Mobley v. State

FINAL COPY

               S18G1546. MOBLEY v. THE STATE.


     BLACKWELL, Justice.

     After he was tried and convicted of two vehicular homicides,

Victor Mobley appealed, claiming that the trial court erred when it

denied his pretrial motion to suppress evidence of data that law

enforcement officers retrieved without a warrant from an electronic

data recording device on his vehicle. In denying the motion to

suppress, the trial court had concluded that, whether or not the

retrieval of the data was an unlawful search and seizure, the

evidence was admissible in any event under the inevitable discovery

doctrine. In Mobley v. State, 

 (

)

(2018), a three-judge panel of the Court of Appeals affirmed, one

judge reasoning that the retrieval of data was not a search and

seizure at all, and two judges agreeing with the trial court that the

inevitable discovery doctrine applied. We issued a writ of certiorari

to review the decision of the Court of Appeals, and for the reasons
that follow, we conclude that the trial court erred when it denied the

motion to suppress. The judgment of the Court of Appeals, therefore,

is reversed.

     1. On the afternoon of December 15, 2014, Mobley was driving

a 2014 Dodge Charger on Flippen Road in Henry County. A 1999

Chevrolet Corvette pulled onto Flippen Road from a private

driveway, and the Charger collided with it. Mobley survived the

crash, but the two occupants of the Corvette did not. At first, the law

enforcement officers who responded to the scene of the collision

found no indication that Mobley had been driving too fast. Indeed,

based on their preliminary assessment of the scene and their initial

discussions with witnesses, the officers thought it likely that the

driver of the Corvette had caused the collision simply by driving into

the path of the Charger.

     But before the vehicles were removed from the scene of the

collision, Sergeant David Gagnon — a supervisor in the Traffic

Division of the Henry County Police Department — directed officers

to retrieve any available data from the airbag control modules

                                  2
(ACM) on the Charger and Corvette.1 Investigator Jason Hatcher

entered the passenger compartments of both vehicles, attached a

crash data retrieval (CDR) device to data ports in the cars, and used

the CDR to download data from the ACMs. The data retrieved from

the Charger indicated that, moments before the collision, Mobley

was driving nearly 100 miles per hour. The officers subsequently

cleared the scene and had the Charger and Corvette both towed to

an impound lot for further investigation.




      1 The record shows that an ACM, also known as an “event data recorder”

or “electronic control module,” is an onboard electronic data recording device
that is designed to preserve certain data about the operation of a vehicle in the
moments preceding certain occurrences, including any event that results in the
deployment of airbags. Although the precise data preserved varies from vehicle
to vehicle, the data retrieved from the Charger in this case included the speed
of the vehicle, the status of the brakes, the status of the brake switch, the time
from maximum deceleration to impact, the time from impact to airbag
deployment, the speed of the engine, the throttle position, the number of
crankshaft revolutions per minute, the status of the driver’s seatbelt, and a
diagnostic indicator about the functioning of the ACM.
       The record in this case also shows that the data recorded by an ACM
upon the happening of some occurrences subsequently may be overwritten, but
the data is permanently recorded — and cannot be overwritten — when the
precipitating event is an airbag deployment. The collision on December 15,
2014, resulted in the deployment of airbags in both the Charger and the
Corvette.

                                        3
      The next day, Investigator Bryan Thornton joined the team of

officers investigating the collision.2 He discussed the case with the

officers who had responded to the crash, visited and personally

inspected the scene of the collision, and then applied for a warrant

to search the Charger and Corvette and to physically remove and

seize the ACMs from both vehicles. When Investigator Thornton

made his application for a warrant, he was aware that Investigator

Hatcher already had retrieved the data from the ACMs and that the

data indicated that the Charger had been traveling at an excessive

rate of speed.3 His application, however, did not rely on the data to

establish probable cause for the seizure of the ACMs. A magistrate



      2 Investigator Thornton was off duty on the day of the collision.


      3  At the hearing on the motion to suppress, Investigator Thornton
testified that he was aware that data already had been retrieved at the scene
of the collision. And although he did not testify explicitly about his knowledge
of the substance of that data at the time he applied for a warrant, he said that
the data was the basis for the conclusion that Mobley committed vehicular
homicide in the first degree (as opposed to some lesser offense or no offense at
all). In the warrant application, Investigator Thornton represented that the
ACMs likely contained evidence of vehicular homicide in the first degree. His
testimony at the hearing implies, therefore, that he had a meaningful
awareness of the substance of the data when he made the warrant application.



