In the Supreme Court of Georgia



                                                      Decided: September 22, 2014


                       S14A0768. HAMPTON v. THE STATE.


       HINES, Presiding Justice.

       Cleo Roosevelt Hampton, Jr. appeals the denial of his motion for new

trial, as amended, following his convictions for malice murder and possession

of a firearm during the commission of murder in connection with the fatal

shooting of Jared Taylor. Hampton’s sole claim on appeal is that his trial

counsel provided ineffective assistance. Finding the claim to be without merit,

we affirm.1

       1
          The murder and related crimes occurred on January 21, 2011. On November 2, 2011, a
Clayton County grand jury returned an indictment against Hampton and Darion Cortez Brownlee:
Count (1) - malice murder; Count (2) - felony murder while in the commission of armed robbery;
Count (3) - armed robbery; Count (4) - felony murder while in the commission of aggravated assault;
Count (5) - aggravated assault with a deadly weapon; Count (6) - aggravated assault with the intent
to rob; Count (7) - possession of a firearm during the commission of murder; Count (8) - possession
of a firearm during the commission of armed robbery; Count (9) - possession of a firearm during the
commission of aggravated assault; Count (10) (Hampton only) - possession of a pistol or revolver
by a person under 18; and Count (11) - theft by receiving stolen property. Hampton was tried before
a jury March 26-29, 2012, and was found guilty of all charges. On March 29, 2012, he was
sentenced to life in prison with the possibility of parole on Count (1), and a consecutive five years
in prison on Count (7). The felony murder verdicts were vacated by operation of law, Malcolm v.
State, 263 Ga. 369, 371–372 (4) (434 SE2d 479) (1993), and the verdicts on the remaining counts
were found to merge with that on Count (1) for the purpose of sentencing. A motion for new trial
was filed on April 10, 2012, amended on May 2, 2013, and denied on October 29, 2013. A notice
       The evidence construed in favor of the verdicts showed the following.

During the morning of January 21, 2011, Hampton and Darion Brownlee went

to Jared Taylor’s home in Clayton County under the guise that they intended to

sell him a handgun. Taylor lived with his girlfriend, Angela Davis, and the two

sold marijuana out of the home that they shared. Taylor used calls to a cell

phone and text messages to arrange drug deals. He kept as much as $25,000 in

the home and stored marijuana in a black book bag on his side of the couple’s

bed. Taylor had a handgun, but he carried it only when someone he didn’t know

came to buy drugs. Otherwise, Taylor stored the handgun in the couple’s

bedroom under his pillow.

       Earlier on the morning of January 21, Davis left home to run errands and

called Taylor around 11:30 a.m. to ask him what he wanted for lunch. While on

the phone with Taylor, Davis heard at least two other voices in the background.

After buying Taylor’s lunch from a restaurant and running some more errands,

around 1:00 p.m., Davis attempted repeatedly to call Taylor on the cell phone

he used, but there was no answer. At approximately 1:20 p.m., Davis returned



of appeal was filed on November 25, 2013, and the case was docketed in this Court’s 2014 April
Term. The appeal was submitted for decision on the briefs.

                                              2
home to find the usually locked entrance door unlocked and Taylor lying bloody

on the floor between the hallway and the kitchen. Taylor died from a single

gunshot wound to the head. Davis saw the cell phone used by Taylor under the

kitchen table and she used it to call 911. While waiting for police to arrive,

Davis discovered that the closet was in complete disarray and the access panel

to the attic had been disturbed; however, marijuana and some drug proceeds that

were stashed in a locked “makeup case” had gone undiscovered. Also, Taylor’s

handgun was still under his pillow. Because Davis did not want the police to

learn that the couple was dealing drugs, she hid the marijuana and money in a

neighbor’s truck. The police’s initial investigation of the crime scene revealed

several footprints inside and outside of the home.

     Davis’s sister knew Hampton and Brownlee through mutual friends. On the

night of the murder, Hampton showed up at the sister’s house claiming that he

was at Taylor’s home earlier to sell him a handgun but left to go to Southlake

Mall. After the sister received a telephone call informing her that Taylor had

died, Hampton commented that he “didn’t mean it” and he left. About a month

before Taylor’s murder, Davis’s sister overheard Hampton and Brownlee

discussing a plan to rob Taylor and Davis; Brownlee stated that “he knew where

                                       3
everything was . . . where the attic was and where [Taylor] hid his stuff at.” At

the time of the conversation, Hampton was wielding a handgun. Subsequently,

Davis’s sister related the overheard conversation to the police.

