essay to adress a question until 08/08/19 (law school)

769Ga.MOBLEY v. STATE Cite as 816 S.E.2d 769 (Ga.App. 2018)

A plain reading of paragraph (b) (3) of the nuisance abatement statute merely demon- strates that where an entity has opted to pursue a judicial in rem tax foreclosure sale for delinquent ad valorem taxes, that pro- ceeding ‘‘may include all amounts due’’ under the nuisance abatement chapter as well. OCGA § 41–2–9 (b) (3).3 The very next sub- paragraph plainly provides that where a property is subject to a nuisance abatement lien, the ‘‘[r]edemption of property from the lien may be made in accordance with the provisions’’ governing judicial in rem tax foreclosure sales. OCGA § 41–2–9 (b) (4).

Nothing in either of these two paragraphs compels the interpretation that a county must use a judicial in rem tax foreclosure sale when collecting on a nuisance abatement lien. Further, if we were to hold that the nuisance abatement statute contemplates only the use of judicial in rem tax foreclosure sales, we would render meaningless OCGA 41–2–9 (b) (2), which explicitly charges the county tax commissioner with enforcing the lien using all methods available for collecting real property ad valorem taxes. Again, a nonjudicial tax foreclosure sale is among these methods. Thus, we determine that the nuisance abatement statute did not preclude the County from using a nonjudicial tax fore- closure sale in this case, and we reject Derby Properties’ argument to the contrary.

2. Given our disposition in Division 1, we do not address Derby Properties’ remaining enumerations of error, nor do we address the County’s additional arguments supporting the trial court’s order.

Accordingly, we affirm the trial court’s order denying summary judgment to Derby Properties and granting summary judgment to the County.

Judgment affirmed.

Andrews and Brown, JJ., concur.

,

346 Ga.App. 641

MOBLEY

v.

The STATE.

A18A0500

Court of Appeals of Georgia.

June 27, 2018

Background: After his motion to sup- press was denied, defendant was convicted following bench trial in the Superior Court, Henry County, McGarity, J., of reckless driving, homicide by vehicle in the first degree, and speeding, based on alleged incident in which defendant, while driving a vehicle at a speed of 97 miles per hour in a 45-mile-per-hour zone, collided with vehi- cle driven by first victim, causing the deaths of first victim and second victim, who was a passenger in first victim’s vehi- cle. Defendant appealed.

Holding: The Court of Appeals, Mercier, J., held that as matter of first impression, defendant did not have reasonable expec- tation of privacy with respect to data cap- tured by his vehicle’s airbag control mo- dule, and thus retrieval of such data was not search or seizure protected by the Fourth Amendment.

Affirmed.

Dillard, C.J., concurred specially with opin- ion.

Doyle, P.J., concurred specially with opinion.

1. Criminal Law O1139

When the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, an appellate court conducts a de novo review of the trial court’s application of the law to the undisput- ed facts.

3. Derby Properties asserts that the County does not clarify why the deed for the property states that it was issued for unpaid taxes. It appears

from the record, however, that in addition to the nuisance abatement lien, there was outstanding tax debt on the property.

770 Ga. 816 SOUTH EASTERN REPORTER, 2d SERIES

2. Criminal Law O1134.27, 1158.1 To the extent an issue concerns a mixed

question of fact and law, an appellate court accepts the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous, but independently applies the law to the facts.

3. Searches and Seizures O23, 24 The Fourth Amendment proscribes all

unreasonable searches and seizures, and searches conducted without prior judicial ap- proval are per se unreasonable under the Fourth Amendment, subject to specifically established and well-delineated exceptions. U.S. Const. Amend. 4.

4. Searches and Seizures O26 An individual may challenge the legality

of a search under the Fourth Amendment only if he or she has manifested a subjective expectation of privacy in the object of the challenged search and society is willing to recognize that expectation as reasonable. U.S. Const. Amend. 4.

5. Searches and Seizures O25.1 The Fourth Amendment protects people,

not places. U.S. Const. Amend. 4.

6. Searches and Seizures O25.1, 26 What a person knowingly exposes to the

public is not a subject of Fourth Amendment protection, but what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. U.S. Const. Amend. 4.

7. Searches and Seizures O61 A person traveling in an automobile on

public thoroughfares has no reasonable ex- pectation of privacy in his movements from one place to another. U.S. Const. Amend. 4.

8. Searches and Seizures O18, 61 Defendant did not have reasonable ex-

pectation of privacy with respect to data captured by his vehicle’s airbag control mo- dule, and thus retrieval of such data was not search or seizure protected by the Fourth Amendment; while outside observer could

not have ascertained information regarding use and functioning of defendant’s vehicle with same level of precision as that captured by module, some information was outwardly manifested and could have been observed by members of the public, and, further, module did not record information on long-term ba- sis, but, rather, generally only started re- cording information when triggered by an event, and only data shown to have been saved permanently by module was data col- lected just before and at time of airbag de- ployment following collision. U.S. Const. Amend. 4.

