George v. State ( 2021 )

In the Supreme Court of Georgia
Decided: November 2, 2021
S21G0429. GEORGE v. THE STATE.
BOGGS, Presiding Justice.
After a 2018 jury trial, Harold William George was convicted
of two counts of child molestation and related offenses. He appealed
to the Georgia Court of Appeals, which affirmed his convictions in
an unpublished opinion. See George v. State, 357 Ga. App. XXIV
(Case No. A20A0993, decided Oct. 23, 2020). In addressing one of
George’s four enumerations of error, the Court of Appeals rejected
his argument that the search of his home exceeded the scope of the
relevant search warrant, agreeing with the trial court that “[t]he
police officers were not compelled to overlook relevant evidence
simply because it was not specifically listed in the search warrant.”
(Citations and punctuation omitted.) Id., slip op. at 8 (1) (b). Both
the trial court and the Court of Appeals cited Walsh v. State, 236 Ga.
App. 558, 560 (1) (b) (512 SE2d 408) (1999), for this proposition.
We granted George’s petition for certiorari, posing the
following question: “Did the Court of Appeals err in affirming the
trial court’s denial of the motion to suppress as to the evidence seized
beyond the scope of the search warrant?” For the reasons discussed
below, we conclude that the Court of Appeals did err, as neither that
court nor the trial court applied the correct legal standard for a
constitutional Fourth Amendment challenge to the seizure of
evidence beyond the scope of a search warrant. We therefore vacate
the relevant part of the Court of Appeals’ judgment and remand this
case for further proceedings consistent with this opinion.
The facts underlying this case were set forth by the Court of
Appeals as follows. George, who was a youth minister at a church in
Walton County, touched the victim’s genitals on multiple occasions
under the pretext of taking measurements of his body while
supervising a physical conditioning program. The victim, who
turned 16 during the course of the ongoing molestation, told his
mother what had occurred, and the authorities were notified. After
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a forensic interview of the victim, the lead investigator for the
Walton County Sheriff’s Office obtained a search warrant for certain
electronic devices in George’s possession.1 Notes, papers, and other
materials also were seized by the State during the search pursuant
to the warrant.
George filed a pretrial motion to suppress, asserting, among
other things, that the seizure of non-electronic items, such as
measuring tapes, a bag, notepads, and other papers, exceeded the
scope of the search warrant. The trial court denied the motion, and
with respect to this specific assertion found that
the items taken during the search did not exceed the scope
of the search warrant. While the warrant specifically
authorized certain items to be seized, the officers were
entitled to seize other evidence, including papers not
listed in the warrant, as they were not compelled to
overlook relevant evidence simply because it was not
listed in the warrant. See Walsh v. State, 236 Ga. App.
558, at 560 (1999). The search was not unlawful just
because the officers seized items not listed. Id. Here, the
measuring tape[s], papers, and notepads could all be
1 The warrant specifically described the items “to be searched for and
seized” as “[a]ny/all cellphone(s), and electronic equipment/devices including,
video recorder(s), camera(s), computer(s), laptop(s), tablet(s), any device that
is capable of recording images, and including but not limited to storage media
such as, video tape(s), disc(s), such as DVD’s & CD’s.”
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considered relevant evidence to the officers, as the
Affidavit for Search Warrant specifically mentioned
Defendant measuring the victim with measuring tape
and writing down such measurements. As such, the Court
finds these items were not illegally seized and thus not
suppressible in any trial of the Defendant.
No witnesses testified at the hearing on George’s motion to
suppress, and the trial court did not conduct a hearing on George’s
motion for new trial. But “[i]n determining the legality of a search,
this Court can consider all evidence of record, including that found
in pretrial, trial and post-trial proceedings.” (Citations omitted.)
Fritzius v. State, 225 Ga. App. 642, 645 (484 SE2d 743) (1997). See
also Wright v. State, 294 Ga. 798, 802 (2) (756 SE2d 513) (2014) (In
reviewing order denying motion to suppress identification
testimony, “this court may consider the evidence adduced both at
the suppression hearing and at trial.” (Citation and punctuation
omitted.)).
At trial, the lead investigator testified that she was looking for
any evidence that would support the victim’s statement, “which
would be measuring tapes, any kind of electronic devices, notes,
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measurements, anything that the child mentioned during his
forensic interview.” She took a measuring tape, a calendar, and other
papers from inside George’s briefcase or bag, as well as notepads, a
book, another measuring tape, and other items from inside several
drawers in the residence. The investigator read and examined the
contents of the various written or printed materials, including pieces
of paper “folded up and slipped into the back” of the notepads. Some
of these items contained the names of the other-acts witnesses who
testified at trial.
