                           FOURTH DIVISION
                             DILLARD, C. J.,
                       DOYLE, P. J., and MERCIER, 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


                                                                     June 27, 2018




In the Court of Appeals of Georgia
 A18A0500. MOBLEY v. THE STATE.

      MERCIER, Judge.

      On December 15, 2014, the vehicle driven by Victor Lamont Mobley collided

with a vehicle driven by W. M. W. M. and the passenger in his vehicle, C. F., were

killed in the collision. Mobley was charged with reckless driving, two counts of

homicide by vehicle in the first degree (alleging that he caused the deaths of W. M.

and C. F. through the act of reckless driving), and speeding (alleging that he drove

a vehicle at a speed of 97 miles per hour in a 45-mile-per-hour zone). Mobley moved

to suppress evidence that was obtained from the airbag control module1 (“ACM”) in

the vehicle he was driving, which showed that the vehicle was traveling at a speed of

      1
       The ACM is also referred to in the record as an “electronic control module”
or “ECM.” An ACM is a type of event data recorder. For the purposes of this opinion,
we will refer to the module as an “ACM.”
97 miles per hour five seconds before airbag deployment. After conducting a hearing

the trial court denied his motion. In its order denying Mobley’s motion to suppress,

the trial court found that it did not have to reach the issue of whether a search warrant

was required to access the data from the ACM in the vehicle driven by Mobley,

because a search warrant was obtained the day after the data was accessed and the

data in the ACM would have inevitably been discovered “when the ACMs were

properly removed from the vehicle pursuant to the search warrant[].” Following a

bench trial on June 6, 2017, Mobley was found guilty on all counts. He appeals from

the judgment of conviction entered in this case.

      1. Mobley contends that the trial court erred in denying his motion to suppress.

He argues that a search warrant was required for law enforcement to access the data

in the ACM in the vehicle he was driving because he had a subjective expectation of

privacy in the data; that a law enforcement officer misled the magistrate judge by

applying for a search warrant without indicating that the information sought had

already been obtained; that the trial court erred in relying on the inevitable discovery

exception to the warrant requirement; and that the exigent circumstances exception

to the warrant requirement did not apply. Whether a search warrant is required to

retrieve the data from a vehicle’s ACM is an issue of first impression in Georgia.

                                           2
Because we find that a search warrant was not required here, we affirm Mobley’s

convictions. See generally Fincher v. State, 276 Ga. 480, 481 (2) (578 SE2d 102)

(2003) (“[A] trial court’s ruling on a motion to suppress will be upheld if it is right

for any reason.”).

      OCGA § 17-5-30 (a) pertinently provides that “[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[.]” OCGA § 17-5-30 (b) pertinently provides that “the burden of proving that

the search and seizure were lawful shall be on the [S]tate.”

      When the evidence at a suppression hearing is uncontroverted and the
      credibility of witnesses is not in question, we conduct a de novo review
      of the trial court’s application of the law to the undisputed facts. To the
      extent an issue concerns a mixed question of fact and law, we accept the
      trial court’s findings on disputed facts and witness credibility unless
      they are clearly erroneous, but independently apply the law to the facts.


State v. Wright, 344 Ga. App. 881 (812 SE2d 86) (2018) (footnote omitted).

      Here, the evidence at the hearing on the motion to suppress included testimony

from three law enforcement officers with the Henry County Police Department who




                                          3
were involved in the investigation of the collision (Sergeant D. G. , Investigator J. H.

, and Officer B. T. ).

      Sergeant D. G. assisted with the investigation immediately following the

collision and contacted Investigator J. H. to retrieve the data from the vehicle’s

ACMs at the scene of the collision.2 Investigator J. H. downloaded the data from the

ACMs in Mobley’s and W. M.’s vehicles at the collision scene. The next day, Officer

B. T. applied for and obtained a warrant to search and seize the ACMs, which devices

were in the vehicles at an impound facility. All three officers testified that at the time

of their investigation of the collision, they believed that they were not required to

obtain a search warrant in order to retrieve data from the ACMs while the vehicles

and the officers were still at the scene of the collision.

      Sergeant D. G. testified as follows. The collision occurred on a Monday at

approximately 1:00 p.m. The magistrate court was open when officers began their

investigation and they could have obtained a search warrant on that day. Witnesses

to the collision told Sergeant D. G. at the scene that W. M.’s vehicle had “pulled out”

in front of the vehicle driven by Mobley. None of the witnesses provided Sergeant D.