                                       4
issued the warrant, officers executed the warrant at the impound

lot, and the ACMs were removed from both vehicles. It appears,

however, that no additional data was retrieved from the ACMs

subsequent to the execution of the warrant.4

     In June 2015, a Henry County grand jury indicted Mobley,

charging him with two counts of vehicular homicide in the first

degree, reckless driving, and speeding. Mobley later filed a motion

pursuant to OCGA § 17-5-30 to suppress the evidence of the data

retrieved without a warrant from the ACM in his Charger, alleging

that the retrieval of data was an unreasonable search and seizure

forbidden by the Fourth Amendment.5 The trial court held an



     4 The warrant authorized the seizure of the ACMs but did not explicitly

authorize any retrieval of data from the ACMs.

     5 Mobley also alleged that the retrieval of data was an unlawful search

and seizure under Article I, Section I, Paragraph XIII of the Georgia
Constitution of 1983. There are cases suggesting, however, that Paragraph
XIII is coextensive with the Fourth Amendment and provides no greater
protection against unreasonable searches and seizures. See, e.g., Wells v.
State, 

 (2) (

) (1986). Whether or not those
cases are right, see Elliott v. State, 

 (II) (C) (

) (2019), Mobley has made no argument based on constitutional text,
context, or history that Paragraph XIII offers greater protection than the
Fourth Amendment. Cf. Grady v. Unified Govt. of Athens-Clarke County, 289

                                      5
evidentiary hearing on the motion in June 2017, and at that hearing,

the prosecuting attorney presented the testimony of Sergeant

Gagnon, Investigator Hatcher, and Investigator Thornton.

      Following the presentation of evidence, the prosecuting

attorney argued that the motion to suppress should be denied for

several reasons. More specifically, she argued that:

    Mobley had no reasonable expectation of privacy with respect
     to the data, and for that reason, the retrieval of that data was
     not a search and seizure for purposes of the Fourth
     Amendment;

    Even if the retrieval of the data was a search and seizure, a
     warrant was unnecessary because the search was directed to
     an automobile;

    Exigent circumstances — namely, the possibility that the data
     could be lost or corrupted when the vehicles were towed away
     from the scene — permitted a warrantless search;

    Investigator Hatcher retrieved the data without a warrant in
     good faith reliance on his understanding that no warrant is
     required to retrieve data from an ACM at the scene of a serious
     crash; and




Ga. 726, 731 (2) (b) n.3 (

) (2011). Accordingly, for the purposes of
this opinion, we will treat Paragraph XIII and the Fourth Amendment as
coextensive, and for the sake of simplicity, we will refer only to the Fourth
Amendment as the basis for the motion to suppress.
                                       6
   The subsequent issuance of a warrant to seize the ACMs made
    the discovery of the data inevitable.

     On the day after the hearing, the trial court entered an order

denying the motion to suppress. Without deciding whether the

retrieval of data at the scene of the collision was a search and seizure

that ordinarily would require a warrant, and without determining

whether any established exception to the warrant requirement

applied, the trial court concluded that the subsequent issuance of a

warrant to seize the ACMs rendered the evidence admissible under

the inevitable discovery exception to the exclusionary rule:

     The Court finds that it does not have to reach the decision
     on the appropriateness of the actions of the officers on the
     scene because a search warrant was obtained the next
     day. [Investigator] Thornton testified that he always
     seeks such a warrant in accidents involving fatalities. A
     review of the warrant application and supporting
     affidavit shows that neither the application nor the
     affidavit relied upon information obtained from the onthe-scene download. The Court finds that the data
     contained in the ACM would have certainly been
     available to law enforcement when the ACMs were
     properly removed from the vehicles pursuant to the
     search warrant[ ], and thus would have inevitably been
     discovered by investigators.