      The police questioned Hampton about his involvement in the shooting. At

first, Hampton admitted to being present during Taylor’s murder and that he

“shot two and gave him one in the head.” Later in the investigation, however,

Hampton’s story was that he and Brownlee went to Taylor’s home only to sell

him a handgun, and Brownlee decided on his own to shoot Taylor.

      Surveillance video taken the day of Taylor’s death showed Hampton and

Brownlee shopping with cash at Southlake Mall, where Hampton purchased

clothes and shoes. After receiving permission to search Hampton’s residence,

officers found clothing and shoes soaking in a large trash can full of water. The

shoes that the police recovered were the same size and brand of shoes that

Hampton later replaced with a purchase at Southlake Mall and they matched

some of the shoe prints recovered by the police at the crime scene. Subpoenaed

records from the cell phone used by Hampton revealed several text messages and

phone calls between Hampton and Brownlee on the day of Taylor’s murder.

Testifying in his own defense at trial, Hampton admitted that he and Brownlee

                                        4
discussed robbing Taylor, and that he knowingly accepted from Brownlee some

of the cash stolen from Taylor and used it to shop at the mall.

      1. Hampton has not asserted that the evidence was insufficient to sustain

his convictions; nevertheless, this Court has reviewed the evidence and finds it

sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt

that Hampton was guilty of the crimes of which he was convicted. Jackson v.

Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

      2. Hampton contends that his trial counsel deprived him of constitutionally

effective assistance by failing to seek the suppression of the subpoenaed text

messages. In order for Hampton to prevail on such claim he must demonstrate,

pursuant to Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d

674) (1984), that his counsel's performance was deficient and that, but for the

deficiency, there is a reasonable probability of a different outcome at trial. Allen

v. State, 293 Ga. 626, 627 (2) (748 SE2d 881) (2013). In order to satisfy the first

prong of Strickland, Hampton must overcome the strong presumption that his

trial counsel's performance fell within a wide range of reasonable professional

conduct and that the decisions made by counsel were the result of reasonable

professional judgment; the reasonableness of the conduct is judged from

                                         5
counsel's perspective at the time of trial and under the particular circumstances

then existing in the case. Id. To meet the second requirement of Strickland,

Hampton must show the reasonable probability that, absent any unprofessional

errors on counsel's part, the result of his trial would have been different. Id. In

the present review, this Court will accept the trial court's factual findings and

credibility determinations unless they are clearly erroneous, but the Court will

independently apply the legal principles to the facts. Id.

      Citing OCGA §§ 16-11-66.1 (a)2; 16-11-673, and 18 USCA § 2703 (a)4,


       2
           OCGA § 16-11-66.1 (a) provides:

       A law enforcement officer, a prosecuting attorney, or the Attorney General may require the
       disclosure of stored wire or electronic communications, as well as transactional records
       pertaining thereto, to the extent and under the procedures and conditions provided for by the
       laws of the United States.



       3
           OCGA § 16-11-67 provides:

       No evidence obtained in a manner which violates any of the provisions of this part shall be
       admissible in any court of this state except to prove violations of this part.
       4
           18 USCA § 2703 (a), in effect during the applicable time frame, provided in relevant part:




       Contents of wire or electronic communications in electronic storage.--A governmental entity
       may require the disclosure by a provider of electronic communication service of the contents
       of a wire or electronic communication, that is in electronic storage in an electronic
       communications system for one hundred and eighty days or less, only pursuant to a warrant

                                                  6
Hampton argues that he had a statutory right to suppress the text messages, from

January 21-24, 2011, because they were obtained without a warrant which he

maintains federal law requires in the absence of a life-threatening emergency.

But, a criminal defendant has standing to suppress evidence obtained through an

illegal search or seizure only in the situation in which his or her own rights are

violated, as such rights are personal and are not to be asserted vicariously. Black

v. State, 281 Ga. App. 40, 42 (1) (635 SE2d 568) (2006). And, an individual can

successfully argue for suppression of the product of a Fourth Amendment

violation only if that person’s rights were violated by the search itself;

suppression of the evidence is not available to one who is aggrieved solely by the

introduction of damaging evidence because the exclusionary rule is to protect

individuals whose Fourth Amendment rights have been violated. Ellis v. State,

256 Ga. 751, 755(2) (353 SE2d 19) (1987) (applied Fourth Amendment search

principles to determine whether defendant had standing to challenge the

electronic surveillance of a co-defendant's telephone). In this case Hampton is

arguing that he has a right to suppression under the cited federal and state


       issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the
       case of a State court, issued using State warrant procedures) by a court of competent
       jurisdiction.

