Hamlett v. State

ELLINGTON, Presiding Judge.

Following a joint trial, a Fulton County jury found Salim Hamlett and his brother, Jalim Hamlett, guilty of burglary, OCGA § 16-7-1 (b), and possession of tools for the commission of a crime, OCGA § 16-7-20 (a). The jury also found Jalim Hamlett guilty of two misdemeanor traffic offenses: improper tag display, OCGA § 40-2-41, and failure to have operational brake lights, OCGA § 40-8-25 (a), (b). The trial court denied their motions for new trial, and the Hamletts have appealed. Because both cases arise from the same facts and involve a joint trial and motion hearings, we have consolidated them.

The appellants contend that the trial court erred in denying their joint motion to suppress evidence for two reasons. First, Jalim Hamlett argues that the State improperly seized the evidence following the illegal placement of a Global Positioning System (“GPS”) tracking device on his truck and the traffic stop that resulted therefrom.¹ Second, both appellants argue that the court should have suppressed the evidence on the basis that their three- to four-hour custodial detentions following the traffic stop were illegal.

The appellants also contend that the court erred in denying their motions for new trial due to their counsel’s conflict of interest that arose from his joint representation of them at trial, that their trial counsel provided ineffective assistance, and that there was insufficient evidence to support their convictions. For the reasons explained below, we reverse the burglary and possession of tools convictions of both Salim and Jalim Hamlett, but affirm Jalim Hamlett’s convictions on the misdemeanor traffic offenses.

1. According to Jalim,² the trial court erred in denying the motion to suppress because there was not sufficient probable cause to support the court order that authorized the State to surreptitiously install the GPS tracking device on his pickup truck and to continuously monitor the signals from the device for over two weeks. He also argues that the subsequent traffic stop of his truck resulted solely from the State’s illegal installation and monitoring of the device and that, but for the signals elicited from the illegal tracking device, the traffic stop was not supported by a reasonable articulable suspicion that he was or had been involved in criminal activity. He contends, therefore, that the traffic stop was illegal and that all evidence seized as a result of the stop should have been suppressed by the trial court. We agree.

“When a defendant moves to suppress evidence based on an illegal search, the State bears the burden of proving that the search was lawful.” (Citation and punctuation omitted.) Lott v. State, 303 Ga. App. 775, 780 (2) (694 SE2d 698) (2010).

Because the trial court sits as the trier of fact when ruling on a motion to suppress or a motion in limine, its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them. When we review a trial court’s decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. With mixed questions of fact and law, the appellate court accepts the trial court’s findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.

(Citations and punctuation omitted.) State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005). Viewed in favor of the trial court’s order denying the motion to suppress, the record shows the following relevant events that preceded the traffic stop at issue.

On August 5, 2010, someone committed a burglary at a home on Northside Drive in Fulton County, stealing computers, a television, and jewelry. According to the homeowner, at about 8:00 the next evening, a man he did not know came to his front door and offered to perform yard work, even though it was raining and almost dark. The homeowner refused the offer but asked for the man’s phone number, then watched the man walk away along Northside Drive. Because his home had been burglarized the day before, the homeowner became suspicious, so he got into his car and drove down Northside Drive to follow the man. He saw the man get into the passenger side of a dark colored GMC pickup truck, and he followed the truck long enough to get its tag number, which was “BMP0476.” The homeowner then reported the encounter to the police.

An Atlanta police detective, who was also a member of the Fulton County Burglary Task Force, testified that, in August 2010, he was investigating burglaries that had occurred in the Northside Drive area. Upon receiving the homeowner’s report of the August 6 incident, the detective determined that the tag of the pickup truck was registered to Jalim, andhe obtained a Cobb County address for Jalim. The detective knew that there was an outstanding arrest warrant for Jalim on a charge of theft by receiving stolen property. According to the detective, that charge arose from a January 2010 theft of three dishwashers from an Atlanta business; the dishwashers were later found at a building supply surplus store. The store’s records showed that Jalim and another man, Zaid Ashanti, had brought the dishwashers to the store to sell a few days after they were stolen.