The Veal Law Firm, Holly W. Veal, for appellant.

Darius Pattillo, District Attorney, Sharon L. Hopkins, Atha H. Pryor, Assistant Dis- trict Attorneys, for appellee.

Mercier, Judge.

On December 15, 2014, the vehicle driven by Victor Lamont Mobley collided with a vehicle driven by W. M. W. M. and the passenger in his vehicle, C. F., were killed in the collision. Mobley was charged with reck- less driving, two counts of homicide by vehi- cle in the first degree (alleging that he caused the deaths of W. M. and C. F. through the act of reckless driving), and speeding (alleging that he drove a vehicle at a speed of 97 miles per hour in a 45-mile-per- hour zone). Mobley moved to suppress evi- dence that was obtained from the airbag control module 1 (‘‘ACM’’) in the vehicle he was driving, which showed that the vehicle was traveling at a speed of 97 miles per hour five seconds before airbag deployment. After conducting a hearing, the trial court denied his motion. In its order denying Mobley’s motion to suppress, the trial court found that it did not have to reach the issue of whether a search warrant was required to access the data from the ACM in the vehicle driven by Mobley, because a search warrant was ob- tained the day after the data was accessed and the data in the ACM would have inevita-

1. The ACM is also referred to in the record as an ‘‘electronic control module’’ or ‘‘ECM.’’ An ACM is a type of event data recorder. For the purposes

of this opinion, we will refer to the module as an ‘‘ACM.’’

771Ga.MOBLEY v. STATE Cite as 816 S.E.2d 769 (Ga.App. 2018)

bly been discovered ‘‘when the ACMs were properly removed from the vehicle pursuant to the search warrant[ ].’’ Following a bench trial on June 6, 2017, Mobley was found guilty on all counts. He appeals from the judgment of conviction entered in this case.

1. Mobley contends that the trial court erred in denying his motion to suppress. He argues that a search warrant was required for law enforcement to access the data in the ACM in the vehicle he was driving because he had a subjective expectation of privacy in the data; that a law enforcement officer mis- led the magistrate judge by applying for a search warrant without indicating that the information sought had already been ob- tained; that the trial court erred in relying on the inevitable discovery exception to the warrant requirement; and that the exigent circumstances exception to the warrant re- quirement did not apply. Whether a search warrant is required to retrieve the data from a vehicle’s ACM is an issue of first impres- sion in Georgia. Because we find that a search warrant was not required here, we affirm Mobley’s convictions. See generally Fincher v. State, 276 Ga. 480, 481 (2), 578 S.E.2d 102 (2003) (‘‘[A] trial court’s ruling on a motion to suppress will be upheld if it is right for any reason.’’) (citation and punctua- tion omitted).

[1, 2] OCGA § 17-5-30 (a) pertinently provides that ‘‘[a] defendant aggrieved by an unlawful search and seizure may move the court TTT to suppress as evidence anything so obtained on the grounds that TTT [t]he search and seizure without a warrant was illegal[.]’’ OCGA § 17-5-30 (b) pertinently provides that ‘‘the burden of proving that the search and seizure were lawful shall be on the state.’’

When the evidence at a suppression hear- ing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court’s applica- tion of the law to the undisputed facts. To the extent an issue concerns a mixed ques- tion of fact and law, we accept the trial court’s findings on disputed facts and wit- ness credibility unless they are clearly er-

roneous, but independently apply the law to the facts.

State v. Wright, 344 Ga. App. 881, 812 S.E.2d 86 (2018) (citation and punctuation omitted).

Here, the evidence at the hearing on the motion to suppress included testimony from three law enforcement officers with the Hen- ry County Police Department who were in- volved in the investigation of the collision (Sergeant D. G., Investigator J. H., and Offi- cer B. T.).

Sergeant D. G. assisted with the investiga- tion immediately following the collision and contacted Investigator J. H. to retrieve the data from the vehicle’s ACMs at the scene of the collision.2 Investigator J. H. downloaded the data from the ACMs in Mobley’s and W. M.’s vehicles at the collision scene. The next day, Officer B. T. applied for and obtained a warrant to search and seize the ACMs, which devices were in the vehicles at an impound facility. All three officers testified that at the time of their investigation of the collision, they believed that they were not required to obtain a search warrant in order to retrieve data from the ACMs while the vehicles and the officers were still at the scene of the collision.

