Hamlett v. Hamlett

• Decision Date: 16 July 2013
• Docket Number: Nos. A13A0474,A13A0882.,s. A13A0474
• Parties: HAMLETT v. The STATE. Hamlett v. The State.
• Court: Georgia Court of Appeals

753 S.E.2d 118

HAMLETT

v.The STATE.

Hamlett

v.The State.

Nos. A13A0474, A13A0882.

Court of Appeals of Georgia.

July 16, 2013.

Rodney Samuel Zell, Atlanta, for Appellant.

Paul L. Howard Jr., David K. Getachew–Smith, for Appellee.

ELLINGTON, Presiding Judge.

Following a joint trial, a Fulton County jury found Salim Hamlett and his brother, Jalim Hamlett, guilty of burglary, OCGA § 16–7–1(b), and possession of tools for the commission of a crime, OCGA § 16–7–20(a). The jury also found Jalim Hamlett guilty of two misdemeanor traffic offenses: improper tag display, OCGA § 40–2–41, and failure to have operational brake lights, OCGA § 40–8–25(a), (b). The trial court denied their motions for new trial, and the Hamletts have appealed. Because both cases arise from the same facts and involve a joint trial and motion hearings, we have consolidated them.

The appellants contend that the trial court erred in denying their joint motion to suppress evidence for two reasons. First, Jalim Hamlett argues that the State improperly seized the evidence following the illegal placement of a Global Positioning System (“GPS”) tracking device on his truck and the traffic stop that resulted therefrom.¹ Second, both appellants argue that the court should have suppressed the evidence on the basis that their three to four hour custodial detentions following the traffic stop were illegal.

The appellants also contend that the court erred in denying their motions for new trial due to their counsel's conflict of interest that arose from his joint representation of them at trial, that their trial counsel provided ineffective assistance, and that there was insufficient evidence to support their convictions. For the reasons explained below, we reverse the burglary and possession of tools convictions of both Salim and Jalim Hamlett, but affirm Jalim Hamlett's convictions on the misdemeanor traffic offenses.

1. According to Jalim,² the trial court erred in denying the motion to suppress because there was not sufficient probable cause to support the court order that authorized the State to surreptitiously install the GPS tracking device on his pickup truck and to continuously monitor the signals from the device for over two weeks. He also argues that the subsequent traffic stop of his truck resulted solely from the State's illegal installation and monitoring of the device and that, but for the signals elicited from the illegal tracking device, the traffic stop was not supported by a reasonable articulable suspicion that he was or had been involved in criminal activity. He contends, therefore, that the traffic stop was illegal and that all evidence seized as a result of the stop should have been suppressed by the trial court. We agree.

“When a defendant moves to suppress evidence based on an illegal search, the State bears the burden of proving that the search was lawful.” (Citation and punctuation omitted.) Lott v. State, 303 Ga.App. 775, 780(2), 694 S.E.2d 698 (2010).

Because the trial court sits as the trier of fact when ruling on a motion to suppress or a motion in limine, its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them. When we review a trial court's decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court's findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review. With mixed questions of fact and law, the appellate court accepts the trial court's findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.

(Citations and punctuation omitted.) State v. Tousley, 271 Ga.App. 874, 611 S.E.2d 139 (2005). Viewed in favor of the trial court's order denying the motion to suppress, the record shows the following relevant events that preceded the traffic stop at issue.

On August 5, 2010, someone committed a burglary at a home on Northside Drive in Fulton County, stealing computers, a television, and jewelry. According to the homeowner, at about 8:00 p.m. the next evening, a man he did not know came to his front door and offered to perform yard work, even though it was raining and almost dark. The homeowner refused the offer but asked for the man's phone number, then watched the man walk away along Northside Drive. Becausehis home had been burglarized the day before, the homeowner became suspicious, so he got into his car and drove down Northside Drive to follow the man. He saw the man get into the passenger side of a dark colored GMC pickup truck, and he followed the truck long enough to get its tag number, which was “BMP0476.” The homeowner then reported the encounter to the police.

