GA: When items not named in SW are found, standard is plain view not relevance

The trial court and court of appeals erred in determining whether a seizure of items outside a search warrant were “relevant” or whether regular plain view applied. It’s plain view, and the case is remanded to the trial court to redetermine the facts and make conclusions of law. Inconsistent cases are overruled. George v. State, 2021 Ga. LEXIS 679 (Nov. 2, 2021):

In sum, the Court of Appeals has erred in considering the relevance of evidence alone as justifying its seizure outside the scope of a search warrant, without considering whether the requirements of the plain view doctrine have been met. We therefore overrule McBee, Walsh, and their progeny, to the extent those decisions suggest that relevance alone is a sufficient basis to seize items beyond the scope of a search warrant. And because the trial court here relied upon Walsh, determining only that the evidence in question was relevant, it erred.

Because the trial court did not apply the correct legal standard, it should have an opportunity to rule again on George’s motion to suppress, applying the correct legal standard to the existing record. See Reaves, 284 Ga. at 237-238 (1) (on interim review, vacating and remanding case for trial court to apply correct plain error standard). See also Welbon v. State, 301 Ga. 106, 110-111 (2) (799 SE2d 793) (2017) (on appeal of conviction, remanding case for trial court to apply correct legal standard on motion to suppress appellant’s statement to police detective).