Based on this information, the detective suspected that Jalim might have been involved in the August 5 residential burglary on Northside Drive, and he applied for a court order from the Superior Court of Cobb County³ authorizing him to secretly install a GPS tracking device on Jalim’s pickup truck so he could monitor Jalim’s movements throughout the area. He completed an affidavit recounting the above information and stating as follows:

This Affiant believes that Jalim Basheer Hamlet [sic] and other unknown accomplices are involved in the crime of Burglary in the Atlanta Metro Area. This Affiant requests authorization from the court to install and monitor a GPS signaling device on the 1998 GMC Sierra pick up truck Georgia tag #BMP 0476 to assist in surveillance of the vehicle and its occupants in efforts to identify accomplices and possible fencing locations of stolen goods and lead Police to the arrest of Jalim Basheer Hamlet [sic].

Based solely upon this affidavit, the Cobb County court issued an order in which it found that there was probable cause to believe that Jalim and others “have committed the crimes of Burglary, Theft by taking and Theft by Receiving,” that Jalim’s “vehicle will be used by [him and others] as his means of transportation, including as means of transportation in connection with the illegal activity,” and that information obtained by the use of the GPS tracking device “will be relevant and material to the ongoing investigation being conducted by the City of Atlanta Police Department and the Fulton County Multi-jurisdictional Burglary Task Force.” Based upon these conclusions, the court authorized the surreptitious entry into Jalim’s truck “at any hour of the day or night” in order to install the device, using “clandestine means” if necessary, as well as the continuous monitoring of the signals from that device for up to 50 days from the date of the order, whether the truck was in a public place or on private property, including when the truck was concealed from view. The detective then went to Jalim’s home and, without Jalim’s knowledge or consent, installed the device on the truck’s undercarriage while it was parked in Jalim’s driveway.

About 15 days later, on August 30, Atlanta and Sandy Springs police officers monitoring the GPS signals from Jalim’s truck observed that the truck was traveling toward Sandy Springs. Because the signals later indicated that the truck stopped for approximately 28 minutes at a home on Rebel Trail in Sandy Springs, the officers suspected that Jalim was involved in illegal activity at that address and issued a “be on the lookout” (“BOLO”) alert for the truck, giving a description of the truck and its tag number. Within minutes, a Sandy Springs officer observed a truck matching that description⁴ and followed it for a few miles before conducting a traffic stop; he did not stop the truck immediately because he was waiting for backup officers to arrive and assist him when he stopped the truck.

Following the traffic stop, the officers arrested the driver, Jalim, his brother, Salim, and a third person and charged them with a burglary at the Rebel Trail address.⁵ Defense counsel for the appellants filed a joint motion to suppress evidence seized as a result of the traffic stop, challenging the legality of the GPS tracking device and the traffic stop, as well as contending that the State illegally detained them for an unreasonable amount of time (three to four hours) following the stop without probable cause to do so. The trial court denied the motion, ruling that the use of the GPS device was legal because the “mere placement of a beeper device into contraband or an otherwise lawful object does not amount to an illegal search or seizure where there is no trespass involved and there exists probable cause to believe that a crime is intended,”⁶ and that “even the warrant-less ... monitoring of signals from inside an automobile traveling on public roads does not constitute an unreasonable search or seizure because it does not reveal anything that could not be observed through visual surveillance.”⁷ (Emphasis in original.) It also found that the traffic stop and the lengthy detention that followed were legal because they were based on the articulable suspicion and probable cause that arose from the officers’ monitoring of the GPS device, the BOLO alert that resulted therefrom, the officers’ observation of possible proceeds of a suspected burglary lying in plain sight in the truck’s bed following the stop, and the traffic offenses (the truck’s inoperable brake light and improper tag) observed by the police. Following the denial of their motion to suppress, the appellants were jointly tried and convicted by a jury, and this appeal followed the denial of their motions for new trial.

