Trenton Matthew Stamey v. State , 812 S.E.2d 21 ( 2018 )

SECOND DIVISION
MILLER, P. J.,
ANDREWS and SELF, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
February 22, 2018
In the Court of Appeals of Georgia
A18A0730. BOOTH v. THE STATE.
A18A0731. STAMEY v. THE STATE.
A18A0732. POWELL v. THE STATE
A18A0733. MEDINA v. THE STATE
A18A0734. JONES v. THE STATE.
A18A0735. BOSWELL v. STATE.
SELF, Judge.
In each of these appeals, we are called upon to address the same issue based
upon identical facts: whether the trial court erred by denying appellants’ motion to
suppress grounded upon the State’s failure to immediately present wiretap recordings
for sealing as required by federal law. See 18 USC § 2518 (8) (a). For the reasons
explained below, we affirm.
On appeal, we accept the findings of the trial court on questions of
disputed fact unless those findings are clearly erroneous. We owe no
deference, however, to the trial court on questions of law, and we must
decide for ourselves whether the facts show a failure to immediately
present the recordings for sealing and, if so, a satisfactory explanation
for that failure.
Finney v. State, 298 Ga. 620, 622, n. 5 (783 SE2d 598) (2016). The record shows that
on June 19, 2015, a Spalding County superior court judge signed three separate orders
authorizing wiretaps on cell phones belonging to Adrian Lehsten. On June 21, 2015,
approximately two weeks before the orders were scheduled to expire, Lehsten was
arrested in Lamar County. The next day, the police learned of his arrest and “had to
kind of scramble and execute . . . four to five search warrants” at “the residences of
other known co-conspirators.” They also stopped the electronic surveillance since
Lehsten “was no longer using his phone because he was in jail.” A narcotics officer
received the recordings on June 24, 2015. On July 2, the judge who issued the wiretap
orders signed an order sealing the recordings.
In March 2017, the State indicted, among others, the six appellants in this
appeal (Darryl Keith Booth, Trenton Matthew Stamey, Amber Cherie Powell, Tammy
Louise Medina, Anthony Wade Jones, and Christina Marie Boswell) for various
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crimes, including illegal use of a communication facility.1 Each of the appellants, who
are all represented by the same attorney, filed identical motions to suppress “all
evidence resulting from an unlawful wiretap” based upon the State’s delay in sealing
the recordings. Following a consolidated hearing for all six cases, the trial court
denied the motions to suppress.
1. In Georgia, a superior court judge may issue a warrant permitting a wiretap
“for the surveillance of a person or place to the extent the same is consistent with and
subject to the terms, conditions, and procedures provided by 18 U.S.C. Chapter 119.”
OCGA § 16-11-64 (c). 18 USC § 2518 (8) (a) mandates that “[i]mmediately upon the
expiration of the period of the order [authorizing interception of wire, oral, or
electronic communications], or extensions thereof, such recordings shall be made
available to the judge issuing such order and sealed under his directions.”
[T]he government may not use or disclose the content of any intercepted
communication or any evidence derived therefrom in a judicial
proceeding, unless there appears a “satisfactory explanation” for the
failure to make an immediate presentation of the recordings. A
“satisfactory explanation” is one that “explains not only why a delay
1
Lehsten was charged with violations of Georgia’s Racketeer Influenced and
Corrupt Organizations Act in connection with the possession of controlled
substances.
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occurred but also why it is excusable.” United States v. Ojeda Rios, 495
U.S. 257, 265 (110 SCt 1845, 109 LE2d 224) (1990).
(Footnote omitted.) Finney, 298 Ga. at 620.
