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Court of Appeals Upholds Cell Phone Search of Peeping Tom Suspect

May 25, 2023

Court of Appeals concludes that even if the officer's brief initial warrantless search of the phone was unlawful, sufficient grounds still existed for issuance of the search warrant.

In Tatum v. State, the Georgia Court of Appeals held that a police officer had probable cause to seize and later search the cell phone of a person who was discovered in the vicinity where a peeping Tom complaint had been made. The Court held that the trial court’s denial of the defendant’s motion to suppress was supported by the evidence.

Seizure of the Defendant’s Cell Phone

A complaint was made to 911 dispatch of a man who appeared to be taking photographs or making a video recording with a cell phone outside the bedroom window of an 18-year-old girl. An officer responded to the location and he observed the defendant walking in the area of the house where the girl lived.

When the officer approached the defendant and asked what he was doing, the defendant responded that he was just “out walking around.” The defendant said that he didn’t have a cell phone but the officer noticed a bulge in his pants pocket that appeared to be a phone. When he was asked about it, the defendant said that he had forgotten that he had his phone with him.

The officer asked if he could see the last picture that the defendant had taken with the phone. The defendant initially was evasive and then when he agreed to pull up his camera roll, it appeared to the officer that he was trying to delete something. During all of this, the officer was able to catch a glimpse of a picture of a girl standing by a window.

The officer then took the defendant’s phone in an effort “to preserve the evidence.” The officer then looked briefly through the phone and also saw a video of the girl standing in her bedroom partially naked. The officer then locked the screen and did not look through the phone any further.

The police later obtained a search warrant for the cell phone.

Defendant’s Motion to Suppress the Cell Phone Evidence

The defendant filed a motion to suppress alleging that the officer’s initial warrantless seizure and search through the phone was unlawful and, as a result, the subsequent search warrant should be invalid. The motion was denied by the trial court.

Following a bench trial, the defendant was convicted and he then appealed the denial of his motion to suppress.

On appeal, he conceded that the officer’s initial seizure of the phone was permissible due to exigent circumstances that were created when the officer believed that the defendant was attempting to destroy evidence. He argued though that while exigent circumstances would authorize the seizure of the phone, a search warrant was still required to look through the contents.

Court of Appeals Analysis

The Court first noted the U.S. Supreme Court’s decision in Riley v. California where it was held that the police could not search the digital information stored on a cell phone without first obtaining a search warrant. However, the Supreme Court recognized in Riley that an exception to this warrant requirement still applied when exigent circumstances were so compelling that they would justify a limited warrantless search.

The Court then switched gears and determined that even if the officer’s warrantless viewing of the video on the defendant’s phone was unlawful, the search warrant would still have been lawfully obtained.

The question was whether the search warrant could still have been issued without the information about the video observed by the officer. The Court held that even if this information was excised from the search warrant affidavit, probable cause would still have existed to support the issuance of the warrant.

Therefore, the Court held that the trial court did not err in denying the defendant’s motion to suppress. As such, the defendant’s conviction was affirmed.

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