                              FIRST DIVISION
                              BARNES, P. J.,
                          MERCIER and BROWN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                      May 21, 2019




In the Court of Appeals of Georgia
 A19A0429. MASSEY v. THE STATE.

      BROWN, Judge.

      Jonathan Shane Massey was indicted in Newton County for two counts of child

molestation, one count of invasion of privacy, and twenty-three counts of sexual

exploitation of children. Massey also was indicted in Walton County for four counts

of sexual exploitation of children and one count each of manufacture of marijuana,

possession of a firearm during the commission of a felony, and possession of a

firearm by a convicted felon. Massey waived venue as to the Walton County offenses

and consented to have both indictments tried jointly in Newton County. Following

a bench trial, the trial court convicted Massey of all charges. Massey appeals the

denial of his amended motion for new trial, arguing that the trial court erred in

denying his motions to suppress unlawfully seized evidence. For the reasons
explained below, we affirm the trial court’s denial of Massey’s motion to suppress

evidence underlying the Newton County charges, but dismiss for lack of jurisdiction,

Massey’s challenge to the trial court’s denial of his motion to suppress evidence

underlying the Walton County charges.

      1. “It is incumbent upon this Court to inquire into its own jurisdiction, even

when not contested by the parties.” (Citations and punctuation omitted.) Clifton v.

State, 346 Ga. App. 406, 407 (814 SE2d 441) (2018) (physical precedent only). A

criminal case remains pending until the court enters a written judgment of conviction

and sentence. Keller v. State, 275 Ga. 680, 680-681 (571 SE2d 806) (2002). See also

Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981) (“[a]n oral declaration

as to what the sentence shall be is not the sentence of the court; the sentence signed

by the judge is”). “In the absence of a final order, we are constrained to hold that no

final judgment has been entered in the case and jurisdiction remains vested in the trial

court.” Okross v. State, 205 Ga. App. 694, 695 (423 SE2d 291) (1992).

      In this case, the appellate record contains only the trial court’s written

judgment as to the Newton County charges; it does not contain the trial court’s

written judgment as to the Walton County charges. Massey has filed a notice of

appeal only in Newton County, and the notice of appeal lists only his convictions and

                                           2
sentence in the Newton County case. The Walton County charges arose after Newton

County officers – with the help of Walton County officers – attempted to serve an

arrest warrant at Massey’s residence in Walton County. When they arrived, Massey’s

vehicle was sitting in the driveway, and a woman living in the residence told officers

Massey was not there, but that they could come inside and look for him. Officers

subsequently discovered, in Massey’s bedroom, a rifle and two DVDs, one titled “Too

Young to Know Better” and another titled “Yips on Yips.” Officers obtained a search

warrant for the residence and recovered a shotgun, ammunition, camera and recording

equipment, and numerous DVDs. Massey moved to suppress the evidence obtained

from the residence, arguing that the woman had no authority to consent to the search

and that even if she was authorized to consent, officers went beyond the scope of her

consent.1 As noted previously, the trial court denied the motion.

      Because no final judgment has been entered in the Walton County case,

jurisdiction remains vested in the trial court. Accordingly, any portion of this appeal




      1
        We note that in his appellate brief, Massey contends that only “the seizure and
search of the discs [was] illegal, and that the lower court should have suppressed the
material from use at trial.” (Emphasis supplied.) He does not challenge the denial of
the motion to dismiss as to the other evidence retrieved from the residence.

                                          3
challenging Massey’s Walton County convictions, including the denial of his motion

to suppress evidence seized from the residence, is dismissed.

      2. We next address Massey’s contention that the trial court erred in denying his

motion to suppress the evidence underlying the Newton County charges.

      When the facts material to a motion to suppress are disputed, it generally
      is for the trial judge to resolve those disputes and determine the material
      facts. This principle is a settled one, and this Court has identified three
      corollaries of the principle, which limit the scope of review in appeals
      from a grant or denial of a motion to suppress in which the trial court
      has made express findings of disputed facts. First, an appellate court
      generally must accept those findings unless they are clearly erroneous.
      Second, an appellate court must construe the evidentiary record in the
      light most favorable to the factual findings and judgment of the trial
      court. And third, an appellate court generally must limit its consideration
      of the disputed facts to those expressly found by the trial court.


(Citations, punctuation and footnotes omitted.) Hughes v. State, 296 Ga. 744, 746,

(770 SE2d 636) (2015). See also Thompson v. State, 348 Ga. App. 609, 612 (1) (824

SE2d 62) (2019). Viewing the evidence in that light,2 the record shows that Massey


      2
        Although the trial court did not issue written orders when it denied Massey’s
motions to suppress, the trial court addressed the suppression issues in its order
denying Massey’s amended motion for new trial. In that order, the trial court made
express factual findings relating to its suppression decisions, and in our review of
those suppression decisions we must “focus on the facts found by the trial court in

                                          4
was in jail for a probation violation in September 2010, when he called his then-wife

and asked her to issue payroll checks for his business. His wife testified that Massey

told her to take the keys he had left at home when he was arrested, go to his place of

business, and unlock his office desk to get the checks. She went to the business,

unlocked the desk, and discovered drugs, a manila envelope with pornographic

pictures sticking out of one end, and a CD, both of which contained nude photos of

her thirteen-year-old niece taken in the bathroom of the Massey home. The wife

called Massey and asked him for the password to his computer because “the guys

needed to get on the computer to handle some accounts that were waiting – business

related.” Massey gave her his password and on the computer she discovered “child

porn” and additional photos of Massey with other women. The wife called the

sheriff’s office and spoke to an investigator who told her to bring the items to police.