(a) The first issue presented is whether the State’s actions regarding the GPS tracking device, i.e., attaching the GPS device to Jalim’s truck and then, for over two weeks, continuously monitoring the signals in order to track his movements throughout the greater Atlanta metropolitan area without his knowledge or consent, constituted an invasion of his privacy under the Fourth Amendment that had to be authorized by a valid search warrant supported by probable cause. Given the recent decision by the Supreme Court of the United States in United States v. Jones, _ U. S. ___ (132 SCt 945, 181 LE2d 911) (2012), we must answer in the affirmative.⁸

The facts presented in Jones are, in relevant part, as follows:

In 2004 respondent Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI and Metropolitan Police Department task force. Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones’s cellular phone. Based in part on information gathered from these sources, in 2005 the Government applied to the United States District Court for the District of Columbia for a warrant authorizing the use of an electronic tracking device on the Jeep Grand Cherokee registered to Jones’s wife. A warrant issued, authorizing installation of the device in the District of Columbia and within 10 days. On the 11th day, and not in the District of Columbia but in Maryland, agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used the device to track the vehicle’s movements [.]

(Footnote omitted.) Id. at._(I). After his arrest, Jones filed a motion to suppress evidence obtained through the use of the GPS device. Id. at_(I). Although the government conceded that its agents did not comply with the warrant when it installed the GPS device, it argued that the evidence at issue was still legally obtained because the installation and monitoring of the GPS device did not constitute a search or seizure and, thus, did not require a warrant. Id. at_(I), n. 1. The district court denied the motion in part, ruling that, because Jones had no reasonable expectation of privacy while traveling in his car on public thoroughfares, the data recovered from the device during that time was admissible. Id. at._(I).⁹ On appeal, the Court of Appeals for the District of Columbia Circuit reversed Jones’ conviction, ruling that the warrantless use of the GPS device violated the Fourth Amendment. Id. at__ (I). The Supreme Court affirmed that ruling, holding that the government’s installation of a GPS tracking device to an individual’s vehicle, and the subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search within the meaning of the Fourth Amendment. Id. at__ (II) (A). The Court explained its ruling by stating:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.

Id. at_(II) (A).¹⁰

Accordingly, we conclude that, pursuant to the Supreme Court’s ruling in Jones, the State’s installation and monitoring of the GPS tracking device in this case constituted a search under the Fourth Amendment that had to be authorized by a valid warrant.

(b) It follows that the next question presented here is whether the affidavit executed by the detective when he applied for a court order authorizing the GPS tracking device presented sufficient facts from which the Cobb County judge could find the existence of probable cause that was necessary to support the issuance of a search warrant. We conclude that it did not.

A search warrant must be supported by probable cause, or reasonable grounds, to believe that evidence of a crime will be found in a particular place. In determining whether an affidavit provided sufficient probable cause, the issuing magistrate or judge must make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. [¹¹] And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Where the State fails to show any connection between the items sought and the place to be searched, however, there are no reasonable grounds for the search.

(Citations and punctuation omitted.) State v. Brantley, 264 Ga. App. 152, 153-154 (589 SE2d 716) (2003).

As shown above, the affidavit in this case stated that the detective was a member of a multi-jurisdictional burglary task force that was investigating burglaries in the “Atlanta metro area”; there was a seven-month-old outstanding warrant for Jalim’s arrest for theft by receiving stolen goods, a charge that arose following a January 2010 burglary of an Atlanta business (a crime for which he has not been charged); there had been a burglary on Northside Drive on August 5; and a man approached the same house the next evening offering to do yard work and, when he left, he got into the passenger side of a pickup truck with a tag that was registered to Jalim. However, during the motion to suppress hearing, the detective admitted that, at the time he executed the affidavit, there was no evidence that Jalim had been involved in the actual burglary of the business in January 2010, nor was there any evidence that his truck had been used in that burglary. Similarly, he admitted that there was no evidence that either Jalim or his truck had been at the scene of the August 5 burglary on Northside Drive. It is also undisputed that the man who approached the homeowner on the day after that burglary committed no crime, that the homeowner only described the man as a “black man” during the motion to suppress hearing, and that the homeowner has never identified the man as either of the appellants.

Further, as for the affidavit’s assertion that the GPS device could “lead [the] Police to the arrest of Jalim,” the affidavit itself shows that there was already a seven-month-old outstanding arrest warrant for Jalim, and it gave his home address. Thus, the State clearly had the necessary information and a sufficient basis for effecting the arrest of Jalim before the detective even executed the affidavit.