An Atlanta police detective, who was also a member of the Fulton County Burglary Task Force, testified that, in August 2010, he was investigating burglaries that had occurred in the Northside Drive area. Upon receiving the homeowner's report of the August 6 incident, the detective determined that the tag of the pickup truck was registered to Jalim, and he obtained a Cobb County address for Jalim. The detective knew that there was an outstanding arrest warrant for Jalim on a charge of theft by receiving stolen property. According to the detective, that charge arose from a January 2010 theft of three dishwashers from an Atlanta business; the dishwashers were later found at a building supply surplus store. The store's records showed that Jalim and another man, Zaid Ashanti, had brought the dishwashers to the store to sell a few days after they were stolen.

Based on this information, the detective suspected that Jalim might have been involved in the August 5 residential burglary on Northside Drive, and he applied for a court order from the Superior Court of Cobb County ³ authorizing him to secretly install a GPS tracking device on Jalim's pickup truck so he could monitor Jalim's movements throughout the area. He completed an affidavit recounting the above information and stating as follows:

This Affiant believes that Jalim Basheer Hamlet [sic] and other unknown accomplices are involved in the crime of Burglary in the Atlanta Metro Area. This Affiant requests authorization from the court to install and monitor a GPS signaling device on the 1998 GMC Sierra pick up truck Georgia tag # BMP 0476 to assist in surveillance of the vehicle and its occupants in efforts to identify accomplices and possible fencing locations of stolen goods and lead Police to the arrest of Jalim Basheer Hamlet [sic].

Based solely upon this affidavit, the Cobb County court issued an order in which it found that there was probable cause to believe that Jalim and others “have committed the crimes of Burglary, Theft by taking and Theft by Receiving,” that Jalim's “vehicle will be used by [him and others] as his means of transportation, including as means of transportation in connection with the illegal activity,” and that information obtained by the use of the GPS tracking device “will be relevant and material to the ongoing investigation being conducted by the City of Atlanta Police Department and the Fulton County Multi-jurisdictional Burglary Task Force.” Based upon these conclusions, the court authorized the surreptitious entry into Jalim's truck “at any hour of the day or night” in order to install the device, using “clandestine means” if necessary, as well as the continuous monitoring of the signals from that device for up to 50 days from the date of the order, whether the truck was in a public place or on private property, including when the truck was concealed from view. The detective then went to Jalim's home and, without Jalim's knowledge or consent, installed the device on the truck's undercarriage while it was parked in Jalim's driveway.

About 15 days later, on August 30, Atlanta and Sandy Springs police officers monitoring the GPS signals from Jalim's truck observed that the truck was traveling toward Sandy Springs. Because the signals later indicated that the truck stopped for approximately 28 minutes at a home on Rebel Trail in Sandy Springs, the officers suspected that Jalim was involved in illegal activity at that address and issued a “be on the lookout” (“BOLO”) alert for the truck, giving a description of the truck and its tag number. Within minutes, a Sandy Springs officer observed a truck matching that description ⁴ and followed it for a few miles before conducting a traffic stop; he did not stop the truck immediately because he was waiting for backup officers to arrive and assist him when he stopped the truck.

Following the traffic stop, the officers arrested the driver, Jalim, his brother, Salim, and a third person and charged them with a burglary at the Rebel Trail address.⁵ Defense counsel for the appellants filed a joint motion to suppress evidence seized as a result of the traffic stop, challenging the legality of the GPS tracking device and the traffic stop, as well as contending that the State illegally detained them for an unreasonable amount of time (three to four hours) following the stop without probable cause to do so. The trial court denied the motion, ruling that the use of the GPS device was legal because the “mere placement of a beeper device into contraband or an otherwise lawful object does not amount to an illegal search or seizure where there is no trespass involved and there exists probable cause to believe that a crime is intended,” ⁶ and that “even the warrantless ... monitoring of signals from inside an automobile traveling on public roads does not constitute an unreasonable search or seizure because it does not reveal anything that could not be observed...