                                   7
Mobley then stipulated to the relevant facts for purposes of a bench

trial, and the trial court found him guilty on all counts. He was

sentenced to concurrent terms of fifteen years — with seven years

to be served in prison, followed by eight years on probation — on two

counts of vehicular homicide in the first degree.6

     Mobley appealed, challenging the denial of his motion to

suppress. The Court of Appeals issued a split panel decision,

rejecting the claim that the trial court erred when it denied the

motion and affirming the judgment of conviction. Judge Mercier

wrote the lead opinion, although she wrote only for herself. Judge

Mercier concluded that the trial court properly denied the motion to

suppress because the data retrieved from the ACM in the Charger

was not of a sort in which Mobley could have a reasonable

expectation of privacy. See Mobley, 346 Ga. App. at 646 (1). Noting

that the data simply reflected the operation and movements of the

Charger in the moments immediately preceding the collision, Judge



     6  The trial court merged the reckless driving and speeding with the
vehicular homicides.
                                   8
Mercier explained that “[a] person traveling in an automobile on

public thoroughfares has no reasonable expectation of privacy in his

movements from one place to another.” Id. at 645 (1) (citation and

punctuation omitted). Although Judge Mercier conceded that “an

outside observer cannot ascertain the information regarding the use

and functioning of a vehicle with the same level of precision as that

captured by the ACM,” she said that most of the information that

could be gleaned from the data was, in fact, ascertainable by any

observer, albeit with less precision:

      For example, a member of the public can observe a
      vehicle’s approximate speed; observe whether a vehicle’s
      brakes are being employed by seeing the vehicle slow
      down or stop or the brake lights come on, [or] by hearing
      the sounds of sudden braking; and observe whether the
      driver is wearing a seatbelt. There is no reasonable
      expectation of privacy in such information because an
      individual knowingly exposes such information to the
      public.

Id. at 646 (1).7 Because Mobley had no reasonable expectation of

privacy in the data, Judge Mercier concluded, its retrieval at the


      7 Judge Mercier distinguished the data retrieved from the ACM in this

case from the data routinely stored on cell phones, Global Positioning Satellite

                                       9
scene of the collision did not amount to a search and seizure and did

not, therefore, implicate the Fourth Amendment. See id. at 644 (1).

      Then-Chief Judge Dillard and Presiding Judge Doyle wrote

separately, both resting their concurrences on the inevitable

discovery exception to the exclusionary rule. Judge Dillard focused

on the testimony of the officers at the hearing on the motion to

suppress about the usual course of investigation in cases involving

a fatality accident. Specifically, Judge Dillard pointed to evidence

that the retrieval of data from ACMs is routine in such

investigations, as well as the testimony of Investigator Thornton

that, if data had not been retrieved from the ACM at the scene, he

would have sought a warrant and obtained the same data later. See

id. at 648-649 (Dillard, C. J., concurring specially).8 Judge Doyle


(GPS) location data, and data reflecting vehicular operations and movements
over much more substantial periods of time. See 346 Ga. App. at 646-647 (1).
She acknowledged that obtaining those other sorts of data would or could
implicate the Fourth Amendment, and she urged “law enforcement officers
faced with an investigative need to obtain data from a vehicle’s ACM to err on
the side of caution by obtaining a search warrant before retrieving that
information.” Id. at 647 (1).

      8   Judge Dillard correctly noted — as we will discuss shortly—that

                                     10
focused more on the warrant that was issued on the day following

the collision, reasoning that it was obtained in the ordinary course

of investigation, it did not rest on any information gleaned from the

data retrieved without a warrant, and the data “inevitably would

have been available to police pursuant to the warrant they later

lawfully obtained.” Id. at 652 (Doyle, P. J., concurring specially).

      Mobley then filed a petition for a writ of certiorari. We granted

his petition not only to consider the alternative grounds upon which

the judges below concluded that the motion to suppress properly was

denied, but also to decide whether OCGA § 17-5-30 categorically

precludes the application of the inevitable discovery doctrine — or

any other exception to the exclusionary rule — in Georgia. We now

proceed to consider these issues in turn, addressing whether the



whether the retrieval of the data amounted to a search and seizure is not
resolved simply by the conclusion that Mobley had no expectation of privacy in
the data, inasmuch as a trespass upon private property may implicate the
Fourth Amendment irrespective of reasonable expectations of privacy. See
Mobley, 346 Ga. App. at 650 (Dillard, C. J., concurring specially). And although
Judge Dillard did not attempt to definitively decide whether the retrieval of
data in this case was a search and seizure, he — like Judge Mercier, see note
7 supra — urged officers in an abundance of caution to obtain warrants to
retrieve ACM data. See id. at 651.
                                      11
retrieval of data from the ACM on the Charger was a search and

seizure that implicates the Fourth Amendment; if so, whether the

retrieval of the data without a warrant was an unreasonable search

and seizure forbidden by the Fourth Amendment; if so, whether

OCGA § 17-5-30 forecloses consideration of any exception to the

exclusionary rule; and if not, whether the inevitable discovery

doctrine is applicable on the facts before us. Along the way, we also

will consider whether any of the other grounds that the State urged

in the trial court for denying the motion to suppress, but upon which

none of the judges below relied, require a remand for further

proceedings in the trial court.

