Georgia Court of Appeals

TRIAL COURT ERRED IN EXCLUDING EVIDENCE OF BLOOD TEST RESULTS

Defendant Haynes was a driver in a crash in which the driver of the other vehicle was killed. Both the roadway conditions and the observations of the on-scene trooper “supported the conclusion that Haynes was at fault because he failed to maintain his lane of travel and struck the other vehicle head on.” Haynes was transported to the hospital, where the trooper administered the Horizontal Gaze Nystagmus (“HGN”) standardized field sobriety test in the emergency room. Haynes “exhibited six of six clues” on the HGN.

A Georgia State Patrol trooper swore out a search warrant in magistrate court, seeking both blood and urine tests to detect “the presence of alcohol and controlled substances.” As part of the search warrant affidavit, the trooper swore

 

that he had training and knowledge in accident investigations and the areas of impaired drivers, controlled substances, and alcohol. From his training, the trooper knew that the consumption of intoxicants, including drugs and alcohol, can impair an individual’s ability to safely operate a motor vehicle and that evidence of such consumption can be located in an individual’s blood and urine.

Based on the trooper’s application, the magistrate issued a search warrant for Haynes’s blood and urine.

Haynes was subsequently indicted on charges of first-degree vehicular homicide and DUI while under the influence of methamphetamine, among others. Haynes later filed a motion to suppress the blood test results obtained pursuant to the search warrant. The trial court granted Haynes’s motion and the state appealed, arguing “that the affidavit in the application for the search warrant established probable cause to support the magistrate’s issuance of the warrant.”

In reviewing the trial court’s decision, the Georgia Court of Appeals wrote: “Here, the magistrate considered no oral testimony as part of the warrant application process, so ‘the magistrate’s finding of probable cause was based solely upon the [trooper’s] affidavit. We thus focus on the information set forth within the four corners of the affidavit.’”

In a 2015 decision the Supreme Court of Georgia “considered whether law enforcement officers had probable cause to believe that a defendant had been driving under the influence of an intoxicant.”

The Supreme Court held

that although each circumstance is consistent with driving under the influence, an innocent explanation for each circumstance might be more probable.        For instance, [the defendant’s] red eyes could have been chalked up to the deployment of an air bag in the collision . . .But . . . we do not consider any fact or circumstance standing alone. Taken together, a reasonable officer could conclude . . . that driving under the influence was an equally or more probable explanation for the facts and circumstances known to the officers than an improbable coincidence of multiple innocent explanations.

In analyzing the magistrate judge’s decision to issue the search warrant, the Georgia Court of Appeals wrote:

 The ‘information contained in the affidavit [including that Haynes was the at fault driver because he drove into oncoming traffic, causing a head on, fatal collision, that he exhibited six of six clues of impairment when completing the horizontal gaze nystagmus test, and that his eyes were bloodshot and watery] establishes probable cause to believe Haynes was driving while impaired.

Therefore, the Georgia Court of Appeals concluded that “the magistrate did not err in issuing the search warrant[.]” In contrast, the Court of Appeals determined that the trial court did err in its decision to exclude the results of Haynes’s blood test. For this reason, the Court of Appeals reversed the trial court’s order excluding the blood test results. State v. Haynes, No. A24A0923, 2024 WL 4341754 (Ga. Ct. App., Sept. 30, 2024).

 

United States District Court, Northern District of Georgia

WAS THERE PROBABLE CAUSE THAT EVIDENCE OF FIREARMS TRAFFICKING WOULD BE FOUND

ON SEIZED CELL PHONES?

Between March and August of 2020, the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) investigated Horace Dulaney and Kiara Moore for trafficking in firearms. Dulaney, a convicted felon, did not pass a background check when he tried to purchase a firearm at a Marietta, Georgia, gun show. Intelligence gathered by the ATF from multiple gun shops confirmed that Ms. Moore had bought more than forty firearms—at a cost of over

$20,000—from “various firearms dealers” in the timeframe leading up to August 20, 2020. When purchasing these firearms, Ms. Moore was “often accompanied by a black male whose debit card was used to fund some of the purchases.”

On August 20, 2020, the owner of Grove Pawn, a federal firearms dealer at whose shop Moore had purchased firearms before, contacted ATF Special Agent Jonathan Gray (“Agent Gray”). The owner told Agent Gray “that Moore and a black gentleman were in the store attempting to purchase additional firearms[.]” Based on this tip, Agent Gray and his colleague, Agent Diaz, conducted surveillance on Moore and her companion (later identified as Dulaney). The agents watched Dulaney and Moore leave Grove Pawn, with Dulaney “carrying boxes of firearms.” Dulaney then placed the boxes “in the back seat of a white Nissan Pathfinder,” which Dulaney drove away from the shop.

Agents Gray and Diaz kept the vehicle under surveillance, following behind as the Pathfinder proceeded north on Interstate 85 (“I-85”). Gray contacted Georgia State Patrol (“GSP”), relaying the information “that Moore had just purchased five firearms from Grove Pawn, that Moore and Dulaney were suspects in a drug trafficking scheme in which firearms were purchased in Georgia for transport elsewhere, and that Dulaney was a convicted felon with an outstanding arrest warrant.” When GSP ran a check on Dulaney, they confirmed the warrant for his arrest, along with information that he was a flight risk.