Under these circumstances, we conclude that the detective’s affidavit failed to provide a sufficient basis from which the Cobb County court could find the probable cause necessary to authorize the State’s surreptitious and nonconsensual installation and monitoring of the GPS tracking device. See State v. Brantley, 264 Ga. App. at 153-155 (After noting that “time is assuredly an element of the concept of probable cause” because, “[i]f the prior circumstances relied on to establish probable cause have grown stale with time, they are unlikely to provide a reliable barometer of present criminal conduct,” this Court concluded that a search warrant for the defendant’s home was not supported by probable cause when two months had passed since the crime for which he was being investigated had occurred.) (citation and punctuation omitted).

Although the dissent in this case correctly asserts that a magistrate’s decision to issue a search warrant based upon its finding of probable cause is entitled to “substantial deference” by reviewing courts, this Court is not obligated to defer to a decision that is based upon a finding that is clearly erroneous, as in this case. In its order, the magistrate concluded that there was probable cause to believe that Jalim and others “have committed the crimes of Burglary, Theft by taking and Theft by Receiving” and that Jalim’s “vehicle will be used by [him and others] as his means of transportation ... in connection with the illegal activity!.]” As shown above, however, during the motion to suppress hearing, the detective who was investigating Atlanta-area burglaries and who completed the search warrant affidavit conceded that there was no evidence that Jalim or his truck were involved in either the January 2010 burglary of a business¹² or the August 2010 Northside Drive residential burglary. Further, we find the dissent’s suggestion that the detective demonstrated some connection or nexus between the January 2010 business burglary and the August 2010 residential burglary by showing that both offenses involved the theft of “appliances” to be specious, given that the former burglary involved the theft of three dishwashers from a business and the latter involved the theft of computers, a television, and jewelry from a private residence.

It is axiomatic that “[m]ere suspicion does not amount to probable cause.” Shivers v. State, 258 Ga. App. 253, 256 (573 SE2d 494) (2002). See also Zimmerman v. State, 131 Ga. App. 793, 795 (207 SE2d 220) (1974) (“Rumor, suspicion, speculation or conjecture is not sufficient to show probable cause. The police may not search and seize and then look for probable cause to justify their action. Probable cause must exist at the time of the search and seizure.”) (citation omitted). The dissent, however, relies upon Marlow v. State, 288 Ga. 769, 770 (2) (707 SE2d 95) (2011), for the proposition that “[a]n officer’s inference that items sought will be at the place to be searched requires no more than ‘a fair presumption’ to be reasonable.” (Citations and punctuation omitted.) Pretermitting whether this proposition applies in a situation wherein officers are conducting a “search” through the use of GPS tracking technology in order to collect evidence of crimes which have not yet been committed, the facts presented in Marlow are clearly distinguishable from those presented in the instant case. In Marlow, police officers received an anonymous tip that they would find Marlow, who had two prior arrest warrants pending against him, inside a house. Id. at 769 (1). Officers went to the house, knocked on the front door, and observed a man look out an upstairs window and then disappear. Id. Although the officers could not positively identify the man, his appearance was consistent with a photograph of Marlow. Id. Despite the officers’ repeated knocking, no one answered the door. Id. While outside, police observed a car that had been backed into the driveway so that its tag was not visible from the street; the car was locked and its alarm was activated. Id. at 769-770 (1). After running the tag, police discovered that the car had been stolen. Id. at 770 (1). From this evidence, the police reasonably inferred that someone had taken the car keys into the house. Id. at 770 (2). This inference, combined with evidence that a man who resembled Marlow was inside the house and was refusing to answer the door, was sufficient to provide probable cause for the issuance of a warrant to search the house for the stolen car keys. Id. at 770-771 (2).

While we agree that these facts arguably support a “fair presumption” that the stolen car keys would be found inside the house, we fail to see any analogous or comparable facts in the instant case upon which to base such a presumption.

Finally, although the dissent asserts that “the burden of producing evidence to challenge the validity of the warrant shifted to [ J alim] once the State produced the warrant and the supporting affidavit establishing probable cause,” we disagree.