      2
        The accessing or retrieving of data from ACMs was also referred to in the
hearing as “downloading” the data and “imaging” the ACM or the vehicle.

                                            4
G. with any information about the speeds of the vehicles. The speed limit at the

location of the collision was 45 miles per hour, and based on the evidence on the

roadway, it appeared to Sergeant D. G. that the vehicle speed at the time of the

collision was 45 to 50 miles per hour.

       It was not uncommon for Sergeant D. G. to decide to download the information

from ACMs at a collision scene as he did in this case, particularly when the collisions

involved serious injuries or fatalities. He testified that in this case, “[a]s in any other

fatality that we work, we’ll try to investigate the whole thing through and through. So

the crash . . . appeared to be a 45- to 50-something-mile-an-hour crash, but with two

people being deceased, we knew that we needed to go farther with the investigation

on it.” He further explained that this was the case because “two people [were] dead”

and investigators needed “to find out if there [were] any other extenuating

circumstances that caused the collision itself.” Sergeant D. G. chose to download the

ACM data at the collision scene without first obtaining a search warrant because “we

were still on-scene” of a fatal collision and “we had the resources available at the time

. . . to go ahead and just gather all the data that we could while we’re on-scene.” A

short time later, the vehicles were towed from the scene by a towing service, and

officers instructed the towing service to hold the vehicles for investigation.

                                            5
      Investigator J. H. testified as follows. He arrived at the scene of the collision

at approximately 2:00 p.m. on the day that the collision occurred. He confirmed that

both vehicles involved in the collision were “able to be imaged,” and he obtained the

data from the ACMs in both vehicles while the vehicles were still at the collision

scene. He then provided the data he obtained to another investigator. Investigator J.

H. testified that he could have used the same procedure to download the information

the day after the accident, after a search warrant was obtained. Officers removed the

ACMs from both vehicles at the towing company’s lot on the day after the collision,

placed the devices into evidence storage, and did not access the data again.

      Officer B. T. testified as follows. He assisted in the investigation of the

collision on December 16, 2014, the day after the collision occurred. On December

16, 2014, he completed the affidavit for a search warrant for the ACMs based on

information provided to him by other officers. The purpose of obtaining the search

warrant was to remove the ACMs from the vehicles and place them “into property and

evidence.” In applying for the search warrant, he did not tell the magistrate that law

enforcement officers had already collected the data from the ACMs. He further

testified that, if the data had not been downloaded from the ACMs at the scene of the



                                          6
collision, he would have obtained a search warrant and downloaded the data at the

impound lot.

      The evidence demonstrates that the ACM in Mobley’s vehicle was designed

to capture data related to a collision or airbag deployment. Accessing the data in the

ACMs in the vehicles involved in this case required special equipment, and

interpretation of some of the data required special training. Specifically, obtaining the

data from an ACM required a “crash data recovery kit” (“CDR”), which involved the

use of a laptop, a computer program, an interface box, and a connection cable.

Reading the ACM data required special training because some of it was recorded in

hexadecimal format (for engineers).

      Officer B. T. confirmed that the data captured by the ACM included the status

of several aspects of the vehicle at or immediately preceding airbag deployment,

including speed, engine speed, brake status, throttle position, engine revolutions,

driver’s seat belt status and brake switch status, as well as time from maximum

deceleration to impact, time from vehicle impact to airbag deployment, and diagnostic

information on the vehicle’s systems. A copy of the printed report of the ACM data

captured from Mobley’s vehicle was introduced at the bench trial, and included charts

containing several sets of pre-collision data set forth at specific intervals, including

                                           7
“Accelerator Pedal, % Full,” “Engine Throttle, % Full,” “Stability Control,” “Raw

Manifold Pressure,” “Yaw Rate,” and “Wheel Speed.” In the indictment and in its

opening statement, the prosecution relied upon Mobley’s “high rate of speed” to

prove its case, which evidence was obtained from the ACM.

      “The Fourth Amendment proscribes all unreasonable searches and seizures, and

searches conducted without prior judicial approval are per se unreasonable under the

Fourth Amendment, subject to specifically established and well-delineated

exceptions.” Teal v. State, 282 Ga. 319, 322-323 (2) (647 SE2d 15) (2007) (citation

omitted). “[A]n individual may challenge the legality of a search under the Fourth

Amendment . . . only if he or she has manifested a subjective expectation of privacy

in the object of the challenged search and society is willing to recognize that

expectation as reasonable.” Bowling v. State, 289 Ga. 881, 883 (2) (a) (717 SE2d 190)

(2011) (citations and punctuation omitted) (citing Kyllo v. United States, 533 U. S.

