author: Blackwell, Judge. MILLER, Chief Judge, Phipps, Presiding Judge,

text:
    A10A1575.
    HAWKINS v. THE STATE.
    (704 SE2d 886)
   Blackwell, Judge.

Haley Hawkins was arrested and indicted for several violations and an attempted violation of the Georgia Controlled Substances Act. Hawkins moved the trial court to suppress evidence of certain text messages that police obtained from her cell phone and the cell phone of another individual. Following an evidentiary hearing, the trial court denied her motion. She then sought immediate review in this Court, which we allowed. On appeal, Hawkins claims that the trial court erred in denying her motion to suppress because the seizure and search of her cell phone were unreasonable and because the police did not have the authority to send text messages to her, and receive and read text messages from her, using the phone of the other individual. We see no error and affirm.

Viewed in the light most favorable to the disposition below, the evidence adduced at the hearing on the motion to suppress shows that an officer with the Lowndes County Sheriffs Office was contacted by a mother, who said that numerous text messages about narcotics were being sent to her son’s cell phone, and who delivered the cell phone to the officer. Sometime thereafter, the officer received a text message on this phone from Hawkins, who evidently believed she was communicating with the son. At the time, the officer did not know Hawkins’s identity. Hawkins inquired in her text message whether the son had received certain controlled substances. Posing as the son, the officer responded by text message and asked how many of the pills Hawkins wanted to acquire. In reply, Hawkins asked how many pills were available, and the officer answered in another text message that he had about 25 pills. Hawkins then responded that she wanted all 25 pills and had the money to buy them. The officer and Hawkins continued to correspond by text messages and ultimately agreed to meet at a local restaurant that evening.

Prior to the time designated for the meeting, the same officer arrived at the restaurant and took up a surveillance position in its parking lot. He observed Hawkins drive into the parking lot shortly thereafter. He then observed Hawkins entering data into her phone, and he almost contemporaneously received another text message on the son’s cell phone, in which Hawkins announced her arrival at the restaurant.

The officer approached Hawkins’s vehicle, identified himself, and placed her under arrest for unlawfully attempting to purchase a controlled substance. Hawkins admitted to the officer that she was the person with whom he had exchanged text messages throughout the day. After Hawkins was asked for and gave her consent, and as an incident to her arrest, police searched Hawkins’s vehicle and found her cell phone inside her purse. The officer searched for, and found on Hawkins’s cell phone, the text messages that he had exchanged throughout the day with Hawkins. To preserve these text messages, the officer downloaded and printed them. Police did not obtain a warrant before arresting Hawkins, searching her vehicle, or searching the text messages stored on her phone.

1. Hawkins claims that the officer violated the Fourth Amendment when he seized her cell phone and searched the electronic data stored on it without first obtaining a warrant. We disagree.

As a general rule, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment^] subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U. S. 347, 357 (88 SC 507, 19 LE2d 576) (1967). “Among the exceptions to the warrant requirement is a search incident to a lawful arrest.” Arizona v. Gant, 556 U. S. 332 (129 SC 1710, 1716 (II), 173 LE2d 485) (2009). Here, the trial court properly found, and Hawkins does not dispute, that the officer lawfully arrested her for criminal attempt to purchase a controlled substance before searching the vehicle of which she was a recent occupant.

The Supreme Court in Gant said that when an officer lawfully arrests the occupant or recent occupant of an automobile, and “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle,” the officer may search the passenger compartment of the vehicle for such evidence as an incident of the arrest, regardless of whether the officer has any reason to be concerned about the potential destruction of evidence. Gant, 129 SC at 1714. Although Gant does not define the scope of such a search with precision, we know that it must be limited to a search for evidence of the crime of arrest. See id. at 1721 (IV). And the Supreme Court has told us that such a search is more limited in scope than a search based on probable cause that a vehicle contains evidence of criminal activity pursuant to United States v. Ross, 456 U. S. 798 (102 SC 2157, 72 LE2d 572) (1982), which permits a search of any place or thing in the vehicle that might contain any evidence of criminal activity. See Gant, 129 SC at 1721 (IV).

Although there is some uncertainty about the precise scope of a search for evidence under Gant in the absence of an imminent risk that evidence will be destroyed, we need not resolve that uncertainty today. The most restrictive plausible interpretation of Gant is that such a search is limited in scope to a search of places and things in a vehicle in which one reasonably might find the specific kinds of evidence of the crime of arrest that the officer has reason to believe may be found in the vehicle. Even under this standard, the search of electronic data in this case was reasonable.

Here, on the day of the arrest, the arresting officer exchanged several text messages with Hawkins, in which they made plans to meet at a specific place and time, ostensibly to transact the purchase and sale of controlled substances. When Hawkins arrived at the place and time of the planned meeting in a car, the officer observed her entering data into her cell phone, and he contemporaneously received a text message from her, in which she announced her arrival. The officer then approached her car, observed her entering more data into her cell phone, and immediately arrested her for attempted possession of a controlled substance. And when she was arrested, Hawkins admitted to the officer that she was the person with whom he had been exchanging text messages. So, the officer had every reason to believe that evidence of the crime for which Hawkins was arrested — in the form of the text messages that Hawkins had sent to, and received from, the officer using the cell phone in her vehicle — would be found in the vehicle at the time of her arrest. Under a narrow reading of Gant, the officer was authorized to search for these text messages in any place in the vehicle in which the text messages reasonably might be found.

That the text messages were stored in electronic form in Hawkins’s cell phone, rather than in plain view, does not deny the officer the right to discover them. When an officer is authorized to search in a vehicle for a specific object and, in the course of his search, comes across a container that reasonably might contain the object of his search, the officer is authorized to open the container and search within it for the object. See Ross, 456 U. S. at 824 (IV) (“The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.”); see also Gant, 129 SC at 1719 (III) (“[In some cases], the offense of arrest will supply a basis for searching the passenger compartment of an arrestee’s vehicle and any containers therein [for evidence of the crime of arrest].”) (emphasis supplied). The pertinent question, in this case, then, is whether a cell phone is enough like a “container” to be treated like one in the context of a search for electronic data that might be stored on the phone. We think it is.

Although it is a matter of first impression for our Court, many other courts have addressed this issue. Most have concluded that, when a search for electronic data that might reasonably be stored in a cell phone is authorized, the cell phone is roughly analogous to an electronic “container” that properly can be “opened” and searched for the data, much as a traditional “container” can be opened to search for tangible objects within. See United States v. Finley, 477 F3d 250, 260 (III) (B), n. 7 (5th Cir. 2007); see also United States v. Wurie, 612 FSupp.2d 104, 109 (D. Mass. 2009) (“Decisions of district courts and Courts of Appeals (often analogizing cell phones to the earlier pager technology) trend heavily in favor of finding that the search incident to arrest. . . exception [ ] appl[ies] to searches of the contents of cell phones.”) (citations omitted). Federal courts in Georgia are among those that have reached this conclusion. See, e.g., United States v. Cole, 2010 U. S. Dist. LEXIS 82822 at *60-68 (7) (N.D. Ga. 2010) (concluding that the defendant’s cell phone was a “container” for purposes of applying an exception to the warrant requirement since it contained information not readily apparent without manipulating the cell phone itself); United States v. McCray, 2008 U. S. Dist. LEXIS 116044 at *13 (S.D. Ga. 2008) (concluding that “[a] cell phone, like a beeper, is an electronic ‘container,’ in that it stores information that may have great evidentiary value (and that might easily be destroyed or corrupted)”). We are persuaded that, as a general matter, these decisions are correct.

Cell phones and other mobile electronic data storage devices, however, are unlike traditional “containers” in several respects, and for this reason, we must apply the principles set forth in traditional “container” cases to searches for electronic data with great care and caution. A traditional “container” encloses tangible things and, therefore, can hold only a finite number of things and only things as voluminous as the physical volume of the container allows. An electronic “container,” on the other hand, may contain innumerable electronic data of almost infinite variety in a volume having little, if any, relation to the physical size of the electronic “container.” And, unlike a traditional “container,” which simply contains whatever it contains, an electronic “container,” through an Internet browser or other application, may have the capability to reach out and retrieve data from other places during the course of a search.

In addition, as the Supreme Court has recognized, vehicles and the traditional “containers” transported in them “ ‘seldom serve as ... the repository of [tangible] personal effects.’ ” Wyoming v. Houghton, 526 U. S. 295, 303 (II) (119 SC 1297, 143 LE2d 408) (1999). Electronic “containers,” on the other hand — including small electronic “containers,” such as cell phones, that frequently are transported in vehicles — often will contain the most sensitive kinds of personal information, in which individuals may reasonably have a substantial expectation of privacy and for which the law offers heightened protection. Indeed, it is easy to imagine that cell phones with text messaging or e-mail functionality — including the cell phone in this case — may contain a significant number of the electronic equivalent of private papers, which are exempted under Georgia law from the coverage of a search warrant when they merely are evidence of a crime. See Brogdon v. State, 287 Ga. 528, 533-534 (2) (697 SE2d 211) (2010); see also Smith v. State, 192 Ga. App. 298 (384 SE2d 459) (1989) (“[T]he concept of ‘private papers’ would include diaries, personal letters, and similar documents wherein the author’s personal thoughts are recorded.”). Moreover, such cell phones may very well contain privileged electronic communications, including communications between lawyers and clients, doctors and patients, and spouses.