                                                7
statutes. As for Hampton’s invocation of 18 USCA § 2703 (a), federal courts

have held that there is no statutory suppression remedy under the Stored

Communications Act (“SCA”), 18 U.S.C. §§ 2701 et seq. United States v.

Booker, 2013 WL 2903562 (N.D. Ga., 2013), citing United States v. Clenney,

631 F.3d 658, 667 (4th Cir.,2011); United States v. Perrine, 518 F.3d 1196, 1202

(10th Cir., 2008); United States v. Steiger, 318 F.3d 1039, 1049 (11th Cir.,

2003); United States v. Smith, 155 F.3d 1051, 1056 (9th Cir.,1998);

Suarez–Blanca, 2008 WL 4200156 (N.D. Ga., 2008). As for violations of our

state statutes regulating eavesdropping, surveillance, or the interception of

communications, OCGA §§ 16–11–62 through 16–11–67, there is statutory

authority for suppression pursuant to OCGA § 17-5-30, but under that statute “a

pretrial motion to suppress is available only to the person aggrieved by an

unlawful search and seizure.” Deleon-Alvarez v. State, 324 Ga. App. 694, 699 (2)

(751 SE2d 497) (2013), quoting Romano v. State, 162 Ga. App. 816, 819 (1) (a)

(292 SE2d 533) (1982). Indeed, the focus of OCGA §§ 16–11–62 through

16–11–67 is the protection of individuals from invasion of their privacy.

Deleon-Alvarez v. State, supra at n. 11. A Fourth Amendment analysis is

appropriate, and as noted, rights under the Fourth Amendment are personal, and

                                       8
in order to challenge the validity of a government search an individual must

actually enjoy the reasonable expectation of privacy, that is, the individual must

have standing. United States v. Dooley, 2013 WL 2548969 (N.D. Ga., 2013);

Suarez–Blanca, 2008 WL 4200156 (N.D. Ga., 2008). Thus, demonstrating

standing is a threshold burden for suppression of the evidence. Rakas v. Illinois,

439 U.S. 128, 130 (n. 1) (99 SCt 421, 58 LE2d 387) (1978). Hampton fails to

meet such burden.

      Indeed, the named subscriber for the cell phone number at issue was not

“Hampton.”5 And, Hampton has produced no evidence of the use of an alias in

regard to the account or that he had any legal link to the account, much less any

ownership interest in it; nor has he shown that he was an authorized user on the

account, or the de facto exclusive, primary, or customary user of the cell number

at issue. See United States v. Dooley, supra; Suarez–Blanca, supra; compare

United States v. Herron, 2014 WL 824291 (E.D.N.Y., 2014). Inasmuch as there

was no evidence that Hampton had a sufficient privacy interest in the cell phone

whose calls and text messages were the subject of the subpoena, he lacked

standing to seek suppression of the texts at issue. See Deleon-Alvarez v. State,

       5
           The cell phone provider’s records show that the named subscriber was “Terric White.”

                                                 9
supra at 699 (2) (a). Therefore, Hampton’s trial counsel cannot be found to be

deficient for not having moved to suppress the texts on the basis now urged; the

failure to make a meritless motion or objection does not provide a basis upon

which to find ineffective assistance of counsel. Moore v. State, 293 Ga. 676, 679

(5) (a) (748 SE2d 419) (2013).

      Even assuming arguendo that suppression was possible, Hampton still

cannot show trial counsel’s ineffectiveness. At the hearing on the motion for new

trial, as amended, trial counsel testified that he did not object to the text messages

because they contained information that appeared to be helpful to Hampton’s

defense in that they corroborated that Brownlee initiated contact with Hampton,

was the instigator of the fatal incident as well as the shooter, and that Hampton

went to the victim’s home merely to purchase marijuana; at the time of trial,

defense counsel “was grasping for straws, . . . looking for any and every bit of

information or facts that could help [Hampton] with his defense.” Generally, a

matter of reasonable trial strategy and tactics does not constitute ineffective

assistance of counsel. Boykins v. State, 294 Ga. 277, 279 (2) (751 SE2d 811)

(2013). And, the record fails to provide any basis for finding that the articulated

strategy for using the text messages was, at the time of trial, unreasonable. The

                                         10
fact that at the motion-for-new-trial hearing, trial counsel conceded that in

reviewing the totality of the text messages they might have been more damaging

than helpful, is of no moment because “hindsight has no place in an assessment

of the performance of trial counsel” Hartsfield v. State, 294 Ga. 883, 888 (3) (b)

(757 SE2d 90) (2014). Furthermore, the fact that present counsel disagrees with

trial counsel’s strategy does not render such strategic decision unreasonable.