At a jury trial from June 11 to 14, 2018, George was convicted
of two counts of child molestation, two counts of enticing a child for
indecent purposes, and six counts of sexual battery. He filed a
motion for new trial, asserting, among other things, that the trial
court erred in denying his motion to suppress items he contended
were outside the scope of the search warrant. The trial court
considered the motion on the briefs after the parties “agreed that a
hearing was unnecessary.” In its order denying the motion, the trial
court did not further analyze its ruling on the motion to suppress,
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but simply recited, “For the reasons stated in the Court’s previously
issued Order denying Defendant’s Motion to Suppress, Defendant’s
Motion was properly denied by the Court.”
George appealed to the Court of Appeals, which quoted the trial
court’s order on the motion to suppress and then stated, “We agree,”
quoting the same language from Walsh. The Court of Appeals noted
that the seized evidence was relevant because “[t]he investigator
was aware of George’s modus operandi of allegedly taking muscle
measurements as a way to get access to the victim’s genitalia and
that he recorded the measurements on paper and in an electronic
device.” The court further noted, “The officers were not required to
overlook related evidence just because it was not listed in the
warrant,” citing Allison v. State, 299 Ga. App. 542, 545 (1) (683 SE2d
104) (2009).
In effect, the Court of Appeals concluded that the State need
only show that evidence was “relevant” or “related” to the matter
under investigation to justify the seizure of evidence outside the
scope of a search warrant. But that conclusion was erroneous, as
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was the holding in Walsh, because the seizure of such evidence not
subject to any other exception to the warrant requirement must
comply with the well-established plain view doctrine.
In describing that doctrine, the United States Supreme Court
has explained:
It is, of course, an essential predicate to any valid
warrantless seizure of incriminating evidence that the
officer did not violate the Fourth Amendment in arriving
at the place from which the evidence could be plainly
viewed. There are, moreover, two additional conditions
that must be satisfied to justify the warrantless seizure.
First, not only must the item be in plain view, its
incriminating character must also be “immediately
apparent.” . . . Second, not only must the officer be
lawfully located in a place from which the object can be
plainly seen, but he or she must also have a lawful right
of access to the object itself.
(Citations and footnote omitted.) Horton v. California, 496 U. S. 128,
136-137 (II) (110 SCt 2301, 110 LE2d 112) (1990).
This Court, applying the plain view doctrine established in
Horton, similarly has outlined the requirements for the seizure of
evidence under that doctrine:
For evidence to be admissible under that doctrine, the
officer collecting the evidence must not have violated the
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Fourth Amendment in arriving at the place from which
he or she sees the evidence. Moreover, the incriminating
nature of the object must be “immediately apparent.” This
requirement means that the officer must have probable
cause to believe that the item in question is evidence of a
crime or is contraband.
(Citations, punctuation, and footnotes omitted.) Moss v. State, 275
Ga. 96, 104 (14) (561 SE2d 382) (2002).
For the plain view exception to apply, the item in question
must be clearly visible, and the officer may not manipulate or
disturb it in order to acquire probable cause to believe the item is
evidence of a crime. In Arizona v. Hicks, 480 U. S. 321 (107 SCt 1149,
94 LE2d 347) (1987), the United States Supreme Court held that
moving a piece of stereo equipment to locate a serial number
constituted a new search, distinct from the initial, authorized
search, because the state conceded that the officer did not have
probable cause to believe that the equipment was stolen until he
moved it in order to locate the serial number. 480 U. S. at 326-327(III). We noted the Hicks rule in Glenn v. State, 302 Ga. 276, 283
(IV) (806 SE2d 564) (2017), but concluded that it did not apply to the
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facts in Glenn. There, a police officer observed a cell phone in plain
view on the floor near the door of the apartment where officers were
lawfully executing a search warrant, and the officer “knew that a
phone of the same model was missing from the victim’s car, and thus
had probable cause to believe that the cell phone he saw had been
stolen from the victim and was evidence of a crime.” Id. at 283 (IV).
This probable cause made the seizure of the phone reasonable even
though it was not specifically listed in the search warrant. See id.We also have specifically applied the plain view standard with
respect to written materials and other documentary evidence. In
Reaves, we held that the trial court erred in stating the plain view
test as “whether the police reasonably could have believed that the
documents would aid in the prosecution of the crime under
investigation.” (Punctuation omitted). 284 Ga. at 238 (1) (b). We
pointed out that this standard “was more lenient than the proper
standard,” noting that “[i]n applying the plain view exception to
documents, the proper standard is whether the documents’
evidentiary value is immediately apparent upon a mere glance or
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cursory inspection.” (Citation omitted.) Id. See also Brown v. State,
269 Ga. 830, 831 (1) (504 SE2d 443) (1998) (plain view exception
inapplicable when incriminating character of “piece of paper”
observed by officer not “immediately apparent”).2
We therefore conclude that the Court of Appeals’ decision in
Walsh is one of a line of that court’s cases that failed to apply the
correct plain view standard to evidence seized outside the scope of a
warrant. See, e.g., Brown v. State, 260 Ga. App. 627, 629 (1) (580
SE2d 348) (2003); Schwindler v. State, 254 Ga. App. 579, 582 (1) (563
SE2d 154) (2002), overruled on other grounds, State v. Lane, 308 Ga.