27, 33 (II) (121 SCt 2038, 150 LE2d 94) (2001)). “[T]he Fourth Amendment protects

people, not places. What a person knowingly exposes to the public . . . is not a subject

of Fourth Amendment protection. But what he seeks to preserve as private, even in

an area accessible to the public, may be constitutionally protected.” Katz v. United

States, 389 U. S. 347, 351-352 (88 SCt 507, 19 LE2d 576) (1967) (citations omitted).

                                           8
      “A car has little capacity for escaping public scrutiny. It travels public

thoroughfares where both its occupants and its contents are in plain view.” Sevilla-

Carcamo v. State, 335 Ga. App. 788, 794 (3) (fn. 25) (783 SE2d 150) (2016) (citation

omitted). “A person traveling in an automobile on public thoroughfares has no

reasonable expectation of privacy in his movements from one place to another.”

Devega v. State, 286 Ga. 448, 453 (4) (d) (689 SE2d 293) (2010) (citation omitted).

      Mobley argues that an ACM is analogous to a cell phone with regard to the

Fourth Amendment right to privacy. In Riley v. California, 134 SCt 2473 (189 LE2d

430) (2014), which he cites, the Supreme Court of the United States held that there

is a reasonable expectation of privacy in the contents of a cell phone, and a warrant

generally is required to search such contents, even when the phone is seized incident

to arrest. Riley, supra at 2493 (III) (C), 2495 (IV). In balancing the degree to which

such a search intrudes upon an individual’s privacy and the degree to which the

search is needed for the promotion of legitimate governmental interests (the test for

a warrantless search incident to arrest), the Riley Court found that a search of the

digital information on a cell phone does not further the government interests of

officer safety and prevention of evidence destruction, and implicates substantially

greater individual privacy interests than a brief physical search. Id. at 2484-2485 (III).

                                            9
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[.]” Id. at 2494-2495 (IV) (citation and punctuation omitted).

      Mobley also contends that we should follow the reasoning employed by a

Florida appellate court, which held (in a divided opinion) that a search warrant was

required to access ACM data in an impounded vehicle. State v. Worsham, 227 So3d

602, 605, 608 (42 Fla. L. Weekly D 711) (Fla. 4th DCA 2017) (certiorari denied in

Florida v. Worsham, (138 SCt 264, 199 LE2d 125) (2017)). The Worsham court

found that ACMs “document more than what is voluntarily conveyed to the public

and the information is inherently different from the tangible ‘mechanical’ parts of a

vehicle.” Id. at 606. Citing Riley, supra and analogizing the ACM to a cell phone, the

Worsham court reasoned that because the recorded data is not exposed to the public,

and because the data is difficult to retrieve and interpret, there is a reasonable

expectation of privacy in the data. Id. at 604, 606.

      Meanwhile, an appellate court in California reached the opposite conclusion

on this question in People v. Diaz, 213 Cal. App. 4th 743 (153 Cal. Rptr. 3d 90)

(2013). The Diaz court held that there was no reasonable expectation of privacy in the

speed and braking data taken from the vehicle’s ACM in that case, because “others

                                          10
could observe [the] vehicle’s movements, braking, and speed, either directly or

through the use of technology such as radar guns or automated cameras.” Id. at 757-

758 (III) (F). The Diaz court noted that “technology merely captured information

defendant knowingly exposed to the public[.]” Id. (citation omitted). See also People

v. Christmann (3 Misc.3d 309, 315, 776 N.Y.S.2d 437) (Just. Ct. 2004) (the

immediate warrantless download of information from the defendant’s ACM did not

violate the defendant’s Fourth Amendment rights).

      We find that, under the circumstances in this case, Mobley did not have a

reasonable expectation of privacy in the data from his vehicle’s ACM. See generally

Bowling, supra. While an outside observer cannot ascertain the information regarding

the use and functioning of a vehicle with the same level of precision as that captured

by the ACM, there are outward manifestations of the functioning of some of the

vehicle’s systems when a vehicle is operated on public roads. For example, a member

of the public can observe a vehicle’s approximate speed; observe whether a vehicle’s

brakes are being employed by seeing the vehicle slow down or stop or the brake lights

come on, by hearing the sounds of sudden braking; and observe whether the driver

is wearing a seatbelt. There is no reasonable expectation of privacy in such

information because an individual knowingly exposes such information to the public.