Given the volume and diverse nature of data that may be contained in a cell phone or other mobile electronic data storage device, we think courts generally should, as one prominent commentator has put it, treat such a device “like a container that stores thousands of individual containers in the form of discrete files.” Kerr, “Searches and Seizures in a Digital World,” 119 Harv. L. Rev. 531, 555 (2005). Just because an officer has the authority to make a search of the data stored on a cell phone (that is, just because he has reason to “open” the “container”) does not mean that he has the authority to sift through all of the data stored on the phone (that is, to open and view all of the sub-containers of data stored therein). Instead, his search must be limited as much as is reasonably practicable by the object of the search. See Ross, 456 U. S. at 824 (IV). Although it may not always be possible at the outset of a search to immediately identify the specific data that is the object of the search without examining something more, it more often than not will be possible to narrow in some meaningful way the sub-containers that might reasonably contain the object of the search. Where the object of the search is to discover certain text messages, for instance, there is no need for the officer to sift through photos or audio files or Internet browsing history data stored on the phone.

Applying these principles in this case, it seems quite clear that the search of the electronic data stored on Hawkins’s cell phone was reasonable. The arresting officer searched for and found the specific text messages that he had good reason to believe were stored on the cell phone. The record made at the hearing on the motion to suppress does not suggest that the officer found or looked for any other data on the cell phone. Accordingly, the record shows that the search of data stored on the cell phone was limited in scope to a search for specific evidence of the crime for which Hawkins was arrested that the officer had good reason to believe was stored on the cell phone. For these reasons, the trial court did not err in finding that Hawkins’s Fourth Amendment rights were not violated by the warrantless search of her cell phone.

2. Hawkins also claims on appeal that the evidence of the text messages should be suppressed because the officer did not have the authority to use the cell phone that the mother had delivered to him for the dual purposes of reading text messages that she sent (and intended for the son) and responding to these text messages (as if he were the son). We think this claim is without merit and does not warrant much discussion. Although Hawkins claims that the officer’s conduct was comparable to a wiretap interception of a telephone conversation, it simply is not. It is more comparable to dialing a wrong number and speaking with someone that you believe is another. The officer was a party to the text message communications, notwithstanding that Hawkins did not know his true identity at the time. For this reason, her contention that the officer violated OCGA § 16-11-62 (2) — which prohibits the use of any device to record the activities of another in a private place and out of public view without his consent — is without merit. See OCGA § 16-11-66 (a) (“Nothing in Code Section 16-11-62 shall prohibit a person from intercepting a wire, oral, or electronic communication where such person is a party to the communication. . . .”). Hawkins also argues that the officer violated the rights of the son by using his cell phone without his proper consent, but Hawkins has no standing to claim a violation of the constitutional rights of the son. See English v. State, 288 Ga. App. 436, 441 (3) (654 SE2d 150) (2007) (“Because Fourth Amendment rights are personal, a defendant may move to suppress evidence obtained through an illegal search and seizure only when his own rights were violated.”).

3. Finally, Hawkins claims that the trial court erred when it concluded that she voluntarily consented to a search of the electronic data stored on her cell phone. In light of our disposition in Division 1, supra, we need not address whether the search of the cell phone might also be justified by her voluntary consent.

The trial court did not err in denying the motion to suppress.

Judgment affirmed.

Smith, P. J., Johnson and Dillard, JJ., concur. Miller, C. J, concurs specially. Barnes, P. J., and Phipps, P J., concur in judgment only as to Divisions 2 and 3 and dissent as to Division 1.

MILLER, Chief Judge,

concurring specially.

I concur fully with respect to Divisions 2 and 3 of the majority opinion. I also concur in the judgment of the Court that the motion to suppress was properly denied since the limited search of the electronic data stored on Hawkins’s cell phone was reasonable. In reaching this result, however, I apply a different analysis than the majority opinion. For this reason, I concur specially in Division 1.

The search incident to arrest exception to the warrant requirement “derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” Arizona v. Gant, 556 U. S. 332 (129 SC 1710, 1716 (II), 173 LE2d 485) (2009). Because officer safety is not at issue in this case, I believe that this case must be analyzed in the context of whether the search of Hawkins’s cell phone was for purposes of evidence preservation.

Generally, the permissible scope of a search incident to arrest has been extended to closed containers located on an arrestee’s person. See United States v. Robinson, 414 U. S. 218, 233-234 (III) (94 SC 467, 38 LE2d 427) (1973) (discussing broad authority granted to police officers when conducting a search incident to arrest to look for destructible evidence of the arrestee’s crime on his person in order to preserve it for use at trial); In the Interest of T. M., 303 Ga. App. 322 (693 SE2d 574) (2010) (incident to the defendant’s arrest for marijuana possession, the officer lawfully searched a cell phone located in the defendant’s pants pocket where a razor blade was found); Bagwell v. State, 214 Ga. App. 15, 16 (446 SE2d 739) (1994) (the officer was authorized to remove and open a closed metal container found in the defendant’s pocket incident to his arrest).

As stated in the majority opinion, the question of whether or not a cell phone is analogous to a closed container falling within the scope of the search incident to arrest exception is an issue of first impression before this Court. Although other jurisdictions have addressed this issue, those decisions present a split in the authorities. As stated in the majority opinion, I am persuaded that a cell phone should be treated as a closed container for purposes of our Fourth Amendment analysis.

Hawkins nevertheless argues that State v. Smith, 920 NE2d 949, 954-955 (4) (Ohio 2009), supports her argument that a cell phone is not analogous to a closed container because it is not capable of holding another physical object. See New York v. Belton, 453 U. S. 454, 460, n. 4 (101 SC 2680, 69 LE2d 768) (1981). As such, she argues that the police were required to obtain a search warrant to search its contents. The dissent finds Hawkins’s argument persuasive and concludes that a cell phone is more akin to a laptop computer, which is capable of storing large amounts of electronic data.

Certainly the members of this Court are well suited to decide issues of Fourth Amendment challenges regarding technological changes when the evidence of record is established. The dissent’s claims to the contrary notwithstanding, however, there is no evidence in our record indicating that Hawkins’s cell phone was similar to or possessed a capacity comparable to that of a computer. The evidence does, however, support a conclusion that a cell phone is akin to a closed container that stores files and electronic data.

Having concluded that Hawkins’s cell phone was analogous to a closed container, I believe that the warrantless search of the cell phone’s data was properly allowed for the purpose of evidence preservation. See Gant, supra; United States v. Ortiz, 84 F3d 977, 984 (7th Cir. 1996). The majority opinion analyzes this case based upon its interpretation of Gant. The dissent relies upon a different interpretation of Gant in reaching its conclusion that the scope of the warrantless search should be more restrictive.

In Gant, the Supreme Court ruled that “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” (Citation and punctuation omitted.) Gant, supra, 129 SC at 1719 (III). Gant does not change the black letter law establishing that police officers are authorized to conduct a search of a defendant or any instrument which may have been used to commit the crime that is found within the defendant’s immediate presence or within the passenger compartment of a vehicle when the search is incident to arrest. See id. at 1718-1721 (III)-(IV). See also Lopez v. State, 267 Ga. App. 532, 538 (6) (601 SE2d 116) (2004).

Here, the evidence established that Hawkins had used the cell phone to exchange text messages with Investigator Denmark in furtherance of the drug activity. Indeed, Investigator Denmark had observed Hawkins using the cell phone to send text messages in coordination of the drug transaction while he was conducting surveillance of Hawkins immediately prior to the arrest. During the search incident to Hawkins’s arrest, Investigator Denmark found Hawkins’s cell phone in her purse and searched the text messages for evidence of the drug offense. Accordingly, these circumstances clearly establish that Hawkins was using her cell phone as an instrumentality of the crime. Further, it is unmistakable that the officer was not exercising unbridled discretion to rummage through the personal information contained in Hawkins’s cell phone, but rather was preserving evidence of the crime for which Hawkins was arrested. See United States v. Finley, All F3d 250 (5th Cir. 2007); Ortiz, supra, 84 F3d at 984; Lopez, supra, 267 Ga. App. at 538 (6) (cell phone was instrumentality of crime of cocaine trafficking). Thus, having lawfully arrested Hawkins, Investigator Denmark was authorized to search the contents of her cell phone for evidence of a crime, and a search warrant was not required. OCGA § 17-5-1 (a) (4); Belton, supra, 453 U. S. at 458 (general requirement for a search warrant prior to search of container does not apply when container is seized incident to arrest); Ortiz, supra, 84 F3d at 984; Lopez, supra, 267 Ga. App. at 538 (6).

While I strongly believe in the protection afforded by the Fourth Amendment against unreasonable searches and seizures, I must conclude that the search of Hawkins’s cell phone was not precluded in this instance. And as the majority correctly observes, the arresting officer had personally observed Hawkins use her cell phone to send text messages in the commission of the crime for which she was arrested. Accordingly, the arresting officer reasonably conducted a search for such messages in order to preserve the evidence. Consequently, the search of the contents of the cell phone for evidence of the crime was proper, and the trial court did not err in denying Hawkins’s motion to suppress.

Phipps, Presiding Judge,

concurring in part and dissenting in part.

I concur in judgment only in Divisions 2 and 3. I dissent to Division 1. I respectfully disagree with the majority regarding the reasonableness of the officer’s search, without a warrant, of the electronic data stored on Hawkins’s cell phone. I believe that this search violated the Fourth Amendment’s prohibition against unreasonable searches, and consequently the trial court erred in denying Hawkins’s motion to suppress the fruits of that search.