Although the burden of proving the lawfulness of a warrant is upon the State, and that burden never shifts to the defendant, when a motion to suppress is made on one of the three statutory grounds enumerated in OCGA § 17-5-30 (a) (2), including, as here, an allegation that the warrant was issued without probable cause, the State satisfies its initial burden by production of the warrant and its supporting affidavit, and by showing either by those documents or by other evidence that the warrant is not subject to the statutory challenge alleged. The burden of production then shifts to the defendant to produce evidence to support his challenge.

(Citations and punctuation omitted; emphasis supplied.) Jones v. State, 292 Ga. 656, 664 (3), n. 13 (740 SE2d 590) (2013). In other words, simply producing the warrant and the supporting affidavit does not meet the State’s threshold burden; it must also show through those documents or other evidence that the warrant is not subject to the challenge raised by the defendant. Id. Thus, when the defendant asserts that the warrant was invalid because it was not supported by probable cause, as in this case, the State must show that probable cause existed before the burden shifts to the defendant. Id.¹³ Unlike the dissent, we conclude that the State failed to meet this initial burden and, as a result, find that the burden never shifted to Jalim to establish the absence of probable cause.

It follows that the trial court erred in denying the appellants’ motion to suppress all evidence that was seized as a result of the illegal use of the GPS device. See State v. King, 287 Ga. App. 680, 681-683 (652 SE2d 574) (2007) (While two brothers were visiting a friend’s home, officers entered without consent or a warrant and conducted an illegal pat-down search of one of the brothers, during which they found a small package of methamphetamine in his pocket. Based upon this discovery, officers secured a search warrant and searched the residence, and the evidence they found led to the indictment of both brothers for drug-related offenses. The trial court granted the brothers’ motion to suppress the evidence, and this Court affirmed, concluding that the evidence was obtained as a direct result of the exploitation of the initial illegality, the pat-down search, and, thus, was properly excluded.).¹⁴

(c) Moreover, we conclude that the illegality of the traffic stop in this case is not cured by the fact that the officer who conducted the traffic stop of Jalim’s truck testified that, while he was following and preparing to stop the truck, he observed that one of the truck’s brake lights was not operating and that it was improperly displaying an expired, paper “drive-out” tag.¹⁵ The officer testified that he had been told to follow and stop the truck by the BOLO alert and the officers who were monitoring the truck’s GPS signals and that, without such instructions, he probably would not have had any contact with the truck or its occupants that night. Further, he specifically admitted that he intentionally postponed the traffic stop and followed the truck for several miles while waiting for backup officers to arrive, but he offered no explanation as to why this would have been necessary if he was simply making a routine stop based upon a minor, nonmoving traffic violation. In addition, the officer testified that his superior officer had instructed him to take the appellants and the other passenger into custody as part of the investigation of a possible burglary at the Rebel Trail house, even though there was no evidence at that time that a crime had been committed there.

Moreover, the police sergeant who directed the officer to conduct the traffic stop testified at trial that, even though he had not seen Jalim break any laws and he did not know if anything illegal had even occurred at the house on Rebel Trail that night, he ordered the traffic stop anyway because, in his opinion, “there was definitely some very suspicious activity going on, and we wanted to investigate it.” He clarified that the “suspicious activity” to which he was referring was based solely upon the GPS signals from the truck showing that it had stopped at the Rebel Trail house in Sandy Springs at around 9:30 in the evening, adding that, sometime after the truck had left the residence and police officers were already following it pursuant to the BOLO alert, the house’s alarm system was activated.¹⁶ According to the sergeant, the fact that Jalim had stopped at the house was suspicious to him because, even though he did not know who resided at that address or if the resident was a friend or relative of the appellants, he could not think of any “legal” reason for Jalim to go to a Sandy Springs residence at night, noting that Jalim lived in Smyrna. He also testified that, solely as a result of these concerns, he decided to order the traffic stop of Jalim’s truck so officers could investigate what, if anything, had taken place at the Rebel Trail house. Thus, the overwhelming and undisputed evidence shows that the traffic stop of Jalim’s truck would not have occurred but for the State’s illegal use of the GPS tracking device.

