Westbrook v. State

• Decision Date: 28 February 2020
• Docket Number: S19A1120
• Citation: 308 Ga. 92,839 S.E.2d 620
• Parties: WESTBROOK v. The STATE.
• Court: Georgia Supreme Court

308 Ga. 92

839 S.E.2d 620

WESTBROOK

v.The STATE.

S19A1120

Supreme Court of Georgia.

Decided: February 28, 2020

Michael Wayne Tarleton, Georgia Public Defender Council, Atlanta, Georgia 30303, Clare Melissa Gilbert, Georgia Innocence Project, Decatur, Georgia 30030, Alexis Agathocleous, The Innocence Project, New York, New York 10013, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Christopher M. Carr, Attorney General Department of Law, Atlanta, Georgia 30334, Emily Kathleen Richardson, Deputy Chief A.D.A., Sherry Boston, District Attorney, Destiny H. Bryant, Elizabeth Haase Brock, A.D.A., Decatur, Georgia 30030, for Appellee.

Warren, Justice.

Appellant Rickey Westbrook appeals from his convictions for malice murder and possession of a firearm during the commission of a felony stemming from the shooting death of Harry Wells.¹ Westbrook contends, among other things, that the trial court erred by denying his motion to suppress evidence recovered from his cell phone, by denying his motion to suppress a witness's identification of him during a photographic lineup, and by ruling that the recording of his call from jail to a friend was admissible. Concluding that Westbrook's contentions are without merit, we affirm.

1. Viewed in the light most favorable to the verdicts, the evidence showed that at around 4:00 a.m. on July 13, 2015, a man walked into a convenience store on Memorial Drive in DeKalb County and shot the store clerk, Harry Wells, in the abdomen, resulting in his death. Warren Mitchell was at the convenience store early that morning when a man walked by him, said that things were "about to get ugly," and walked in the store and shot Wells. Mitchell testified that the shooter was wearing dark pants and a short-sleeved shirt, was about 5'10" tall, weighed about 190 pounds, and had dark skin, a teardrop tattoo under his left eye, and tattoos on his arms. Mitchell did not identify Westbrook, who had a teardrop tattoo under his right eye, in court, but he did identify him as the shooter in a pre-trial photographic lineup of six men. A video from the store's surveillance system showed that the shooter was wearing a hat, dark sweatpants with "emojis" on them, and a t-shirt with three letters on it, two of which were "BC."

On July 14, after receiving an anonymous tip, two detectives found Westbrook at the apartment in which he was living. Detective C.L. Brown testified that Westbrook told him that a friend of Westbrook's was letting him stay in the apartment. Believing that they did not then have probable cause to arrest Westbrook for murder, the detectives left the apartment and talked with a manager of the apartment complex, who told them that the apartment in which Westbrook was living was supposed to be vacant. A short time later, Westbrook left the apartment and was riding in a friend's car in the apartment complex, when—according to Detective Brown—he arrested Westbrook on the basis that he was engaged in criminal activity by occupying the apartment. Westbrook left his cell phone in his friend's car, and with the permission of Westbrook's friend, the detectives searched the car and seized Westbrook's phone.

After obtaining permission from apartment complex management, the detectives also searched the apartment in which Westbrook was living. There, they found a pair of black sweatpants with yellow emojis on them and a dark shirt with the letters "BC" on the front of the shirt. Additionally, information extracted from Westbrook's cell phone pursuant to a search warrant showed that he had exchanged text messages with someone called "Sis" at 9:57 p.m. on the same day as Wells's early morning murder. The texts included one in which Westbrook told "Sis," "that hat in the trunk throw it away fast," and a response from "Sis," "Aight they got a pic of u." Westbrook's phone also showed that he had performed an internet search on the day of the crimes that resulted in a news update that said "clerk shot and killed in unincorporated Decatur slash Decatur Avondale Estates." Videos extracted from his cell phone contained an image of Westbrook wearing a hat like the one worn by the shooter and an image of someone other than Westbrook wearing emoji pants like those found in Westbrook's apartment.

