                           FIRST DIVISION
                            PHIPPS, C. J.,
                   ELLINGTON, P. J., and MCMILLIAN, J.

                   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/


                                                                 December 16, 2014




In the Court of Appeals of Georgia
 A14A2284. BROWN v. THE STATE.                                               JE-082C

      ELLINGTON, Presiding Judge.

      Daniel Brown stands charged with driving under the influence of alcohol to the

extent that it was less safe to drive, OCGA § 40-6-391 (a) (1); driving under the

influence of alcohol while having an alcohol concentration of 0.08 grams or more,

OCGA § 40-6-391 (a) (5); and twelve counts of possessing a lewd depiction of a

minor child in violation of OCGA § 16-12-100 (b) (8). After a hearing, the Superior

Court of Athens-Clarke County denied Brown’s motion to suppress evidence seized

as a result of a warrantless search of his cell phone. Following our grant of his

application for interlocutory review, Brown appeals, contending, inter alia, that the

warrantless search of the digital contents of his cell phone violated his Fourth

Amendment right to be free from unlawful searches. We agree and reverse.
       “[W]here the facts relevant to a suppression motion are undisputed, . . . and no

question regarding the credibility of witnesses is presented, the trial court’s

application of the law to undisputed facts is subject to de novo appellate review.”

(Citation, punctuation and footnotes omitted.) State v. Underwood, 283 Ga. 498, 500

(661 SE2d 529) (2008).

       Viewed in favor of the trial court’s ruling,1 the evidence shows that at 2:00 a.m.

on December 30, 2012, Brown drove his vehicle into the path of oncoming traffic and

forced an unmarked police car off the road. The Athens-Clarke County police officer

stopped Brown’s vehicle and began a DUI investigation. As the officer questioned

Brown, he observed that Brown smelled of alcohol, had slurred speech, and had

bloodshot, glassy eyes. Brown admitted to recently drinking alcohol. After a second

officer arrived in a patrol car to assist with the traffic stop, the first officer arrested

Brown for DUI and confined him in the back of the patrol car.

       The second officer sat in the front seat of the patrol car, while the arresting

officer continued his investigation. Brown’s cell phone, which the officer had on the

front seat beside him, rang several times. Brown asked the officer to answer the

phone and talk to his father, but the officer simply muted the phone each time it rang.

       1
           Bryant v. State, 304 Ga. App. 456, 460 (2) (696 SE2d 439) (2010).

                                            2
The last time Brown’s phone rang, the officer muted it and then opened the pictures

application on the phone. The officer decided “to look through the phone to see if

there was any evidence . . . that would substantiate the stop or [show Brown]

previously drinking before the stop.” The officer began scrolling through the

photographs stored on the phone and went through ten to twelve images. After the

first couple of pictures, there was a picture of a nude adult woman, and within the

next few pictures the officer saw images that appeared to be child pornography.

      At the hearing on Brown’s motion to suppress, the officer explained his reason

for opening the pictures application as follows. He testified that, in his experience,

some people who are out drinking and partying use their phones to capture the

moment or send text messages about what they are doing. He testified that, because

of this, phones have yielded evidence in cases involving a minor in possession of

alcohol. In addition, he testified that phones have contained evidence of suspects

possessing guns or gang-related paraphernalia. On cross-examination, the officer

admitted that he had never looked for or found evidence of DUI on an arrestee’s

phone. Aside from his “general experience as an officer,” the officer testified he did

not have “any [particular] reason to believe” that Brown had evidence on his cell

phone that he had committed the offense of driving under the influence of alcohol.

                                          3
He testified specifically that he “never saw [Brown] text on his cell phone”; “never

saw him input data on his cell phone”; “never saw him take a picture” with his cell

phone; and “never received any intelligence” from anyone else that there was

evidence of DUI on Brown’s cell phone.

      Based solely on information the officer provided about images he observed on

Brown’s phone, a detective applied for and obtained a search warrant to look for

evidence of sexual exploitation of a child on the phone. A cyber-crime and digital

forensics examiner executed the search warrant and found the images that formed the

basis for the 12 counts of sexual exploitation of a child. Subsequent searches of the

phone with new forensic software yielded additional incriminating images and

messages.