The wife brought Massey’s hard drive, a thumb drive, the CD, and the photos she

found in Massey’s desk to the sheriff’s office and gave them permission to look

through everything. The sheriff’s office later asked the wife to bring them Massey’s




[that] order, as the trial court sits as the trier of fact.” (Citation and punctuation
omitted.) Caffee v. State, 303 Ga. 557, 559 (1) (814 SE2d 386) (2018).

                                           5
computer, which she did. The wife testified in the motion to suppress hearing that she

was not involved in Massey’s business.

      An investigator with the Newton County Sheriff’s Office testified that another

investigator said that Massey’s wife told another investigator that she had been

instructed by Massey to go to his office to make payroll. Massey told his wife where

the keys were located and gave her the password to the computer “where she was to

go and do the payroll.” While sitting at his desk, the wife came across nude photos

of her niece. On the computer she found files containing nude children. The

investigator understood that the wife had access to the computer and/or the password

to the computer. The wife turned over to police the photos, a thumb drive, and the

computer hard drive. The investigator called the Georgia Bureau of Investigation

(GBI), told them to put her on a waiting list to search the items, and then obtained a

search warrant. The investigator testified that it was her understanding that law

enforcement had the wife’s consent, but that she obtained a search warrant as a

“precautionary measure.” Before turning the items over to the GBI, and presumably

before obtaining the search warrant, the investigator viewed hard copies of the

pictures taken from the computer. On cross-examination, the investigator



                                          6
acknowledged that her report makes no mention of the wife authorizing consent to

search the computer or hard drive.

      Massey testified that he was the controlling shareholder of the business and

that his wife rarely came to the business or had any involvement in the business.

Massey testified that he told his wife to get the payroll checks from his office and

give them to an employee so the employee could write out the checks and stamp them

with Massey’s signature. He denied that the checks were in his desk, stating that they

were in a box beside the desk. When asked if he had a conversation with his wife

about accessing his computer Massey said, “I don’t believe so.”

      In denying Massey’s motion to suppress, the trial court found that the

electronic evidence, including the hard drives, computer tower, thumb drive, and

DVDs from Massey’s office, “was seized in accordance with the federal and state

constitutions after a non-law enforcement individual[, i.e., Massey’s wife,] brought

evidence she found in an area she was told to go by [Massey].” The trial court found

that the wife went to the office because Massey “asked her to take the keys to the

office so that she could get into his desk to retrieve items and help write payroll

checks. [The wife then] took these items over [to] the police department ‘freely and

voluntarily,’ and never felt any pressure to retrieve these items. . . . Additionally, . .

                                            7
. [t]he Court need not get involved in what [the wife’s] motives were for retrieving

the evidence.” The trial court further concluded that it was “reasonable for [the

investigator] to believe that [the wife] had the authority to give consent to search

these items since she was married to [Massey] at the time. Further, [the wife] gave

explicit permission to [the investigator] for her to search the items.” Massey makes

two arguments in challenging the trial court’s ruling. We consider them in turn below.

      (a) Massey first contends that the search warrant for his office computer and

electronic files was not supported by probable cause because it was issued based upon

information provided by his now ex-wife who was not shown to be a credible source

of information. We cannot consider this argument. “In challenging a trial court’s

denial of a motion to suppress, a defendant may not argue on appeal grounds that he

did not argue (and obtain a ruling on) below.” (Citation and punctuation omitted.)

Bryant v. State, 288 Ga. 876, 894 (13) (b) (708 SE2d 362) (2011). See also Bryant v.

State, 326 Ga. App. 385, 388 (756 SE2d 621) (2014).

      At the suppression hearing, Massey argued that his wife did not have authority

to consent to a search of his office computer and electronic files. Massey alleged that

his wife was authorized to be in his office, but only for the very limited purpose of

writing payroll checks. He also argued in passing that police never asked his wife for

                                          8
consent. He now asserts for the first time on appeal that the search warrant was not

supported by probable cause. Because Massey did not raise this particular argument

below, he has waived it here.

      (b) Massey also contends that the trial court erred in denying his motion to

suppress because it did not consider the scope of any purported third-party consent.

In this regard, Massey argues that his wife’s authority was limited to retrieving items

to write payroll checks.

      A search and seizure is reasonable if it is conducted pursuant to a valid search

warrant or with consent from (1) the individual whose property is searched; (2) a third

party who has common authority over the property; or (3) if a police officer could

have reasonably believed that a third party had common authority over the property.