At trial, an audio recording of a phone call that Westbrook made from jail to his friend, Xavier Cooper, was also admitted into evidence. During that call, Westbrook and Cooper discussed Westbrook shooting "up the hood," and Cooper told Westbrook that the police had shown a photograph of Westbrook on the news. Cooper added that a video of the shooting had been played on the news and that Cooper recognized Westbrook in the video.

Westbrook does not challenge the sufficiency of the evidence. Nevertheless, consistent with this Court's general practice in murder cases, we have reviewed the record and conclude that, when viewed in the light most favorable to the verdicts, the evidence presented at trial was sufficient to authorize a rational jury to find beyond a reasonable doubt that Westbrook was guilty of the crimes for which he was convicted. See Jackson v. Virginia , 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Westbrook contends that the trial court erred by denying his pre-trial motion to suppress evidence. More specifically, he contends that the police did not have probable cause to believe that he was engaged in criminal activity by occupying the apartment in which he was living and that the evidence extracted from his cell phone should have been suppressed under the "fruit of the poisonous tree" doctrine as a result. See Wong Sun v. United States , 371 U.S. 471, 484-488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).² We conclude, however, that Westbrook's warrantless arrest was supported by probable cause and therefore was reasonable under the Fourth Amendment.

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV. "[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed." Devenpeck v. Alford , 543 U.S. 146, 152, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). The United States Supreme Court

repeatedly has explained that "probable cause" to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.

Michigan v. DeFillippo , 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979).

To determine whether an officer had probable cause for an arrest, we examine the events leading up to the arrest, and then decide whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause. Because probable cause deals with probabilities and depends on the totality of the circumstances, it is a fluid concept that is not readily, or even usefully, reduced to a neat set of legal rules. It requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. Probable cause is not a high bar.

District of Columbia v. Wesby , ––– U.S. ––––, ––––, 138 S.Ct. 577, 586, 199 L.Ed.2d 453 (2018) (citations and punctuation omitted).

"When reviewing the grant or denial of a motion to suppress, an appellate court must construe the evidentiary record in the light most favorable to the trial court's factual findings and judgment." Caffee v. State , 303 Ga. 557, 557, 814 S.E.2d 386 (2018). Moreover, an appellate court "generally must accept [the trial court's factual] findings unless they are clearly erroneous," Hughes v. State , 296 Ga. 744, 746, 770 S.E.2d 636 (2015), and "also ‘generally must limit its consideration of the disputed facts to those expressly found by the trial court.’ " Caffee , 303 Ga. at 557, 814 S.E.2d 386 (quoting Hughes , 296 Ga. at 746, 770 S.E.2d 636 ). "Although we owe substantial deference to the way in which the trial court resolved disputed questions of material fact, we owe no deference at all to the trial court with respect to questions of law, and instead, we must apply the law ourselves to the material facts." Hughes , 296 Ga. at 750, 770 S.E.2d 636.

Here, the trial court found in its order that when police encountered Westbrook at the apartment in which he was living, his appearance matched the description of the murder suspect; that the officers were told by apartment management that the apartment was supposed to be vacant; and that Westbrook told the officers that he was temporarily staying in the apartment at the invitation of a friend. The court thus ruled that when the detectives detained Westbrook knowing these circumstances, they had probable cause to arrest Westbrook for theft of services under OCGA § 16-8-5.³

Westbrook contends that his statement to the detectives that he was staying in the apartment as a guest could not form the basis for probable cause that he was committing the crime of theft of services. But we must accept the trial court's fact findings so long as they are not clearly erroneous, Hughes , 296 Ga. at 746, 770 S.E.2d 636, and we cannot say that the trial court's fact findings were clearly erroneous here.

In light of those findings, we have no trouble concluding that the police had probable cause to arrest Westbrook for theft of services. Critically, the detectives were told by apartment management that the apartment should have been vacant, such that discovering any person occupying that space suggested criminal activity. Considering the totality of the circumstances, the detectives were not required to accept as...