Green v. State

• Decision Date: 30 March 2015
• Docket Number: No. A14A1849.,A14A1849.
• Citation: 331 Ga.App. 801,771 S.E.2d 518
• Parties: GREEN v. The STATE.
• Court: Georgia Court of Appeals

331 Ga.App. 801

771 S.E.2d 518

GREEN

v.The STATE.

No. A14A1849.

Court of Appeals of Georgia.

March 30, 2015.

Certiorari Denied Sept. 8, 2015.

Forrest K. Shealy, for Appellant.

D. Victor Reynolds, Dist. Atty., Marietta, John Richard Edwards, Asst. Dist. Atty., for Appellee.

Opinion

BOGGS, Judge.

Following a bench trial, Fred Green was found guilty of burglary. He appeals, asserting that the trial court erred by (1) denying his motion to suppress evidence obtained through the use of a Global Positioning System (“GPS”) device placed on his co-defendant's truck by the police; and (2) failing to make an inquiry or establish on the record that he validly waived his right to a jury trial. For the reasons explained below, we disagree and affirm.

“On appellate review of a ruling on a motion to suppress, the trial court's findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.” (Citations and punctuation omitted.) Brown v. State, 295 Ga. 695, 697(2), 763 S.E.2d 710 (2014).

So viewed, the record shows that on March 26, 2012, surveillance cameras recorded two black males in a light-colored, extended cab pickup truck leaving a Sandy Springs neighborhood where a burglary had taken place. Two days later, surveillance video showed the same color and type truck leaving an apartment complex following a burglary. When another burglary occurred in the same area on April 3, 2012, a detective began reviewing a license tag reader at an intersection in close proximity to the burglary locations for a light-colored, extended cab pick-up truck around the time of the April 3 burglary.

This review revealed a truck matching this description traveling in the direction of the apartment complex with an empty truck bed at 4:43 a.m. At 5:18 a.m., the tag reader showed the same light-colored extended cab pick-up truck returning through the intersection with what appeared to be an air conditioning unit in the truck bed. At 5:21 a.m., the police were notified of a burglary at the apartment complex in which a four-ton air conditioning unit was taken.

A police detective determined that the truck observed by the tag reader was registered to Lester Thompkins who resided in Clayton County. On April 5, the police observed Thompkins leave his residence dressed all in black around 1:30 a.m. and return around 5:00 a.m. Later the same day, they obtained an order from the Clayton County Superior Court for placement and monitoring of a GPS tracking device on Thompkins' truck. A detective placed the device on Thompkins' truck at 11:00 p.m. the same day.

A multi-jurisdictional burglary task force organized six of its members to conduct surveillance on the truck from the evening of April 5 through the early morning hours of April 6. Investigators were assigned to various locations so that the truck could be watched almost continuously. At 2:26 a.m., the truck left Thompkins' home and then stopped at 2:48 a.m. near Green's residence, where a member of the task force saw “a black male, dressed all in black g[e]t into the passenger side of the pickup truck while it was stopped.”

A combination of GPS monitoring and task force surveillance showed that the truck traveled in and out of various apartment complexes located near Cumberland Parkway in Cobb County. Task force members did not have the vehicle in sight at all times. A task force member saw the truck approaching an apartment complex located at 50 Adams Lake Boulevard while occupied by two black males, but lost sight of the truck before it entered the front gate; GPS monitoring showed that the truck entered the apartment complex. The police officer notified the Cobb County police department to assist them in entering the gated apartment complex. By the time the Cobb County officers arrived ten or fifteen minutes later, GPS monitoring showed that the truck had left the apartment complex.

When a Cobb County police officer entered the apartment complex, he discovered forced entry into a maintenance shed. Police asked an on-call maintenance technician for the complex to come to the shed and make a list of missing items. The technician informed them that two tool boxes had been taken and that these items had been present less than 12 hours earlier.

Approximately one hour after entering the Adams Lake Boulevard complex, the truck returned to Thompkins' Riverdale address, where a police officer saw it back into the driveway. Thompkins and Green got out of the truck and began to unload various items from the truck bed, including what appeared to be a red air compressor and two very large toolboxes. After unloading the truck, the men re-entered it, and Thompkins drove it through various locations in south Fulton County, Riverdale, and Clayton County for approximately 90 minutes.

