Winslow v. State

• Decision Date: 02 November 2022
• Docket Number: S22A0498
• Parties: WINSLOW v. The STATE.
• Court: Georgia Supreme Court

315 Ga. 133

880 S.E.2d 530

WINSLOW

v.The STATE.

S22A0498

Supreme Court of Georgia.

Decided: November 2, 2022

Allen Rust Knox, Towaliga Judicial Circuit Public Defenders Office, 135 L Cary Bittick Drive, Forsyth, Georgia 31029, for Appellant.

Jonathan Lang Adams, District Attorney, Towaliga Circuit District Attorney's Office, 326 Thomaston Street, Barnesville, Georgia 30204, 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, Dorothy Vinson Hull, A.D.A., Towaliga Circuit District Attorney's Office, 137 L. Cary Bittick Drive, Forsyth, Georgia 31028, Leslie Ann Tilson, Towaliga Circuit District Attorney's Office, 137 L Cary Bittick Dr, Forsyth, Georgia 31029, Carolee Reed Jordan, A.D.A., Towalinga Circuit District Attorney's Office, 134 Martin Luther King Jr Drive, Suite B, Forsyth, Georgia 31029, for Appellee.

Bethel, Justice.

William Sanford Winslow was convicted on four counts of sexual exploitation of children in connection with his possession of two videos depicting children engaged in sexually explicit conduct. The videos were found on his laptop computer by law enforcement. On appeal, Winslow raises three enumerations of error: (1) the trial court erred by denying his motion to suppress evidence obtained from a search of his laptop; (2) facial and as-applied challenges to the sentencing scheme of OCGA § 16-12-100 (f) (1) ; and (3) the trial court erred by failing to merge all counts of the indictment together for sentencing under Edvalson v. State , 310 Ga. 7, 849 S.E.2d 204 (2020).¹

For the reasons set forth below, we affirm Winslow's convictions. However, because the trial court should have sentenced Winslow on only one count and merged the remaining counts for sentencing, see Edvalson , 310 Ga. at 8, 10, 849 S.E.2d 204, we vacate the sentences imposed by the trial court and remand for resentencing. And, because we vacate these sentences, we do not reach Winslow's as-applied challenge to OCGA § 16-12-110 (f) (1).

1. Viewed in the light most favorable to the verdicts, the evidence presented at trial showed the following. On November 4, 2018, Sergeant David Asbell with the Forsyth Police Department responded to a call from a Walmart in Monroe County because a man, later identified as Winslow, was printing photographs that were making a store clerk uncomfortable. Winslow was attempting to purchase five printed photos from the self-serve printing kiosk, and each photo depicted different children, and one computerized depiction of a child, presented in a manner that is fairly described as sexualized in nature. The employee also observed Winslow attempt to hide the photos from view when another Walmart patron asked if the children in the photos were Winslow's.

After arriving at the store, Sergeant Asbell approached Winslow, whom the Sergeant already knew, and asked to speak with him outside the store. Winslow told Sergeant Asbell that the photos were of members of Winslow's family, but Sergeant Asbell knew Winslow's family and testified that he knew that these children were not members of Winslow's family. Sergeant Asbell then asked Winslow if he had "any other photos that would be images that he shouldn't have," and more specifically, whether he had any other pictures of children. Winslow responded that he did not, and he told Sergeant Asbell that he could check. Sergeant Asbell asked if he could open Winslow's bag to check. Winslow said "yes" but that there was "nothing there."

When Sergeant Asbell looked in the bag, he noticed a laptop computer. While present with Winslow, Sergeant Asbell attempted to turn the laptop on but was unable to access any information on the computer because it had trouble starting. The record before us does not indicate whether Sergeant Asbell asked Winslow whether he could check the contents of the laptop. Likewise, the record is silent as to whether Winslow did or said anything while Asbell was attempting to access the information on the laptop.

Continuing his search of the contents of Winslow's bag, Sergeant Asbell found seven thumb drives. Sergeant Asbell asked Winslow if there was anything on the thumb drives, and Winslow responded that the thumb drives were empty but that Sergeant Asbell could check them. Sergeant Asbell then checked three of the thumb drives by plugging them into his own laptop. The first drive only contained an installer program for Microsoft windows, and the second thumb drive was blank. The third thumb drive, however, contained a folder labeled "Billy's porn" with two media files in it. The first file contained photographs of Winslow. Sergeant Asbell described the second file as containing multiple images of naked children. After viewing these photos, Sergeant Asbell ended his search of the thumb drives and arrested Winslow for sexual exploitation of children.

