In the Supreme Court of Georgia



                                           Decided: September 14, 2015


                    S15G0671. SHIRLEY v. THE STATE.


      MELTON, Justice.

      In Shirley v. State, 330 Ga. App. 424 (765 SE2d 491) (2014), the Court

of Appeals affirmed the trial court’s denial of Michael Scott Shirley’s motion

to suppress images of child pornography seized from his home. The Court of

Appeals found that, contrary to Shirley’s arguments, the application for a search

warrant filed by police was supported by probable cause. For the reasons set

forth below, we reverse.

      As found by the Court of Appeals,

      the record shows that on January 20, 2011, the Federal Bureau of
      Investigation’s Safe Child Task Force (“FBI”) received information
      from an investigation by German authorities regarding a web site
      used to distribute child pornography. The German authorities
      identified several internet protocol (“IP”) addresses, including one
      from which 150 full and thumbnail-sized image files had been
      accessed on July 22, 2009. In response to a federal administrative
      subpoena, AT & T Internet Services identified the IP address from
      which the images had been accessed as belonging to Shirley and
      located at a particular residential address. On February 18, 2011,
      two police officers, including the one who signed the warrant
      affidavit, attempted to make contact with Shirley at that address, but
      received no answer. They left a business card, and later that
      evening, Shirley left two voicemail messages for one of the officers.
      On February 21, 2011, Shirley came to the Lawrenceville police
      department for an interview. He asked that his wife not be
      interviewed because of her stress level. During the interview,
      Shirley stated that he did not look at pornography on the internet,
      and that he had one desktop computer and one laptop that he had
      purchased for his son. When asked about his knowledge of someone
      accessing a German website to view child pornography, he invoked
      his right to remain silent until he could speak with an attorney. In
      the search warrant affidavit, the officer listed “Possession Of Child
      Pornography” pursuant to OCGA § 16–12–100 (b) (8) as the
      offense at issue, described the role of the computer as an
      instrumentality for obtaining and storing child pornography, and
      sought a warrant for Shirley's residence, including any computers
      and electronic devices that could possibly contain child
      pornography. The magistrate indicated on the face of the warrant
      that she did not consider the officer’s oral testimony in granting the
      warrant. The warrant was sworn, issued, and executed on February
      21, 2011. Shirley filed a motion to suppress, which the trial court
      denied.

(Footnote omitted.) Id. at 424-425. The Court of Appeals affirmed the trial

court, finding that the affidavit supporting the application for the warrant was

sufficient because “child pornography” needs no further description to be

understood. We disagree.

      To properly consider this case, we must carefully look at the actual

language contained in the affidavit accompanying the warrant application. In

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relevant part, it conveyed the following information to the magistrate:

      On January 20, 2011, information was received as a lead by the
      Federal Bureau of Investigations Safe Child Task Force, of an
      investigation by the German authorities in reference to a website
      that they located which was used to distribute Child Pornography.
      During their investigation[,] several IP addresses were captured,
      along with files that were accessed on the site. . . . A review of the
      connections for the IP address [associated with Shirley] showed that
      150 full and thumbnail size images had been accessed. . . . [W]hen
      asked of his knowledge of someone accessing a German website for
      the purpose of Child Pornography, Mr. Shirley invoked his
      privilege to remain silent until he can speak to an attorney.

This information, standing alone, was insufficient to enable a magistrate to

determine that probable cause existed to search Shirley’s home.

      It is well-settled that a

      magistrate’s task in determining if probable cause exists to issue a
      search warrant is simply to make a practical, common-sense
      decision whether, given all the circumstances set forth in the
      affidavit before him, including the “veracity” and “basis of
      knowledge” of persons supplying hearsay information, there is a
      fair probability that contraband or evidence of a crime will be found
      in a particular place. Our duty in reviewing the magistrate’s
      decisions in this case is to determine if the magistrate had a
      “substantial basis” for concluding that probable cause existed to
      issue the search warrants. A magistrate’s decision to issue a search
      warrant based on a finding of probable cause is entitled to
      substantial deference by a reviewing court. . . . Even doubtful cases
      should be resolved in favor of upholding a magistrate’s
      determination that a warrant is proper.


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(Citations and punctuation omitted.) Sullivan v. State, 284 Ga. 358, 360-361 (2)

(667 SE2d 32) (2008). An affidavit must allow a magistrate to make an

independent determination of probable cause based upon facts, and wholly

conclusory statements will not suffice.

      The affidavit quoted above is rife with issues. As an initial matter, it

implies that information was received by the FBI from German authorities;

however, the name(s) or type(s) of German authorities is not provided. There is

no way of knowing where the information originated. Similarly, an FBI Task

Force is named as a source, but there is no detailed description of what that task

force did, if anything, with the information from German authorities other than

passively relaying it to Georgia police. Exacerbating the level of uncertainty, the

affidavit merely states that the unknown German authorities identified a website

“used to distribute Child Pornography.” There is no way to determine whether

the German authorities in issue used German law to classify the contents of the

website or whether it used some other law or definition. In any event, there is

absolutely no indication that the nebulous German authority analyzed the

website with regard to United States and/or Georgia law in order to determine

whether the undescribed pictures accessed by Shirley’s IP address contained

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“child pornography” as defined in these domestic jurisdictions. This is highly

problematic, as there is no indication that anyone, other than the nebulous

German authorities, actually viewed any part of the website in question.

      In affirming the denial of Shirley’s motion to suppress, the Court of

Appeals relied on the idea that the inclusion of the term “child pornography”

may, in and of itself, offer “sufficient indicia of probable cause to issue a

warrant . . . in that the meaning of the term ‘child pornography’ and its illegality

were sufficiently conveyed so that the judge understood what type of evidence

was required.” Shirley, supra, 330 Ga. App. at 427 (1), quoting United States v.

Simpson, 152 F3d 1241, 1247 (II) (A) (10th Cir.1998) (emphasis in original).

Even if we were to adopt this type of standard in Georgia, a decision that is not

required today, there is no indication that the FBI did anything other than simply

act as a conduit for the German authorities. Certainly, if there were some

indication in the application that the FBI had separately viewed the website in

question and confirmed its contents as containing “child pornography,” or at

least some reliable source had provided a description of the pictures contained

on the website, this case might have a different result.

      As it is, however, the warrant application is insufficient to support

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probable cause, and the trial court should have granted Shirley’s motion to

suppress.

     Judgment reversed. All the Justices concur.




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