State "[had not met] its burden of establishing a reasonable probability that the evidence in question would have been discovered via a lawful inventory search" (emphasis added)). It has explained in other cases that a preponderance-standard applies. See State v. Colvard, 296 Ga. 381, 384 n.6 (2015) (explaining that the exception applies "if the State can prove by a preponderance of the evidence that such information would have ultimately or inevitably been discovered by lawful means, without any connection to the police error or misconduct" (emphasis added)). And in still other cases, this Court appears to have suggested both standards. E.g., State v. Chulpayev, 296 Ga. 764, 775 n.6 (2015) (explaining that the exception applies "if the State can prove by a preponderance of the evidence that [the challenged evidence] would have been ultimately or inevitably discovered by lawful means" and that the State must establish that the inevitable discovery doctrine applies by demonstrating a reasonable probability that the evidence in question would have [*26] been discovered by lawful means or 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" (cleaned up; emphasis added)).

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Trouble is that a reasonable probability is less than a preponderance. Kyles v. Whitley, 514 U.S. 419, 434-35 (1995). The former is the standard for determining whether the result would have been different had suppressed evidence come to light or if defense counsel had performed professionally. Id. The latter is the standard for determining whether a confession is voluntary (Lego v. Twomey, 404 U. S. 477, 489 (1972)) or (as here) whether evidence would inevitably have been discovered (Williams, 467 U.S. at 444).

The problem likely began when this Court adopted the inevitable-discovery exception from the Eleventh Circuit in Taylor, 274 Ga. at 274-75. Though Taylor cited to Williams's preponderance standard, it also adopted the Eleventh Circuit's reasonable-probability language. Id. The Eleventh Circuit carried its standard forward from the Fifth Circuit opinion in Brookins [*27] (which predated Williams). See Satterfield, 743 F. 2d at 846. And the reasonable- probability language persists in the Eleventh Circuit's inevitable-discovery opinions, as it has in this Court's. E.g., United States v. Johnson, 777 F. 3d 1270, 1274 (CA 11 2015).

Given the repeated utterance of both standards, it is impossible to know which the Superior Court applied in the case at hand. The order denying Mobley's motion to suppress lists no standard at all. (R. 87-89.) The lead opinion below does not discuss the inevitable-discovery exception. Mobley, 346 Ga. App. at 641-47 And while one concurrence gives both standards (id. at 648 (Dillard, J. concurring)), the other gives only a preponderance (id. at 652 (Doyle, J. concurring)). Therefore-even if the Superior Court could have found that the inevitable-discovery exception applied-this Court should explain the correct standard and remand the case for consideration in the proper light.

III. Section 17-5-30, as interpreted in Gary v. State, 262 Ga. 573 (1992), forecloses the inevitable-discovery exception.

Whether or [*28] not the Court of Appeals or Superior Court properly considered it, the inevitable-discovery exception should not apply in Georgia. The federal exclusionary rule (along with its exceptions) is the constitutional minimum. A State has "power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so." Cooper v. California, 386 U.S. 58, 62 (1967). Georgia so chose in 1966 when it adopted what is now codified at § 17-5-30. 9

[*29]

Section 17-5-30(a) authorizes "[a] defendant aggrieved by an unlawful search and seizure" to move "to suppress as evidence anything so obtained on the grounds that … [t]he search and seizure without a warrant was illegal" or "[t]he search and seizure with a warrant was illegal because the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed." Subsection (b) of that statute commands that "[i]f the motion is granted the property … shall not be admissible in evidence against the movant in any trial." Reading the statute semantically, this Court held in Gary v. State, that § 17-5-30 was the General

9 In whole, § 17-5-30 says:

(a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property, the possession of which is not otherwise unlawful, and to suppress as evidence anything so obtained on the grounds that:

(1) The search and seizure without a warrant was illegal; or

(2) The search and seizure with a warrant was illegal because the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.

(b) The motion shall be in writing and state facts showing that the search and seizure were unlawful. The judge shall receive evidence out of the presence of the jury on any issue of fact necessary to determine the motion; and the burden of proving that the search and seizure were lawful shall be on the state. If the motion is granted the property shall be restored, unless otherwise subject to lawful detention, and it shall not be admissible in evidence against the movant in any trial.

(c) The motion shall be made only before a court with jurisdiction to try the offense. If a criminal accusation is filed or if an indictment or special presentment is returned by a grand jury, the motion shall be made only before the court in which the accusation, indictment, or special presentment is filed and pending.

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Assembly's "unequivocal expression of its desire that evidence seized by means of a warrant that is not supported by probable cause be suppressed." 262 Ga. 573, 575 (1992).