See Illinois v. Rodriguez, 497 U. S. 177, 181 (II), 188-189 (III) (B) (110 SCt 2793,

111 LE2d 148) (1990). See also Gomillion v. State, 298 Ga. 505, 508 (3) (783 SE2d

103) (2016). “Common authority . . . rests . . . on mutual use of the property by

persons generally having joint access or control for most purposes.” United States v.

Matlock, 415 U. S. 164, 171 (II), n.7 (94 SCt 988, 39 LE2d 242) (1974). In some

circumstances, a third party who purports to consent to a search lacks the actual

authority to do so, but law enforcement may rely on that individual’s apparent

                                          9
authority to give consent, if such reliance is reasonable. See Rodriguez, 497 U. S. at

188-189 (III) (B). See also Niles v. State, 325 Ga. App. 621, 623 (754 SE2d 406)

(2014) (“even if the consenting third party did not in fact have authority to give

consent to [search], where police reasonably believed that the third party had such

authority, this constitutes apparent authority which validates the [search]”).

      As with other factual determinations bearing upon search and seizure,
      determination of consent to [search] must be judged against an objective
      standard: would the facts available to the officer at the moment warrant
      a [person] of reasonable caution in the belief that the consenting party
      had authority over the [property]? If not, then warrantless [search]
      without further inquiry is unlawful unless authority actually exists. But
      if so, the search is valid.


(Citation omitted.) Niles, 325 Ga. App. at 623.

       Here, the trial court found that is was reasonable for the investigator to believe

that the wife had the authority to give consent to search the computer items since she

was married to Massey at the time and Massey had instructed her to go to his office.

There was evidence presented at the suppression hearing that Massey had given the

wife his computer password, thus giving her access to his computer and computer

files, and that Massey had given her the password to access his computer for purposes

other than payroll, because “business related” accounts were waiting. Because the

                                           10
wife told an investigator that Massey had instructed her to go to his office to take care

of payroll and that he had given her his computer password without telling her that

other portions of the computer were off-limits, it was not unreasonable for the

investigator to believe that the wife had common authority over or other sufficient

relationship with Massey’s computer and electronic files. See, e.g., United States v.

Thomas, 818 F3d 1230, 1242 (III) (E) (11th Cir. 2016) (without separate passwords,

or like security measures, reasonable officer would have thought that defendant and

then-wife shared access to home computer, “and by doing so, assumed the risk that

the other would allow the police to view the computer’s contents”); United States v.

Buckner, 473 F3d 551, 555 (4th Cir. 2007) (even though wife did not have password

to computer primarily used by husband, totality of circumstances provided officers

with basis for objectively reasonable belief that wife had authority to consent to

search of computer’s hard drive); Antonelli v. Sherrow, 246 Fed.Appx. 381, 384 (7th

Cir. 2007) (where defendant had given his ex-wife his computer for duration of his

incarceration, had not password-protected any files on computer, and had not

indicated to her that any files were off-limits, his ex-wife could give valid consent).

But see Trulock v. Freeh, 275 F3d 391, 403 (III) (c) (4th Cir. 2001) (co-resident of

home and co-user of computer who did not know necessary password for co-user’s

                                           11
password-protected files, lacked authority to consent to a warrantless search of those

files).

          As for Massey’s contention that his wife’s authority to search the computer was

limited to retrieving items to write payroll checks, and that she therefore had no

authority to consent to a search of other areas on Massey’s computer, we decline to

“engage in such metaphysical subtleties in judging the efficacy of [his wife’s]

consent.” Frazier v. Cupp, 394 U. S. 731, 740 (III) (89 SCt 1420, 22 LE2d 684)

(1969) (rejecting defendant’s argument that cousin only had permission to use one

compartment of duffel bag). Compare State v. Parrish, 302 Ga. App. 838, 840 (691

SE2d 888) (2010) (defendant’s wife did not have authority to consent to search of gun

cabinet where evidence known to police established that wife did not have joint

access or control over the gun cabinet; defendant locked the gun cabinet and

maintained possession of the only key). In giving his wife his password and allowing

her to use his computer, Massey “must be taken to have assumed the risk that [she]

would allow someone else to look inside.” Frazier, 394 U. S. at 740 (III). We find no

merit in this contention and conclude that the trial court correctly found that Massey’s

wife had apparent authority over his computer and electronic files such that she had



                                            12
the right to consent to their search. Accordingly, we affirm the trial court’s denial of

Massey’s motion to suppress this evidence.3

      3. Finally, Massey argues that the evidence obtained from the trailer, as

reviewed in Division 1, should have been suppressed under the fruit of the poisonous

tree doctrine because the evidence from his computers and electronic files was

illegally obtained. Pretermitting whether the evidence from his computer and

electronic files was illegally obtained, Massey never raised this argument below.

Accordingly, he has waived it here. See Bryant, 288 Ga. at 894 (13) (b).

      Judgment affirmed in part; appeal dismissed in part. Barnes, P. J., and

Mercier, J., concur.




      3
       In asserting this argument, Massey does not take issue with the evidence
obtained from his desk.

                                          13