Sergeant D. G. testified as follows. The collision occurred on a Monday at approxi- mately 1:00 p.m. The magistrate court was open when officers began their investigation and they could have obtained a search war- rant on that day. Witnesses to the collision told Sergeant D. G. at the scene that W. M.’s vehicle had ‘‘pulled out’’ in front of the vehi- cle driven by Mobley. None of the witnesses provided Sergeant D. G. with any informa- tion about the speeds of the vehicles. The speed limit at the location of the collision was 45 miles per hour, and based on the evidence on the roadway, it appeared to Sergeant D. G. that the vehicle speed at the time of the collision was 45 to 50 miles per hour.

It was not uncommon for Sergeant D. G. to decide to download the information from ACMs at a collision scene as he did in this case, particularly when the collisions involved serious injuries or fatalities. He testified that

2. The accessing or retrieving of data from ACMs was also referred to in the hearing as ‘‘down-

loading’’ the data and ‘‘imaging’’ the ACM or the vehicle.

772 Ga. 816 SOUTH EASTERN REPORTER, 2d SERIES

in this case, ‘‘[a]s in any other fatality that we work, we’ll try to investigate the whole thing through and through. So the crash TTT appeared to be a 45- to 50-something-mile- an-hour crash, but with two people being deceased, we knew that we needed to go farther with the investigation on it.’’ He fur- ther explained that this was the case because ‘‘two people [were] dead’’ and investigators needed ‘‘to find out if there [were] any other extenuating circumstances that caused the collision itself.’’ Sergeant D. G. chose to download the ACM data at the collision scene without first obtaining a search warrant be- cause ‘‘we were still on-scene’’ of a fatal collision and ‘‘we had the resources available at the time TTT to go ahead and just gather all the data that we could while we’re on- scene.’’ A short time later, the vehicles were towed from the scene by a towing service, and officers instructed the towing service to hold the vehicles for investigation.

Investigator J. H. testified as follows. He arrived at the scene of the collision at ap- proximately 2:00 p.m. on the day that the collision occurred. He confirmed that both vehicles involved in the collision were ‘‘able to be imaged,’’ and he obtained the data from the ACMs in both vehicles while the vehicles were still at the collision scene. He then provided the data he obtained to another investigator. Investigator J. H. testified that he could have used the same procedure to download the information the day after the accident, after a search warrant was ob- tained. Officers removed the ACMs from both vehicles at the towing company’s lot on the day after the collision, placed the devices into evidence storage, and did not access the data again.

Officer B. T. testified as follows. He assist- ed in the investigation of the collision on December 16, 2014, the day after the collision occurred. On December 16, 2014, he complet- ed the affidavit for a search warrant for the ACMs based on information provided to him by other officers. The purpose of obtaining the search warrant was to remove the ACMs from the vehicles and place them ‘‘into prop- erty and evidence.’’ In applying for the search warrant, he did not tell the magistrate that law enforcement officers had already

collected the data from the ACMs. He fur- ther testified that, if the data had not been downloaded from the ACMs at the scene of the collision, he would have obtained a search warrant and downloaded the data at the im- pound lot.

The evidence demonstrates that the ACM in Mobley’s vehicle was designed to capture data related to a collision or airbag deploy- ment. Accessing the data in the ACMs in the vehicles involved in this case required special equipment, and interpretation of some of the data required special training. Specifically, obtaining the data from an ACM required a ‘‘crash data recovery kit’’ (‘‘CDR’’), which involved the use of a laptop, a computer program, an interface box, and a connection cable. Reading the ACM data required spe- cial training because some of it was recorded in hexadecimal format (for engineers).

Officer B. T. confirmed that the data cap- tured by the ACM included the status of several aspects of the vehicle at or immedi- ately preceding airbag deployment, including speed, engine speed, brake status, throttle position, engine revolutions, driver’s seat belt status and brake switch status, as well as time from maximum deceleration to impact, time from vehicle impact to airbag deploy- ment, and diagnostic information on the vehi- cle’s systems. A copy of the printed report of the ACM data captured from Mobley’s vehi- cle was introduced at the bench trial, and included charts containing several sets of pre-collision data set forth at specific inter- vals, including ‘‘Accelerator Pedal, % Full,’’ ‘‘Engine Throttle, % Full,’’ ‘‘Stability Con- trol,’’ ‘‘Raw Manifold Pressure,’’ ‘‘Yaw Rate,’’ and ‘‘Wheel Speed.’’ In the indictment and in its opening statement, the prosecution relied upon Mobley’s ‘‘high rate of speed’’ to prove its case, which evidence was obtained from the ACM.