The state has not argued that Hawkins lacked a reasonable expectation of privacy in the data stored on her phone. The United States Supreme Court has held that the analysis of a case addressing the reasonableness of a warrantless search should begin “with the basic rule that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.”

The trial court held that the warrantless search of the data in Hawkins’s phone was permitted because Hawkins had consented to the search. The arresting officer testified that Hawkins “gave [him] consent to search her vehicle and purses.” The state, however, justified its search of the data in the phone as one incident to arrest; it did not justify the search of the electronic data as based on consent, and the state did not present evidence demonstrating that Hawkins had given consent to a search that included the electronic data within her phone.

The majority concludes that the warrantless search of the data on the cell phone was permitted under the search-incident-to-arrest exception on the grounds that the phone was found during a search of Hawkins’s car incident to her arrest and the phone constituted a container, the contents of which were subject to search to the extent the officer had reason to believe they constituted evidence of the offense for which Hawkins was arrested. The majority cites Arizona v. Gant for its conclusion. In that case, the United States Supreme Court reaffirmed its holding in Chimel v. California that warrantless searches incident to arrest should be limited to those instances implicating interests either of officer safety or evidence preservation. The Court in Gant also recognized a further basis for a warrantless search incident, concluding that, “ [although it does not follow from Chimel, . . . circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”

I disagree that, under Gant, the search of the data in Hawkins’s phone was permitted under the search-incident-to-arrest exception. Neither of the Chimel justifications for such an exception was shown to exist here. The phone was no longer in Hawkins’s possession or control at the time of the search. The state offered no evidence that the data needed to be searched immediately to protect the arresting officers or to prevent the data’s destruction. And the court did not make any such finding or base its decision on this rationale.

I also believe that the evidence in this case did not show that the search was authorized as one implicating the “circumstances unique to the vehicle context” contemplated by Gant as the basis for a justification for a search separate from the purposes set forth in Chimel. The officer who seized the phone and searched the electronic data therein testified that he found the phone in Hawkins’s purse, which he searched pursuant to her consent. He did not testify that he found the purse in Hawkins’s vehicle, or that he seized and searched the data within the phone while searching Hawkins’s vehicle for evidence of the offense of arrest. Instead, he testified that the vehicle search was performed by a different officer.

Moreover, I disagree with the majority’s decision to analogize a cell phone to other types of “containers” so as to allow its electronic contents to be searched as part of a search incident to arrest. Although the majority acknowledges that electronic storage devices such as cell phones differ from traditional “containers” in many significant respects, and attempts to limit the application of this analogy, for the following reasons I believe that even so limited an analogy is inappropriate.

Many modern cell phones “contain a wealth of private information such as recent-call lists, emails, text messages, and photographs.” Technological advances allow the storage of and access to more and more data on small devices capable of and indeed routinely being transported on their owners’ persons, and such devices increasingly are designed and able to perform functions similar to those performed by computers. This capacity of electronic devices such as cell phones to store and access vast amounts of private information in an easily transportable format distinguishes such devices from the types of “containers” that Georgia cases have deemed subject to a warrantless search incident to arrest. Unlike devices that store and access electronic data, containers designed or used primarily for physically holding objects are limited in their capacity by their physical dimensions.

The decision in United States v. Finley, cited by the majority, did not take this distinction into account; in determining that information within a cell phone could be searched without a warrant incident to arrest, the Finley court emphasized the fact that the device itself was found on the arrestee’s person. There is no reason, however, to afford greater Fourth Amendment protections to electronic data stored upon less portable devices such as a desktop computer than to the same or similar data stored upon smaller and more portable devices such as a cell phone. Thus, I find persuasive the opinion of the Ohio Supreme Court in Ohio v. Smith which held “that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.” In so holding, the Smith court noted that the capacity of a modern cell phone to store “a wealth of digitized information wholly unlike any physical object found within a closed container” rendered the container analogy inapposite in determining whether that information could be searched without a warrant incident to arrest. I believe that Georgia should follow the Smith analysis in addressing this issue of first impression.

In my view, the warrantless search of the data within the cell phone did not fall within the search-incident-to-arrest exception and was unreasonable under the Fourth Amendment, and for this reason I would reverse the trial court’s denial of the motion to suppress the evidence obtained from this search.

I am authorized to state that Presiding Judge Barnes joins in this opinion.

Decided December 1, 2010

Langdale & Vallotton, Katherine A. Gonos, for appellant.

J. David Miller, District Attorney, Justo C. Cabral III, Assistant District Attorney, for appellee.

       More specifically, she was charged with one count of unlawfully attempting to purchase a controlled substance in violation of OCGA § 16-4-1, one count of unlawfully using a communications facility in violation of OCGA § 16-13-32.3, and two counts of unlawfully possessing a controlled substance in violation of OCGA § 16-13-30.

       On appeal from the denial of a motion to suppress, we construe the evidence “most favorably to uphold the findings and judgment of the trial court.” Sprinkles v. State, 227 Ga. App. 112 (1) (488 SE2d 492) (1997).

       The special concurrence argues that we should consider whether some danger that the electronic data on the phone might be destroyed justified an immediate search. But a danger that evidence may be destroyed is not, according to Gant, the only circumstance in which a vehicle can be searched for evidence incident to arrest. And another such circumstance is present in this case — reasonable cause to believe that evidence of the crime of arrest would be found in the vehicle — so we do not need to consider whether the search also could be justified to prevent the imminent destruction of evidence.
      Moreover, as the dissent observes, nothing in the record indicates that the arresting officer had any reason to be concerned that digital evidence on the cell phone might be destroyed before a warrant could be procured. The officer gave no testimony about whether Hawkins was in a place, at the time he searched the data stored on the cell phone, from which she might have intentionally destroyed or tampered with the data. In addition, the officer never said that a concern about preserving the evidence was a reason for his search of the electronic data, and he offered no testimony about his knowledge of cell phones and the ease with which data stored therein may be deleted. Finally, the State has never urged its unquestionable interest in preventing the imminent destruction of evidence as a justification for this search.

       We do not mean to imply that this limited reading of Gant is the only interpretation, but we think it is a plausible one. Such a reading is consistent with Ross, supra, in which the Supreme Court said that the permissible scope of a search is defined by its object: “A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found. ... A warrant to search a vehicle would support a search of every part of the vehicle that might contain the object of the search.” 456 U. S. at 820-821 (IV) (emphasis supplied).

       See also Silvan W. v. Briggs, 309 Fed. Appx. 216, 225 (10th Cir. 2009); United States v. Ortiz, 84 F3d 977, 984 (7th Cir. 1996); United States v. Salgado, 2010 U. S. Dist. LEXIS 77266 at *9-12 (N.D. Ga. 2010); United States v. Garcia-Aleman, 2010 U. S. Dist. LEXIS 65333 at *29-37 (E.D. Tex. 2010); United States v. Monson-Perez, 2010 U. S. Dist. LEXIS 20575 at *21-23 (E.D. Mo. 2010); Newhard v. Borders, 649 FSupp.2d 440, 448 (W.D. Va. 2009); Brady v. Gonzalez, 2009 U. S. Dist. LEXIS 57836 at *8-10 (N.D. Ill. 2009); United States v. Santillan, 571 FSupp.2d 1093, 1102 (D. Ariz. 2008); United States v. James, 2008 U. S. Dist. LEXIS 34864 at *9-11 (E.D. Mo. 2008); United States v. Fierros-Alvaraez, 547 FSupp.2d 1206, 1214 (D. Kan. 2008); United States v. Chan, 830 FSupp. 531, 535-536 (N.D. Cal. 1993).

       By requiring that searches of electronic data be limited in this way, we give adequate guidance, we think, to law enforcement officers and judges. Although this approach admittedly requires a fact-specific assessment in each case of the reasonable scope of the search at issue, that is something with which both police officers and judges are accustomed to dealing. It is, we think, preferable to the approach proposed by the special concurrence, which would require police officers and judges to distinguish between “ordinary” cell phones and those with a “capacity comparable to that of a computer.”
      We also think that this approach keeps faith with the Fourth Amendment’s prohibition of general and exploratory searches and addresses much of the potential mischief about which the dissent is concerned. We too would worry if officers were permitted without good cause or reason to rummage through all the data stored on a cell phone without limitation. But we sanction no such thing today, and we think our approach is adequate to prevent any such practice. We note also that the case on which the dissent principally relies - State v. Smith, 920 NE2d 949 (Ohio 2009) - does not involve a vehicle search and does not analyze whether Gant would justify the search at issue.