True, Gary's holding addresses the good-faith exception to the exclusionary rule, not the inevitable-discovery exception. Id. at 574-75. But Gary's reasoning applies with equal force to both. A defendant against whom the State would seek to invoke the good-faith exception may be no less [*30] "aggrieved by an unlawful search and seizure" than one against whom the State would seek to invoke the inevitable-discovery exception. OCGA § 17-5-30(a). And § 17-5-30(b) demands the exclusion of the fruits of an unlawful warrantless search no less than it does the fruits of a search under authority of a warrant that is substantively or technically deficient. Indeed, this Court resolved the issue (albeit indirectly) in Harvey v. State, when it said that

[b]y its terms, … § 17-5-30 authorizes no exception to Georgia's exclusionary rule when evidence has been seized unlawfully. [Section] 17-5-30(a)(1) and (2) clearly provide that "[a] defendant aggrieved by an unlawful search and seizure" is entitled to suppression of the evidence regardless of whether the unlawful search and seizure were accomplished with or without a warrant.

266 Ga. 671, 672 (1996).

No exception means no exception. Unlawfully seized evidence is inadmissible: good faith or not, inevitable discovery or not. Thus, under § 17-5-30, the unlawfully downloaded contents of Mobley's airbag-control monitor should have been suppressed, regardless of whether the police would [*31] inevitably have sought a warrant.

IV. Stare decisis favors reaffirming the reasoning in Gary.

There is no cause now to abandon Gary's interpretation of § 17-5-30-even if the foreclosure of the inevitable- discovery exception is a downstream consequence of its reasoning. But since this Court has asked whether it should continue to follow Gary, it should consider whether stare decisis counsels otherwise.

Under the doctrine of stare decisis, courts generally stand by their prior decisions, because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Stare decisis, however, is not an inexorable command. Courts, like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered, and rectify their own mistakes. In reconsidering [its] prior decisions, [this Court] must balance the importance of having the question decided against the importance of having it decided right. To that end, [this Court has] developed a test that considers the age [*32] of precedent, the reliance interests at stake, the workability of the decision, and, most importantly, the soundness of its reasoning.

Olevik v. State, 302 Ga. 228, 244-45 (2017) (cleaned up).

To be sure, Gary announced a rule of criminal procedure: It "affects no property or contract issues and establishes no substantive rights, so it creates no meaningful reliance interests." State v. Jackson, 287 Ga. 646, 658 (2010);see Bryan A. Garner, et al., The Law of Judicial Precedent, 370-72 (2016); see also id. at 421-39. But the remaining factors-(A) Gary's age, (B) its workability, and (C) its reasoning-all favor its retention.

A. Gary's age favors its retention.

Yes, age alone will shield an opinion from reversal. See Lejeune v. McLaughlin, 296 Ga. 291, 298-99 (2014). But a decade's application of even a not-unsound opinion will counsel against reversal. See Brown v. Crawford, 289 Ga. 722, 725-26 (2011) (Nahmias, J. concurring). Gary will be 27 this fall, having been issued on November 5, 1997. 262 Ga. 573, 573 (1992). It is neither the youngest nor the oldest opinion [*33] that this Court has reconsidered (at the time of reconsideration) in the last decade. See, e.g., State v. Springer, 297 Ga. 376, 382-83 (2015) (overruling a then-12-year-old precedent); Hudson v. State, 293 Ga. 656, 661-62 (2013) (overruling a then-38-year-old precedent). Still, even if it is not ancient, its three decades of entrenchment in Georgia criminal practice (taken with the other factors) counsels for its retention. In fact, this Court recently left in place a younger rule that was "simple

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and straightforward in its application" and whose "reasoning … [was] not obviously unsound." Smith v. State, 295 Ga. 120, 122 (2014). This Court should follow the same course with the rule in Gary.

B. Gary's workability favors its retention.

Moreover, the rule that Gary announced is workable: The fruits of an unlawful search and seizure are inadmissible against the defendant who was aggrieved thereby-no exceptions. Harvey v. State, 266 Ga. 671, 672 (1996). All trial courts need do is determine whether the evidence that the defendant seeks to suppress is the fruit of an unlawful search and seizure. If [*34] yes, the evidence is inadmissible against the defendant at trial. OCGA § 17-5-30(b). If no, it is as admissible as any other piece of evidence would be. See id. That one might object to the "collateral consequence … that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains," does not undermine Gary's workability. As this Court wrote a century-and-a-half ago,

The hardship of the particular case is no reason for melting down the law. For the sake of fixedness and uniformity, law must be treated as a solid, not as a fluid. It must have, and always retain, a certain degree of hardness, to keep its outlines firm and constant. Water changes shape with every vessel into which it is poured; and a liquid law would vary with the mental conformation of judges, and become a synonym for vagueness and instability.

