Kennebrew v. State

• Decision Date: 10 September 2018
• Docket Number: S18A0711
• Citation: 304 Ga. 406,819 S.E.2d 37
• Parties: KENNEBREW v. The STATE.
• Court: Georgia Supreme Court

304 Ga. 406

819 S.E.2d 37

KENNEBREW

v.The STATE.

S18A0711

Supreme Court of Georgia.

Decided: September 10, 2018

Beau Andrew Worthington, COXEN & WORTHINGTON, LLC, 5109 Highway 278 NE, Suite B, Covington, Georgia 30014, for Appellant

Sheila Ann Ross, A.D.A., PROSECUTING ATTORNEY'S COUNCIL OF GEORGIA, 1590 Adamson Parkway, 4th Floor, Morrow, Georgia 30260, Sherry Boston, District Attorney, DEKALB COUNTY DISTRICT ATTORNEY'S OFFICE, 556 N. McDonough Street, Suite 700, Decatur, Georgia 30030, Anna Green Cross, THE SUMMERVILLE FIRM, 400 Colony Square Suite 2000, 1201 Peachtree St NE, Atlanta, Georgia 30361, Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, for Appellee

Peterson, Justice.

Phillip Warren Kennebrew brings this interlocutory appeal of the trial court's denial of his motion to suppress certain physical evidence the State wishes to introduce in prosecuting him for murder. We previously reversed Kennebrew's convictions for malice murder and other crimes on the ground that he received ineffective assistance of counsel at trial, including counsel's failure to pursue suppression of the evidence in question. See Kennebrew v. State, 299 Ga. 864, 792 S.E.2d 695 (2016). When new counsel filed a motion to suppress on remand, the trial court denied the motion, finding that the evidence—obtained from two backpacks seized from the dorm room of Kennebrew's girlfriend when he was arrested there—"would have inevitably been discovered through a lawful inventory search." Kennebrew argues that our ruling in his prior appeal constitutes law of the case precluding denial of his motion to suppress. Alternatively, he argues that the trial court was wrong on the merits because the evidence was not admissible under an inevitable discovery theory. Whether or not our prior opinion precluded the trial court from denying the motion to suppress, the trial court's ruling was wrong on the merits, and we reverse.

As we previously explained, Kennebrew was tried with two others for robbing and murdering Breyon Alexander. DNA evidence and witness testimony placed Kennebrew at the victim's apartment at the time of the crimes, and Kennebrew pursued a mere presence defense. But several pieces of evidence recovered from two backpacks belonging to Kennebrew undermined this defense, particularly a knife the State suggested had been used in the stabbing of the victim, shotgun shells like some that had been stolen from the victim's apartment and recovered from a co-defendant's house, and bullets like some that had been stolen from the victim's apartment. Id. at 869 (2) (a) (1), 792 S.E.2d 695. Police seized the backpacks from the college dorm room of Kennebrew's girlfriend when they placed Kennebrew under arrest pursuant to an arrest warrant. Id. at 868-869 (2) (a) (1), 792 S.E.2d 695. Convicted of malice murder and other crimes at an August 2012 trial, Kennebrew was sentenced to life plus 25 years.

We reversed Kennebrew's convictions on appeal, based on two areas of ineffectiveness by his trial counsel: (1) counsel's failure to object when the prosecutor commented during closing argument on Kennebrew's silence; and (2) counsel's failure to pursue suppression of the evidence recovered from Kennebrew's backpacks. We noted that the police seized the backpacks only after Kennebrew had been handcuffed and removed from the room and did not search the backpacks until six days later, meaning that the State could not avoid the Fourth Amendment's warrant requirement under the search incident to arrest exception. Id. at 869-871 (2) (a) (1), 792 S.E.2d 695. And we said that although the seizure of the backpacks may have been lawful based on the consent that Kennebrew's girlfriend apparently gave the police to search her dorm room and take items identified as Kennebrew's, that consent could not authorize the police to search a closed container that the police knew belonged to someone else. Id. at 869 (2) (a) (1) n.3, 792 S.E.2d 695. We concluded that trial counsel's failure to seek suppression of the evidence, coupled with his failure to object to the prosecutor's comment during closing argument, prejudiced Kennebrew's defense such that a new trial was required, given that the State's case was not overwhelming and the State emphasized the evidence taken from the backpacks. Id. at 873-874 (2) (b), 792 S.E.2d 695.