[3–6] ‘‘The Fourth Amendment pro- scribes all unreasonable searches and sei- zures, and searches conducted without prior judicial approval are per se unreasonable under the Fourth Amendment, subject to specifically established and well-delineated exceptions.’’ Teal v. State, 282 Ga. 319, 322- 323 (2), 647 S.E.2d 15 (2007). ‘‘[A]n individual

773Ga.MOBLEY v. STATE Cite as 816 S.E.2d 769 (Ga.App. 2018)

may challenge the legality of a search under the Fourth Amendment TTT only if he or she has manifested a subjective expectation of privacy in the object of the challenged search and society is willing to recognize that expec- tation as reasonable.’’ Bowling v. State, 289 Ga. 881, 883 (2) (a), 717 S.E.2d 190 (2011) (citations and punctuation omitted) (citing Kyllo v. United States, 533 U.S. 27, 33 (II), 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001) ). ‘‘[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public TTT is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessi- ble to the public, may be constitutionally protected.’’ Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (citations omitted).

[7] ‘‘A car has little capacity for escaping public scrutiny. It travels public thorough- fares where both its occupants and its con- tents are in plain view.’’ Sevilla-Carcamo v. State, 335 Ga. App. 788, 794 (3), fn. 25, 783 S.E.2d 150 (2016) (citation and punctuation omitted). ‘‘A person traveling in an automo- bile on public thoroughfares has no reason- able expectation of privacy in his movements from one place to another.’’ Devega v. State, 286 Ga. 448, 453 (4) (d), 689 S.E.2d 293 (2010) (citation and punctuation omitted).

Mobley argues that an ACM is analogous to a cell phone with regard to the Fourth Amendment right to privacy. In Riley v. California, ––– U.S. ––––, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), which he cites, the Su- preme Court of the United States held that there is a reasonable expectation of privacy in the contents of a cell phone, and a warrant generally is required to search such contents, even when the phone is seized incident to arrest. Riley, supra at 2493 (III) (C), 2495 (IV). In balancing the degree to which such a search intrudes upon an individual’s privacy and the degree to which the search is needed for the promotion of legitimate governmental interests (the test for a warrantless search incident to arrest), the Riley Court found that a search of the digital information on a cell phone does not further the government interests of officer safety and prevention of evidence destruction, and implicates substan-

tially greater individual privacy interests than a brief physical search. Id. at 2484-2485 (III). This is because ‘‘[m]odern cell phones are not just another technological conven- ience. With all they contain and all they may reveal, they hold for many Americans the privacies of life[.]’’ Id. at 2494-2495 (IV) (cita- tion and punctuation omitted).

Mobley also contends that we should follow the reasoning employed by a Florida appel- late court, which held (in a divided opinion) that a search warrant was required to access ACM data in an impounded vehicle. State v. Worsham, 227 So.3d 602, 605, 608, 42 Fla. L. Weekly D 711 (Fla. 4th DCA 2017) (certiora- ri denied in Florida v. Worsham, ––– U.S. ––––, 138 S.Ct. 264, 199 L.Ed.2d 125 (2017) ). The Worsham court found that ACMs ‘‘docu- ment more than what is voluntarily conveyed to the public and the information is inherent- ly different from the tangible ‘mechanical’ parts of a vehicle.’’ Id. at 606. Citing Riley, supra and analogizing the ACM to a cell phone, the Worsham court reasoned that be- cause the recorded data is not exposed to the public, and because the data is difficult to retrieve and interpret, there is a reasonable expectation of privacy in the data. Id. at 604, 606.

Meanwhile, an appellate court in California reached the opposite conclusion on this ques- tion in People v. Diaz, 213 Cal. App. 4th 743, 153 Cal.Rptr.3d 90 (2013). The Diaz court held that there was no reasonable expecta- tion of privacy in the speed and braking data taken from the vehicle’s ACM in that case, because ‘‘others could observe [the] vehicle’s movements, braking, and speed, either di- rectly or through the use of technology such as radar guns or automated cameras.’’ Id. at 757-758 (III) (F), 153 Cal.Rptr.3d 90. The Diaz court noted that ‘‘technology merely captured information defendant knowingly exposed to the public[.]’’ Id. See also People v. Christmann, 3 Misc.3d 309, 315, 776 N.Y.S.2d 437 (Just. Ct. 2004) (the immediate warrantless download of information from the defendant’s ACM did not violate the de- fendant’s Fourth Amendment rights).

[8] We find that, under the circum- stances in this case, Mobley did not have a

774 Ga. 816 SOUTH EASTERN REPORTER, 2d SERIES

reasonable expectation of privacy in the data from his vehicle’s ACM. See generally Bowl- ing, supra. While an outside observer cannot ascertain the information regarding the use and functioning of a vehicle with the same level of precision as that captured by the ACM, there are outward manifestations of the functioning of some of the vehicle’s sys- tems when a vehicle is operated on public roads. For example, a member of the public can observe a vehicle’s approximate speed; observe whether a vehicle’s brakes are being employed by seeing the vehicle slow down or stop or the brake lights come on, by hearing the sounds of sudden braking; and observe whether the driver is wearing a seatbelt. There is no reasonable expectation of privacy in such information because an individual knowingly exposes such information to the public. See generally Devega, supra (war- rantless monitoring of defendant’s cell phone location did not violate the Fourth Amend- ment because it revealed the same informa- tion that could be obtained through visual surveillance).