     2. To begin, we consider whether the retrieval of data from the

ACM of the Charger at the scene of the collision was a search and

seizure that implicates the Fourth Amendment. In pertinent part,

the Fourth Amendment provides that “[t]he right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be violated[.]” U. S.

Const. Amend. IV. The State argued in the trial court and the Court

                                  12
of Appeals that the retrieval of data was not a search and seizure at

all because Mobley had no reasonable expectation of privacy in the

data. Although the trial court did not decide that question, Judge

Mercier agreed that Mobley had no reasonable expectation of

privacy in the data, and she concluded as a result that the motion to

suppress properly was denied. In this Court, however, the State

concedes that its argument below was based on a faulty premise.

The State is right to make that concession.

     For much of our history, the Fourth Amendment was

understood to be concerned only with government trespasses upon

the rights of individuals under the common law to be secure in their

“persons, houses, papers, and effects.” See United States v. Jones,

 (II) (A) (

, 181 LE2d 911) (2012). See

also Carpenter v. United States, 

 (II) (A) (

,

201 LE2d 507) (2018). Accordingly, to determine whether a

government act amounted to a search, American courts traditionally

asked whether the act was to “obtain[ ] information by physically

intruding on a constitutionally protected area.” Jones, 

406 (II) (A) n.3. But “[m]ore recently, the [United States Supreme]

Court has recognized that property rights are not the sole measure

of Fourth Amendment violations.” Carpenter, 585 U. S. at ___ (II)

(A) (citation and punctuation omitted). Beginning in Katz v. United

States, 

 (

, 19 LE2d 576) (1967), the Supreme

Court has held in a number of cases that government intrusion into

a private sphere marked by a “reasonable expectation of privacy”

generally qualifies as a search and, therefore, implicates the Fourth

Amendment, irrespective of whether the intrusion amounts to a

trespass upon private rights under the common law. See Carpenter,

585 U.S. at ___ (II) (A). See also Smith v. Maryland, 

 (II) (A) (

, 61 LE2d 220) (1979); Katz, 

 (Harlan, J., concurring).

     In this case, the State pressed an argument in the trial court

and Court of Appeals premised on the misguided notion that

“reasonable expectations of privacy” have supplanted private rights

under the common law as the sole standard by which we determine

whether a government act amounts to a search. But as the United

                                    14
States Supreme Court has made perfectly clear, “the Katz

reasonable-expectation-of-privacy test has been added to, not

substituted for, the common-law trespassory test.” Jones, 

 (II) (A) (emphasis in original). See also 

 (Sotomayor,

J., concurring) (“Katz’s reasonable-expectation-of-privacy test

augmented, but did not displace or diminish, the common-law

trespassory test that preceded it.”). If either standard is satisfied,

the government act in question generally will amount to a search

that implicates the Fourth Amendment. See 

 (II) (A).

     Although Mobley disputes the idea that he had no reasonable

expectation of privacy in the data retrieved from the ACM on the

Charger, we find it unnecessary to resolve that question.9 To retrieve


     9 Even so, we note that it strikes us as a close question. As Judge Mercier

acknowledged in her opinion below, although an observer independently could
ascertain some of the information that readily can be gleaned from the data
recorded on the ACM, an ordinary observer would not be able to ascertain all
of that information, much less with anything approaching the precision
reflected in the ACM data.
       We also note that an ACM often will not be the only electronic data
storage device on a vehicle, and the record does not disclose whether other
devices sometimes may be integrated with ACMs or whether the same data
ports used to access ACMs also can be used to access other devices. To the
extent that other devices contain, for instance, GPS location data or data