      At the conclusion of the hearing, the trial court announced its decision to deny

Brown’s motion to suppress. The trial court determined that, under applicable law,

a cell phone is a type of container that may be searched for evidence of a crime

incident to a driver’s arrest and that the search of Brown’s phone was reasonable

under the circumstances.

      1. Brown contends that a warrantless search of a cell phone, even one that is

seized incident to an arrest, is illegal, unless the State can show that exigent

                                          4
circumstances made the needs of law enforcement so compelling that a warrantless

search was objectively reasonable under the Fourth Amendment. This is correct.

       As the Supreme Court of the United States recently declared, “the search

incident to arrest exception does not apply to cell phones[;] . . . before searching a cell

phone seized incident to an arrest . . . [a law enforcement officer must] get a warrant.”

Riley v. California, _ U. S. _ (IV) (134 SCt 2473, 189 LE2d 430) (2014). This is

because

       [m]odern cell phones are not just another technological convenience.
       With all they contain and all they may reveal, they hold for many
       Americans the privacies of life[.] The fact that technology now allows
       an individual to carry such information in his hand does not make the
       information any less worthy of the protection for which the Founders
       fought.


(Citation and punctuation omitted.) Id.

       The holding in Riley does not require that every search of a cell phone be

pursuant to a warrant. “[E]ven though the search incident to arrest exception does not

apply to cell phones, other case-specific exceptions may still justify a warrantless

search of a particular phone[,]” such as the exigent circumstances exception. Id. It is

well settled that, unlike the search incident to arrest exception to the warrant


                                            5
requirement, this exigent circumstances exception requires a court to examine the

particular facts of the case to determine whether an emergency justified a warrantless

search under the circumstances. Id. “Such exigencies could include the need to

prevent the imminent destruction of evidence . . . , to pursue a fleeing suspect, and to

assist persons who are seriously injured or are threatened with imminent injury.” Id.

In this case, the State did not attempt to show that the particular facts of the case

demonstrated that law enforcement had an immediate necessity to search Brown’s cell

phone and no opportunity to obtain a warrant.2 Thus, the officer’s warrantless search

of Brown’s phone was therefore unconstitutional.

      Moreover, the evidence seized from Brown’s phone pursuant to the

subsequently-issued search warrants must also be suppressed. It is undisputed that the

warrants resulted directly from the illegal warrantless search. The exclusionary rule,

however “prohibits introduction of . . . derivative evidence that is the product of the

primary evidence” seized during an illegal search. (Citations and punctuation

omitted.) Teal v. State, 282 Ga. 319, 323 (2) (647 SE2d 15) (2007). Where a search

warrant is based upon information derived from a previous illegal search, the fruits

      2
        In contrast, “there [generally are] no exigent circumstances” where, as Brown
was in this case, “the driver [is] arrested, handcuffed, and the keys secured.” Hicks
v. State, 287 Ga. App. 105, 107-108 (2) (650 SE2d 767) (2007).

                                           6
of the warranted search are tainted by the prior illegality and, unless the information

supporting the warrant can be traced to an independent and lawful source, must be

suppressed. Clare v. State, 135 Ga. App. 281, 285 (5) (217 SE2d 638) (1975).3 All

of the evidence seized from Brown’s phone is therefore inadmissible under Riley.

      2. The State contends that the outcome of this case should not depend on Riley,

but rather whether the purpose of the exclusionary rule, that is, to deter culpable

police conduct, would be served. The State contends the purpose of the exclusionary

rule would not be served in this case, because the officer who searched Brown’s cell

phone did not act recklessly or with gross negligence and innocently relied on the

case law as it existed at the time.4 As the State asserts, the warrantless search in this

      3
         See also Teal v. State, 282 Ga. at 323 (2) (“[W]hen examining the
admissibility of evidence that is ‘fruit of the poisonous tree,’ the appropriate question
is whether the evidence at issue has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary taint. Using
this rationale, two functionally similar exceptions to the exclusionary rule – the
independent source doctrine and the ultimate or inevitable discovery doctrine – have
developed because the interest of society in deterring unlawful police conduct and the
public interest in having juries receive all probative evidence of a crime are properly
balanced by putting the police in the same, not a worse, position than they would
have been in if no police error or misconduct had occurred.”) (citations and
punctuation omitted).
      4
       See Davis v. United States, _ U. S. _ (IV) (B) (2) (131 SCt 2419, 180 LE2d
285) (2011) (“[W]hen the police conduct a search in objectively reasonable reliance
on binding appellate precedent, the exclusionary rule does not apply.”); see also