On remand, new counsel filed a motion to suppress evidence collected from Kennebrew's backpacks. Denying the motion in a June 2017 order, the trial court concluded that the seizure of Kennebrew's backpack was "reasonable based upon facts and circumstances presented by the State at the hearing and furthermore that the items inside the backpack would have inevitably been discovered through a lawful inventory search." The trial court found that, after police handcuffed Kennebrew and removed him from his girlfriend's dorm room on October 20, 2011, she gave police her consent to search her room. She also identified Kennebrew's belongings to police, the trial court found. The trial court recounted testimony by DeKalb Police Sgt. Neal that, based on department policy, he could not have left Kennebrew's items with the girlfriend, because police are responsible for those items in the possession of an arrested person and the girlfriend could have destroyed or hidden items. The trial court also relied on DeKalb Police testimony that for safety of police, chain of custody purposes, and to protect the department from potential false claims of theft, DeKalb Police policy mandates that closed containers be inventoried prior to their submission to the property room. The trial court found that Kennebrew's backpack "was briefly inventoried by Sgt. Neal at the scene for officer safety and then secured by CSI Woolford" and noted that the State conceded that CSI Woolford "searched" the backpack six days later, i.e., October 26, 2011.¹ We agreed to hear Kennebrew's interlocutory appeal of that ruling.

On appeal, Kennebrew argues both that our decision in his prior appeal precluded the trial court from denying his motion to suppress and that the discovery of the evidence in the backpacks cannot be justified as "inevitable" through a lawful inventory search.²

Because we agree that the State has not met its burden of showing that any search of the bags qualified as an inventory search, and because the State cannot avoid suppression of the evidence recovered on an inevitable discovery theory, either, we need not reach the law of the case argument raised by Kennebrew.³

In reviewing a ruling on a motion to suppress, we review the trial court's factual findings for clear error and its legal conclusions de novo. See Vansant v. State, 264 Ga. 319, 320 (1), 443 S.E.2d 474 (1994). In addition, in reviewing such a ruling,

an appellate court must construe the evidentiary record in the light most favorable to the trial court's factual findings and judgment. An appellate court also generally must limit its consideration of the disputed facts to those expressly found by the trial court.

Caffee v. State, 303 Ga. 557, 557, 814 S.E.2d 386 (2018) (citations and punctuation omitted).

The State argues for affirmance of the trial court's order under either an inventory search or inevitable discovery theory. Specifically, the State argues that DeKalb Police performed two inventory searches—once at the scene of the seizure of the backpacks on October 20, and again on October 26. We consider each of these possibilities in turn.

1. The United States Supreme Court has held that an inventory search—i.e., the search of the personal property of a person under lawful arrest as part of a routine administrative procedure incident to booking and jailing the suspect—is an exception to the warrant requirement. See Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). In order to qualify as an inventory search, the search must be carried out in accordance with standardized procedures. See Florida v. Wells, 495 U.S. 1, 3-4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990) ("standardized criteria or established routine must regulate the opening of containers during inventory searches") (citations omitted); Colorado v. Bertine, 479 U.S. 367, 375-376, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987) (police discretion in conducting inventory search must be "exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity"); Lafayette, 462 U.S. at 648, 103 S.Ct. 2605 ("[I]t is not ‘unreasonable’ for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession in accordance with established inventory procedures."). This rule "is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence." Wells, 495 U.S. at 4, 110 S.Ct. 1632. The State bears the burden of showing that the requirements of an exception to the warrant requirement have been met. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), overruled on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

(a) The State contends that the trial court's finding that "the backpack in this case was briefly inventoried by Sgt. Neal at the scene" amounts to a finding that an inventory search was performed on October 20. But this factual finding is clearly erroneous: the record contains no evidence whatsoever that Sgt. Neal searched or conducted any sort of inventory of any backpack on October 20. The State seeks to salvage the core of this finding by claiming that the record shows that Sgt. Neal was present while CSI Woolford searched the backpacks when they were seized on October 20. But even if the trial court's statement were meant...