                                FIRST DIVISION
                                 BARNES, P. J.,
                            MCMILLIAN and REESE, 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


                                                                        June 4, 2018




In the Court of Appeals of Georgia
 A18A0073. HUFF v. THE STATE.

       REESE, Judge.

       Jamarcus Huff appeals from the trial court’s denial of his motion to suppress

evidence of a handgun that was found in a backpack after he was arrested for battery

(family violence) and criminal trespass.1 For the reasons set forth, infra, we reverse

the trial court’s ruling.

       Viewed in favor of the trial court’s ruling on the motion to suppress,2 the record

shows that on January 10, 2017, at approximately 4:00 a.m., David Kelley, an Athens-

Clarke County patrol officer, responded to a third-party 911 call that L. M. had been

beaten up by her boyfriend. Kelley arrived at the apartment in question, where Huff


       1
           See OCGA §§ 16-5-23.1 (f); 16-7-21 (a).
       2
           See State v. Carr, 322 Ga. App. 132 (744 SE2d 341) (2013).
was lying on the couch. When Kelley knocked on the door, Huff got up and, while

wearing a backpack, went into a bedroom. Huff returned without the backpack and

answered the door. Huff told Kelley that no one had been arguing or fighting and

allowed Kelley in to see L. M. and a baby, both of whom appeared to be asleep.

      Kelley started walking back to the patrol car to leave, but the third-party caller

arrived on the scene. Kelley took a picture of a text message on the caller’s phone that

the caller reportedly had received from L. M.’s phone number. The photo was

introduced at the hearing and showed three text messages received at 3:15 a.m.:

“[Caller,] help me [J]ay just beat me up real bad with [the baby] in my arm please

when u get this come here[.]” “I can[’]t talk[.]” “Come get us please[.]”

      Kelley went back to the apartment to wake up L. M. As he approached the

door, he heard yelling coming from inside the apartment. L. M. answered the door

and tried to hide the right side of her face from Kelley’s view. However, Kelley

observed a large knot near L. M.’s right eye and forehead and blood around her lips.

L. M. would not tell Kelley what had happened, only that she wanted to leave and that

she had sent the texts so that the caller would pick her up. Kelley observed a “busted”

cell phone on the floor, and L. M. indicated the damage had happened that night.

L. M. acknowledged it was her phone and that she had texted the caller with it.

                                           2
      When Kelley asked Huff how L. M. had been injured, Huff responded that

Kelley should ask her. Huff asked if he could get his backpack out of the bedroom.

Kelley retrieved Huff’s backpack from the bedroom, and Huff put it on his back.

Kelley met with another officer on the scene, and they decided to arrest Huff for

battery (domestic violence). The officers removed the backpack from Huff’s back “for

officer safety[ ]” and placed him in handcuffs before escorting him to the patrol car,

where Kelley searched him. Another officer searched Huff’s backpack “[f]or officer

safety and drug-related fruits of the crime[ ]” and discovered a handgun.

      Kelley was wearing a body camera during the encounter. At the suppression

hearing, Huff introduced into evidence a copy of the video recording beginning with

Huff’s arrest. In the video, Huff can be seen wearing a backpack and sitting on a chair

inside the apartment. Officers stood him up and put his hands behind his back to

handcuff him, slid the backpack off his back, and told him he was being arrested for

domestic violence.

      An officer then picked up the backpack from the floor, asking if it belonged to

Huff and telling him that he would not be able to return to the apartment. Huff asked

L. M. to give the backpack to his sister, which L. M. agreed to do. Instead, the

officers took Huff and his backpack outside to the patrol car, telling Huff that they

                                          3
were bringing the backpack because “it was on his person when he was arrested.” The

walk to the patrol car took over one minute as Huff and the officers walked down

several steps from the apartment door, crossed through a courtyard, walked through

apartment buildings opposite the apartment in question, and walked down a sidewalk

before searching Huff. An officer then placed the backpack on the trunk of the car

and searched the bag.

      The trial court denied Huff’s motion to suppress the handgun found in the

backpack, finding that “Officer Kelley was justified to search the backpack for a

weapon while [Huff] was still close enough to potentially grab the backpack.” Thus,

the court ruled that the search-incident-to-arrest exception to the warrant requirement

applied. We granted discretionary review.

      “Unless clearly erroneous, the trial court’s ruling on disputed facts and

credibility at a suppression hearing must be accepted on appeal. However, where

controlling facts are not in dispute, such as those facts discernible from a videotape,

[the appellate court’s] review is de novo.”3 With these guiding principles in mind, we

turn now to Huff’s specific claim of error.

      3
       Hourin v. State, 301 Ga. 835, 843 (3) (804 SE2d 388) (2017) (citations and
punctuation omitted); see also Williams v. State, 302 Ga. 474, 480 (III) (807 SE2d
350) (2017).

                                          4
      Huff argues that the trial court erred in denying his motion to suppress because

Kelley illegally seized his backpack by removing it from his person and possession

before he searched Huff or placed him in handcuffs. Huff contends that the State

showed no reasonable necessity to seize the property as Huff specifically requested

the backpack be left with L. M., who explicitly stated that she would take charge of

the property and deliver it to Huff’s sister.

      Further, the search-incident-to-arrest warrant exception did not apply, Huff

contends, because the search of the backpack occurred several minutes after the

officers gained exclusive control over it and moved it to a separate location.