       Numerous jurisdictions have reached the conclusion that a cell phone or pager is analogous to a closed container for purposes of Fourth Amendment analysis. See Silvan W. v. Briggs, 309 Fed. Appx. 216, 225 (10th Cir. 2009); United States v. Finley, 477 F3d 250, 259-260 (5th Cir. 2007); United States v. Ortiz, 84 F3d 977, 984 (7th Cir. 1996); United States v. Cole, No. 1:09-CR-0412-ODE-RGy 2010 U. S. Dist. LEXIS 82822, at *60-68 (7) (N.D. Ga. 2010); United States v. Salgado, No. 1:09-CR-454-CAP-ECS-5, 2010 U. S. Dist. LEXIS 77266, at *9-12 (N.D. Ga. 2010); United States v. Garcia-Aleman, No. 1:10-CR-29, 2010 U. S. Dist. LEXIS 65333, at *29-37 (E.D. Tex. 2010); United States v. Monson-Perez, No. 4:09CR623DJS(MLM), 2010 U. S. Dist. LEXIS 20575, at *21-23 (E.D. Mo. 2010); Newhard v. Borders, 649 FSupp.2d 440, 448 (W.D. Va. 2009); Brady v. Gonzalez, No. 08 C 5916, 2009 U. S. Dist. LEXIS 57836, at *8-10 (N.D. Ill. 2009); United States v. McCray, No. CR408-231, 2008 U. S. Dist. LEXIS 116044, at *9-14 (S.D. Ga. 2008); United States v. Santillan, 571 FSupp.2d 1093, 1102 (D. Ariz. 2008); United States v. James, No. 1:06CR134 CDB 2008 U. S. Dist. LEXIS 34864, at *9-11 (E.D. Mo. 2008); United States v. De Jesus Fierros-Alvaraez, 547 FSupp.2d 1206, 1214 (D. Kan. 2008); United States v. Chan, 830 FSupp. 531, 535-536 (N.D. Cal. 1993).
      Other jurisdictions, however, have distinguished cell phones from closed containers, pagers, and address books. See United States v. Wall, No. 08-60016-CR-ZLOCH, 2008 U. S. Dist. LEXIS 103058, at *9-13 (S.D. Fla. 2008); United States v. Park, No. CR 05-375 SI, 2007 U. S. Dist. LEXIS 40596, at *21-22 (N.D. Cal. 2007).

       In light of technological advances in electronic storage devices since Belton and evolving federal precedent on this issue, the fact that text messages are not a physical object is not a dispositive consequence.

       Although the issue was not argued or decided in the trial court below, the text messages exchanged between Hawkins and Investigator Denmark ultimately may have been admissible under the inevitable discovery rule, to the extent that the same messages were also located on the cell phone that Investigator Denmark used during the exchange. See Cunningham v. State, 284 Ga. App. 739, 741 (644 SE2d 878) (2007) (“Under the inevitable discovery doctrine, if the State shows by a preponderance of the evidence that illegally obtained evidence would have been discovered inevitably by lawful means, the evidence is admissible.”).

       See United States v. Finley, 477 F3d 250, 259 (III) (A) (5th Cir. 2007) (cell phone user had reasonable expectation of privacy in call records and text messages on phone).

        Arizona v. Gant, 556 U. S. 332 (II) (129 SC 1710, 173 LE2d 485) (2009) (citations and punctuation omitted); see Teal v. State, 282 Ga. 319, 322-323 (2) (647 SE2d 15) (2007).

       See McNeil v. State, 248 Ga. App. 70, 71-72 (545 SE2d 130) (2001) (intrusiveness of search conducted pursuant to consent is limited by permission granted, and only that which is reasonably understood from the consent maybe undertaken); see also Walker v. State, 299 Ga. App. 788, 791-792 (2) (683 SE2d 867) (2009) (defendant’s statement that he did not “have a problem” with an officer searching his pockets cannot be interpreted as consent for the officer to push defendant’s abdomen, pull his waistband forward, and look down inside his pants at his crotch area).

       Supra.

       395 U. S. 752, 763 (89 SC 2034, 23 LE2d 685) (1969).

       See Gant, 129 SC at 1716 (II), 1719 (III).

       Id. at 1719 (III) (citation and punctuation omitted).

       See Ohio v. Smith, 920 NE2d 949, 955 (4) (Ohio 2009) (where search of cell phone’s contents was not necessary to ensure officer safety, and the state failed to present any evidence that information therein was subject to imminent destruction, officer could not conduct search of phone’s contents incident to a lawful arrest without first obtaining a warrant). Compare United States v. Ortiz, 84 F3d 977, 984 (7th Cir. 1996) (noting that immediate retrieval of telephone numbers from a pager was necessary to preserve the evidence because existing information on the pager could be destroyed by incoming pages due to the finite nature of the pager’s electronic memory, and because the contents of some pagers can be destroyed merely by turning them off).

       See Bagwell v. State, 214 Ga. App. 15, 16 (446 SE2d 739) (1994) (allowing officers to open and inspect containers as part of a search incident to arrest).

        United States v. Quintana, 594 F.Supp.2d 1291, 1299 (III) (M.D. Fla. 2008) (citation and punctuation omitted).

       See generally Smith, supra at 954-955 (4) (cell phones defy easy categorization due to their unique nature as multifunctional tools).

       See, e.g., Bagwell, supra at 16 (involving three-and-one-half inch metal “screw-type” container found on arrestee’s person).

       The Tenth Circuit noted that a device such as a computer flash drive, that is small enough to be carried on one’s person on a key chain, can hold data equivalent to that stored on a laptop computer. See United States v. Burgess, 576 F3d 1078, 1090, n. 12 (10th Cir. 2009).

       Supra.

       See Finley, supra at 260, n. 7 (III) (B); see also United States v. Chan, 830 FSupp 531, 536 (B) (N.D. Cal. 1993) (noting that pager was found on defendant’s person incident to arrest in determining that electronic contents therein could be searched).

       Supra.

       Id. at 954 (3).

       Id.


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A10A1280.
    THE STATE v. EDWARDS.
    (704 SE2d 816)
   Ellington, Judge.

Pursuant to OCGA § 5-7-1 (a) (4), the State of Georgia appeals from an order of the Superior Court of Fulton County granting Oliver Edwards’ motion to suppress evidence and dismissing the charges against him. The State contends that the trial court erred in suppressing the evidence based upon the State’s failure to produce the arrest warrant upon which Edwards was arrested and, as a consequence, its failure to prove that, at the time Edwards was arrested, the warrant actually existed. For the following reasons, we reverse.

As an initial matter, it is axiomatic that “[e]vidence of guilt which the defendant, directly or indirectly, is compelled to disclose by an unlawful search of his person under an illegal arrest is not admissible in a criminal prosecution.” (Footnote omitted.) State v. Alexander, 245 Ga. App. 666, 666-667 (538 SE2d 550) (2000). Under OCGA § 17-5-30 (b), when considering a motion to suppress evidence based upon an allegedly illegal search and seizure, the trial court “shall receive evidence out of the presence of the jury on any issue of fact necessary to determine the motion; and the burden of proving that the search and seizure were lawful shall be on the [S]tate.”

Upon review of the [grant or] denial of a motion to suppress, we must construe the record to support the trial court’s findings and judgment. Findings on credibility and conflicting evidence must be upheld unless they are clearly erroneous. In addition, the trial court is the trier of fact, and its findings, being analogous to a jury verdict, will not be disturbed so long as some evidence supports them.

(Citation omitted.) Buchanan v. State, 259 Ga. App. 272, 274 (576 SE2d 556) (2002).

So viewed, the evidence in the record shows the following facts. On the evening of January 1, 2005, two City of Atlanta police officers went to a house at 115 Hunnicutt Street to investigate a 911 “hang-up” call. As they walked toward the house, the officers saw Edwards walk out of the front door, down the stairs, and toward them on the sidewalk. The officers decided to stop Edwards and ask him if anything was wrong inside the house and to establish his connection, if any, to the 911 call. The officers asked Edwards for identification, and while one officer stayed with Edwards, the other officer knocked on the door of the house. When no one answered the door, Edwards called someone on his cell phone and, shortly thereafter, a woman answered the door. After speaking with the woman, the officer concluded that no one was injured or in immediate danger inside the house.

Even so, the officers decided to check Edwards’ criminal history because Edwards was “very fidgety” and appeared “nervous,” “his body language was suspect,” and “[h]e kept putting his hands in his pockets even after being told not to do so.” According to one of the officers, a police dispatcher told him that there was an outstanding arrest warrant for Edwards. The officers then arrested Edwards solely on the basis of the outstanding arrest warrant and conducted a search incident to the arrest, during which they found a packet of marijuana. Based upon that discovery, the State charged Edwards with possession of marijuana with intent to distribute.

Five years later, on February 1, 2010, Edwards waived arraignment and entered a not guilty plea to the charge. The next day, Edwards filed a motion to suppress the marijuana found in his possession. In the motion, Edwards challenged the State to prove that a warrant had previously been issued for his arrest and that the warrant was still outstanding on the day he was arrested. Two days after the motion was filed, the trial court conducted a motion hearing, during which Edwards again argued that the State was required to produce a copy of the arrest warrant which allegedly justified his arrest. In response, the State argued that it had no duty to produce a copy of the warrant, but, even if such duty existed, it had not had sufficient notice of Edwards’ challenge to the existence of the arrest warrant to obtain a copy of the warrant.

Following the hearing, the trial court granted Edwards’ motion to suppress, finding that the officers arrested Edwards on January 1, 2005, solely because one of the officers had been told by a dispatcher that there was an outstanding arrest warrant and not due to the existence of any independent probable cause. In response to Edwards’ challenge to the existence of that warrant, however, the State failed to prove that the warrant actually existed at the time of Edwards’ arrest. Thus, according to the trial court, the State failed to prove that Edwards’ arrest and the search incident to his arrest were lawful.

1. On appeal, the State contends /that the trial court erred in granting Edwards’ motion to suppress because, at the time of the officers’ encounter with Edwards, the arresting officer had been told by a police dispatcher that there was an outstanding warrant for Edwards’ arrest. According to the State, although there was no independent probable cause to support Edwards’ arrest, the dispatcher’s statement to the officer, standing alone, was sufficient to authorize Edwards’ arrest. Further, because the officer was authorized to search Edwards incident to his arrest, the marijuana discovered during the search was lawfully seized. As explained below, we are constrained to agree.