S. Star Lightning Rod Co. v. Duvall, 64 Ga. 262, 268 (1879).

C. Gary's reasoning favors its retention.

Last is the soundness of Gary's reasoning, which is "the most important factor." Olevik, 302 Ga. at 245.Gary read § 17-5-30 semantically: Section 17-5-30 authorizes [*35] "[a] defendant aggrieved by an unlawful search and seizure [to] move … to suppress as evidence anything so obtained … If the motion is granted," the statute says, "the property … shall not be admissible in evidence against the movant in any trial." This Court took that language to be the General Assembly's "unequivocal expression of its desire that evidence seized by means of a warrant that is not supported by probable cause be suppressed." Gary, 262 Ga. at 575. While this Court's opinion does not tease out the structure of the statute's clauses, it is from those clauses that a reader would conclude property obtained from an unlawful search and seizure must be suppressed.

1. Gary's semantic reading of § 17-5-30 was appropriate.

Gary's reasoning was not unsound. As this Court routinely explains,

[w]hen [it] considers the meaning of a statute, [it] must presume that the General Assembly meant what it said and said what it meant. To that end, [the Court] must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and [it] must read the statutory text in its most [*36] natural and reasonable way, as an ordinary speaker of the English language would. Consequently, courts sometimes refer to the rules of English grammar, inasmuch as those rules are the guideposts by which ordinary speakers of the English language commonly structure their words, and the legislature is presumed to know … the rules of grammar. Applying these principles, if the statutory text is clear and unambiguous, [the Court] attribute[s] to the statute its plain meaning, and [its] search for statutory meaning is at an end.

Deal v. Coleman, 294 Ga. 170, 172-73 (2013) (cleaned up); accord, e.g., May v. State, 295 Ga. 388, 391-92 (2014);seeOCGA § 1-3-1(b).

Ergo, this Court was on stable footing when it reasoned § 17-5-30's meaning from its text.

Sure enough, Gary's was not the only possible canonical reading of the statute. Indeed, it was noted near the time and has been commented on since that the better reading of § 17-5-30 was as "merely a procedural device for defendants invoking the exclusionary rule, the substantive limits of which must be found elsewhere." Abercrombie v. State, 343 Ga. App. 774, 791 (2017) [*37] (quoting Keith R. Blackwell, Note, Gary v. State: The Georgia Supreme Court Dodges a Confrontation with the Good Faith Exception, 32 GA. L. REV. 927, 941-42 (1998) (internal quotation marks omitted)). From that view, this Court elided several permissible indicators of § 17-5-30's meaning, such as

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. The preamble of the 1966 Act that created what is now § 17-5-30, which explained that its purpose was "to provide procedures … for suppression of evidence illegally seized; to provide the procedure connected therewith." 1966 Ga. Laws 567;see Spalding County Bd. of Elections v. McCord, 287 Ga. 835, 837 (2010) (noting that a preamble "may be considered as evidence of the meaning of an ambiguous, codified law"); see generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 217-20 (2012) (discussing the prefatory materials canon);

. That the General Assembly appears to have drawn the language of § 17-5-30 from formerFederal Rule of Criminal Procedure 41(e), which the Supreme Court interpreted to be "no broader than the constitutional rule" (Alderman v. United States, 394 U.S. 165, 173 n.6 (1969); [*38] but see Scalia & Garner, Reading Law, 325-26 (questioning the view that a statute copied from another jurisdiction carries with it the meaning that the other jurisdiction's courts gave it));

. That before 1966, there was no statutory mechanism to file a motion to suppress (Brannen v. State, 117 Ga. App. 69, 69 (1967);seeOCGA § 1-3-1(a)); and

. That beforeMapp v. Ohio (367 U.S. 643, 655 (1961)) imposed one, there was no suppression right at common law (see Williams v. State, 100 Ga. 511, 28 S. E. 624, 627-28 (1897)), and a statute in derogation of common law must be strictly construed (see Holland v. Caviness, 292 Ga. 332, 337 (2013);see generally Scalia & Garner, Reading Law at 318-19 (discussing the presumption against a change in the common law)).

Nevertheless, that Gary could have been differently reasoned then is no basis to abandon it now. See Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429, 650-51 (1895).Gary did not depart from the text "without any analysis of the statutory language or other canons of statutory construction, such as a need [*39] to avoid a constitutional violation." Woodard v. State, 296 Ga. 803, 813 (2015) (overruling precedent that a-textually qualified Georgia's criminal justification statute). Rather, it interpreted the text of a statute. Even if Gary was not the best interpretation of § 17-5-30, it is sound enough to be adhered to. See Otis v. State, 298 Ga. 544, 546 (2016) (Nahmias, J. concurring) (explaining that stare decisis compelled adherence to the interpretation of a court rule though that interpretation did not even discuss the rule's text).