When the truck returned to Thompkins' home, officers stopped it as it was backing into the driveway and detained both men by placing them in the back of a patrol car in handcuffs. After obtaining a search warrant for Thompkins' residence, the task force discovered an identification card for the Adams Lake Boulevard apartment's maintenance technician inside a drawer of the large toolbox previously unloaded from the truck bed. The GPS monitoring of the truck lasted a total of eight hours.

Thompkins and Green were indicted in Cobb County for the Adams Lake Boulevard burglary and were tried together. Before trial, Thompkins filed a written motion to suppress evidence illegally acquired through use of the GPS tracking device in violation of his Fourth Amendment rights. He also contended that the Clayton County Superior Court's order was “unlawful” and “illegally acquired.” His assertions included that: (1) the order authorizing installation of the GPS device and GPS monitoring was not supported by probable cause; and (2) the Clayton County Superior Court lacked jurisdiction to authorize GPS monitoring of the vehicle outside of Clayton County.

Green “adopted as his own the co-defendant's motion to suppress.” In the motion to suppress hearing, Green argued that he had standing to contest evidence acquired through the use of the GPS device placed upon Thompkins' truck. The trial court reserved ruling on the motion and asked the parties to provide him with a proposed order within ten days. It subsequently denied both defendants' motions “because probable cause existed for the issuance of the [GPS monitoring] Order and because the Order was complied with by State law enforcement authorities.” It also concluded that the Clayton County Superior Court could authorize GPS monitoring outside of Clayton County.

Following his conviction on July 16, 2013, Green filed a timely motion for new trial. He later amended his motion to assert that the trial court should have suppressed evidence resulting from the GPS monitoring of Thompkins' truck based upon this court's decision in Hamlett v. State, 323 Ga.App. 221, 753 S.E.2d 118 (2013). The trial court denied this portion of Green's motion for new trial, reasoning:

The Court finds that Defendant does not have standing to challenge the order authorizing police to place a tracking device on his codefendant's vehicle or to the execution of that order by the police. Defendant has asserted no interest in the co[-]defendant's pickup truck; he has asserted no interest in property seized by a subsequent search of his co[-]defendant's residence; and he has identified no recognized expectation of privacy that the police violated during the investigation that led to Defendant's arrest. Defendant's lack of standing forecloses his claims that the Court erred in not granting a motion to suppress evidence for any of the grounds asserted in his Amended Motion for New Trial.

1. Green contends that the trial court erred in finding that he lacked standing. “The burden is on the defendant to show that he has standing to contest the alleged violation.” (Citation and punctuation omitted.) Brown, supra, 295 Ga. at 698(2), 763 S.E.2d 710 (2014).

In Jones v. United States, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), the Supreme Court of the United States held that “the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a ‘search’ ” under the Fourth Amendment.¹ 132 S.Ct. at 949(II)(A). It did so, not based upon “the reasonable-expectation-of-privacy” test enunciated in Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), but instead a “common-law trespassory test.” Id. at 952 (II)(A). Based upon this test, the Supreme Court reasoned that the government's conduct in physically occupying private property for the purpose of obtaining information “would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at 949 (II)(A). In reaching this conclusion, the Supreme Court clarified that “the Katz reasonable-expectation-of-privacy test had been added to, not substituted for, the common-law trespassory test.” (Emphasis in original.) Id. at 952. See also Florida v. Jardines, –––U.S. ––––(II), ––––, 133 S.Ct. 1409, 1414, 185 L.Ed.2d 495 (2013). Therefore,

[w]hen one contends that he was aggrieved by an unreasonable search and seeks to suppress evidence obtained as a result of the search, he must show, among other things, that an agent of the government either trespassed upon his property, see United States v. Jones, ––– U.S. ––––(II)(A), 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), or invaded some other place or thing in which he has a reasonable expectation of privacy. See Bond v. United States, 529 U.S. 334, 337–339, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000).

Hatcher v. State, 314 Ga.App. 836, 838(1), 726 S.E.2d 117 (2012) (physical precedent only), cert. denied, 314 Ga.App. 909 (2012).

In this case, Green asserts that he has standing based upon his reasonable expectation of privacy. But in Devega v. State, 286 Ga. 448, ...