                                           7
case occurred before the Riley decision; in addition, the trial court ruled on Brown’s

motion to suppress without the benefit of the Riley decision. The State contends that,

before Riley, the majority of state and federal courts in the United States had

generally held that officers may search the contents of an arrestee’s cell phone

incident to a lawful custodial arrest, and that the officer was not unreasonable for

failing to anticipate the shift announced in Riley.

      The State made a similar argument in Canino v. State, 314 Ga. App. 633 (725

SE2d 782) (2012), contending that another Fourth Amendment decision, Arizona v.

Gant, 556 U. S. 332 (129 SCt 1710, 173 LE2d 485) (2009), did not apply in that case

because Gant was decided nine months after the search of the suspect’s vehicle. We

rejected that argument on the basis that

      [t]he Georgia Supreme Court, . . . recognizing that a state has power to
      impose higher standards on searches and seizures than required by the
      Federal Constitution if it chooses to do so, has held that the good-faith
      exception to the exclusionary rule[, as provided in Davis v. United




United States v. Leon, 468 U. S. 897, 925-26 (IV) (104 SCt 3405, 82 LE2d 677)
(1984) (the exclusionary rule does not bar evidence obtained in a search based on
reasonable reliance with a search warrant even if the warrant is later found to be
invalid).

                                           8
      States,] is not applicable in Georgia in light of our legislatively-
      mandated exclusionary rule found in OCGA § 17-5-30.[5]


(Citations and punctuation omitted.) Canino v. State, 314 Ga. App. at 639, n.28.6

Likewise, in this case, the search at issue was illegal regardless whether the officer

reasonably relied on existing case law.7




      5
        OCGA 17-5-30 provides, in pertinent part:
      (a) A defendant aggrieved by an unlawful search and seizure may move
      the court . . . to suppress as evidence anything so obtained on the
      grounds that: . . . [t]he search and seizure without a warrant was
      illegal[.] . . .
      (b) . . . If the motion is granted the property . . . shall not be admissible
      in evidence against the movant in any trial.
      6
         See also Gary v. State, 262 Ga. 573, 574 (422 SE2d 426) (1992) (holding
“Georgia law precludes adoption of the Leon ‘good-faith exception’ to the
exclusionary rule as part of the jurisprudence of Georgia” because, in light of the
unequivocal language in OCGA § 17-5-30, ruling otherwise would amount to judicial
legislation).
      7
         See Handschuh v. State, 270 Ga. App. 676, 677-679 (1) (607 SE2d 899)
(2004) (reversing a DUI conviction where the trial court’s denial of a motion to
suppress depended on its finding that the officer complied with the informed consent
statute and, between the time of the defendant’s conviction and the disposition of his
direct appeal, the Supreme Court of Georgia held part of the statute was
unconstitutional); Green v. State, 254 Ga. App. 881, 883 (1) (564 SE2d 731) (2002)
(reversing defendant’s conviction based on new case law holding the Confrontation
Clause allows a criminal defendant to cross-examine a witness who is receiving a
lesser sentence in exchange for testimony).

                                           9
      Furthermore, even if Georgia recognized the good faith exception, allowing

this evidence to be admitted at Brown’s trial would be inconsistent with fairness and

the even-handed administration of justice.8 In light of Riley, doing so would treat

similarly situated defendants differently. We note, though, that this is not a matter of

applying a new rule retroactively to cases “in the pipeline.”9 This is not a case where

a judgment has been entered but is not yet final because it is pending on direct appeal