Moreover, the types of information con- tained in Mobley’s ACM (as described in the hearing on the motion to suppress) are dis- tinguishable from the types of personal infor- mation contained in a cell phone and protect- ed by the Fourth Amendment as discussed in Riley, supra. Information regarding the me- chanical functioning of the vehicle and its systems is qualitatively different from photo- graphs, financial information, and other such personal data that may be found on a cell phone. We find that Mobley did not have a reasonable expectation of privacy with re- spect to the data captured by his vehicle’s ACM, and the retrieval of the data was therefore not a search or seizure protected by the Fourth Amendment. See Bowling, supra.

We recognize that the breadth of informa- tion captured by and obtained from an ACM can vary over time, and amongst vehicle manufacturers. For example, an ACM could retain global positioning system information, possibly implicating the Fourth Amendment. The U. S. Supreme Court has held that the government’s installation of a GPS tracking device to an individual’s vehicle, and the sub-

sequent use of that device to monitor the vehicle’s movements on public streets consti- tutes a search within the meaning of the Fourth Amendment. United States v. Jones, 565 U.S. 400, 404 (II) (A), 132 S.Ct. 945, 181 L.Ed.2d 911 (2012); see Hamlett v. State, 323 Ga. App. 221, 227 (1) (a), 753 S.E.2d 118 (2013). As recognized in Justice Sotomayor’s concurrence in Jones, ‘‘GPS monitoring gen- erates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associa- tions.’’ Jones, supra at 415, 132 S.Ct. 945. The evidence in this case does not demon- strate that the ACM in Mobley’s vehicle was capable of GPS monitoring or the recording of his movements between various locations.

Nor does the evidence here indicate that the ACM in Mobley’s vehicle recorded infor- mation on a long-term basis. Rather, the evidence shows that the purpose of the ACM is to capture information regarding collisions or airbag deployments, that the ACM gener- ally only starts recording information when an event, such as a collision, ‘‘triggers’’ it to record, that the ACM continuously over- writes ‘‘nondeployable’’ events, and that the ACM only saves data permanently when a collision has caused the vehicle’s airbags to deploy. The collision in this case was a ‘‘de- ployment event’’ for both vehicles. The only data shown to have been saved permanently by Mobley’s ACM was the data collected just before and at the time of the airbag deploy- ment.

We therefore limit our holding to the par- ticular facts of this case, and note that future treatment of this issue will likewise depend on the specific facts of the cases under con- sideration. As such, we reiterate the strong preference for searches to be conducted pur- suant to a warrant, see Jones v. State, 337 Ga. App. 545, 548 (1), 788 S.E.2d 132 (2016), and caution law enforcement officers faced with an investigative need to obtain data from a vehicle’s ACM to err on the side of caution by obtaining a search warrant before retrieving that information.

775Ga.MOBLEY v. STATE Cite as 816 S.E.2d 769 (Ga.App. 2018)

2. As a result of our holding on this issue, we need not address Mobley’s remaining con- tentions.

Judgment affirmed.

Dillard, C. J., and Doyle, P. J., concur specially.

Dillard, Chief Judge, concurring specially.

I agree that Mobley’s convictions should be affirmed, but I write separately for two rea- sons. First, because the trial court correctly concluded that the data from the ACM in Mobley’s vehicle would inevitably have been lawfully discovered, it is unnecessary for us to address whether the Fourth Amendment prohibits a warrantless seizure of that data. Nevertheless, I feel compelled to echo the majority’s admonition to law enforcement that the better course of action in cases like this is to obtain a warrant before retrieving ACM data. Indeed, as Fourth Amendment jurisprudence struggles to keep pace with technological advances and the consequent blurring between our private and public lives, novel cases (such as this one) will become increasingly common. And faced with such rapidly evolving challenges affecting the way in which investigations are conducted and evidence is obtained, I agree with the majori- ty that law enforcement will be better served by erring on the side of caution and obtaining a search warrant in such cases.