      The trial court did not address whether the State was authorized to seize the

backpack. The State presented no evidence of any connection between the backpack

and Huff’s arrest and no showing that seizure of the backpack was reasonably

necessary.4 Moreover, the post facto justification by Kelley that he was searching the

backpack for “drug-related fruits of the crime[ ]” is unsupported by the record. Huff




      4
        See Mitchell v. State, 178 Ga. App. 244, 245-246 (3) (342 SE2d 738) (1986);
see also State v. McCarthy, 288 Ga. App. 426, 428 (2) (654 SE2d 239) (2007)
(discussing a visitor’s right to privacy in his personal belongings).

                                           5
was placed under arrest for battery, and the State did not articulate any suspicion that

Huff was involved in drug-related activity.5

      Huff relies on Kennebrew v. State,6 in support of his argument that the trial

court erred in finding the search valid. In that case, the Supreme Court of Georgia

cited the United States Supreme Court’s discussion of the search-incident-to-arrest

exception to the Fourth Amendment’s warrant requirement in Arizona v. Gant:7

      The exception derives from interests in officer safety and evidence
      preservation that are typically implicated in arrest situations. [W]e
      [have] held that a search incident to arrest may only include the
      arrestee’s person and the area within his immediate control —
      construing that phrase to mean the area from within which he might gain
      possession of a weapon or destructible evidence. That limitation, which
      continues to define the boundaries of the exception, ensures that the
      scope of a search incident to arrest is commensurate with its purposes of
      protecting arresting officers and safeguarding any evidence of the
      offense of arrest that an arrestee might conceal or destroy. . . . If there is
      no possibility that an arrestee could reach into the area that law


      5
       See OCGA § 17-5-1 (a) (3) (“When a lawful arrest is effected a peace officer
may reasonably search the person arrested and the area within the persons’s
immediate presence for the purpose of [d]iscovering or seizing fruits of the crime for
which the person has been arrested[.]”).
      6
          299 Ga. 864 (792 SE2d 695) (2016).
      7
          556 U. S. 332 (129 SCt 1710, 173 LE2d 485) (2009).

                                            6
      enforcement officers seek to search, both justifications for the
      search-incident-to-arrest exception are absent and the rule does not
      apply.8


The court went on to note that:

      [a]lthough the [United States] Supreme Court’s decisions have
      vacillated to some extent on the scope of the exception in the context of
      persons arrested in vehicles, it has been settled law for decades that in
      other contexts — like the arrest of a person in a residence — the police
      may search only the arrestee’s person, personal property immediately
      associated with his person (like a cigarette pack in his pocket), and the
      area within his reaching distance. . . . Warrantless searches of luggage
      or other property seized at the time of an arrest cannot be justified as
      incident to that arrest either if the search is remote in time or place from
      the arrest, or no exigency exists. Once law enforcement officers have
      reduced luggage or other personal property not immediately associated
      with the person of the arrestee to their exclusive control, and there is no
      longer any danger that the arrestee might gain access to the property
      to seize a weapon or destroy evidence, a search of that property is no
      longer an incident of the arrest.9




      8
      Kennebrew, 299 Ga. at 869-870 (2) (a) (1) (citations and punctuation omitted;
emphasis supplied).
      9
          Id. at 870 (2) (a) (1) (citations and punctuation omitted; emphasis supplied).

                                            7
      In Kennebrew, the defendant was handcuffed and removed from a college dorm

room before the officers seized two backpacks from the room.10 The officers then

waited another six days before searching the backpacks.11 Thus, the court concluded

that the search was clearly not incident to the defendant’s arrest.12 The court reversed

the defendant’s conviction, holding that the defendant had shown that trial counsel

provided ineffective assistance of counsel by failing to seek suppression of the

evidence.13

      Although the facts in this case are not as extreme, we agree with Huff that

Kennebrew demanded a ruling in his favor. The officers removed the backpack from

Huff’s vicinity immediately prior to Huff’s arrest and maintained it in their exclusive

possession as they carried it to the patrol car where it was ultimately searched.

Contrary to the trial court’s finding that the search was justified because Huff was

“close enough to potentially grab the backpack,” the law enforcement officers had

exclusive control of Huff’s backpack, and Huff was handcuffed at the time of the


      10
           Kennebrew, 299 Ga. at 869 (2) (a) (1).
      11
           Id.
      12
           Id. at 871 (2) (a) (1).
      13
           Id. at 874 (2) (c).

                                           8
search. Thus, there was no longer any danger that Huff could gain access to the

backpack to seize the weapon or destroy evidence.14 As noted above, the State did not

argue, nor was there any evidence to show, that the officers had any reason to believe

that the backpack contained anything related to the crime for which he was arrested.15

Based on the facts which are discernable from the video recording, we conclude, as

a matter of law, that the State failed to meet its burden under OCGA § 17-5-30 (b) to

prove that the warrantless search of Huff’s backpack was lawful.

      Judgment reversed. Barnes, P. J., and McMillian, J., concur.




      14
         See Kennebrew, 299 Ga. at 870 (2) (a) (1); see also Satterfield v. State, 256
Ga. 593, 597 (4) (351 SE2d 625) (1987) (search of a house after the only occupants
of the house had been placed in police cars was not a search incident to an arrest);
Canino v. State, 314 Ga. App. 633, 638-639 (2) (725 SE2d 782) (2012) (search of
suspect’s car was not authorized as a search incident to arrest when the suspect was
handcuffed and unable to access the inside of the car prior to the search).
      15
         See State v. McCarthy, 288 Ga. App. 426, 427-428 (1) (654 SE2d 239)
(2007) (trial court did not err in holding that a search of a suspect’s bag was not valid
as incident to his arrest where the grounds for the arrest warrant were not part of the
record and the State did not argue that the officers had any reason to believe that the
bag contained anything related to the crime).

                                           9
