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Court of Appeals Rejects State’s Attempt to Cure Unlawful Cell Phone Search

August 9, 2023

The Court shut the door on a recent prosecutorial strategy aimed at curing unlawful searches by obtaining new search warrants for the exact same evidence.

In State v. Thurston, the Georgia Court of Appeals held that the State could not cure the unlawful warrantless search of the defendant’s cell phone by simply obtaining a new search warrant after-the-fact. The Court ruled that if the new warrant was based on the same facts known at the time of the unlawful search, it could not constitute a valid search under the independent source doctrine.

Initial Search Warrant

The police obtained and executed a search warrant at the defendant’s residence. The warrant provided for the seizure of “digital devices” including cell phones but did not authorize a search of the contents of those devices.

During the search, the police seized the defendant’s cell phone. The phone was later given to a detective who conducted a full forensic examination – not realizing at the time that the initial search warrant did not allow for it.

The detective testified that he believed that a valid warrant authorizing a search of the phone existed. He explained that he would not have searched the phone had he known otherwise.

Subsequent Search Warrant for Phone

The defendant filed a motion to suppress the evidence obtained from the warrantless search of the cell phone. The State conceded that the search was unlawful and stated that it would “not procced with the evidence in that first search of the phone.”

However, while the defendant’s motion to suppress was pending, the State obtained a second search warrant which authorized a search of the cell phone. The same detective then downloaded the very same data that was extracted from the phone the first time around. The State conceded that the extractions done in both instances were the same and the data obtained was identical.

Defendant’s Motion to Suppress

The defendant then filed another motion to suppress the evidence obtained as a result of this second search warrant. In the motion, the defendant argued that “[t]he State’s attempt to correct its admitted constitutional violation by obtaining a search warrant one and one-half years after it searched the cell phone cannot be justified, as such would subvert the warrant requirement.”

The trial court granted the motion to suppress, concluding that the second search warrant “was obtained solely as an attempt to overcome the Constitutional violation” that occurred with the initial search of the phone. The State then appealed.

Court of Appeals’ Ruling

The Court of Appeals rejected the State’s contention that it could simply remedy the earlier unlawful search by obtaining a new search warrant and then extracting the very same evidence a second time. The Court reasoned:

“[B]ecause a valid search warrant nearly always can be obtained after a search has occurred, allowing law enforcement to use a warrant from after-the-fact to justify an earlier search, in the absence of any justifiable conditions, threatens to vitiate the warrant requirement.”

The State did not cite any reasons that would justify the need for the second search warrant. It argued merely that the evidence obtained from the second search should be admissible under the independent source doctrine.

The Court disagreed, noting that the independent source doctrine applies when the evidence is discovered in a later search “conducted by lawful means using information gained independently of the initial search.”

Because the second search warrant was not based on new information that was not known at the time of the initial search – the warrant affidavit contained the very same information as the affidavit submitted for the first search warrant – it could not be said that the second search was independent of the first.

When the second search warrant was obtained, the State did not provide any explanation as to why the second warrant was needed nor did it inform the Court that the warrant was being requested for a cell phone that had already been searched without a warrant.

Therefore, the Court affirmed the trial court’s granting of the defendant’s motion to suppress.

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