“At least three types of police-citizen encounters exist: verbal communications that involve no coercion or detention; brief ‘stops’ or ‘seizures’ that must be accompanied by a reasonable suspicion; and ‘arrests,’ which can be supported only by probable cause.” (Citation and punctuation omitted.) Buchanan v. State, 259 Ga. App. at 274.

Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual’s identification; and request consent to search, as long as the police do not convey a message that compliance with their requests is required. It is clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions.

(Citation and punctuation omitted.) Id. Here, the record supports a finding that the officer’s initial approach of Edwards was a “level one,” noncoercive police-citizen encounter and that no seizure or detention took place until after the officer investigated Edwards’ identification and learned of the outstanding arrest warrant.

On the issue of whether the officers were then authorized to arrest Edwards based upon the report of an outstanding arrest warrant, the Supreme Court of Georgia addressed the issue in a case involving similar facts, Harvey v. State, 266 Ga. 671 (469 SE2d 176) (1996). In Harvey, an officer who was responding to a report of suspicious activity encountered Harvey and obtained his identification. Id. The officer requested a computer check through the Georgia and National Crime Information Centers (“NCIC”), and the check revealed that there was a bench warrant for Harvey’s arrest. Id. The officer asked the dispatcher to confirm the status of the warrant and was told that it was still valid and outstanding. Id. After placing Harvey under arrest pursuant to the warrant, the officer conducted a search incident to the arrest and discovered cocaine. Id. The State later discovered that the bench warrant had been recalled prior to Harvey’s arrest. Id. Still, the trial court denied Harvey’s motion to suppress the cocaine, and, in affirming the denial, the Supreme Court ruled as follows:

A warrantless search is authorized if conducted pursuant to a lawful arrest. OCGA § 17-5-1. It is undisputed that Harvey was not lawfully arrested pursuant to the bench warrant itself, since that bench warrant had been recalled several days before Harvey was arrested. However, the validity of an arrest is not necessarily dependent upon the existence of a valid arrest warrant because[,] if the person detained is outside of his home and probable cause to arrest exists at the time of detention, a warrant is not required. If, when the arrest is made, the facts and circumstances known to the arresting officer are sufficient to warrant a prudent person in believing that the accused had committed or is committing an offense, the warrantless arrest passes constitutional muster. Accordingly, resolution of this case ultimately is dependent upon whether, at the time of Harvey’s arrest, the officer had probable cause to make that arrest.
At the moment the arrest was made, the officer knew that a valid bench warrant had been issued for Harvey’s arrest. The radio transmission, which confirmed the outstanding warrants, established the necessary probable cause to arrest Harvey. It is of no consequence that the officer later discovered that the validly issued bench warrant had been recalled. The existence of probable cause must be measured by current knowledge, i.e., at the moment the arrest is made and not hindsight.
The material inquiry is whether the facts within the officer’s knowledge at the time of the arrest constituted reasonably trustworthy information which was sufficient to authorize a prudent person to believe that Harvey had committed an offense. While the NCIC printouts would not be sufficient to authorize conviction, they have been held to be reliable enough to underlie the reasonable belief which is needed to establish probable cause for arrest. Thus, Harvey’s arrest was lawful since the evidence shows that the officer was acting on reliable information that there was an outstanding felony warrant against Harvey. In relying upon the computer report, the officer was quite wrong as it turned out, and subjective good-faith belief would not in itself justify either the arrest or the subsequent search. But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officer’s mistake was understandable and the arrest a reasonable response to the situation facing him at the time.
Although in arresting Harvey, the officer relied upon the misinformation from the NCIC, he neither knew, nor could be reasonably expected to have known, that the information was incorrect when he made the arrest. The information, which subsequently was proven wrong, was stale by only four days. This Court, in hindsight, will not declare an arrest to be invalid when the arresting officer reasonably relied upon information which he had no reason to think was incorrect.

(Citations and punctuation omitted; emphasis in original.) Id. at 672-673. See also Lucas v. State, 284 Ga. App. 450, 452-453 (644 SE2d 302) (2007) (accord); Howard v. State, 273 Ga. App. 667, 668-669 (1) (615 SE2d 806) (2005) (accord); Buchanan v. State, 259 Ga. App. at 274-275 (accord). Thus, pursuant to Harvey and its progeny, if an officer stops an individual outside his home, requests a computer check on the individual, and is told that there is an outstanding arrest warrant for the individual, the officer may lawfully arrest the individual and search him or her pursuant to the arrest, and any seized contraband will be admissible to support additional criminal charges against the individual, even if it is later discovered that no valid warrant existed at the time of the arrest.

It is important to note, however, that three of the seven justices on the Supreme Court dissented in Harvey. In his dissent, Chief Justice Benham (joined by Presiding Justice Fletcher and Justice Sears) emphasized that the sole basis for Harvey’s arrest was the outstanding arrest warrant — no other basis for probable cause existed. Id. at 675. Thus, Harvey’s arrest was not a warrantless arrest supported by probable cause; instead, it was an unlawful arrest because it was based upon an invalid warrant. Id. Chief Justice Benham then stated as follows:

[I]n its effort to avoid the effect of binding precedent without facing up to the necessity of overruling it, [the majority] indulges in circular reasoning: the arrest pursuant to the warrant was invalid, but the search is valid if there was probable cause to arrest, and the warrant provided that probable cause. What the majority opinion asserts, in plain language, is that the warrant, although entirely invalid, provided sufficient probable cause to arrest. That is plainly contrary to reason and to the law of this state.

Id. at 675 (Benham, C. J., dissenting). Further, Chief Justice Benham pointed out that the majority used an out-of-context quote from Singleton v. State, 194 Ga. App. 423 (1) (390 SE2d 648) (1990), to support its broad and formidable holding that “[t]he radio transmission, which confirmed the outstanding warrants, established the necessary probable cause to arrest Harvey.” (Punctuation omitted.) Id. According to Justice Sears’ dissent, in reaching that conclusion, the majority ignored established precedent, as follows: “[M]ere receipt of a bulletin or ‘computer hit’ does not provide probable cause justifying an arrest if the information in the computer system is inaccurate.” Id. at 678, quoting State v. Stringer, 258 Ga. 605, 607 (372 SE2d 426) (1988).

As such, the dissent in Harvey raises serious concerns about whether Georgia’s courts should condone the arrest of an individual when: the arrest occurs outside his or her home; the arrest is not supported by independent probable cause, but, instead, is based solely upon a dispatcher’s statement to an officer or a computer check showing that there is an outstanding warrant for the individual’s arrest; and the State subsequently fails to prove that a valid arrest warrant existed at the time of the arrest.

We share these concerns. As in Harvey, the arrest in this case was not a warrantless arrest that was based on probable cause arising from any suspicious actions by Edwards. It was, simply and indisputably, an arrest based upon an outstanding warrant. Thus, when Edwards subsequently filed his motion to suppress challenging the State to prove that a valid arrest warrant existed when he was arrested, the State was on notice that it needed to produce the warrant or other evidence establishing the existence of the warrant. See Baez v. State, 206 Ga. App. 522, 526-528 (1) (425 SE2d 885) (1992).

Nevertheless, because we are compelled to follow Supreme Court precedent as enunciated in Harvey, we must conclude that the dispatcher’s statement to the officer in this case that there was an outstanding arrest warrant for Edwards provided the probable cause necessary to arrest him and that, as a consequence, the search incident to the arrest was lawful.

2. This should not end the analysis, however, because there is another troubling gap in the evidence propounded by the State in this case. As shown above, Edwards’ motion to suppress challenged the State to produce the arrest warrant that it claimed was the basis of his arrest. Instead of producing the warrant during the hearing, though, the State only presented the testimony of the arresting officer, who testified that a dispatcher told him that there was an outstanding warrant for Edwards’ arrest. But, because the officer had no personal knowledge of any outstanding arrest warrant for Edwards, he was unable to provide any information about the warrant, such as the warrant number, what court issued the warrant, when that court issued the warrant, what charge provided the basis for the warrant, or whether the warrant was still outstanding at the time of Edwards’ arrest. In fact, it is undisputed that the officer’s limited knowledge about the arrest warrant was based entirely on information he received from a police dispatcher who was never identified, let alone called to testify, during the motion hearing. As such, the officer’s testimony regarding what the dispatcher said to him was hearsay — the State offered it not only to explain why the officer arrested Edwards, but also to prove that the arrest was lawful because it was based on an outstanding warrant for Edwards’ arrest. Thus, this raises the issue of whether the officer’s hearing testimony was both admissible and sufficient to prove that, at the time of Edwards’ arrest, there was, in fact, an outstanding warrant for his arrest.

This Court recently addressed a similar issue in Sosebee v. State, 303 Ga. App. 499, 501 (1) (693 SE2d 838) (2010), noting that,

[i]n order to take a witness’s testimony outside the scope of hearsay, when such testimony is introduced to prove the truth of the fact stated, the witness must have personal knowledge of the facts to which such witness is testifying. The hearsay rule that a witness must testify from his own first-hand knowledge to establish a fact clearly applies to law enforcement officers.

(Citations, punctuation and footnotes omitted.) Id. In Sosebee, this Court concluded that the State had failed to prove that the search of a hotel room was conducted pursuant to a valid search warrant when the State failed to produce the warrant or supporting affidavit during the motion hearing, instead relying upon the hearsay testimony of the sheriff who had conducted the search. Id. at 501-502 (1). The sheriff admitted that he had not procured, or even seen, the warrant prior to the search but, instead, had only heard from someone else that a search warrant had been issued. Id. Consequently, this Court reversed the trial court’s denial of the defendant’s motion to suppress. Id. at 502 (1).

