Martinez v. State

• Decision Date: 19 October 2018
• Docket Number: A18A1051
• Citation: 820 S.E.2d 507,347 Ga.App. 675
• Parties: MARTINEZ v. The STATE.
• Court: Georgia Court of Appeals

347 Ga.App. 675

820 S.E.2d 507

MARTINEZ

v.The STATE.

A18A1051

Court of Appeals of Georgia.

October 19, 2018

H. Bradford Morris Jr., Gainesville, Brock Arthur Johnson, for Appellant.

Lee Darragh, Gainesville, Anna Victoria Fowler, for Appellee.

Miller, Presiding Judge.

Juan Martinez was charged with numerous counts of sexual exploitation of a child ( OCGA § 16-12-100 (b) (8) ), and he moved to suppress the cell phone images underlying the charges. After the trial court denied the motion to suppress, Martinez proceeded to a bench trial in which he stipulated to the facts as alleged in the indictment and preserved his right to appeal from the denial of his motion to suppress. On appeal, Martinez challenges the denial of his motion to suppress the cell phone images on the grounds that the search of his cell phone violated his Fourth Amendment rights. At this juncture, we do not address the validity of Martinez’s convictions; our review is limited to the trial court’s denial of Martinez’s motion to suppress.

We conclude that the trial court properly found that Martinez gave consent for police to conduct the initial search of his phone, leading to the discovery of an image of child pornography, but that the trial court’s order fails to make any factual findings regarding the scope of Martinez’s consent. As this issue was raised and argued before the trial court, we vacate the trial court’s order and remand for further factual findings.

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.

(Citations, punctuation, and emphasis omitted.) Phillips v. State , 338 Ga. App. 231, 789 S.E.2d 421 (2016) ; see also Hughes v. State , 296 Ga. 744, 746 (1), 770 S.E.2d 636 (2015).

So viewed, the evidence presented at the suppression hearing shows that at about 10:40 p.m. on April 13, 2016, officers from the Hall County Sheriff’s Office and the U.S. Marshal’s Office, and agents from the Georgia Bureau of Investigation (GBI) were checking on registered sex offenders to verify their compliance with the registration requirements. The group, which included about five or six people, went to Martinez’s listed address to verify his information. Three officers went onto the front porch and knocked on the door, while the remaining officers set up a perimeter to ensure everyone’s safety and to prevent anyone from trying to flee. The officers were all dressed in uniforms identifying the specific agency to which they were assigned, and all were armed.

Martinez’s mother answered the door and then called for Martinez to come out. Martinez came outside and sat down on the porch with the officers. After confirming that the registry information was correct, a Hall County Sheriff’s officer asked Martinez if he had any electronic devices. Martinez responded that he had a phone and asked his mother to get it. A female GBI agent asked if she could inspect the phone, and Martinez handed it to her.¹ After a short conversation, the agent returned the phone to Martinez, and the two spoke about applications on the phone, including music, Facebook, and YouTube. Martinez began to show the agent something on the phone and then he again voluntarily handed the phone to her. At this point, the agent observed an image she believed to depict child pornography. Without any further conversation with Martinez, the agent then carried the phone to another agent who specialized in forensic technology. Using his equipment, the technologist conducted another search, which lasted, according to Martinez, about 30 minutes, and found more than 1,000 potential pornographic images on Martinez’s phone.

After discovering the images on the phone, the officers asked Martinez if they could search his room, and he consented. Martinez was cooperative throughout the encounter, but he did not sign any written consent forms in connection with the agent’s search of his phone.

Martinez, his sister, and his mother all testified that officers entered the house before viewing any images on the phone. Martinez stated that he did not consent to any search of his phone; he asked the agent why she wanted to see it, but she did not respond; and that he was afraid to ask again because he feared he would be shot. He denied handing the phone to the agent, instead saying that she took it from his hand. Nevertheless, he admitted accessing the phone for the agent. Additionally, Martinez’s mother and sister testified that Martinez had learning difficulties and was easily confused. However, the agent who interviewed Martinez after his arrest testified that Martinez seemed to understand everything and did not seem confused.

Based on the images found on the phone, Martinez was charged with ten counts of sexual exploitation of a child. In an interview with police, Martinez admitted the images on the phone were his.

Martinez moved to suppress the images discovered on his phone, arguing that (1) the agents and officers violated his Fourth Amendment rights by conducting a warrantless search; (2) the agents’ conduct exceeded the scope of any permissible visit; (3) the agents and officers entered onto his porch illegally and therefore tainted any alleged consent; (4) any consent was not voluntarily given; and (5) the search exceeded the scope of his consent.

The trial court denied the motion to suppress, finding that the agents were properly at Martinez’s home to conduct a sex offender registry check and thus their presence did not violate the Fourth Amendment, and that Martinez freely and voluntarily gave consent to the search of his phone. The trial court did not explicitly address Martinez’s argument regarding the scope of the search, nor did it make any factual findings in this regard. Thereafter, Martinez stipulated to the facts charged in the indictment and was convicted of all ten counts. He now appeals.

In related enumerations of error, Martinez argues that the trial court erred in denying his motion to suppress because (1) the search was tainted by the purported illegal entry into his home; (2) any consent was not given freely and voluntarily; and (3) the search exceeded the scope of any consent. Although we agree with the trial court that the officers were lawfully present at Martinez’s home and that Martinez voluntarily consented to the initial search of his phone, we conclude that the trial court’s order is lacking the factual findings necessary for this Court to address whether the second search using forensic technology exceeded the scope of Martinez’s consent.

The Fourth Amendment guarantees individuals the right to be free of unreasonable searches and seizures. U.S. Const. Amend. IV ; Ga. Const. of 1983, Art. I, Sec. I, Par. XIII ("The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated [.]"). "In general, searches are of two types: those conducted with a search warrant or those undertaken without one, and searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions." (Citation and footnote omitted.) Diaz v. State , 344 Ga. App. 291, 297 (1), 810 S.E.2d 566 (2018).

It is well-settled that consent is one of the exceptions to the warrant requirements. Diaz , supra, 344 Ga. App. at 297 (1), 810 S.E.2d 566. And, "when relying on the consent exception to the warrant requirement, the State has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances." (Citation and footnote omitted.) Id.

A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent. The trial court may also consider as factors in its analysis prolonged questioning, the accused’s age, level of education, intelligence, and advisement of constitutional rights; and the psychological impact of these factors on the accused. ... [T]he court should consider whether a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter.

(Citation and footnote omitted.) Diaz , supra, 344 Ga. App. at 299-300 (1) (b), 810 S.E.2d 566.

Nevertheless, "[t]he intrusiveness of a consensual search—including the type, duration, and physical zone of the intrusion—is limited by the permission granted, and only that which is reasonably understood from the consent may be undertaken." (Footnote omitted.) Walker v. State , 299 Ga. App. 788, 791 (2), 683 S.E.2d 867 (2009). As in any type of search, the "the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ " (Citations omitted.)

Riley v. California , 573 U.S. –––– (II), 134 S.Ct. 2473, 2482 (II), 189 L.Ed.2d 430 (2014). With this framework in mind, we turn to Martinez’s arguments on appeal.

A. Whether the officers were lawfully in the home’s curtilage.

We first consider Martinez’s claim that the officers exceeded the scope of any permissible presence at his house due to their intent to search independently of the registry compliance check.²

Martinez argues that he had a right to privacy in the curtilage...