                                         11
See generally Devega, supra (warrantless monitoring of defendant’s cell phone

location did not violate the Fourth Amendment because it revealed the same

information that could be obtained through visual surveillance).

      Moreover, the types of information contained in Mobley’s ACM (as described

in the hearing on the motion to suppress) are distinguishable from the types of

personal information contained in a cell phone and protected by the Fourth

Amendment as discussed in Riley, supra. Information regarding the mechanical

functioning of the vehicle and its systems is qualitatively different from photographs,

financial information, and other such personal data that may be found on a cell phone.

We find that Mobley did not have a reasonable expectation of privacy with respect

to the data captured by his vehicle’s ACM, and the retrieval of the data was therefore

not a search or seizure protected by the Fourth Amendment. See Bowling, supra.

      We recognize that the breadth of information captured by and obtained from

an ACM can vary over time, and amongst vehicle manufacturers. For example, an

ACM could retain global positioning system information, possibly implicating the

Fourth Amendment. The U. S. Supreme Court has held that the government’s

installation of a GPS tracking device to an individual’s vehicle, and the subsequent

use of that device to monitor the vehicle’s movements on public streets constitutes

                                          12
a search within the meaning of the Fourth Amendment. United States v. Jones, 565

U. S. 400, 404 (II) (A) (132 SCt 945, 181 LE2d 911) (2012); see Hamlett v. State, 323

Ga. App. 221, 227 (1) (a) (753 SE2d 118) (2013). As recognized in Justice

Sotomayor’s concurrence in Jones, “GPS monitoring generates a precise,

comprehensive record of a person’s public movements that reflects a wealth of detail

about her familial, political, professional, religious, and sexual associations.” Jones,

supra at 415 (citation omitted). The evidence in this case does not demonstrate that

the ACM in Mobley’s vehicle was capable of GPS monitoring or the recording of his

movements between various locations.

      Nor does the evidence here indicate that the ACM in Mobley’s vehicle

recorded information on a long-term basis. Rather, the evidence shows that the

purpose of the ACM is to capture information regarding collisions or airbag

deployments, that the ACM generally only starts recording information when an

event, such as a collision, “triggers” it to record, that the ACM continuously

overwrites “nondeployable” events, and that the ACM only saves data permanently

when a collision has caused the vehicle’s airbags to deploy. The collision in this case

was a “deployment event” for both vehicles. The only data shown to have been saved



                                          13
permanently by Mobley’s ACM was the data collected just before and at the time of

the airbag deployment.

      We therefore limit our holding to the particular facts of this case, and note that

future treatment of this issue will likewise depend on the specific facts of the cases

under consideration. As such, we reiterate the strong preference for searches to be

conducted pursuant to a warrant, see Jones v. State, 337 Ga. App. 545, 548 (1) (788

SE2d 132) (2016), and caution law enforcement officers faced with an investigative

need to obtain data from a vehicle’s ACM to err on the side of caution by obtaining

a search warrant before retrieving that information.

      2. As a result of our holding on this issue, we need not address Mobley’s

remaining contentions.

      Judgment affirmed. Dillard, C. J., and Doyle, P. J., concur specially.




                                          14
 A18A0500. MOBLEY v. THE STATE.

      DILLARD, Chief Judge, concurring specially.

      I agree that Mobley’s convictions should be affirmed, but I write separately for

two reasons. First, because the trial court correctly concluded that the data from the

ACM in Mobley’s vehicle would inevitably have been lawfully discovered, it is

unnecessary for us to address whether the Fourth Amendment prohibits a warrantless

seizure of that data. Nevertheless, I feel compelled to echo the majority’s admonition

to law enforcement that the better course of action in cases like this is to obtain a

warrant before retrieving ACM data. Indeed, as Fourth Amendment jurisprudence

struggles to keep pace with technological advances and the consequent blurring

between our private and public lives, novel cases (such as this one) will become

increasingly common. And faced with such rapidly evolving challenges affecting the

way in which investigations are conducted and evidence is obtained, I agree with the

majority that law enforcement will be better served by erring on the side of caution

and obtaining a search warrant in such cases.