Decided November 16, 2010

Reconsideration denied December 2, 2010

Paul L. Howard, Jr., District Attorney, Stephany J. Luttrell, Assistant District Attorney, for appellant.

Bobby E. Hutson, Jr., for appellee.

It is significant to note that, in Sosebee, the sheriff had been actively involved in the investigation that allegedly resulted in the issuance of the search warrant and at least had some contemporaneous, personal knowledge upon which to base his belief that a warrant had, in fact, been issued that day. Id. at 500. In stark contrast is the instant case, wherein the arresting officer had no personal knowledge about the outstanding arrest warrant, including whether the warrant was hours, days or even years old, yet his testimony was the only evidence presented by the State during the suppression hearing.

The hearsay issue was not discussed in the Supreme Court’s opinion in Harvey, however, nor is it clear what evidence, if any, was presented in that case to support the officer’s testimony regarding the substance of the communication between him and the dispatcher. Consequently, it is unclear whether consideration of any hearsay issue would have changed the outcome of that case. Regardless, because of the Supreme Court’s ultimate ruling that “[t]he radio transmission, which confirmed the outstanding warrants, established the necessary probable cause to arrest [the defendant],” id. at 675, we must conclude that the officer’s testimony in the instant case was admissible and sufficient to prove that there was probable cause to support Edwards’ arrest. As a result, we must reverse the trial court’s grant of Edwards’ motion to suppress.

Judgment reversed.

Andrews, P. J., and Doyle, J., concur in the judgment only.

       See Harvey v. State, 217 Ga. App. 776, 777-778 (459 SE2d 433) (1995) (“The plain language of [OCGA § 17-5-30] shows that it covers all searches, not just those involving search warrants.” Thus, “OCGA § 17-5-30 governs every case in which a defendant challenges a search and seizure, regardless of the grounds upon which the challenge is based. . . . OCGA § 17-5-30 is Georgia’s exclusionary rule.” Moreover, because Georgia’s exclusionary rule was created by the legislature, not the judiciary, the judicially-created “good faith” exception does not apply to the rule; there is no “good faith” exception unless and until the Georgia legislature adopts one.) (citations and punctuation omitted; emphasis in original); aff'd, 266 Ga. 671 (469 SE2d 176) (1996).

       The trial court ruled that “[t]he State has the burden of proving the existence of an arrest warrant if the basis of the arrest is the warrant and the existence of the warrant is challenged,” relying upon Baez v. State, 206 Ga. App. 522 (425 SE2d 885) (1992). In Baez, officers entered Baez’s home to arrest him pursuant to an outstanding bench warrant, and, while in the home, they observed contraband that later served as a basis for a search warrant. Id. During the motion to suppress hearing, Baez repeatedly challenged the State to produce the bench warrant to prove that the initial entry into his home was lawful. Id. at 522-526. Although the State failed to produce the warrant, and the evidence failed to show that the arresting officers had any personal knowledge about the existence of the warrant, the trial court denied Baez’s motion. Id. This Court reversed, ruling that, by failing to produce the arrest warrant after Baez repeatedly challenged its existence, the State had failed to sustain its burden of proving the lawfulness of the officers’ intrusion into Baez’s home and his arrest, which had resulted in the discovery of the contraband. Id. at 526-528 (1). Further, upon a motion for reconsideration, this Court expressly rejected the State’s suggestion that it “need never prove an arrest warrant existed” under these circumstances, because that would essentially mean that the officers could lawfully enter Baez’s home and arrest him without an arrest warrant. Id. at 529.

       As Chief Justice Benham explained:
      In Singleton, . . . there was no question regarding the validity of the warrant. The quoted statement was made in that case to refute the appellant’s argument that the officers were required to have the warrants in their physical possession at the time of the arrest. That statement does not fairly stand, as the majority opinion used it, for the proposition that probable cause is established by information about the existence of a warrant which later proves to be invalid.
      Id. at 675-676.

       See also State v. Fowler, 215 Ga. App. 524, 525 (451 SE2d 124) (1994) (“That which is insufficient in its own right cannot be made sufficient by the fact that it is broadcast over a police network.”).

       To be clear, we are not suggesting that the officer acted improperly or unreasonably in arresting Edwards — he was entitled to rely on the information he received from the dispatcher and was not required to conduct further investigation before executing the arrest. However, the fact that the officer acted properly at the time of the arrest does not obviate the State’s burden of producing sufficient evidence during a subsequent suppression hearing that the information relayed to the officer regarding the arrest warrant was reliable. See Duke u. State, 257 Ga. App. 609, 611 (571 SE2d 414) (2002) (Although an officer was entitled to rely on information received over the police radio when conducting a traffic stop, “to survive a Fourth Amendment challenge, the [Sítate had to present some evidence of the factual basis for the . . . dispatch. Since the deputy was unable to provide such evidence, it was incumbent upon the [Sítate to produce it from some other credible source.”) (footnote omitted); see also Division 2, infra.

       In Sosebee, this Court noted that, although an officer may rely upon hearsay information communicated to him by fellow officers in order to establish probable cause for issuance of a search warrant, “the issue here is not whether there was probable cause for the warrant, but the very existence of the warrant.” (Emphasis supplied.) Id. at 501 (1), n. 3. The same is true for the instant case — Edwards challenged the State to prove that the alleged arrest warrant
        actually existed at the time he was arrested. Unless and until the State produced the warrant or otherwise proved that the warrant had, in fact, been issued prior to Edwards’ arrest, any discussion about whether the warrant had been supported by probable cause at the time it was issued would be irrelevant.


author: Doyle, Judge.

text:
    A10A1340.
    AMICA v. THE STATE.
    (704 SE2d 831)
   Doyle, Judge.

Following a jury trial, William C. Arnica was convicted of possession of marijuana with intent to distribute. He appeals following the denial of his motion for new trial, arguing that the trial court erred by (1) denying his motion to suppress the search warrant, which was issued without probable cause; (2) admitting his statements to the police; and (3) admitting a similar transaction. Arnica also contends that he received ineffective assistance of counsel. We affirm, for reasons that follow.

Viewed in favor of the verdict, the evidence shows that the Warner Robins Police Department investigated a May 22, 2006 burglary of a Lolo’s convenience store and a May 4, 2006 armed robbery of Jitendra Patel. In January 2007, Detective Brad Mules was contacted by Eric Adams, an inmate at the county jail. Adams told Mules that both he and Arnica committed the Lolo’s burglary and the armed robbery of Patel and that Arnica was surveilling the owner of the Lolo’s in order to rob him. On January 18, 2007, Detective Mules obtained a search warrant for Arnica’s house, where the police recovered a shoe box containing seven plastic bags of marijuana, a digital scale, a nine millimeter magazine with six rounds of ammunition, a pair of brown work boots, and a black sweatshirt, among other items. Arnica was later apprehended and taken into custody for questioning.

Prior to trial, Arnica moved to suppress the evidence obtained during the search of his house, arguing that the search warrant was stale. The trial court denied the motion. Following his conviction, Arnica filed a motion for new trial, raising, inter alia, several arguments with regard to the search warrant. The trial court denied the motion, and this appeal followed.

1. Search warrant. Based on the information obtained from Adams, the jail informant, Detective Mules drafted a search warrant affidavit and presented it to the magistrate judge for her consideration. The affidavit listed the address of Arnica’s residence and stated that the following articles were likely to be recovered therefrom: a 9-millimeter pistol, receipts or documents linked to Lolo’s, “dark colored clothing, blue Dickie pants, low-cut Timberland boots, and cash.” The affidavit indicated Adams told Mules that Arnica “wore the same dark colored sweatshirt [and] blue Dickie pants . . . and had his Luger 9[-millimeter] pistol for both the armed robbery and the burglary.” The affidavit also contained Mules’s handwritten notes indicating that

Adams has stated . . . Arnica has surveillanced [sic] the owner of Lo-Lo’s within the last six weeks[,] prior to Adams’[s] arrest, and Arnica is planning to commit an [a]rmed [r]obbery on the [b]usiness owner’s home. . . . Prior to Adams’[s] arrest four weeks ago, Adams claims Arnica’s clothing and weapon are known to be kept in his residence.

Arnica makes several arguments regarding the search warrant, affidavit, and inventory. In reviewing his arguments, we are mindful of the following principles reiterated by the Supreme Court of Georgia:

A search warrant will only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed. The magistrate’s task in determining if probable cause exists to issue a search warrant is simply to 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. The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate’s decision to issue a search warrant based on a finding of probable cause. A deferential standard of review is appropriate to further the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.

On appeal, we

determine if the magistrate had a “substantial basis” for concluding that probable cause existed to issue the search warrant, . . . applying] the well-established principles that the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of law to undisputed facts is subject to de novo review [and] keeping in mind that a magistrate’s decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court.

(a) Arnica argues that the search warrant was not supported by probable cause because the nine-month lapse from the crimes’ occurrences in May 2006 rendered stale the information contained in the February 2007 affidavit given in support of the warrant.

“While a magistrate must consider time as an element of probable cause when issuing a warrant, the mere passage of time does not equate with staleness.”

The proper procedure for determining if the information relied upon in obtaining a search warrant is stale is to view the totality of the circumstances for indications of the existence of reasonable probability that the conditions referred to in the sworn testimony would continue to exist at the time of the issuance of the search warrant.

