MASSEY v. the STATE. ( 2019 )

FIRST DIVISION
BARNES, P. J.,
MERCIER and BROWN, 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
May 21, 2019
In the Court of Appeals of Georgia
A19A0429. MASSEY v. THE STATE.
BROWN, Judge.
Jonathan Shane Massey was indicted in Newton County for two counts of child
molestation, one count of invasion of privacy, and twenty-three counts of sexual
exploitation of children. Massey also was indicted in Walton County for four counts
of sexual exploitation of children and one count each of manufacture of marijuana,
possession of a firearm during the commission of a felony, and possession of a
firearm by a convicted felon. Massey waived venue as to the Walton County offenses
and consented to have both indictments tried jointly in Newton County. Following
a bench trial, the trial court convicted Massey of all charges. Massey appeals the
denial of his amended motion for new trial, arguing that the trial court erred in
denying his motions to suppress unlawfully seized evidence. For the reasons
explained below, we affirm the trial court’s denial of Massey’s motion to suppress
evidence underlying the Newton County charges, but dismiss for lack of jurisdiction,
Massey’s challenge to the trial court’s denial of his motion to suppress evidence
underlying the Walton County charges.
1. “It is incumbent upon this Court to inquire into its own jurisdiction, even
when not contested by the parties.” (Citations and punctuation omitted.) Clifton v.
State, 346 Ga. App. 406, 407 (814 SE2d 441) (2018) (physical precedent only). A
criminal case remains pending until the court enters a written judgment of conviction
and sentence. Keller v. State, 275 Ga. 680, 680-681 (571 SE2d 806) (2002). See also
Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981) (“[a]n oral declaration
as to what the sentence shall be is not the sentence of the court; the sentence signed
by the judge is”). “In the absence of a final order, we are constrained to hold that no
final judgment has been entered in the case and jurisdiction remains vested in the trial
court.” Okross v. State, 205 Ga. App. 694, 695 (423 SE2d 291) (1992).
In this case, the appellate record contains only the trial court’s written
judgment as to the Newton County charges; it does not contain the trial court’s
written judgment as to the Walton County charges. Massey has filed a notice of
appeal only in Newton County, and the notice of appeal lists only his convictions and
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sentence in the Newton County case. The Walton County charges arose after Newton
County officers – with the help of Walton County officers – attempted to serve an
arrest warrant at Massey’s residence in Walton County. When they arrived, Massey’s
vehicle was sitting in the driveway, and a woman living in the residence told officers
Massey was not there, but that they could come inside and look for him. Officers
subsequently discovered, in Massey’s bedroom, a rifle and two DVDs, one titled “Too
Young to Know Better” and another titled “Yips on Yips.” Officers obtained a search
warrant for the residence and recovered a shotgun, ammunition, camera and recording
equipment, and numerous DVDs. Massey moved to suppress the evidence obtained
from the residence, arguing that the woman had no authority to consent to the search
and that even if she was authorized to consent, officers went beyond the scope of her
consent.1 As noted previously, the trial court denied the motion.
Because no final judgment has been entered in the Walton County case,
jurisdiction remains vested in the trial court. Accordingly, any portion of this appeal
1
We note that in his appellate brief, Massey contends that only “the seizure and
search of the discs [was] illegal, and that the lower court should have suppressed the
material from use at trial.” (Emphasis supplied.) He does not challenge the denial of
the motion to dismiss as to the other evidence retrieved from the residence.
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challenging Massey’s Walton County convictions, including the denial of his motion
to suppress evidence seized from the residence, is dismissed.
2. We next address Massey’s contention that the trial court erred in denying his
motion to suppress the evidence underlying the Newton County charges.
When the facts material to a motion to suppress are disputed, it generally
is for the trial judge to resolve those disputes and determine the material
facts. This principle is a settled one, and this Court has identified three
corollaries of the principle, which limit the scope of review in appeals
from a grant or denial of a motion to suppress in which the trial court
has made express findings of disputed facts. First, an appellate court
generally must accept those findings unless they are clearly erroneous.
Second, an appellate court must construe the evidentiary record in the
light most favorable to the factual findings and judgment of the trial
court. And third, an appellate court generally must limit its consideration
of the disputed facts to those expressly found by the trial court.
(Citations, punctuation and footnotes omitted.) Hughes v. State, 296 Ga. 744, 746,
(770 SE2d 636) (2015). See also Thompson v. State, 348 Ga. App. 609, 612 (1) (824
SE2d 62) (2019). Viewing the evidence in that light,2 the record shows that Massey
2
Although the trial court did not issue written orders when it denied Massey’s
motions to suppress, the trial court addressed the suppression issues in its order
denying Massey’s amended motion for new trial. In that order, the trial court made
express factual findings relating to its suppression decisions, and in our review of
those suppression decisions we must “focus on the facts found by the trial court in
4
was in jail for a probation violation in September 2010, when he called his then-wife
and asked her to issue payroll checks for his business. His wife testified that Massey
told her to take the keys he had left at home when he was arrested, go to his place of
business, and unlock his office desk to get the checks. She went to the business,
unlocked the desk, and discovered drugs, a manila envelope with pornographic
pictures sticking out of one end, and a CD, both of which contained nude photos of
her thirteen-year-old niece taken in the bathroom of the Massey home. The wife
called Massey and asked him for the password to his computer because “the guys
needed to get on the computer to handle some accounts that were waiting – business
related.” Massey gave her his password and on the computer she discovered “child
porn” and additional photos of Massey with other women. The wife called the
sheriff’s office and spoke to an investigator who told her to bring the items to police.