Georgia State Patrol troopers subsequently initiated a traffic stop of the Pathfinder on I-85, when Dulaney failed to maintain his lane. As the troopers walked towards the car, “they immediately smelled ‘a very pungent odor of marijuana.’” Dulaney was then handcuffed as the troopers searched the vehicle.  During the search, the troopers seized nine firearms, marijuana, a grinder, a scale and three cell phones:

 

One of the cell phones was in ‘navigation mode,’ and one of the troopers saw in plain view that the vehicle was traveling on Interstate 85, had three to four hours left on the ‘time to destination,’ and the vehicle was stopped approximately thirty miles from the Georgia-South Carolina state line, suggesting that Dulaney and Moore were traveling out-of-state.

 

Both the agents’ direct surveillance and a subsequent review of the gun shop video showed that Dulaney and Moore “used cell phones during the firearms transactions at Grove Pawn.” Although the ATF had the three cell phones in its possession, none of the phones was searched until after another ATF agent “applied for and received a search warrant from [a] United States Magistrate Judge . . . to search the three cell phones recovered from the vehicle.”

Dulaney was indicted in federal court for the following offenses: one count of conspiracy to make false statements to a firearms dealer; thirteen counts of making false statements to firearms dealers; and one count of possession of a firearm by a convicted felon.

Dulaney moved to suppress the search and seizure of the three cell phones from the Nissan Pathfinder, arguing “that the fact that he was using his cell phone while Moore purchased firearms did not provide probable cause to seize the phone without a warrant.” In support of his argument, Dulaney contended “that there was no information that proved that Dulaney was using the cell phone to conduct firearms trafficking or that the use of a navigation app should authorize such a seizure.”

The U. S. Magistrate Judge who presided over the hearing on Dulaney’s motion issued a Final Report and  Recommendation  recommending denial of Dulaney’s motion to suppress the search and seizure of the Pathfinder “Resulting From [an] Unconstitutional Traffic Stop;” his motion to suppress the search and seizure of the three cell phones; and his motion to suppress any statements made to law enforcement. (Note: Dulaney only objected to the Magistrate Judge’s recommended denial of the motion to suppress the search and seizure of the cell phones.)

The Fourth Amendment protects people against unreasonable searches and seizures by the government. The United States Supreme Court has determined: “A ‘seizure’ of personal property occurs for purposes of the Fourth Amendment if the police meaningfully interfere with an individual’s possessory interests in that property.” In Dulaney’s case, the U.S. District Court for the Northern District of Georgia (“District Court”) explained: “Given that there was no search warrant initially to seize the cell phones, the Government must demonstrate that the challenged action falls within one of the recognized exceptions to the warrant requirement, thereby rendering it reasonable under the Fourth Amendment.”

With respect to the three phones seized from the Pathfinder driven by Dulaney, the prosecution relied on the “plain view” exception to the Fourth Amendment’s warrant requirement. According to Eleventh Circuit Court of Appeals precedent, the police may seize evidence “in plain view” without first securing a search warrant when: “(1) an officer is lawfully located in the place from which the seized object could be plainly viewed and must have a lawful right of access to the object itself; and, (2) the incriminating character of the item is immediately apparent.”

Since Dulaney did not object to the Magistrate Judge’s “determination that the state troopers had probable cause to search the vehicle and, therefore, were ‘lawfully located in the place from which the seized object could be plainly viewed[,]’” the District Court  focused  its  analysis  on  whether incriminating character of the cell phone was “immediately apparent.” Dulaney contended that there was “nothing inherently suspicious” about either having used his cell phone at the gun shop or “having the phone set on a navigation app[.]” The District Court disagreed, finding that the ATF agents “had probable cause to believe that the cell phones would contain  evidence of firearms trafficking, thereby subjecting them to seizure under the plain view doctrine.”

In support of its conclusion, the District Court quoted from the Magistrate Judge’s Report and Recommendation:

 

Agent Gray testified that in the course of conducting surveillance and reviewing the gun-store videos, Moore and Dulaney were observed using cell phones at Grove Pawn during the firearms transactions. And Agent Norris explained that someone using a cell phone during a firearms purchase can be another indicator of firearms trafficking. She testified that, in her training and experience, someone purchasing a gun for someone else will often use a phone during the transaction to “take orders” from the actual recipient of the gun. Furthermore, Agent Gray testified that Moore had listed a cell phone number on the ATF 4473 forms that she completed when purchasing firearms. The form requires a phone number so that the firearms dealer can call the applicant after completing the background check. And finally, one of the seized phones was in plain view in the vehicle and it was set to navigation mode, which could have given the agents evidence about where Dulaney and Moore were headed—and where the soon-to-be recipient of the recently purchased firearms might be located.

 

For these reasons, the District Court overruled “Dulaney’s objections to the Magistrate Judge’s denial of his Motion to Suppress [the] Search and Seizure of [the three] Cell Phones.” U.S. v. Dulaney, Case No. l:23-CR-0066-MHC-CCB-2, 2024 WL 3913495 (N.D. Ga., Aug. 23, 2024).