      8
         Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992) (“In deciding
[the] issue [of whether to apply a new rule of criminal procedure retroactively], we
have been strongly influenced by considerations of fairness and the even-handed
administration of justice. In order to ensure that similarly situated defendants are
treated similarly and to maintain the integrity of the judicial process while still
providing finality, we deem it appropriate to adopt the ‘pipeline’ approach, that is,
that a new rule of criminal procedure ([in that case], the disapproval of the sequential
jury charge on murder and manslaughter) will be applied to all cases then on direct
review or not yet final.”) (Citation and footnote omitted; emphasis added.) See also
Brockman v. State, 292 Ga. 707, 730 (17) (739 SE2d 332) (2013) (accord).
      9
        Griffith v. Kentucky, 479 U. S. 314, 328 (107 SCt 708, 93 LE2d 649) (1987)
(“[A] new rule for the conduct of criminal prosecutions is to be applied retroactively
to all cases, state or federal, pending on direct review or not yet final, with no
exception for cases in which the new rule constitutes a ‘clear break’ from the past.”);
United States v. Johnson, 457 U. S. 537 (102 SCt 2579, 73 LE2d 202) (1982)
(holding that, subject to certain exceptions, a Supreme Court decision construing the
Fourth Amendment should be applied retroactively to all convictions that are not yet
final).

                                          10
and related proceedings10 – no trial has taken place and no judgment of conviction has

been entered. See Holton v. State, 173 Ga. App. 249 (326 SE2d 240) (1985) (“[A]n

order denying a motion to suppress is not a final judgment[.]”) (citation omitted).

      Finally, even under Hawkins v. State, 290 Ga. 785 (723 SE2d 984) (2012), the

controlling precedent at the time of the search, the search was still illegal. The rule

set forth in Hawkins is that when a driver is arrested, the driver’s cell phone may be

treated in the same manner as a traditional physical container. Id. at 786. Thus, an

officer may open a cell phone and search the cell phone for electronic data so long as

the officer has a reasonable basis for believing that evidence relevant to the crime of

arrest might be found in it. Id. As with other containers, however, the scope of a

search of a cell phone incident to arrest “must be limited as much as is reasonably

practicable by the object of the search.” (Citation and punctuation omitted.) Id. at

788. If the search of an arrestee’s cell phone constitutes a “fishing expedition,”

therefore, the evidence seized thereby must be excluded. Id. at 788. The Supreme

Court noted that “reviewing the reasonable scope of the search will largely be a fact-


      10
        See Griffith v. Kentucky, 479 U. S. 314, 328, n.6 (II) (107 SCt 708, 93 LE2d
649) (1987) (A final case is “a case in which a judgment of conviction has been
rendered, the availability of appeal exhausted, and the time for a petition for certiorari
elapsed or a petition for certiorari finally denied.”) (citations omitted).

                                           11
specific inquiry.” Id. In Hawkins the officer who conducted the search arrested the

defendant

      following an exchange of text messages between [the suspect] and a law
      enforcement officer who posed as another individual. After agreeing by
      text to meet the officer, ostensibly to purchase illegal drugs, [the
      suspect] arrived in her car at the appointed place; there, the officer
      observed her entering data into her cell                phone, and he
      contemporaneously received a text message stating that she had arrived.
      The officer approached [the suspect’s] vehicle and placed her under
      arrest; her vehicle was searched and her cell phone was found inside her
      purse. The arresting officer searched the cell phone for the [specific] text
      messages he had exchanged with [the suspect], and then downloaded
      and printed them.


Id. at 785.

      Unlike Hawkins, the officer who searched Brown’s phone did not have specific

knowledge of Brown’s use of his cell phone. The officer did not text with Brown

prior to Brown being pulled over for DUI, did not see Brown enter any data into the

phone, and did not receive any text messages from Brown at the time of arrest.

Additionally, the officer did not have any particularized reason to believe Brown used

his phone to take pictures that would corroborate the DUI arrest. Based on the lack

of any information suggesting that Brown’s cell phone contained evidence of the


                                          12
offense of DUI, the officer’s reasoning for searching the cell phone was nothing more

than a “fishing expedition” and is illegal. Therefore, even without applying the

holding in Riley, the trial court erred in refusing to suppress the evidence because the

search was the very type the Supreme Court of Georgia warned about in Hawkins.

      3. Brown also contends that two out of the three searches conducted pursuant

to the search warrant were unlawful because they occurred more than ten days after

the issuance of the warrant, violating OCGA § 17-5-25. For the reasons stated in

Divisions 1 and 2, supra, this issue is moot.

      Judgment reversed. Phipps, C.J., and McMillian, J., concur.




                                          13