My analysis begins, of course, with the Fourth Amendment to the United States Constitution, which provides, in relevant part, that ‘‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’’ 1 And the most basic constitutional rule in this area is that ‘‘searches conducted outside the judicial process, without prior approval by judge or

magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineat- ed exceptions.’’ 2 One such exception is the inevitable-discovery doctrine, which ‘‘allows admission of evidence that was discovered as a result of police error or misconduct if the State establishes by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means, without reference to the police error or misconduct.’’ 3 More specifically, there must be a reasonable probability that ‘‘the evidence in question would have been discovered by lawful means, and the prosecu- tion must demonstrate that the lawful means which made discovery inevitable were pos- sessed by the police and were being actively pursued prior to the occurrence of the illegal conduct.’’ 4

Here, the officers were called to the scene of an automobile collision that resulted in two fatalities. And although Sergeant D. G.’s ini- tial impression was that Mobley had not sig- nificantly exceeded the speed limit (if at all), he also noted that the tragic circumstances surrounding the accident were such that a thorough investigation was still required. To- ward that end, both vehicles were towed away, and the officers instructed the towing service to hold the vehicles for investigation. This was not unusual. It was a common practice for these officers to secure ACM data from vehicles involved in serious colli- sions, even at the scene. Additionally, Officer B. T. testified that if the ACM data had not been obtained at the scene, he would have sought a search warrant and collected such data from the vehicle at the impound lot. Thus, given these particular circumstances, the trial court correctly ruled that there was probable cause to retrieve the ACM data

1. U.S. Const. amend. IV; see also Ga. Const. Art. I, § I, ¶ XIII (‘‘The right of the people to be secure in their persons, houses, papers, and ef- fects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the place or places to be searched or the persons or things to be seized.’’).

2. State v. Slaughter, 252 Ga. 435, 436, 315 S.E.2d 865 (1984) (punctuation omitted); accord Foster

v. State, 321 Ga. App. 118, 118-19 (1), 741 S.E.2d 240 (2013).

3. Teal v. State, 282 Ga. 319, 323-24 (2), 647 S.E.2d 15 (2007); accord State v. Kaulbach, 331 Ga. App. 610, 616 (2), 771 S.E.2d 245 (2015).

4. Foster, 321 Ga. App. at 120 (1), 741 S.E.2d 240 (punctuation omitted); accord Schweitzer v. State, 319 Ga. App. 837, 839, 738 S.E.2d 669 (2013).

776 Ga. 816 SOUTH EASTERN REPORTER, 2d SERIES

from Mobley’s vehicle and, therefore, the data would have inevitably been discovered.5

Notwithstanding the propriety of the trial court’s ruling, I reiterate the majority’s ad- monition that the better practice is for law enforcement to seek a warrant prior to any search or seizure in this type of case. Indeed, a brief glance into the state of flux our Fourth Amendment jurisprudence currently inhabits demonstrates that repeating this ex- hortation is warranted.

In Katz v. United States,6 the Supreme Court of the United States held that ‘‘[t]he Fourth Amendment protects people, not places,’’ explaining that ‘‘[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,’’ but ‘‘what he seeks to preserve as private, even in an area acces- sible to the public, may be constitutionally protected.’’ 7 And here, even though I believe it is unnecessary to reach the issue, I agree

with the majority’s determination that Mob- ley had no reasonable expectation of privacy in the speed and braking data obtained from his vehicle’s ACM because ‘‘others could ob- serve [his] vehicle’s movements, braking, and speed, either directly or through the use of technology such as radar guns or automated cameras.’’ 8 Suffice it to say, this sort of data—while far more precise (and at times damning) than the naked eye—is hardly com- parable to the type of sensitive personal in- formation often contained on a cell phone.9

That said, with technology of this nature rapidly developing, it is easy to imagine fu- ture cases presenting much thornier ques- tions. For instance, had the ACM in this case included detailed GPS tracking information or other personal details of Mobley’s every- day life, a warrantless search may have run afoul of the Fourth Amendment’s protection of his reasonable expectation of privacy.10

5. See Teal, 282 Ga. at 326 (2), 647 S.E.2d 15 (holding that an investigation taking place before the illegal seizure and yielding information that would serve as the basis for a search warrant could be the ‘‘lawful means’’ that would have led to the inevitable discovery of the illegally seized evidence); Foster, 321 Ga. App. at 120 (1), 741 S.E.2d 240 (holding that contraband found in defendant’s purse would have been inevitably discovered during warrantless search based on arresting officer’s having had probable cause to search the vehicle due to smelling marijuana in the subject vehicle); Schweitzer, 319 Ga. App. at 839, 738 S.E.2d 669 (holding that evidence of contraband found in arrested defendant’s purse was admissible because discovery of such was inevitable due to officer’s valid practice of inven- torying personal possessions upon booking).