      My analysis begins, of course, with the Fourth Amendment to the United States

Constitution, which provides, in relevant part, that “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.”1 And the most basic constitutional rule in this area is

that “searches conducted outside the judicial process, without prior approval by judge

or magistrate, are per se unreasonable under the Fourth Amendment—subject only

to a few specifically established and well-delineated exceptions.”2 One such

exception is the inevitable-discovery doctrine, which “allows admission of evidence

that was discovered as a result of police error or misconduct if the State establishes

by a preponderance of the evidence that the information ultimately or inevitably

would have been discovered by lawful means, without reference to the police error

or misconduct.”3 More specifically, there must be a reasonable probability that “the

evidence in question would have been discovered by lawful means, and the

prosecution must demonstrate that the lawful means which made discovery inevitable




      1
        U.S. Const. amend. IV; see also Ga. Const. Art. 1, § 1, ¶ XIII (“The right of
the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated; and no warrant shall issue
except upon probable cause supported by oath or affirmation particularly describing
the place or places to be searched or the persons or things to be seized.”).
      2
         State v. Slaughter, 252 Ga. 435, 436 (315 SE2d 865) (1984); accord Foster
v. State, 321 Ga. App. 118, 118-19 (1) (741 SE2d 240) (2013).
      3
      Teal v. State, 282 Ga. 319, 323-24 (2) (647 SE2d 15) (2007); accord State v.
Kaulbach, 331 Ga. App. 610, 616 (2) (771 SE2d 245) (2015).

                                           2
were possessed by the police and were being actively pursued prior to the occurrence

of the illegal conduct.”4

      Here, the officers were called to the scene of an automobile collision that

resulted in two fatalities. And although Sergeant D. G.’s initial impression was that

Mobley had not significantly exceeded the speed limit (if at all), he also noted that the

tragic circumstances surrounding the accident were such that a thorough investigation

was still required. Toward that end, both vehicles were towed away, and the officers

instructed the towing service to hold the vehicles for investigation. This was not

unusual. It was a common practice for these officers to secure ACM data from

vehicles involved in serious collisions, even at the scene. Additionally, Officer B. T.

testified that if the ACM data had not been obtained at the scene, he would have

sought a search warrant and collected such data from the vehicle at the impound lot.

Thus, given these particular circumstances, the trial court correctly ruled that there

was probable cause to retrieve the ACM data from Mobley’s vehicle and, therefore,

the data would have inevitably been discovered.5


      4
        Foster, 321 Ga. App. at 120 (1) (punctuation omitted); accord Schweitzer v.
State, 319 Ga. App. 837, 839 (738 SE2d 669) (2013).
      5
         See Teal, 282 Ga. at 326 (2) (holding that an investigation taking place before
the illegal seizure and yielding information that would serve as the basis for a search

                                           3
      Notwithstanding the propriety of the trial court’s ruling, I reiterate the

majority’s admonition that the better practice is for law enforcement to seek a warrant

prior to any search or seizure in this type of case. Indeed, a brief glance into the state

of flux our Fourth Amendment jurisprudence currently inhabits demonstrates that

repeating this exhortation is warranted.

      In Katz v. United States,6 the Supreme Court of the United States held that

“[t]he Fourth Amendment protects people, not places,” explaining that “[w]hat a

person knowingly exposes to the public, even in his own home or office, is not a

subject of Fourth Amendment protection,” but “what he seeks to preserve as private,

even in an area accessible to the public, may be constitutionally protected.”7 And

warrant could be the “lawful means” that would have led to the inevitable discovery
of the illegally seized evidence); Foster, 321 Ga. App. at 120 (1) (holding that
contraband found in defendant’s purse would have been inevitably discovered during
warrantless search based on arresting officer’s having had probable cause to search
the vehicle due to smelling marijuana in the subject vehicle); Schweitzer, 319 Ga.
App. at 839 (holding that evidence of contraband found in arrested defendant’s purse
was admissible because discovery of such was inevitable due to officer’s valid
practice of inventorying personal possessions upon booking).
      6
          389 U.S. 347 (88 SCt 507, 19 LE2d 576) (1967).
      7
        Id. at 351-52 (citations and punctuation omitted). I confess that,
notwithstanding my increasingly Burkean tendencies as a jurist, I share Justice
Thomas’s view that the Katz test has “no basis in the text or history of the Fourth
Amendment,” and “invites courts to make judgments about policy, not law.”
Carpenter v. United States, ___ U.S. ___ (2018 WL 3073916 at * 30) (June 22, 2018)