In North v. State, 250 Ga. App. 622 (552 SE2d 554) (2001), we addressed “the
problematic question of whether a sealing delay must be calculated from the
expiration date of the warrant or the date that the tap is actually terminated, where
such date precedes the expiration date on the wiretap order.” Id. at 624 (1). After
examining 18 USC § 2518 (8) (a), we concluded that “the statute, on its face, requires
immediate sealing only after ‘the expiration of the period of the order, or extensions
thereof.’” (Emphasis in original.) Id. at 624. Accordingly, we applied “the plain
language of the statute” and found that the recordings “were admissible because they
were sealed by the judge on the date that the wiretapping order terminated.” Id. In
Finney, supra, the Supreme Court of Georgia recognized two nonbinding federal
decisions to the contrary, but assumed, “[w]ithout deciding . . . that the State need
only explain the delay following the expiration of the Title III authorization.”2 298
Ga. at 623, n. 6. Based upon its conclusion that the State “failed to adequately explain
2
“Title III” refers to Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, codified at 18 USC 2510 et seq., of which 18 USC 2518 (8) (a) is a part.
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the delay following the expiration of the Title III, authorization,” it determined that
it “need not consider whether an explanation also is required for the period between
the conclusion of surveillance and the expiration of the Title III authorization.”3 Id.
In this case, the record shows that the discs were created June 24, 2015, the
issuing judge signed an order sealing the discs on July 2, 2015, and the authorizing
order expired around July 6, 2015. Based upon the binding precedent of our decision
in North, supra, we conclude that the State need not provide an explanation of the
delay between the sealing and the date the authorizing order expired. As the evidence
shows that the recordings were sealed before the expiration of the authorizing order,4
we affirm the trial court’s order denying the appellants’ motion to suppress.
2. Our holding in Division 1 renders appellants’ remaining enumeration of
error moot.
Judgment affirmed. Andrews, J., concur. Miller, P. J., concur fully and
specially.
3
The Supreme Court did not acknowledge our decision in North, supra, when
it discussed this issue.
4
We note that this Court is not bound by the State’s concession in the motion
to suppress hearing that it was legally required to provide an explanation for the
delay. See Tezeno v. State, 343 Ga. App. 623, 628 (1) (a), n. 3 (808 SE2d 64) (2017);
Franklin v. Eaves, 337 Ga. App. 292, 298 (2) (787 SE2d 265) (2016).
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A18A0730. BOOTH v. THE STATE.
A18A0731. STAMEY v. THE STATE.
A18A0732. POWELL v. THE STATE.
A18A0733. MEDINA v. THE STATE.
A18A0734. JONES v. THE STATE.
A18A0735. BOSWELL v. THE STATE.
MILLER, Presiding Judge, concurring fully and specially.
I agree that, under our precedent, the trial court was not required to suppress
the evidence in this case, and I concur fully in the majority opinion. See North, supra,
250 Ga. App. at 624 (1). I write separately to emphasize that our Supreme Court has
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expressly declined to decide this precise situation – where the surveillance ceased
prior to the expiration of the warrant. See Finney, supra, 298 Ga. at 623 n. 6.
Moreover, as our Supreme Court noted, some federal courts have held that the
recordings must be presented immediately “as soon as practical after the surveillance
ends,” regardless of whether the warrant had expired at that time. See Finney, supra,
298 Ga. at 623 n. 6; United States v. Coney, 407 F3d 871, 875 (7th Cir, 2005); United
States v. Williams, 124 F3d 411, 429 (IX) (3d Cir. 1997).
The purpose of this immediacy requirement is to ensure the reliability and
integrity of the recordings by establishing that they have not been tampered with prior
to their admission at trial. See United States v. Ojeda Rios, 495 U S 257, 263 (110
SCt 1845, 109 LE2d 224) (1990). Where the interception ceases prior to the
termination of the warrant, this goal is met only by requiring the government to
present the records immediately after the surveillance ends, and not at some later
point when the warrant expires. I thus question whether our precedent comports with
the purposes and intentions of the federal wiretap statute identified in Ojeda Rio,
supra, 495 U S at 263. Nevertheless, as our court has spoken, I agree with the
majority’s conclusion in this case.
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