2. Because we have held in Division 1, supra, that the evidence seized as a result of the illegal use of the GPS device was inadmissible at trial, and because the only proof offered by the State to support the appellants’ burglary and possession of tools convictions was that evidence, it necessarily follows that there was insufficient evidence for a rational trier of fact to find either of them guilty beyond a reasonable doubt of those offenses, and those convictions must be reversed.¹⁷ Brown v. State, 293 Ga. App. 564, 567 (2) (a) (667 SE2d 410) (2008); Rucker v. State, 276 Ga. App. 683, 685 (2) (624 SE2d 259) (2005); Mercer v. State, 251 Ga. App. 465, 469 (3) (554 SE2d 732) (2001).

As for Jalim’s remaining convictions for improper tag display and failure to have operational brake lights, we conclude that the evidence presented to prove those offenses was both admissible and sufficient to support those convictions, and they are affirmed.

3. Pursuant to our decisions in Divisions 1 and 2, supra, the appellants’ remaining enumerations of error have been rendered moot.

Judgment reversed in Case No. Al 3A04 74.

Judgment affirmed in part and reversed in part in Case No. A13A0882. Phipps, C. J., Barnes, P. J., and Miller, J., concur. Andrews, P. J., Ray and Branch, JJ., dissent.

1 To the extent that there was an issue in the court below as to whether Salim Hamlett, as a passenger, had independent standing to object to the legality of the traffic stop, we note that the Supreme Court of the United States has held that, when a police officer conducts a traffic stop, the passengers, as well as the driver, are seized within the meaning of the Fourth Amendment and, thus, have standing to challenge the constitutionality of the stop. Brendlin v. California, 551 U. S. 249, 251, 263 (II) (C) (127 SCt 2400, 168 LE2d 132) (2007) (noting that, to hold otherwise would allow evidence uncovered as a result of an arbitrary traffic stop to be admissible against any passengers, thus providing the police with a “powerful incentive to run the kind of ‘roving patrols’ that would still violate the driver’s Fourth Amendment right”) (citations omitted).

2 For clarity, we will hereinafter refer to each appellant solely by his first name in order to distinguish him from his brother.

3 The detective applied for the order in Cobb County because he knew Jalim resided in Smyrna, which is in Cobb County. Although, in the court below, the appellants initially challenged the Atlanta detective’s authority to seek an order in Cobb County, they expressly abandoned that issue during the motion to suppress hearing.

4 Although the officer also testified that, as he followed the truck, he saw that the truck’s tag number matched the one given in the BOLO alert, the undisputed evidence — including his subsequent hearing testimony — shows that, prior to the traffic stop, the truck’s tag was completely covered by the paper “drive-out” tag that is the subject of Jalim’s improper tag display conviction.

5 The third man riding in the truck at the time of the stop joined in the appellants’ motion to suppress, but was tried separately and is not a party to this appeal.

6 See Dunivant v. State, 155 Ga. App. 884, 888 (1) (273 SE2d 621) (1980).

7 See United States v. Knotts, 460 U. S. 276, 281-285 (II) (103 SCt 1081, 75 LE2d 55) (1983); Devega v. State, 286 Ga. 448, 453-454 (4) (d) (689 SE2d 293) (2010).

8 We note that the Supreme Court decided Jones in January 2012, after the trial court in this case denied the appellants’ motion to suppress and they were convicted, hut before the court denied their motion for new trial.

9 In so ruling, the district court relied on United States v. Knotts, 460 U. S. at 281 (II), the same case relied upon by the trial court in the instant case.

10 In United States v. Maynard, 615 F3d 544, 559-563 (2) (D.C. Cir. 2010), the opinion that was affirmed by the Supreme Court’s decision in Jones, the Circuit Court ruled as follows:

In considering whether something is “exposed” to the public [for the purpose of determining whether a reasonable expectation of privacy exists,] we ask not what another person can physically and may lawfully do but rather what a reasonable person expects another might actually do. . . . [We conclude that] the whole of a person’s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person’s hitherto private routine.... [Further, we conclude that the] whole of one’s movements over the course of a month is not constructively exposed to the public because, like a rap sheet, that whole reveals far more than the individual movements it comprises. The difference is not one of degree but of kind, for no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life, nor the departure from a routine that, like the dog that did not bark in the Sherlock Holmes story, may reveal even more. As with the “mosaic theorjf’ often invoked by the Government in cases involving national security information, “What may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene.” CIA v. Sims, 471 U. S. 159, 178 (105 SCt 1881, 85 LE2d 173) (1985)[.] Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts. ... A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain “disconnected and anonymous [.]”

