                                SECOND DIVISION
                                  MILLER, P. J.,
                              ANDREWS and SELF, 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


                                                                    February 22, 2018




In the Court of Appeals of Georgia
 A18A0730. BOOTH v. THE STATE.
 A18A0731. STAMEY v. THE STATE.
 A18A0732. POWELL v. THE STATE
 A18A0733. MEDINA v. THE STATE
 A18A0734. JONES v. THE STATE.
 A18A0735. BOSWELL v. STATE.

      SELF, Judge.

      In each of these appeals, we are called upon to address the same issue based

upon identical facts: whether the trial court erred by denying appellants’ motion to

suppress grounded upon the State’s failure to immediately present wiretap recordings

for sealing as required by federal law. See 18 USC § 2518 (8) (a). For the reasons

explained below, we affirm.
      On appeal, we accept the findings of the trial court on questions of
      disputed fact unless those findings are clearly erroneous. We owe no
      deference, however, to the trial court on questions of law, and we must
      decide for ourselves whether the facts show a failure to immediately
      present the recordings for sealing and, if so, a satisfactory explanation
      for that failure.


Finney v. State, 298 Ga. 620, 622, n. 5 (783 SE2d 598) (2016). The record shows that

on June 19, 2015, a Spalding County superior court judge signed three separate orders

authorizing wiretaps on cell phones belonging to Adrian Lehsten. On June 21, 2015,

approximately two weeks before the orders were scheduled to expire, Lehsten was

arrested in Lamar County. The next day, the police learned of his arrest and “had to

kind of scramble and execute . . . four to five search warrants” at “the residences of

other known co-conspirators.” They also stopped the electronic surveillance since

Lehsten “was no longer using his phone because he was in jail.” A narcotics officer

received the recordings on June 24, 2015. On July 2, the judge who issued the wiretap

orders signed an order sealing the recordings.

      In March 2017, the State indicted, among others, the six appellants in this

appeal (Darryl Keith Booth, Trenton Matthew Stamey, Amber Cherie Powell, Tammy

Louise Medina, Anthony Wade Jones, and Christina Marie Boswell) for various


                                          2
crimes, including illegal use of a communication facility.1 Each of the appellants, who

are all represented by the same attorney, filed identical motions to suppress “all

evidence resulting from an unlawful wiretap” based upon the State’s delay in sealing

the recordings. Following a consolidated hearing for all six cases, the trial court

denied the motions to suppress.

      1. In Georgia, a superior court judge may issue a warrant permitting a wiretap

“for the surveillance of a person or place to the extent the same is consistent with and

subject to the terms, conditions, and procedures provided by 18 U.S.C. Chapter 119.”

OCGA § 16-11-64 (c). 18 USC § 2518 (8) (a) mandates that “[i]mmediately upon the

expiration of the period of the order [authorizing interception of wire, oral, or

electronic communications], or extensions thereof, such recordings shall be made

available to the judge issuing such order and sealed under his directions.”

      [T]he government may not use or disclose the content of any intercepted
      communication or any evidence derived therefrom in a judicial
      proceeding, unless there appears a “satisfactory explanation” for the
      failure to make an immediate presentation of the recordings. A
      “satisfactory explanation” is one that “explains not only why a delay


      1
       Lehsten was charged with violations of Georgia’s Racketeer Influenced and
Corrupt Organizations Act in connection with the possession of controlled
substances.

                                           3
      occurred but also why it is excusable.” United States v. Ojeda Rios, 495
      U. S. 257, 265 (110 SCt 1845, 109 LE2d 224) (1990).


(Footnote omitted.) Finney, 298 Ga. at 620.