                                            4
here, even though I believe it is unnecessary to reach the issue, I agree with the

majority’s determination that Mobley had no reasonable expectation of privacy in the

speed and braking data obtained from his vehicle’s ACM because “others could

observe [his] vehicle’s movements, braking, and speed, either directly or through the

use of technology such as radar guns or automated cameras.”8 Suffice it to say, this

sort of data—while far more precise (and at times damning) than the naked eye—is

hardly comparable to the type of sensitive personal information often contained on

a cell phone.9 That said, with technology of this nature rapidly developing, it is easy

to imagine future cases presenting much thornier questions. For instance, had the

ACM in this case included detailed GPS tracking information or other personal

(Thomas, J., dissenting); id. at 33 (“By defining ‘search’ to mean ‘any violation of a
reasonable expectation of privacy,’ the Katz test misconstrues virtually every one of
[the words contained in the Fourth Amendment].”); see also Katz v. United States:
The Untold Story, 40 McGeorge L. Rev. 13, 18 (2009). But unlike Justice Thomas,
I am bound by Katz, so my musing here is nothing more than a tip of the cap to his
notable adherence to the original public meaning of the Fourth Amendment.
      8
        People v. Diaz, 213 Cal. App. 4th 743, 757-58 (III) (F) (153 Cal. Rptr. 3d 90)
(2013). But see State v. Worsham, 227 So3d 602, 603-08 (Fla. 4th DCA 2017)
(holding that defendant had a reasonable expectation of privacy in the information
captured by the event data recorder). Needless to say, I find Judge Forst’s well-
reasoned dissent in Worsham far more persuasive than the majority opinion in that
case. See generally id. at 608-12 (Forst, J., dissenting).
      9
     Although Mobley maintains that at least some of the data on his vehicle’s
ACM was “not visible to the public,” that type of data is not at issue in this case.

                                          5
details of Mobley’s everyday life, a warrantless search may have run afoul of the

Fourth Amendment’s protection of his reasonable expectation of privacy.10

      But even setting aside concerns of one’s reasonable expectation of privacy as

it pertains to law enforcement tracking every breath we take and every move we

make,11 the physical intrusion into a suspect’s vehicle to obtain ACM data may also

run afoul of the Fourth Amendment as a common law trespass. Indeed, it is beyond

dispute that “a vehicle is an ‘effect’ as that term is used in the Amendment.”12 And

under a “property-based” theory of the Fourth Amendment, the Supreme Court of the

      10
          See Carpenter, ___ U.S. ___ (III), (IV) (2018 WL 3073916 at * 9, 13)
(holding that an individual maintains a legitimate expectation of privacy, for Fourth
Amendment purposes, in the record of his physical movements as captured through
cell-site location information, and therefore, government must generally obtain a
search warrant supported by probable cause before acquiring that information from
a wireless carrier); Riley v. California, ___ U.S. ___ (IV) (134 SCt 2473, 2494-95,
189 LE2d 430) (2014) (holding that a person has a reasonable expectation of privacy
in the contents of a cell phone, and thus under most circumstances law enforcement
must obtain a warrant prior to searching same given that “[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.” (citations and punctuation omitted)).
      11
           See THE POLICE, Every Breath You Take, on SYNCHRONICITY (A&M Records
1983).
      12
        United States v. Jones, 565 U.S. 400, 404 (II) (A) (132 SCt 945, 181 LE2d
911) (2012).

                                         6
United States has held that law enforcement’s brief physical intrusion into a vehicle

constitutes a “search” within the meaning of the Fourth Amendment.13 As a result,

arguments like these may “vindicate Fourth Amendment interests even where Katz

arguments do not.”14

      Consequently, law enforcement will find it increasingly tricky to navigate the

crossroads of ever-advancing technology and personal privacy as they relate to Fourth

Amendment prohibitions. And this difficulty is only exacerbated by the fact that the

decisions of the Supreme Court of the United States establish that warrantless

searches are typically unreasonable where “a search is undertaken by law enforcement

officials to discover evidence of criminal wrongdoing.”15 But as the Supreme Court

emphasized once again in Carpenter v. United States, there remains a tried and true

means of safely traversing these crossroads when law enforcement’s specific


      13
        See id. at 404-05 (II) (A) (noting that in light of the fact that, initially, “our
Fourth Amendment jurisprudence was tied to common-law trespass,” installation of
a GPS device on a suspect’s vehicle and use of that device to monitor the vehicle’s
movements constitutes a search and, thus, in most cases requires a warrant).
      14
         Carpenter, 2018 WL 3073916 at * 68 (Gorsuch, J., dissenting). Cf. Driver
Privacy Act of 2015, S. 766, 114th Cong. § 24302 (declaring that information
collected by event data recorders, such as how fast a car was traveling prior to a crash
and whether the driver applied the brakes, belongs to the owner of the vehicle).
      15
           Id. at *13 (III) (B) (punctuation omitted).