6. 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

7. Id. at 351-52, 88 S.Ct. 507 (citations and punc- tuation omitted). I confess that, notwithstanding my increasingly Burkean tendencies as a jurist, I share Justice Thomas’s view that the Katz test has ‘‘no basis in the text or history of the Fourth Amendment,’’ and ‘‘invites courts to make judg- ments about policy, not law.’’ Carpenter v. United States, ––– U.S. ––––, ––––, 138 S.Ct. 2206, 2235– 36, ––– L.Ed.2d ––––, 2018 WL 3073916 at *30 (June 22, 2018) (Thomas, J., dissenting); id. at ––––, 138 S.Ct. 2206, 2018 WL 3073916 at 33 (‘‘By defining ‘search’ to mean ‘any violation of a reasonable expectation of privacy,’ the Katz test misconstrues virtually every one of [the words contained in the Fourth Amendment].’’); see also Katz v. United States: The Untold Story, 40 McGeorge L. Rev. 13, 18 (2009). But unlike

Justice Thomas, I am bound by Katz, so my musing here is nothing more than a tip of the cap to his notable adherence to the original pub- lic meaning of the Fourth Amendment.

8. People v. Diaz, 213 Cal. App. 4th 743, 757-58 (III) (F), 153 Cal.Rptr.3d 90 (2013). But see State v. Worsham, 227 So.3d 602, 603-08 (Fla. 4th DCA 2017) (holding that defendant had a reason- able expectation of privacy in the information captured by the event data recorder). Needless to say, I find Judge Forst’s well-reasoned dissent in Worsham far more persuasive than the majority opinion in that case. See generally id. at 608-12 (Forst, J., dissenting).

9. Although Mobley maintains that at least some of the data on his vehicle’s ACM was ‘‘not visible to the public,’’ that type of data is not at issue in this case.

10. See Carpenter, ––– U.S. at ––––, –––– (III), (IV), 138 S.Ct. 2206, 2018 WL 3073916 at *9, 13 (holding that an individual maintains a legiti- mate expectation of privacy, for Fourth Amend- ment purposes, in the record of his physical movements as captured through cell-site location information, and therefore, government must generally obtain a search warrant supported by probable cause before acquiring that information from a wireless carrier); Riley v. California, ––– U.S. –––– (IV), 134 S.Ct. 2473, 2494-95, 189 L.Ed.2d 430 (2014) (holding that a person has a reasonable expectation of privacy in the contents of a cell phone, and thus under most circum- stances law enforcement must obtain a warrant prior to searching same given that ‘‘[m]odern cell phones are not just another technological

777Ga.MOBLEY v. STATE Cite as 816 S.E.2d 769 (Ga.App. 2018)

But even setting aside concerns of one’s reasonable expectation of privacy as it per- tains to law enforcement tracking every breath we take and every move we make,11

the physical intrusion into a suspect’s vehicle to obtain ACM data may also run afoul of the Fourth Amendment as a common law tres- pass. Indeed, it is beyond dispute that ‘‘a vehicle is an ‘effect’ as that term is used in the Amendment.’’ 12 And under a ‘‘property- based’’ theory of the Fourth Amendment, the Supreme Court of the United States has held that law enforcement’s brief physical intru- sion into a vehicle constitutes a ‘‘search’’ within the meaning of the Fourth Amend- ment.13 As a result, arguments like these may ‘‘vindicate Fourth Amendment interests even where Katz arguments do not.’’ 14

Consequently, law enforcement will find it increasingly tricky to navigate the crossroads of ever-advancing technology and personal privacy as they relate to Fourth Amendment prohibitions. And this difficulty is only exac- erbated by the fact that the decisions of the Supreme Court of the United States estab- lish that warrantless searches are typically unreasonable where ‘‘a search is undertaken by law enforcement officials to discover evi- dence of criminal wrongdoing.’’ 15 But as the

Supreme Court emphasized once again in Carpenter v. United States, there remains a tried and true means of safely traversing these crossroads when law enforcement’s specific obligations under the Fourth Amend- ment are in doubt—get a warrant.16 This default position seems especially wise in light of the ‘‘equilibrium-adjustment’’ the Supreme Court of the United States recently made in Carpenter.17 And while obtaining a warrant may not always lend itself to expediency, our republic’s Fourth Amendment jurisprudence has ‘‘historically recognized that the warrant requirement is ‘an important working part of our machinery of government,’ not merely an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.’’ 18 I am confident the vast majority of our law enforcement officers will err on the side of caution and liberty, and get a warrant in cases like the one before us. The law always seems to be several steps behind technology, and this approach strikes me as the most prudent course of action going forward.

Doyle, Presiding Judge, concurring specially.

Because I agree that Mobley’s convictions should be affirmed, I concur specially and in

convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life[.]’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.’’ (citations omitted) ).

11. See THE POLICE, Every Breath You Take, on SYNCHRONICITY (A&M Records 1983).

12. United States v. Jones, 565 U.S. 400, 404 (II) (A), 132 S.Ct. 945, 181 L.Ed.2d 911 (2012).

13. See id. at 404-05 (II) (A), 132 S.Ct. 945 (noting that in light of the fact that, initially, ‘‘our Fourth Amendment jurisprudence was tied to common- law trespass,’’ installation of a GPS device on a suspect’s vehicle and use of that device to moni- tor the vehicle’s movements constitutes a search and, thus, in most cases requires a warrant).

