Elvine v. State
| Decision Date | 23 October 2015 |
| Docket Number | No. A15A1340.,A15A1340. |
| Citation | 334 Ga.App. 235,779 S.E.2d 10 |
| Parties | ELVINE v. The STATE. |
| Court | Georgia Court of Appeals |
Michael Raymond Lloyd, for Appellant.
Cheryl Ann Banks, Louie Craig Fraser, for Appellee.
In this interlocutory appeal, Anthony Elvine challenges the denial of his motion to suppress evidence obtained by police when he was arrested in a drug purchase sting operation. He contends that (1) police lacked probable cause to arrest him, so any evidence obtained during that arrest—including his cell phone and its contents—was inadmissible; and (2) a warrant authorizing a search of the contents of his cell phone was improperly issued based on the unlawful arrest. Because the record does not support a finding that the arresting officer had probable cause to arrest Elvine, we reverse.
[There are] three fundamental principles which must be followed when conducting an appellate review of a trial court's ruling on a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.1
To the extent that "the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court's application of the law to the undisputed facts."2
The evidence from the suppression hearing was uncontraverted and shows that after arresting a suspect in a narcotics sting operation, a drug enforcement officer observed the suspect's cell phone receive a text message from a person identified as "Skeet." Skeet initiated a text message dialogue that the officer interpreted as inquiring about purchasing $325 worth of marijuana from the suspect. The officer texted Skeet back from the suspect's cell phone and arranged to meet him at a certain convenience store to consummate the sale. The officer did not specify a time to meet. Upon arrival at the store, the officer chose a vehicle he saw parked in the parking lot and texted Skeet that he would be in that vehicle waiting for Skeet to arrive.
Shortly thereafter, as the officer observed Elvine (whom he did not know) drive past the specified vehicle to park, the officer immediately texted Skeet that he was inside the store. Elvine parked next to the specified vehicle, exited his own vehicle, and began walking into the store. Before Elvine entered the store, the officer, along with a uniformed officer, stopped Elvine, informed him he had been texting with police, and arrested him. The officer then took possession of Elvine's cell phone and accessed its contents3 to confirm that the phone Elvine possessed included the text message exchange he had just had with the contact identified as Skeet.
Thereafter, the officer applied for a warrant to search the contents of Elvine's cell phone, despite having already accessed the contents after arresting him. The officer filled out an affidavit, stating as follows:
On 09/07/2012 Anthony Elvine was taken into custody for criminal attempt to possess marijuana with intent to distribute as a result of an investigation by the Laurens County Sheriffs Office Drug Unit. During his arrest Elvine possessed a Pantech cellular phone bearing serial number 104800455219. Part of the investigation involved the interception of text messages between Elvine and law enforcement. The phone recovered from Elvine is believed to have been used as a part of the criminal attempt to possess marijuana with intent to distribute ... and is believed to contain evidence of that violation of Georgia law, to include names and phone numbers of co-conspirators, incoming and/or outgoing phone calls, and/or text messages between co-conspirators and as well as between Elvine and law enforcement.
Based on the affidavit and the officer's testimony, the magistrate issued the search warrant. The officer's testimony before the magistrate was not transcribed, but the officer testified at the motion to suppress hearing that his testimony tracked what was in the affidavit. He testified that did not specifically recall informing the magistrate that he had already accessed the contents of the cell phone.
Elvine moved to suppress the evidence obtained from the cell phone, arguing that his arrest and the warrant were unlawful. Following a hearing, the trial court denied the motion, concluding that the arrest was lawful, the on-scene search of the cell phone was unlawful, but the search warrant was still valid because the supporting affidavit contained "no mention or reliance on the content of the cell phone." The trial court certified its ruling for immediate review, and this Court granted Elvine's application for interlocutory review.
1. Elvine contends that the police lacked probable cause to arrest him, so any evidence arising from that arrest must be suppressed. We agree.
In this context, "[a] ‘probability’ is less than a certainty but more than a mere suspicion or possibility."7
Here, the officer's testimony from the suppression hearing showed that some time after the officer texted Skeet, Elvine showed up at the convenience store, parked, and began walking to the store entrance when he was arrested.8 It was daytime, the store was open to the public, Elvine parked in a public area, and the officer testified he did not recall seeing Elvine reading or operating his cell phone at any time. There is no evidence that Elvine attempted to flee when he saw the officers, scanned the area for police, or otherwise engaged in any furtive movements or nervous behavior.9
Further, the hearing transcript lacks evidence that the timing of Elvine's conduct demonstrated that he was the person receiving text messages. The officer did not arrange the meeting at a specific time, which could have linked Elvine's timely arrival with an intent to buy marijuana, nor did the officer explain how long it took Elvine to arrive at the meeting location. Also, the officer testified that "once I observed him driving by the vehicle that I had told him ... I would be in, I immediately sent him ... another text [that I was in the store] to see how he would react." Thus, rather than showing that Elvine exited his vehicle because he received the officer's text message, this suggests that Elvine was not waiting for instruction from a text message that caused him to exit his car and approach the store. Taken on its face, the officer's account suggests that Elvine merely parked his vehicle and immediately began walking into the store, which is not suspicious behavior at a convenience store open to the public.
The only aspects of Elvine's conduct that the officer identified as suspicious were the facts that (1) Elvine parked next to the vehicle that the officer, posing as a drug seller, had described as his own, and (2) the vehicle was parked in a "ride-share" area of the parking lot not normally used by general store traffic.10 Nevertheless, it is undisputed that the officer did not know Elvine, nor did he have a description of the person who was receiving his text messages.11 Elvine simply parked in a public parking area that the officer knew to be commonly used for ride shares. Thus, while the circumstances described by the officer could give rise to the suspicion or possibility that Elvine was the person sending incriminating text messages about a drug transaction, the record before us is insufficient as a matter of law to constitute probable cause to arrest Elvine for attempting a drug transaction.12 Under the officer's logic, any person of any description who parked in that area around that general time (whether or not they were using their cell phone) and attempted to enter the convenience store would be subject to arrest. Such conduct, without more, simply lacks a sufficient connection to criminal culpability to support a probable cause finding.13 Accordingly, the trial court erred by concluding that the State carried its burden to demonstrate probable cause to arrest Elvine.
2. Because the arrest was unlawful, any evidence obtained as a result is inadmissible unless it was available to police on some independent ground.14 Thus, as a general matter, "the question is whether the evidence has been...
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...is less than a certainty but more than a mere suspicion or possibility.(Punctuation and footnotes omitted.) Elvine v. State , 334 Ga. App. 235, 237–238 (1), 779 S.E.2d 10 (2015). "Although we owe substantial deference to the way in which the trial court resolved disputed questions of materi......