                                            7
obligations under the Fourth Amendment are in doubt—get a warrant.16 This default

position seems especially wise in light of the “equilibrium-adjustment” the Supreme

Court of the United States recently made in Carpenter.17 And while obtaining a

warrant may not always lend itself to expediency, our republic’s Fourth Amendment

jurisprudence has “historically recognized that the warrant requirement is ‘an

important working part of our machinery of government,’ not merely an

inconvenience to be somehow ‘weighed’ against the claims of police efficiency.”18

I am confident the vast majority of our law enforcement officers will err on the side

of caution and liberty, and get a warrant in cases like the one before us. The law


        16
             See id.
        17
            See Orin S. Kerr, First Thoughts on Carpenter v. United States, Volokh
C o n s p i r a c y ( J u n e 2 2 , 2 0 1 8 ) h t t p s : / / r e a s o n . c o m/ v o l o k h / 2 0 1 8 /
06/22/first-thoughts-on-carpenter-v-united-sta (“If technology gives the government
too much new power that can be abused based on old rules, the Court expands legal
protection to restore old levels of power and limit abuses. On the flip side, if
technology threatens to narrow government power too much that can unduly limit the
government's ability to solve crimes under old rules, the Court shrinks legal
protection to restore old levels of power and ensure the government can still solve
enough cases. In Carpenter, the Chief Justice is very clear that this is what is going
on. Throughout the opinion, he roots his analysis in the idea that cell-site surveillance
is a new tool that gives the government new power that can be abused, and that the
law must change course to ensure that the government doesn’t get too much power
from a mechanical application of the old rules.”).
        18
             Riley, 134 SCt at 2493 (IV) (punctuation omitted).

                                                    8
always seems to be several steps behind technology, and this approach strikes me as

the most prudent course of action going forward.




                                        9
 A18A0500. MOBLEY v. THE STATE.

      DOYLE, Presiding Judge, concurring specially.

      Because I agree that Mobley’s convictions should be affirmed, I concur

specially and in the judgment. I write separately, however, because I do not believe

that we need to decide whether the Fourth Amendment prohibits the seizure of data

from the ACM in the vehicle Mobley was driving absent a warrant or his consent

because the data would have been available to the State under the properly obtained

search warrant.

      “The exclusionary rule prohibits introduction [of] evidence . . . seized during

an unlawful search . . . or that is otherwise acquired as an indirect result of the

unlawful search, up to the point where the taint is dissipated by its attenuated

connection with the unlawful search. . . .”1 When officers also secure a properly

issued search warrant to obtain the challenged evidence, “the appropriate question is

whether the evidence at issue has been [obtained] by exploitation of th[e] illegality

or instead by [a warrant] sufficiently distinguishable to be purged of the primary




      1
      (Citations and punctuation omitted.) Teal v. State, 282 Ga. 319, 323 (2) (647
SE2d 15) (2007).
taint.”2 Therefore, when the State shows by a preponderance of the evidence “that the

information ultimately or inevitably would have been discovered by lawful means

[i.e., a warrant], without reference to the police error or misconduct,” the exclusionary

rule does not apply.3

      Here, even if the roadside scan of the ACM was illegal, the evidence authorized

the trial court to find that the data obtained therefrom was not used by the officers to

secure the search warrant, the warrant was obtained in the regular course of the

continuing investigation, and the ACM’s data inevitably would have been available

to police pursuant to the warrant they later lawfully obtained.4 Accordingly, the trial

court did not err by denying the motion to suppress.




      2
       (Punctuation omitted.) Id., quoting Wong Sun v. United States, 371 U. S. 471,
488 (83 SCt 407, 9 LE2d 441) (1963).
      3
          See Teal, 282 Ga. at 326-327 (2).
      4
          See id. at 323-324 (2).

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