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Court of Appeals Tosses Pornography Found During Warrantless Search of Phone

January 7, 2015

In Brown v. State, the Georgia Court of Appeals held that a police officer's warrantless search of a cell phone was unlawful in light of the U.S. Supreme Court's recent decision in Riley v. California.

Brown was stopped for suspicion of DUI and was subsequently placed under arrest. After being placed in the patrol car, an officer picked up Brown’s cell phone and started scrolling through his pictures. In doing so, the officer observed several images of suspected child pornography. As a result, the officer obtained a search warrant to conduct a forensic examination of the phone. The issuance of the search warrant, however, was based entirely on what the officer observed during the warrantless search of the phone. Brown was eventually charged with DUI as well as 12 counts of possession of child pornography (lewd depictions of minors).

In Riley, the Supreme Court held that before a police officer may search a cell phone seized pursuant to an arrest, the officer must first obtain a search warrant. The Court held that the search incident to arrest doctrine does not apply to cell phones so, barring exigent circumstances, a search warrant is required in all cases. The decision in Riley was premised on the great expectation of privacy that individuals have in their cell phones as the Supreme Court emphasized that “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life…”

The Court of Appeals noted that the only exception to the warrant requirement is if the State can show that exigent circumstances existed which were so compelling that it justified a warrantless search by the officers. Exigent circumstances would typically involve either the need to prevent the destruction of evidence, the pursuit of a fleeing suspect, or the need to provide assistance to those who are seriously injured or at risk of imminent harm. The Court found that there were no exigent circumstances in this case since Brown was handcuffed and in police custody, thus there was no risk of him destroying or tampering with the evidence.

Therefore, the Court ruled that the warrantless search of Brown’s cell phone was unlawful. Moreover, the Court held that the evidence seized from Brown’s phone pursuant to the subsequently-issued search warrant should also be suppressed since the warrant was based entirely on the evidence found during the unlawful search. Under Georgia law, where a search warrant is issued as a result of information obtained during a prior unlawful search, the search warrant is tainted by the prior illegality. Unless the information supporting the search warrant can be traced to an independent and lawful source, the evidence derived from the search warrant must also be suppressed.

As a result, Brown’s case will be remanded to the trial court where the likely result will be the dismissal of all 12 counts of possession of child pornography.

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