The wife brought Massey’s hard drive, a thumb drive, the CD, and the photos she
found in Massey’s desk to the sheriff’s office and gave them permission to look
through everything. The sheriff’s office later asked the wife to bring them Massey’s
[that] order, as the trial court sits as the trier of fact.” (Citation and punctuation
omitted.) Caffee v. State, 303 Ga. 557, 559 (1) (814 SE2d 386) (2018).
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computer, which she did. The wife testified in the motion to suppress hearing that she
was not involved in Massey’s business.
An investigator with the Newton County Sheriff’s Office testified that another
investigator said that Massey’s wife told another investigator that she had been
instructed by Massey to go to his office to make payroll. Massey told his wife where
the keys were located and gave her the password to the computer “where she was to
go and do the payroll.” While sitting at his desk, the wife came across nude photos
of her niece. On the computer she found files containing nude children. The
investigator understood that the wife had access to the computer and/or the password
to the computer. The wife turned over to police the photos, a thumb drive, and the
computer hard drive. The investigator called the Georgia Bureau of Investigation
(GBI), told them to put her on a waiting list to search the items, and then obtained a
search warrant. The investigator testified that it was her understanding that law
enforcement had the wife’s consent, but that she obtained a search warrant as a
“precautionary measure.” Before turning the items over to the GBI, and presumably
before obtaining the search warrant, the investigator viewed hard copies of the
pictures taken from the computer. On cross-examination, the investigator
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acknowledged that her report makes no mention of the wife authorizing consent to
search the computer or hard drive.
Massey testified that he was the controlling shareholder of the business and
that his wife rarely came to the business or had any involvement in the business.
Massey testified that he told his wife to get the payroll checks from his office and
give them to an employee so the employee could write out the checks and stamp them
with Massey’s signature. He denied that the checks were in his desk, stating that they
were in a box beside the desk. When asked if he had a conversation with his wife
about accessing his computer Massey said, “I don’t believe so.”
In denying Massey’s motion to suppress, the trial court found that the
electronic evidence, including the hard drives, computer tower, thumb drive, and
DVDs from Massey’s office, “was seized in accordance with the federal and state
constitutions after a non-law enforcement individual[, i.e., Massey’s wife,] brought
evidence she found in an area she was told to go by [Massey].” The trial court found
that the wife went to the office because Massey “asked her to take the keys to the
office so that she could get into his desk to retrieve items and help write payroll
checks. [The wife then] took these items over [to] the police department ‘freely and
voluntarily,’ and never felt any pressure to retrieve these items. . . . Additionally, . .
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. [t]he Court need not get involved in what [the wife’s] motives were for retrieving
the evidence.” The trial court further concluded that it was “reasonable for [the
investigator] to believe that [the wife] had the authority to give consent to search
these items since she was married to [Massey] at the time. Further, [the wife] gave
explicit permission to [the investigator] for her to search the items.” Massey makes
two arguments in challenging the trial court’s ruling. We consider them in turn below.
(a) Massey first contends that the search warrant for his office computer and
electronic files was not supported by probable cause because it was issued based upon
information provided by his now ex-wife who was not shown to be a credible source
of information. We cannot consider this argument. “In challenging a trial court’s
denial of a motion to suppress, a defendant may not argue on appeal grounds that he
did not argue (and obtain a ruling on) below.” (Citation and punctuation omitted.)
Bryant v. State, 288 Ga. 876, 894 (13) (b) (708 SE2d 362) (2011). See also Bryant v.
State, 326 Ga. App. 385, 388 (756 SE2d 621) (2014).
At the suppression hearing, Massey argued that his wife did not have authority
to consent to a search of his office computer and electronic files. Massey alleged that
his wife was authorized to be in his office, but only for the very limited purpose of
writing payroll checks. He also argued in passing that police never asked his wife for
8
consent. He now asserts for the first time on appeal that the search warrant was not
supported by probable cause. Because Massey did not raise this particular argument
below, he has waived it here.
(b) Massey also contends that the trial court erred in denying his motion to
suppress because it did not consider the scope of any purported third-party consent.
In this regard, Massey argues that his wife’s authority was limited to retrieving items
to write payroll checks.
A search and seizure is reasonable if it is conducted pursuant to a valid search
warrant or with consent from (1) the individual whose property is searched; (2) a third
party who has common authority over the property; or (3) if a police officer could
have reasonably believed that a third party had common authority over the property.