McKenzie v. State, 284 Ga. 342, 349 (4) (e) (667 SE2d 43) (2008).

      Finally, even if trial counsel was found to be deficient in the manner urged,

Hampton cannot show a reasonable probability that the outcome of his trial

would have been different had the text messages not been in evidence. The

remaining evidence against Hampton, which included his inculpatory statements

to police and his trial testimony that he supplied the pistol to Brownlee, that he

was at the victim’s home at the time of the fatal shooting, and that he knowingly

accepted and used money taken from the victim, was overwhelming. See Dunn

v. State, 291 Ga. 551, 553 (4) (a) (732 SE2d 524) (2012). Consequently,

Hampton cannot carry his burden of proving the ineffective assistance of his trial

counsel. Id.

      Judgments affirmed. All the Justices concur.

                                        11
                   S14A0768. HAMPTON v. THE STATE.


      NAHMIAS, Justice, concurring.

      I concur fully in the Court’s opinion. With respect to Division 2, however,

I want to make sure that our holding that Hampton lacks statutory standing to

seek suppression of the text messages between Brownlee’s phone and the cell

phone subscribed to by “Terric White” is not read to suggest that it was

appropriate for the police to use a subpoena to obtain that information, to the

extent that the information included the contents of the text messages.

      Under current constitutional doctrine, the Fourth Amendment’s protections

do not encompass records of a person’s stored communications when the police

obtain those records from someone else, like the person’s communications

provider. See Smith v. Maryland, 442 U.S. 735, 743-744 (99 SCt 2577, 61 LE2d

20) (1979) (“This Court consistently has held that a person has no legitimate

expectation of privacy in information he voluntarily turns over to third parties.”);

Registe v. State, 292 Ga. 154, 156 (734 SE2d 19) (2012). However, federal and

Georgia statutory law imposes limits on the authority of law enforcement to

demand stored wire and electronic communications information from a
communications provider. The statutes generally authorize governmental entities

to require providers to disclose the contents of recently stored communications

only by means of a properly issued warrant. See OCGA § 16-11-66.1 (a) (“A

law enforcement officer, a prosecuting attorney, or the Attorney General may

require the disclosure of stored wire or electronic communications, as well as

transactional records pertaining thereto, to the extent and under the procedures

and conditions provided for by the laws of the United States.”); 18 USC § 2703

(a) (“A governmental entity may require the disclosure by a provider of

electronic communication service of the contents of a wire or electronic

communication, that is in electronic storage in an electronic communications

system for one hundred and eighty days or less, only pursuant to a warrant issued

using the procedures described in the Federal Rules of Criminal Procedure (or,

in the case of a State court, issued using State warrant procedures) by a court of

competent jurisdiction.” (emphasis added)). A subpoena may be used only to

demand transactional records about such a communication, such as the

telephone numbers between which it went, the time it occurred, or the names of

the subscribers to the phone numbers – information that does not directly reveal

the contents of the communications. See 18 USC § 2703 (c) (allowing a

                                        2
governmental entity to use an administrative, grand jury, or trial subpoena, in

addition to a warrant or court order, to require the disclosure of “a record or other

information pertaining to a subscriber to or customer of such service (not

including the contents of communications)” (emphasis added)).

      Stored electronic communications are increasingly a rich source of

information for use in criminal investigations and prosecutions, and law

enforcement officials are understandably interested in obtaining such information

from communications providers. But police and prosecutors should do so in the

right way. The distinction between contents and transactional records must not

be blurred, and instead needs to be carefully and clearly delineated with regard

to demands involving text messages, e-mails, and other types of electronic

communications for which the stored information may include both the

“envelopes” for the communications (transactional records) and the “letters”

(contents) to which that packaging information relates. When defendants have

statutory standing to seek suppression, as will often be the case, the State may

find itself precluded from admitting important evidence if its officers selected the

wrong process to obtain the stored communications information they wanted.



                                          3