14. Carpenter, ––– U.S. at ––––, 138 S.Ct. 2206, 2018 WL 3073916 at *68 (Gorsuch, J., dissent- ing). Cf. Driver Privacy Act of 2015, S. 766, 114th Cong. § 24302 (declaring that information col- lected by event data recorders, such as how fast a car was traveling prior to a crash and whether the driver applied the brakes, belongs to the owner of the vehicle).

15. Id. at –––– (III) (B), 138 S.Ct. 2206, 2018 WL 3073916 at *13 (IV) (punctuation omitted).

16. See id.

17. See Orin S. Kerr, First Thoughts on Carpenter v. United States, Volokh Conspiracy (June 22, 2018) https://reason.com/volokh/2018/06/22/first- thoughts-on-carpenter-v-united-sta (‘‘If technolo- gy gives the government too much new power that can be abused based on old rules, the Court expands legal protection to restore old levels of power and limit abuses. On the flip side, if tech- nology threatens to narrow government power too much that can unduly limit the government’s ability to solve crimes under old rules, the Court shrinks legal protection to restore old levels of power and ensure the government can still solve enough cases. In Carpenter, the Chief Justice is very clear that this is what is going on. Through- out the opinion, he roots his analysis in the idea that cell-site surveillance is a new tool that gives the government new power that can be abused, and that the law must change course to ensure that the government doesn’t get too much power from a mechanical application of the old rules.’’).

18. Riley, 134 S.Ct. at 2493 (IV) (punctuation omitted).

778 Ga. 816 SOUTH EASTERN REPORTER, 2d SERIES

the judgment. I write separately, however, because I do not believe that we need to decide whether the Fourth Amendment pro- hibits the seizure of data from the ACM in the vehicle Mobley was driving absent a war- rant or his consent because the data would have been available to the State under the properly obtained search warrant.

‘‘The exclusionary rule prohibits introduc- tion [of] evidence TTT seized during an unlaw- ful search TTT or that is otherwise acquired as an indirect result of the unlawful search, up to the point where the taint is dissipated by its attenuated connection with the unlaw- ful search. TTT’’ 1 When officers also secure a properly issued search warrant to obtain the challenged evidence, ‘‘the appropriate ques- tion is whether the evidence at issue has been [obtained] by exploitation of [the] ille- gality or instead by [a warrant] sufficiently distinguishable to be purged of the primary taint.’’ 2 Therefore, when the State shows by a preponderance of the evidence ‘‘that the information ultimately or inevitably would have been discovered by lawful means [i.e., a warrant], without reference to the police er- ror or misconduct,’’ the exclusionary rule does not apply.3

Here, even if the roadside scan of the ACM was illegal, the evidence authorized the trial court to find that the data obtained therefrom was not used by the officers to secure the search warrant, the warrant was obtained in the regular course of the continu- ing investigation, and the ACM’s data inevi- tably would have been available to police pursuant to the warrant they later lawfully obtained.4 Accordingly, the trial court did not err by denying the motion to suppress.

,

346 Ga.App. 668

BURTON

v.

ECI MANAGEMENT CORPORATION.

A18A0657

Court of Appeals of Georgia.

June 27, 2018

Background: Apartment resident filed complaint against management company, claiming that maintenance employee had left a pair of pliers in the broiler area of the stove and that she had suffered dam- ages as a result of inhaling smoke from the stove. The State Court, Coweta County, Cranford, J., granted management compa- ny’s motion for summary judgment and denied apartment resident’s motion to withdraw admissions. Apartment resident appealed.

Holdings: The Court of Appeals, McFad- den, P.J., held that:

(1) Court of Appeals had jurisdiction over appeal;

(2) apartment resident established that admissions could have been refuted on trial of the issues by admissible evi- dence having a modicum of credibility;

(3) withdrawal of admissions would preju- dice management company in main- taining its defense on the merits; and

(4) apartment resident’s admissions negat- ed essential element of her claim that management company had superior knowledge of alleged hazardous condi- tion created by the pliers.

Affirmed.

1. Appeal and Error O3554, 3951 On appeal from the grant of summary

judgment, the appellate court conducts a de novo review of the evidence to determine

1. Teal v. State, 282 Ga. 319, 323 (2), 647 S.E.2d 15 (2007).

2. (Punctuation omitted.) Id., quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

3. See Teal, 282 Ga. at 323-324 (2), 647 S.E.2d 15.

4. See id. at 326-327 (2), 647 S.E.2d 15.