Here, the clothing and boots sought in the search warrant were “non-perishable, non-consumable items which were legally possessed and of continuing utility to defendant.” They were personal possessions, sought at Arnica’s residence. The weapon and receipts were not perishable. Reviewing the affidavit in its entirety and giving due deference to the magistrate’s finding of probable cause, we cannot say that the information in the affidavit was so remote that it made it unlikely that Arnica’s clothing and other items sought in the warrant would not be in his home at the time the warrant was issued. Thus, the trial court did not err by denying Arnica’s motion to suppress on this basis.

(b) Arnica also argues that the search warrant was not supported by probable cause because Detective Mules improperly failed to disclose certain information to the magistrate. Specifically, Arnica contends that the detective omitted the fact that Patel identified his assailants as white and that Arnica is black, and that the detective failed to tell the magistrate that the State agreed not to prosecute Adams in exchange for his testimony against Arnica. Because Arnica did not assert these arguments in his motion to suppress, he has waived them. Notwithstanding his waiver, however, this argument is unavailing.

It is well settled that

an affidavit is presumed valid in the absence of evidence that it contained deliberate falsehoods, was made with reckless disregard for the truth, or that the affiant consciously omitted material facts that, if included, would have indicated the absence of probable cause.
[I]f a court determines that an affidavit contains material false representations or omissions, the false statements must be deleted, the omitted truthful material must be included, and the affidavit must be reexamined to determine whether probable cause exists to issue a warrant.

Here, the record contains no evidence that the affidavit contained deliberate falsehoods, that Mules made it with reckless disregard for the truth, or that he consciously omitted material information, which, if it had been included in the affidavit, would have been indicative of the absence of probable cause. Nevertheless, Mules clearly should have advised the magistrate that Patel believed that one of the men who robbed him was “possibly white” and that the State declined to prosecute Adams in exchange for his testimony. Even if the omitted information was included in the presentation to the magistrate, however, there is still sufficient information to find probable cause for issuance of the search warrant. Thus, we conclude that Detective Mules’s omissions did not invalidate the search warrant.

(c) Relying on Battle v. State, Arnica contends that the search warrant was facially void because the police failed to leave a copy of the warrant and the affidavit at Arnica’s residence, and the warrant failed to describe the place to be searched with particularity. Arnica did not raise these arguments in his motion to suppress or at trial, and therefore, he has waived them. Notwithstanding his waiver, his arguments are without merit.

Both the Fourth Amendment to the United States Constitution and Art. I, Sec. I, Par. XIII of the Georgia Constitution require that a search warrant “particularly describ[e]” the place to be searched. This requirement is fulfilled “if the warrant contains a description that sufficiently permits a prudent officer executing the warrant to locate the premises, person or property to be searched definitely and with reasonable certainty, and without depending upon his discretion.” Here, the search warrant listed the full address of the place to be searched (1364 Blackmon Avenue, Macon, GA 31206), and it contained a heading indicating that the warrant was issued by the Bibb County Magistrate Court. According to Mules, the actual physical location was clearly marked with “easily identifiable” street numbers beside the door, and he agreed that he “had no problem finding 1364 Blackman [sic] Avenue just by knowing the address.” Arnica has pointed to no evidence that the address was misidentified or easily confused with another location. We further note that the informant had taken Detective Mules to the location prior to the application for the search warrant. Thus, “[w]e find that any prudent officer executing the warrant would be able to locate the premises definitely and with reasonable certainty.”

Pursuant to OCGA § 17-5-25, a duplicate copy of any search warrant issued “shall be left with any person from whom any instruments, articles, or things are seized; or, if no person is available, the copy shall be left in a conspicuous place on the premises from which the instruments, articles, or things were seized.” Detective Mules clearly testified that he left a copy of the search warrant at the premises searched. This testimony was sufficient to support compliance with OCGA § 17-5-25.

Furthermore, Arnica’s reliance on Battle is misplaced. In that case, we held that

where a search warrant fails to meet the particularity requirement on its face but instead incorporates a supporting document by reference, failure to leave a copy of that supporting document at the searched premises invalidates the warrant. Where a copy of the affidavit, or other supporting document, is in fact left at the searched premises, the person subject to the search has access to its contents and the purposes of both the warrant itself and the particularity requirement are satisfied.

Arnica argues that the authorities failed to leave a copy of the affidavit at his residence. But Detective Mules left a duplicate copy of the search warrant at the premises searched, and the warrant identified the specific location with sufficient particularity. Thus, Battle has no application to the instant case.

2. Arnica’s statement. Arnica further argues that the trial court erred by failing to suppress his statement given to the police while being interrogated at the jail because the authorities failed to inform him of his Miranda rights. The trial court held a suppression hearing on this issue, but our review of the record does not reveal a ruling by the trial court. The court did not rule at the conclusion of the hearing, and Arnica does not provide a record cite for a written order granting or denying the motion to suppress on this basis. This Court is an appellate court for the correction of errors of law made by the trial court, which have as their bases “specific ruling[s] made by the trial court.” Thus, in the absence of a ruling by the trial court, this enumeration presents nothing for this Court to review.

Moreover, it does not appear that Arnica’s statement was entered into evidence at trial, and Arnica provides no record citation to the contrary. Thus, even assuming that Arnica’s contention that his statement was inadmissible is true, Arnica “must show harm as well as error to warrant reversal. No harm can be shown [because] no statements were entered into evidence.”

3. Similar transaction. Over Arnica’s objection, the trial court admitted evidence that police found five small baggies containing marijuana on Arnica’s person during a pat-down search as part of a traffic stop, which occurred on February 23, 2007 in Macon, slightly more than a month after he was arrested in the instant case.

(a) Arnica contends that the trial court erred by admitting evidence of the February 23, 2007 arrest. We disagree.

Before evidence of an independent offense may be admitted at trial, the State must establish:

(1) that it seeks to introduce the evidence not to raise an improper inference as to the defendant’s character but for some proper purpose; (2) that there is sufficient evidence to establish that the defendant committed the independent offense; and (3) that there is a sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter.

We review the trial court’s determination that the similar transaction evidence was admissible under an abuse of discretion standard. Independent crimes are admissible to show motive, intent, plan, identity, bent of mind or course of conduct.”

Here, the State sought to introduce the similar transaction to show “either intent, identity, and/or plan and schemes,” which are proper purposes. The testimony of the arresting officer from the similar transaction was sufficient to establish that Arnica committed the instant offense. And the trial court did not abuse its discretion in finding that the offenses were sufficiently similar. In both transactions, Arnica possessed marijuana packaged in individual, small plastic bags. Arnica’s argument that the circumstances were not identical is unpersuasive. “While there are differences between the two offenses, the proper focus is on the similarities, not the differences, between them.” “Accordingly, we agree with the trial court’s conclusion that there was sufficient connection between the [subsequent] incidents and the offense charged to warrant their admission.”

(b) Arnica also contends that “[t]he trial court erred by finding the traffic stop [in the similar transaction] constitutional.” This enumeration is without merit.

At the similar transaction hearing, the officer who stopped Arnica on February 23, 2007, testified that he initiated a traffic stop because the tag light on the vehicle Arnica was driving was “hanging defectively” and not properly illuminating the license plate. Once the officer observed this traffic violation, he was authorized to make a traffic stop.

The United States Supreme Court has held that when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances.

Thus, given the evidence presented at the similar transaction hearing, the trial court did not err in admitting the similar transaction evidence.

Challenging the officer’s testimony that the tag light was not properly functioning, Arnica relies on testimony offered at the hearing on his motion for new trial. Specifically, Arnica points to his testimony and that of his girlfriend, Buckner, that the tag light was not defective at the time of the traffic stop. This evidence was not before the trial court at the time it ruled on the motion in limine to exclude the similar transaction. Pretermitting whether we can consider the testimony on appeal, however, this argument presents no basis for reversal because the trial court considered it and apparently rejected it.

4. Ineffective assistance of counsel. In his final enumeration, Arnica contends that his trial counsel was ineffective, alleging four deficiencies.

To establish ineffective assistance of counsel under Strickland v. Washington, a criminal defendant must prove (1) that his trial counsel’s performance was deficient, and (2) that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency.

To prevail on his claim, Arnica must

rebut the strong presumption that his lawyer’s conduct falls within the wide range of reasonable professional assistance. As a general rule, matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. We will not reverse a trial court’s findings regarding either the deficiency or prejudice prong of the Strickland test unless clearly erroneous.

(a) Arnica contends that his trial counsel rendered ineffective assistance by failing to adequately investigate the condition of the tag light that formed the basis for the traffic stop in the similar transaction, pointing to his and Buckner’s testimony presented at the motion for new trial hearing that the tag light was fully operational at the time of the stop. We disagree.

At the hearing, trial counsel testified that he would have investigated the traffic stop further, if he had any indication that the tag light was operational at the time of the traffic stop. Neither Arnica nor his girlfriend told trial counsel that the light was working at the time of the stop, and therefore, trial counsel was not ineffective for failing to investigate the tag light.

(b) Arnica alleges that his trial counsel rendered ineffective assistance by failing to object to bad character evidence. During the trial, the officer who initiated the traffic stop during the similar transaction testified that when he saw Arnica, the officer “realized that [he] had known [Arnica] before.” At the hearing on the motion for new trial, trial counsel testified that the officer’s testimony was

not the type of thing I would object to, to kind of put big, flashing neon lights about this officer knowing my client for the jury. It’s kind of — I wouldn’t call it an innocuous statement; it was kind of a statement that goes by very quickly that I didn’t — wouldn’t necessarily want to highlight it by jumping up and objecting to it.