      In North v. State, 250 Ga. App. 622 (552 SE2d 554) (2001), we addressed “the

problematic question of whether a sealing delay must be calculated from the

expiration date of the warrant or the date that the tap is actually terminated, where

such date precedes the expiration date on the wiretap order.” Id. at 624 (1). After

examining 18 USC § 2518 (8) (a), we concluded that “the statute, on its face, requires

immediate sealing only after ‘the expiration of the period of the order, or extensions

thereof.’” (Emphasis in original.) Id. at 624. Accordingly, we applied “the plain

language of the statute” and found that the recordings “were admissible because they

were sealed by the judge on the date that the wiretapping order terminated.” Id. In

Finney, supra, the Supreme Court of Georgia recognized two nonbinding federal

decisions to the contrary, but assumed, “[w]ithout deciding . . . that the State need

only explain the delay following the expiration of the Title III authorization.”2 298

Ga. at 623, n. 6. Based upon its conclusion that the State “failed to adequately explain


      2
        “Title III” refers to Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, codified at 18 USC 2510 et seq., of which 18 USC 2518 (8) (a) is a part.

                                           4
the delay following the expiration of the Title III, authorization,” it determined that

it “need not consider whether an explanation also is required for the period between

the conclusion of surveillance and the expiration of the Title III authorization.”3 Id.

      In this case, the record shows that the discs were created June 24, 2015, the

issuing judge signed an order sealing the discs on July 2, 2015, and the authorizing

order expired around July 6, 2015. Based upon the binding precedent of our decision

in North, supra, we conclude that the State need not provide an explanation of the

delay between the sealing and the date the authorizing order expired. As the evidence

shows that the recordings were sealed before the expiration of the authorizing order,4

we affirm the trial court’s order denying the appellants’ motion to suppress.

      2. Our holding in Division 1 renders appellants’ remaining enumeration of

error moot.

      Judgment affirmed. Andrews, J., concur. Miller, P. J., concur fully and

specially.

      3
        The Supreme Court did not acknowledge our decision in North, supra, when
it discussed this issue.
      4
        We note that this Court is not bound by the State’s concession in the motion
to suppress hearing that it was legally required to provide an explanation for the
delay. See Tezeno v. State, 343 Ga. App. 623, 628 (1) (a), n. 3 (808 SE2d 64) (2017);
Franklin v. Eaves, 337 Ga. App. 292, 298 (2) (787 SE2d 265) (2016).

                                          5
 A18A0730. BOOTH v. THE STATE.

 A18A0731. STAMEY v. THE STATE.

 A18A0732. POWELL v. THE STATE.

 A18A0733. MEDINA v. THE STATE.

 A18A0734. JONES v. THE STATE.

 A18A0735. BOSWELL v. THE STATE.



      MILLER, Presiding Judge, concurring fully and specially.

      I agree that, under our precedent, the trial court was not required to suppress

the evidence in this case, and I concur fully in the majority opinion. See North, supra,

250 Ga. App. at 624 (1). I write separately to emphasize that our Supreme Court has



                                           6
expressly declined to decide this precise situation – where the surveillance ceased

prior to the expiration of the warrant. See Finney, supra, 298 Ga. at 623 n. 6.

Moreover, as our Supreme Court noted, some federal courts have held that the

recordings must be presented immediately “as soon as practical after the surveillance

ends,” regardless of whether the warrant had expired at that time. See Finney, supra,

298 Ga. at 623 n. 6; United States v. Coney, 407 F3d 871, 875 (7th Cir, 2005); United

States v. Williams, 124 F3d 411, 429 (IX) (3d Cir. 1997).

      The purpose of this immediacy requirement is to ensure the reliability and

integrity of the recordings by establishing that they have not been tampered with prior

to their admission at trial. See United States v. Ojeda Rios, 495 U S 257, 263 (110

SCt 1845, 109 LE2d 224) (1990). Where the interception ceases prior to the

termination of the warrant, this goal is met only by requiring the government to

present the records immediately after the surveillance ends, and not at some later

point when the warrant expires. I thus question whether our precedent comports with

the purposes and intentions of the federal wiretap statute identified in Ojeda Rio,

supra, 495 U S at 263. Nevertheless, as our court has spoken, I agree with the

majority’s conclusion in this case.



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