See Illinois v. Rodriguez, 497 U. S. 177, 181 (II), 188-189 (III) (B) (110 SCt 2793,
111 LE2d 148) (1990). See also Gomillion v. State, 298 Ga. 505, 508 (3) (783 SE2d
103) (2016). “Common authority . . . rests . . . on mutual use of the property by
persons generally having joint access or control for most purposes.” United States v.
Matlock, 415 U. S. 164, 171 (II), n.7 (94 SCt 988, 39 LE2d 242) (1974). In some
circumstances, a third party who purports to consent to a search lacks the actual
authority to do so, but law enforcement may rely on that individual’s apparent
9
authority to give consent, if such reliance is reasonable. See Rodriguez, 497 U. S. at
188-189 (III) (B). See also Niles v. State, 325 Ga. App. 621, 623 (754 SE2d 406)
(2014) (“even if the consenting third party did not in fact have authority to give
consent to [search], where police reasonably believed that the third party had such
authority, this constitutes apparent authority which validates the [search]”).
As with other factual determinations bearing upon search and seizure,
determination of consent to [search] must be judged against an objective
standard: would the facts available to the officer at the moment warrant
a [person] of reasonable caution in the belief that the consenting party
had authority over the [property]? If not, then warrantless [search]
without further inquiry is unlawful unless authority actually exists. But
if so, the search is valid.
(Citation omitted.) Niles, 325 Ga. App. at 623.
Here, the trial court found that is was reasonable for the investigator to believe
that the wife had the authority to give consent to search the computer items since she
was married to Massey at the time and Massey had instructed her to go to his office.
There was evidence presented at the suppression hearing that Massey had given the
wife his computer password, thus giving her access to his computer and computer
files, and that Massey had given her the password to access his computer for purposes
other than payroll, because “business related” accounts were waiting. Because the
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wife told an investigator that Massey had instructed her to go to his office to take care
of payroll and that he had given her his computer password without telling her that
other portions of the computer were off-limits, it was not unreasonable for the
investigator to believe that the wife had common authority over or other sufficient
relationship with Massey’s computer and electronic files. See, e.g., United States v.
Thomas, 818 F3d 1230, 1242 (III) (E) (11th Cir. 2016) (without separate passwords,
or like security measures, reasonable officer would have thought that defendant and
then-wife shared access to home computer, “and by doing so, assumed the risk that
the other would allow the police to view the computer’s contents”); United States v.
Buckner, 473 F3d 551, 555 (4th Cir. 2007) (even though wife did not have password
to computer primarily used by husband, totality of circumstances provided officers
with basis for objectively reasonable belief that wife had authority to consent to
search of computer’s hard drive); Antonelli v. Sherrow, 246 Fed.Appx. 381, 384 (7th
Cir. 2007) (where defendant had given his ex-wife his computer for duration of his
incarceration, had not password-protected any files on computer, and had not
indicated to her that any files were off-limits, his ex-wife could give valid consent).
But see Trulock v. Freeh, 275 F3d 391, 403 (III) (c) (4th Cir. 2001) (co-resident of
home and co-user of computer who did not know necessary password for co-user’s
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password-protected files, lacked authority to consent to a warrantless search of those
files).
As for Massey’s contention that his wife’s authority to search the computer was
limited to retrieving items to write payroll checks, and that she therefore had no
authority to consent to a search of other areas on Massey’s computer, we decline to
“engage in such metaphysical subtleties in judging the efficacy of [his wife’s]
consent.” Frazier v. Cupp, 394 U. S. 731, 740 (III) (89 SCt 1420, 22 LE2d 684)
(1969) (rejecting defendant’s argument that cousin only had permission to use one
compartment of duffel bag). Compare State v. Parrish, 302 Ga. App. 838, 840 (691
SE2d 888) (2010) (defendant’s wife did not have authority to consent to search of gun
cabinet where evidence known to police established that wife did not have joint
access or control over the gun cabinet; defendant locked the gun cabinet and
maintained possession of the only key). In giving his wife his password and allowing
her to use his computer, Massey “must be taken to have assumed the risk that [she]
would allow someone else to look inside.” Frazier, 394 U. S. at 740 (III). We find no
merit in this contention and conclude that the trial court correctly found that Massey’s
wife had apparent authority over his computer and electronic files such that she had
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the right to consent to their search. Accordingly, we affirm the trial court’s denial of
Massey’s motion to suppress this evidence.3
3. Finally, Massey argues that the evidence obtained from the trailer, as
reviewed in Division 1, should have been suppressed under the fruit of the poisonous
tree doctrine because the evidence from his computers and electronic files was
illegally obtained. Pretermitting whether the evidence from his computer and
electronic files was illegally obtained, Massey never raised this argument below.
Accordingly, he has waived it here. See Bryant, 288 Ga. at 894 (13) (b).
Judgment affirmed in part; appeal dismissed in part. Barnes, P. J., and
Mercier, J., concur.
3
In asserting this argument, Massey does not take issue with the evidence
obtained from his desk.
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