“As a general rule, matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” “Moreover, even if [Arnica’s] trial counsel had objected to the officer’s testimony, his objection would have been futile. Testimony that a defendant is known to the police does not impermissibly place the defendant’s character into issue.”

(c) Arnica further contends that trial counsel was deficient because he “failed to bring forth any discrepancies in the search warrant to the attention of the court during the motion to suppress.” As we concluded in Divisions (1) (b) and (1) (c), Arnica’s arguments regarding the search warrant are without merit. “[F]ailure to make a meritless argument does not constitute ineffective assistance of counsel.”

Decided November 19, 2010

Reconsideration denied December 2, 2010

Bernadette C. Crucilla, for appellant.

Howard Z. Simms, District Attorney, Neil A. Halvorson, Assistant District Attorney, for appellee.

(d) Finally, Arnica argues that trial counsel rendered ineffective assistance by entering into a stipulation regarding Detective Mules’s testimony. Prior to trial, counsel agreed that Mules could explain his presence at Arnica’s residence by testifying that he was investigating incidents or offenses in his jurisdiction, without mentioning that he suspected that Arnica was involved in the previous armed robbery or burglary or even that such other crimes occurred. Trial counsel’s stipulation was not deficient. Mules’s testimony did not implicate Arnica in another crime. Even if it did, however, “[a]ll circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. Where evidence may incidentally put character in issue or be prejudicial it may be admitted if otherwise relevant.”

Judgment affirmed.

Andrews, E J., and Ellington, J., concur.

       OCGA § 16-13-30 (j) (1).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       According to Adams, Arnica committed the burglary of the Lolo’s store, and Adams was the “getaway driver.” Adams also told the detective that both Adams and Arnica robbed Patel.

       This was Arnica’s sole argument at the motion to suppress hearing and the only specific argument raised in his motion to suppress.

       (Citations and punctuation omitted.) State v. Palmer, 285 Ga. 75, 77-78 (673 SE2d 237) (2009).

       (Punctuation and footnotes omitted.) In the Interest of A. Z., 301 Ga. App. 524, 526 (1) (687 SE2d 887) (2009).

       (Punctuation and footnote omitted.) Copeland v. State, 273 Ga. App. 850, 853 (616 SE2d 189) (2005).

       (Punctuation omitted.) Carruthers v. State, 272 Ga. 306, 313 (5) (528 SE2d 217) (2000), overruled on other grounds, Vergara v. State, 283 Ga. 175, 177 (1) (657 SE2d 863) (2008).

        Reeves v. State, 197 Ga. App. 107, 108 (1) (397 SE2d 601) (1990) (physical precedent only); Tuzman v. State, 145 Ga. App. 761, 765 (2) (A) (244 SE2d 882) (1978).

       See Lemon v. State, 279 Ga. 618, 622 (619 SE2d 613) (2005); In the Interest of A. Z., 301 Ga. App. at 528 (1).

       See Carruthers, 272 Ga. at 313 (5), overruled on other grounds, Vergara v. State, 283 Ga. 175, 177 (1) (657 SE2d 863) (2008); Mitchell v. State, 239 Ga. 456 (2) (238 SE2d 100) (1977); In the Interest of A. Z., 301 Ga. App. at 528 (1) (b).

       We note that Arnica has slightly mischaracterized Patel’s description. The narrative portion of the report, prepared by Detective Jason Floyd, indicates that Patel was approached by an “unidentified male,” who Patel described as “possibly white,” who then fled in a vehicle. The second page of the report lists “possible suspects” as two white males.

       See Looker v. State, 293 Ga. App. 67, 69 (1) (666 SE2d 468) (2008) (“we are limited to reviewing only those grounds ruled upon by the trial court in deciding a motion to suppress”) (punctuation omitted); Allenbrand v. State, 217 Ga. App. 609, 611 (4) (458 SE2d 382) (1995) (“Defendant’s attempt to raise on appeal arguments which were not raised during the motion to suppress or at trial will not be considered.”) (punctuation omitted).

       (Punctuation omitted.) Jarrett v. State, 299 Ga. App. 525, 533 (7) (c) (683 SE2d 116) (2009).

       (Punctuation omitted.) Brown v. State, 292 Ga. App. 269, 275 (2) (663 SE2d 749) (2008).

       See id. (“Without a doubt, the detectives should have included in the search warrant affidavit, or orally informed the magistrate, that the victim had [racially described] her assailant. . .. Their failure to do so was inexcusable.”).

       See id.; Wise v. State, 257 Ga. App. 211, 212-213 (1) (570 SE2d 656) (2002) (failure to advise the magistrate that the confidential informant was paid for information did not invalidate the search warrant); Starks v. State, 240 Ga. App. 346, 347-348 (1) (523 SE2d 397) (1999) (search warrant supported by probable cause even though the police failed to disclose to the magistrate that the informant had pending charges against him and was paid by the police).

       275 Ga. App. 301 (620 SE2d 506) (2005).

       See Locher, 293 Ga. App. at 68-69 (1).

       (Punctuation omitted.) Franks v. State, 240 Ga. App. 685, 688 (3) (524 SE2d 545) (1999).

        Gumina v. State, 166 Ga. App. 592, 594 (2) (305 SE2d 37) (1983). See Anderson v. State, 249 Ga. 132, 135-136 (5) (287 SE2d 195) (1982) (search warrant sufficiently described the specific location of the premises to be searched because it listed the street address, a heading indicating that it was issued by “the Municipal Court of Atlanta, Fulton-DeKalb Counties,” and the informant had taken the officers to the search location before applying for a search warrant).

       Arnica attempts to counter Mules’s testimony with the following testimony and argument offered at the motion for new trial: his own testimony that the search warrant executed on January 18, 2007, was not at his house when he returned home on February 2, 2007, after being released from jail; the testimony of Raven Buckner, Arnica’s girlfriend, that when she arrived at the residence 30 minutes after the search was concluded, the only document her son (who was present during the search) provided her with was the inventory; discrepancies between Detective Mules’s testimony that he left the warrant on the living room table and Buckner’s testimony that there was no table in the living room; and discrepancies between the inventory left at the residence and the return filed with the magistrate court. Pretermitting whether we can consider such evidence, it is insufficient to overcome Mules’s unequivocal testimony that he left a copy of the search warrant at Arnica’s residence and invalidate the search warrant. See, e.g., Gordon v. State, 248 Ga. App. 776, 778 (546 SE2d 925) (2001) (we uphold the trial court’s factual findings unless clearly erroneous).

        Battle, 275 Ga. App. at 303, citing Groh v. Ramirez, 540 U. S. 551 (124 SC 1284, 157 LE2d 1068) (2004).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).

       (Citation omitted.) Peters v. State, 210 Ga. App. 211, 212 (2) (435 SE2d 731) (1993).

        Williamson v. State, 300 Ga. App. 538, 541 (2) (685 SE2d 784) (2009).

       (Punctuation and footnote omitted.) Id. at 542 (2) (b).

       See id.

       Id. at 543 (2) (b).

        Wells v. State, 237 Ga. App. 109, 113 (4) (514 SE2d 245) (1999). See Williamson, 300 Ga. App. at 542-543 (2) (b); Duque v. State, 228 Ga. App. 391, 392 (2) (491 SE2d 841) (1997) (affirming admission of similar transaction evidence because it involved the defendant’s possession of numerous small baggies of crack cocaine, which is the same drug and drug packaging he allegedly possessed in the instant charge).

       (Punctuation omitted). Wrigley v. State, 248 Ga. App. 387, 393 (5) (546 SE2d 794) (2001), citing Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996).

       See Wrigley, 248 Ga. App. at 393 (5).

       See Soilberry v. State, 282 Ga. App. 161, 162 (1) (637 SE2d 861) (2006) (we accept the trial court’s credibility determinations unless clearly erroneous).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Punctuation omitted.) Johnson v. State, 302 Ga. App. 318, 325-326 (7) (690 SE2d 683) (2010).

       (Citations and punctuation omitted.) Id. at 326 (7).

       See Kelley v. State, 295 Ga. App. 663, 665-666 (2) (a) (673 SE2d 63) (2009) (trial counsel’s performance cannot be deemed deficient because he failed to present the testimony of witnesses about which he had no knowledge), citing Callaway v. State, 247 Ga. App. 310, 320 (6) (a) (542 SE2d 596) (2000) (“A client cannot simply withhold relevant information within his knowledge, of which his attorney would have no reason to be aware, and then claim that the attorney was ineffective for failing to discover such information on his own.”).

        Collins v. State, 300 Ga. App. 657, 659 (686 SE2d 305) (2009).

       (Punctuation omitted.) Johnson, 302 Ga. App. at 327 (7) (b).

       We similarly reject Arnica’s argument regarding the discrepancies between the inventory left at his residence and the official return filed with the court. See OCGA § 17-5-31 (“No search warrant shall be quashed or evidence suppressed because of a technical irregularity not affecting the substantial rights of the accused.”); Manemann v. State, 147 Ga. App. 747 (1) (250 SE2d 164) (1978) (“[T]he making and filing of an inventory is merely a ministerial act not affecting the substantive rights of the accused.”).

        McCoy v. State, 285 Ga. App. 246, 249 (4) (b) (645 SE2d 728) (2007).

       (Punctuation omitted.) Smith v. State, 285 Ga. App. 399, 401 (2) (646 SE2d 499) (2007).