The GBI searched Winslow's laptop roughly 14 months later following the issuance of a warrant. The GBI attributed the delay in searching the laptop to a backlog of other tasks. During that search, an agent found two videos containing what the agent considered to be child pornography. Digital records showed that both videos were downloaded to Winslow's laptop on September 15, 2018 at 1:15 a.m.

Winslow moved to suppress all of the electronic evidence, arguing that the search was conducted without his consent and with an invalid warrant. More specifically, he argued that his consent did not extend to a full forensic search of the laptop and had long expired. Additionally, Winslow argued that the warrant² had expired before the GBI search of the laptop commenced because of a ten-day execution requirement both within the warrant itself and pursuant to OCGA § 17-5-25 ; that the warrant was void because it was obtained in a different judicial district than where the evidence was housed; and the affidavit supporting the search warrant lacked probable cause.

Following a hearing, the trial court denied the motion to suppress. The court determined that Winslow consented to the search of his laptop, that his consent was never withdrawn, that the search was valid, and that the search was conducted in a reasonable amount of time.

2. Winslow challenges the trial court's denial of his motion to suppress, arguing that he did not consent to the search of his laptop and that the State did not have a valid search warrant for the laptop because the warrant had expired, it was issued in a different county than where the evidence was located, and the supporting affidavit lacked probable cause. For the reasons explained below, we conclude that the court did not err in finding that Winslow consented to the search.

It is well settled that a valid consent to a search eliminates the need for either probable cause or a search warrant. In order to justify a warrantless search on the grounds of consent, the State has the burden of proving that the consent was freely and voluntarily given under the totality of the circumstances. It is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced.

(Citations and punctuation omitted.) Brooks v. State , 285 Ga. 424, 425-426, 677 S.E.2d 68 (2009). "[T]he standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of objective reasonableness – what would a typical reasonable person have understood by the exchange between the officer and the suspect?" (Punctuation omitted.) State v. Turner , 304 Ga. 356, 360 (1) (a), 818 S.E.2d 589 (2018). Further, constrained by that limitation, "[o]nce consent is legally obtained, it continues until it is either revoked or withdrawn." Woods v. State , 258 Ga. 540, 542 (2), 371 S.E.2d 865 (1988).

This Court will not disturb a trial court's findings of fact in ruling on a motion to suppress unless they are clearly erroneous.³

See Doleman v. State , 304 Ga. 740, 743 (2), 822 S.E.2d 223 (2018). When reviewing the trial court's findings of fact, "this Court construes the evidence most favorably to upholding the trial court's findings and judgment and will not disturb the trial court's findings of fact if there is any evidence to support them." Id. "[T]he trial court's application of the law to undisputed facts is subject to de novo review...." (Citation omitted.) State v. Palmer , 285 Ga. 75, 78, 673 S.E.2d 237 (2009).

Here, the trial court found that Winslow consented to the search of his bag and all of its contents, including digital information contained on the laptop, and that this consent was never withdrawn. The record contains evidence supporting those findings. Specifically, the evidence shows that Winslow knew that Sergeant Asbell was searching for photographs of children and Winslow gave him permission to check his bag, which contained his laptop. When searching the bag in the presence of Winslow, Sergeant Asbell attempted to search the digital contents of Winslow's laptop, and there is nothing in the record that indicates that Winslow ever complained or told Sergeant Asbell that he could not search the laptop itself. See United States v. Harris , 928 F.2d 1113, 1117-1118 (IV) (11th Cir. 1991) (noting that "importantly, [the defendant] was physically present while [the officer] searched the car, and had ample opportunity to limit the scope of the search, or request that it be discontinued" while concluding that the district court reasonably found that the defendant's consent extended to a search of luggage in the trunk of a car); Lance v. State , 275 Ga. 11, 20 (19) (a), 560 S.E.2d 663 (2002) (rejecting a claim that a search was unlawful because a signed form granting consent to search was too generalized and noting that the appellant "attended the actual search and never withdrew his consent"), disapproved on other grounds by Willis v. State , 304 Ga. 686, 706 (11) (a) n.3, 820 S.E.2d...