(Citations and punctuation omitted; emphasis supplied.) See also People v. Weaver, 909 NE2d 1195, 1199 (N.Y. 2009) (Prolonged GPS monitoring “yields ... a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits.”); State v. Jackson, 76 P3d 217, 224 (Wash. 2003) (“In this age, vehicles are used to take people to a vast number of places that can reveal preferences, alignments, associations, personal ails and foibles. The GPS tracking devices record all of these travels, and thus can provide a detailed picture of one’s life.”).

11 OCGA § 17-5-21 (a) provides, in relevant part, that a search warrant affidavit must state “facts sufficient to show probable cause that a crime is being committed or has been committed” and must “particularly describef ] the place or person, or both, to be searched and things to be seized[.]”

12 Although the dissent contends that Jalim had sold three dishwashers that had been stolen in the January 2010 burglary to a surplus building supply business “and that Fulton County therefore had issued arrest warrants for [him],” it is important to note that the arrest warrants charged Jalim with theft by receiving, not burglary or theft by taking.

13 See Graddy v. State, 277 Ga. 765, 767-768 (3) (596 SE2d 109) (2004) (The Supreme Court of Georgia expressly rejected any notion that, under Georgia law, the challenger of a search warrant has the burden of proving its invalidity. The Court ruled as follows: “Once a motion to suppress has been filed, the burden of proving the lawfulness of the warrant is on the State and that burden never shifts. The only burden upon the challenger of a search warrant is that of producing evidence to support his challenge, which burden is shifted to him only after the State has met its initial burden of producing evidence showing the validity of the warrant.” The Court expressly overruled any case that placed the burden of proof on the defendant who challenges the validity of a search warrant.) (citations and punctuation omitted; emphasis supplied).

14 See also McDonald v. United States, 335 U. S. 451, 452, 456 (69 SCt 191, 93 LE 153) (1948) (Police officers conducted an illegal, warrantless search of the room McDonald was renting in a boarding house and seized allegedly illegal items that belonged to him. He and his guest were arrested as a result of the search, were jointly tried, and were parties to the appeal. After concluding that the trial court erred in failing to suppress the evidence seized as a result of the illegal search, the Supreme Court of the United States held that such failure was prejudicial to both McDonald and his guest, noting that if the evidence had been properly suppressed, it would have been unavailable for the State to use against either defendant at trial. Thus, the Court reversed both defendants’ convictions.).

15 See generally McBee v. State, 296 Ga. App. 42,44 (1) (673 SE2d 569) (2009) (holding that, even if an officer has an ulterior motive that does not authorize him to conduct a traffic stop of a particular vehicle, he may still lawfully execute the stop if he observes the driver violate a traffic law).

16 The record shows that, after Jalim’s truck had left the area, an officer was dispatched to the house on Rebel Trail to do a security check on the house. By the time he arrived, Jalim’s truck was already being followed by police officers. According to the officer who had been dispatched to check on the house, the house’s alarm was not sounding when he arrived and there were no signs of a forced entry. When he opened an unlocked door to further investigate, however, he activated the house’s alarm, which was reported to the officers who were tracking the GPS signals from Jalim’s truck, as well as the officer who was following the truck. The stop occurred a few minutes later.

17 Although Jalim did not directly challenge the sufficiency of the evidence for his convictions on appeal, we address the sufficiency issue because “[e]very person is presumed innocent until proved guilty. No person shall he convicted of a crime unless each element of such crime is proved beyond a reasonable doubt.” OCGA § 16-1-5. See also Garza v. State, 284 Ga. 696, 704 (3), n. 7 (670 SE2d 73) (2008) (“Because due process requires the existence of sufficient evidence as to every element of the crime of which a defendant is convicted, the fact that this issue was not explicitly raised [on appeal] does not prevent us from addressing (nor, more importantly, does it justify a refusal to address) the issue at this juncture.”) (citations omitted).