10, 25 (838 SE2d 808) (2020); McBee v. State, 228 Ga. App. 16 (491
SE2d 97) (1997). The problematic language seems to have originated
in McBee, which relied in part upon this Court’s decision in Jarvis
2 Whether the papers that were seized from George’s home were “private
papers” pursuant to OCGA § 17-5-21 (a) (5) or (b), and to what extent those
Code provisions provide additional state-law protection over and above that of
the federal Fourth Amendment, was not raised in the trial court or the Court
of Appeals. See generally Brogdon v. State, 287 Ga. 530, 534 (2) (697 SE2d 211)
(2010) (hospital’s records of medical treatment not “private papers” pursuant
to OCGA § 17-5-21 (a) (5) because not personal property of appellant and not
seized from his possession).
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v. Rubiano, 244 Ga. 735, 737 (2) (261 SE2d 645) (1979): “The fact
that the police officers seized items not listed in the warrant did not
render the search a general one or make it unlawful.” (Citations and
punctuation omitted.) But the McBee court’s reliance on this
language was misplaced.3
In Jarvis, this Court reviewed a grant of habeas corpus relief
on the ground of ineffective assistance of trial counsel. The habeas
court had concluded that counsel was deficient in failing to file a
motion to suppress a necklace not described in the search warrant,
but described in the affidavit for the warrant, and “discovered by the
police in plain view during the search.” (Emphasis supplied.) 244
Ga. at 736. The affidavit identified a number of items reportedly
worn or used by the perpetrator, including a distinctive silver
necklace, but the necklace was omitted from the search warrant
itself. See id. Jarvis’ trial counsel testified at the habeas hearing
that the omission of the necklace from the warrant “was an
3 The McBee court also relied upon Brown v. State, 187 Ga. App. 714, 715
(371 SE2d 257) (1988). McBee, 228 Ga. App. at 21 (3). Brown, however, did not
rely upon or even mention the question at issue here.
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inadvertent ‘typo’” by the secretary who prepared both the warrant
and the affidavit. Id. at 738 (2). In light of that obvious mistake, he
believed a more effective trial tactic was to challenge the importance
of the necklace in questioning the police witness, given its omission
from the search warrant. We held that under those circumstances,
the habeas court erred in finding counsel ineffective. See id. Nothing
in Jarvis’ narrow ineffectiveness holding in that habeas case
suggested the expansive interpretation adopted by the Court of
Appeals in McBee.
The Court of Appeals, however, has continued to rely upon
McBee and Walsh to apply an incorrect “relevance” standard rather
than the correct plain view analysis. In addition, other decisions of
the Court of Appeals repeat this misstatement of the law, even while
they acknowledge the plain view doctrine. For example, in Allison,
the appellant contended that three items seized by sheriff’s deputies
were outside the scope of the search warrant. See 299 Ga. App. at
545 (1). The Court of Appeals specifically noted and applied the
requirement that the items in question be in plain view, but also
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cited Walsh for the proposition that “police officers are not compelled
to overlook relevant evidence simply because it is not listed in the
search warrant.” Id. Similarly, in Smith v. State, 274 Ga. App. 106(616 SE2d 868) (2005), the Court of Appeals cited and relied upon
the plain view doctrine, see id. at 110 (4), but then cited McBee to
hold that “[t]he fact that the police officers seized items not listed in
the warrant did not render the search a general one or make it
unlawful.” (Citations and punctuation omitted.) Id. at 111 (4).
In sum, the Court of Appeals has erred in considering the
relevance of evidence alone as justifying its seizure outside the scope
of a search warrant, without considering whether the requirements
of the plain view doctrine have been met. We therefore overrule
McBee, Walsh, and their progeny, to the extent those decisions
suggest that relevance alone is a sufficient basis to seize items
beyond the scope of a search warrant. And because the trial court
here relied upon Walsh, determining only that the evidence in
question was relevant, it erred.
Because the trial court did not apply the correct legal standard,
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it should have an opportunity to rule again on George’s motion to
suppress, applying the correct legal standard to the existing record.
See Reaves, 284 Ga. at 237-238 (1) (on interim review, vacating and
remanding case for trial court to apply correct plain error standard).
See also Welbon v. State, 301 Ga. 106, 110-111 (2) (799 SE2d 793)
(2017) (on appeal of conviction, remanding case for trial court to
apply correct legal standard on motion to suppress appellant’s
statement to police detective).
Accordingly, we vacate the Court of Appeals’ opinion and
remand the case to that court with instructions for it to vacate the
trial court’s order on George’s motion for new trial and remand the
case to the trial court with direction to reconsider the motion
consistent with the law set forth in this opinion.
Judgment vacated in part, and case remanded with direction.
All the Justices concur.
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