2. The General Assembly can overrule Gary if it wants to.

In point of fact, that Gary is a statutory precedent puts a thumb on the retention side of the scale. See Jackson, 287 Ga. at 658. "Stare decisis is an important principle that promotes the rule of law, particularly in the context of statutory interpretation, where … incorrect decisions are more easily corrected by the democratic process." Id.; accord Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977). If Gary is wrong, the General Assembly can fix it. See Crawford, 289 Ga. at 726. [*40]

The underlying presumption is that the General Assembly knows the laws that it "seek[s] to amend, revise, repeal, or modify ..., and the construction of such law by our courts of last resort." Jacobs v. State, 200 Ga. 440, 444 (1946). The General Assembly can be presumed to know, therefore, that this Court has reaffirmed Gary's holding periodically. See, e.g., Beck v. State, 283 Ga. 352, 353 (2008);Harper v. State, 283 Ga. 102, 106 (2008);Harvey, 266 Ga. at 672. The General Assembly can be presumed to know as well that Gary has drawn criticism. See, e.g., Abercrombie, 343 Ga. App. at 788-92;State v. New, 331 Ga. App. 139, 145-46 (2015). Yet the General Assembly has left Gary untouched.

Certainly, § 17-5-30 has not been reenacted since Gary. And "[i]t is at best treacherous to find in [the General Assembly's] silence alone the adoption of a controlling rule of law." Girouard v. United States, 328 U. S. 61, 69 (1946). But the General Assembly has not been wholly silent: At least once, the Georgia House of Representatives contemplated amending [*41] § 17-5-30. See HB 430 (Sub), 153rd Gen. Assemb. Reg. Sess. (Ga. 2015); 10 HB

10 Available at http://www.legis.ga.gov/Legislation/20152016/151395.pdf.

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430, 153rd Gen. Assemb. Reg. Sess. (Ga. 2015). 11 That bill was withdrawn, however. Ga. Gen. Assemb., 2015- 2016 Regular Session-HB 430 Criminal procedure; search and seizure; revise and modernize law; provisions. 12

Thus, presumably knowing Gary's history, the General Assembly started to act and then stayed its hand. In so doing, it has accepted Gary's reasoning (or at least acquiesced to it). This Court should not now redraft a law that the General Assembly could have changed but did not. Even if Gary's assertion that § 17-5-30 was the General Assembly's "unequivocal expression of its desire that evidence seized by means of a warrant [*42] that is not supported by probable cause be suppressed" was wrong at the time, 262 Ga. at 575, it has become less so in the intervening 27 years.

In sum, the Superior Court and Court of Appeals failed to recognize that downloading the data from Mobley's airbag-control module without a warrant was an unreasonable Fourth Amendment search. Those Courts likewise failed to realize that the inevitable-discovery exception would not have rendered admissible the fruits of that unlawful search. Even if it would have, however, the inevitable-discovery exception is inapplicable in Georgia under this Court's reading of § 17-5-30, which the General Assembly could have but has chosen not to alter. Foreclosing the inevitable-discovery exception is the unavoidable consequence of the reasoning that the General Assembly has accepted. Perhaps, the opinion in this case will spur the General Assembly to amend § 17-5-30. Perhaps not. Either way, any amendment at this juncture is for the General Assembly to make, not this Court.

CONCLUSION

For the foregoing reasons, the opinion of the Court of Appeals should be reversed.

[signature page follows]

Respectfully submitted on April 24, 2019 by

[*43] /s/ Brandon A. Bullard BRANDON A. BULLARD

Ga. Bar No. 109207

JAMES C. BONNER JR.

Ga. Bar No. 067400

APPELLATE DIVISION

Georgia Public Defender Council

104 Marietta Street, NW

Suite 600

Atlanta, Georgia 30303

(404) 739-5152

(404) 739-5188

[email protected]

MARGARET E. BULLARD

Ga. Bar No. 815530

11 Available at http://www.legis.ga.gov/Legislation/20152016/148712.pdf.

12 Summary of legislative proceedings available at http://www.legis.ga.gov/Legislation/en-US/display/20152016/HB/430.

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PUBLIC DEFENDER'S OFFICE

Atlanta Judicial Circuit

100 Peachtree Street, NW

Suite 1600

Atlanta, Georgia 30303

(404) 613-7052

(404) 612-2079

[email protected]

CERTIFICATE OF SERVICE

I certify that before filing this brief on April 24, 2019, I served a copy of it via United States mail counsel for the Appellee:

Sharon Lee Hopkins, Esq.

Assistant District Attorney

Flint Judicial Circuit

Second Floor, West Tower

One Courthouse Square

McDonough, Georgia 30253

/s/ Brandon A. Bullard BRANDON A. BULLARD

[SEE ATTACHMENT IN ORIGINAL]

[SEE ATTACHMENT IN ORIGINAL]

End of Document

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