Georgia Court of Appeals

Evidence Was Not Sufficient to Support Convictions for Fleeing and Attempting to Elude

In October 2015, while driving southbound in the left lane on an interstate toward Monroe County, Spencer Wade encountered a red Ford Focus driven by Timothy Brown. According to Wade, Brown merged in his direction causing Wade to swerve into the left emergency lane. Brown continued driving and Wade, moving out of the emergency lane, followed Brown. After an exchange of crude comments between them, Brown pulled a weapon and pointed it in Wade’s direction. Wade called 911 and proceeded to follow Brown at high speeds until the police arrived.

A sheriff’s deputy driving nearby in the opposite direction, responded to the 911 dispatch from Wade’s call and crossed over the median in pursuit of Brown’s vehicle. The deputy testified that he activated his lights and siren, but Brown continued to accelerate to over 100 miles an hour, declining to pull over until reaching the next exit. Two other officers in the vicinity and in other vehicles pulled behind the deputy after Brown had stopped.

Brown maintains that he pulled out a handgun because Wade provoked him by driving aggressively and tailgating him. He says he pointed the gun toward the roof of his own vehicle to end Wade’s pursuit. He also denied reaching the speed alleged by the deputy and says he pulled over at the appropriate exit when he was asked to.

Several charges were filed against Brown, however, only the convictions for the two counts of fleeing and attempting to elude are discussed here. Brown argues that the trial court erred by denying his amended motion for a new trial on the two counts because the State did not present evidence that the deputy was in uniform or had prominently displayed his badge.

The Court of Appeals agreed and looked to the decision in Chambers v. State, 320 Ga. 770, 911 S.E. 2d 616 (2025) in which the Supreme Court of Georgia explained that,

“in order for the State to establish a violation of O.C.G.A. § 40-6-395(a) when a driver flees or attempts to elude an officer who is in a police vehicle, the State must prove that the officer was ‘in uniform prominently displaying his or her badge of office’ and that his or her vehicle was ‘appropriately marked showing it to be an official police vehicle.’”

The State argued the two elements should be read disjunctively (i.e. either/or), but the Georgia Supreme Court “held these were both essential elements…”

In the present case, the State argued that Brown’s testimony “that officers arrested him,” was sufficient to support an inference the deputy was “in uniform prominently displaying his…badge of office” and that the deputy’s car was “appropriately marked” as an “official police vehicle”. This court disagreed saying “the only testimony regarding the deputy was that he was ‘working patrol’ and that he was in a marked patrol car with a light bar on the roof.” Additionally, there “was testimony that he activated his lights and siren, he communicated via radio, and he drew his service weapon during the ‘felony arrest’ of Brown.” The State did not present “any explicit testimony that the deputy was in his uniform or that he had his badge prominently displayed. Nor were any videos or photographs of the scene available that depicted the pursuing deputy or any of the other officers.” Brown’s testimony “viewed in the context it was given” provides an account of the vehicles he observed and not the deputy’s physical appearance.

Therefore, the Court held the two counts of fleeing and attempting to elude are reversed. Brown v. State, No. A26A0810, 2026 WL 1702549, (June 12, 2026).

Search Warrant for Juvenile’s Cellular Telephone Was Not Supported By Probable Cause

On April 1, 2024, police responded to an “auto theft in progress” that turned into a pursuit where they encountered D.B., a juvenile. D. B. was arrested and during the search incident to arrest, the police found a cell phone. D. B. pled guilty to the charges related to his initial arrest.

Prior to the plea being entered, a detective on the case “obtained a search warrant for the contents of D. B.’s cell phone.” In his affidavit, the detective said the purpose of the warrant “was to identify two potential accomplices who had escaped arrest.” He further offered that “based on my knowledge, training, and experience, during the commission of such crimes as entering autos and thefts, individuals operating in groups are known to communicate through their cellular devices.”

The warrant stated that the detective had probable cause to search “communication logs, telephone contacts, MMS and SMS text messages,…” that were on the phone “in violation of Georgia Law: O.C.G.A. § 16-8-18 Entering Auto, and O.C.G.A. § 16-8-2 Theft by Taking.”

After a plea was entered for the initial charges, the detective reviewed the data found on the cell phone and found “photos linking D. B. to a March 22, 2024 breaking and entering of a police patrol car, and the theft of the officer’s rifle and other weapons stored in the vehicle.” This new evidence led to more charges, including “entering an automobile, theft by taking, and possession of a handgun by a minor” whereby a motion to suppress the cell phone evidence followed.

The trial court granted the motion to suppress concluding that the warrant was overbroad and lacked a foundation for probable cause. On appeal, the State disagreed and argued that the search warrant was supported by the facts provided in the detective’s affidavit, “which was limited as to the type of crime – auto thefts.”

“Before a warrant may issue, the issuing magistrate must have sufficient reasons to believe that a crime was committed, that the items sought are connected with the crime, and that the items sought will be found in the place to be searched.” Landers v. State, 355 Ga. App. 69, 71, 842 S.E.2d 525 (2020).

The trial court correctly declared the search warrant “invalid because the detective’s affidavit failed to establish the requisite nexus between the cell phone and the alleged crime; therefore, the sole basis for probable cause was the detective’s training and experience that there might be evidence of criminal activity on the phone, which is insufficient.”

The Supreme Court in Riley v. California, 134 S.Ct. 2473 (2014) laid out the privacy implications of cell phone technology and the Fourth Amendment rights associated therewith saying: “a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record.” But in their concurrences in State v. Wilson, 315 Ga. 613 (2023), the Georgia Supreme Court discussed their concerns with the Riley decision, saying “many law enforcement officers believe that when a cell phone is discovered during the course of an investigation, probable cause simply exists to search it… [I]f this generic ‘criminals use cell phones, too’ logic is enough for probable cause to get a warrant to search a suspect’s cell phone—it is hard to imagine a case in which police cannot get that warrant.”

The detective’s affidavit disregards any facts attributing the use of a cell phone to the commission of a crime. “The affidavit in support of the search warrant application should establish a link showing that the phone was used to facilitate, commit, or cover up the crime.” The affidavit mentioned the events that led to D. B.’s arrest and offered a theory and not facts from the detective.

The Court of Appeals concluded that the “search warrant was not supported by probable cause” and the “general search of D. B.’s cell phone was impermissible.” Because the affidavit and application for search warrant of the defendant’s phone “failed to include any information linking it to the commission of the alleged crime, there was no substantial basis for a finding of probable cause.”

Therefore, the Court of Appeals affirmed the trial court’s order on the motion to suppress. In the INTEREST OF D. B., a Child. No. A26A0393, 2026 WL 1806304 (June 23, 2026).