GA: Riley applied to a case not yet final; no GFE because no prior binding authority

A cell phone search in a DUI stop was suppressed under Riley, even though the search occurred long before Riley. The defendant was still litigating, and he hadn’t yet even been convicted. Also, no good faith exception for the muddled law on cell phone searches pre-Riley since there was no precedent at all in Georgia. Even Gant was applied retroactively in Georgia. Brown v. State, 2014 Ga. App. LEXIS 847 (December 16, 2014):

2. The State contends that the outcome of this case should not depend on Riley, but rather whether the purpose of the exclusionary rule, that is, to deter culpable police conduct, would be served. The State contends the purpose of the exclusionary rule would not be served in this case, because the officer who searched Brown’s cell phone did not act recklessly or with gross negligence and innocently relied on the case law as it existed at the time. As the State asserts, the warrantless search in this case occurred before the Riley decision; in addition, the trial court ruled on Brown’s motion to suppress without the benefit of the Riley decision. The State contends that, before Riley, the majority of state and federal courts in the United States had generally held that officers may search the contents of an arrestee’s cell phone incident to a lawful custodial arrest, and that the officer was not unreasonable for failing to anticipate the shift announced in Riley.

… [Georgia also recognized Gant when decided, not good faith under Belton.]

Furthermore, even if Georgia recognized the good faith exception, allowing this evidence to be admitted at Brown’s trial would be inconsistent with fairness and the even-handed administration of justice.8 In light of Riley, doing so would treat similarly situated defendants differently. We note, though, that this is not a matter of applying a new rule retroactively to cases “in the pipeline.” This is not a case where a judgment has been entered but is not yet final because it is pending on direct appeal and related proceedings — no trial has taken place and no judgment of conviction has been entered. See Holton v. State, 173 Ga. App. 249 (326 SE2d 240) (1985) (“[A]n order denying a motion to suppress is not a final judgment[.]”) (citation omitted).

Finally, even under Hawkins v. State, 290 Ga. 785 (723 SE2d 984) (2012), the controlling precedent at the time of the search, the search was still illegal. The rule set forth in Hawkins is that when a driver is arrested, the driver’s cell phone may be treated in the same manner as a traditional physical container. Id. at 786. Thus, an officer may open a cell phone and search the cell phone for electronic data so long as the officer has a reasonable basis for believing that evidence relevant to the crime of arrest might be found in it. Id. As with other containers, however, the scope of a search of a cell phone incident to arrest “must be limited as much as is reasonably practicable by the object of the search.” (Citation and punctuation omitted.) Id. at 788. If the search of an arrestee’s cell phone constitutes a “fishing expedition,” therefore, the evidence seized thereby must be excluded. Id. at 788. The Supreme Court noted that “reviewing the reasonable scope of the search will largely be a fact specific inquiry.” Id. In Hawkins the officer who conducted the search arrested the defendant

following an exchange of text messages between [the suspect] and a law enforcement officer who posed as another individual. After agreeing by text to meet the officer, ostensibly to purchase illegal drugs, [the suspect] arrived in her car at the appointed place; there, the officer observed her entering data into her cell phone, and he contemporaneously received a text message stating that she had arrived. The officer approached [the suspect’s] vehicle and placed her under arrest; her vehicle was searched and her cell phone was found inside her purse. The arresting officer searched the cell phone for the [specific] text messages he had exchanged with [the suspect], and then downloaded and printed them.

Id. at 785.

Unlike Hawkins, the officer who searched Brown’s phone did not have specific knowledge of Brown’s use of his cell phone. The officer did not text with Brown prior to Brown being pulled over for DUI, did not see Brown enter any data into the phone, and did not receive any text messages from Brown at the time of arrest. Additionally, the officer did not have any particularized reason to believe Brown used his phone to take pictures that would corroborate the DUI arrest. Based on the lack of any information suggesting that Brown’s cell phone contained evidence of the offense of DUI, the officer’s reasoning for searching the cell phone was nothing more than a “fishing expedition” and is illegal. Therefore, even without applying the holding in Riley, the trial court erred in refusing to suppress the evidence because the search was the very type the Supreme Court of Georgia warned about in Hawkins.