                                      15
the data, Investigator Hatcher entered the passenger compartment

of the Charger and connected a CDR device with the ACM by way of

an onboard data port. A personal motor vehicle is plainly among the

“effects” with which the Fourth Amendment — as it historically was

understood — is concerned, see United States v. Chadwick, 

 (4) (

, 53 LE2d 538) (1977), and a physical

intrusion into a personal motor vehicle for the purpose of obtaining

information for a law enforcement investigation generally is a

search for purposes of the Fourth Amendment under the traditional

common law trespass standard. See Jones, 

 (II) (A)

(installation of tracking device on private vehicle and subsequent

use of device to monitor vehicle movements is a search). See also

Florida v. Jardines, 

 (II) (

, 185 LE2d 495)

(2013). The retrieval of data without a warrant at the scene of the




shared between an onboard device and a cellular telephone, accessing data
through an onboard data port may implicate the Fourth Amendment,
regardless of whether anyone has a reasonable expectation of privacy in ACM
data alone, and even in the absence of a trespass under the common law. See,
e.g., Carpenter, 585 U. S. at ___ (III) (obtaining seven days of cell phone
location data from wireless carrier is a search).
                                    16
collision was a search and seizure that implicates the Fourth

Amendment, regardless of any reasonable expectations of privacy.

     3. We next consider whether the retrieval of data was an

unreasonable search and seizure forbidden by the Fourth

Amendment, and we conclude that it was. The Fourth Amendment

evinces a “strong preference for searches conducted pursuant to a

warrant.” Illinois v. Gates, 

 (III) (

, 76

LE2d 527) (1983). Indeed, the constitutional preference for warrants

is so strong that searches and seizures without a warrant “are per

se unreasonable under the Fourth Amendment — subject only to a

few specifically established and well-delineated exceptions.” State v.

Slaughter, 

 (

) (1984) (citation and

punctuation omitted). See also Davis v. State, 

 (1)

(

) (1992). Here, Investigator Hatcher retrieved the

data from the ACM on the Charger at the scene of the collision

without a warrant, and the State has failed to identify any

recognized exception to the warrant requirement that is applicable



                                  17
to the facts that are established in the record.10 Accordingly, the

retrieval of data from the ACM in the Charger at the scene of the


      10 In the  trial court, the State argued two exceptions to the warrant
requirement — the “automobile” exception and the “exigent circumstances”
exception. It is quite clear, however, that the State failed to adduce evidence
at the hearing on the motion to suppress sufficient to establish the predicates
for application of either of those exceptions. The State bears the burden to show
an exception to the warrant requirement, see Kennebrew v. State, 

 (1) (

) (2018), and the record in this case forecloses both
exceptions as a matter of law.
       The automobile exception is inapplicable because the evidence is
undisputed that, at the time Investigator Hatcher retrieved the data from the
crashed Charger, the Charger not only was already in the custody and control
of law enforcement officers but, more importantly, was not operable. See
United States v. Delva, 

 (IV) (A) (11th Cir. 2019)
(automobile exception applies only when vehicle in question is “readily
mobile”). See also State v. Lejeune, 

 (2) (

) (2003)
(automobile exception did not apply where suspect and his cohort did not have
access to vehicle and officers impounded vehicle and had it towed away).
       As for the exigent circumstances exception, the State argued that an
immediate retrieval of data at the scene was necessary because of an imminent
danger that the data would be lost or damaged. The evidence at the hearing on
the motion to suppress, however, fails to establish any real exigency. There
was no evidence that mere delay alone — the time it might take, for instance,
to procure a warrant — would have caused the loss or corruption of any data.
And although the officers said there was a danger of data corruption if the
vehicle were removed from the scene, they clarified that the danger to which
they referred was the risk that some data on the ACM could be overwritten
with subsequent ignition starts — although the data concerning the crash in
this case would not be overwritten, see note 1 supra — as well as a risk that
the ACM itself could be damaged when removed from the vehicle.
Consequently, there also was no evidence in this case that towing the vehicle
from the scene would present a meaningful risk that the data pertaining to
this crash would be lost or corrupted. See Davis, 

 (3) (prospective
loss of evidence is exigent circumstance only if there is threat that evidence
will be destroyed if search is not commenced right away). See also Crocker v.

                                       18
crash without a warrant was an unreasonable search and seizure

that violated the Fourth Amendment.

      4. We turn now to the remedy for this violation of the Fourth

Amendment. In a long line of decisions beginning with Weeks v.

United States, 

 (

, 58 LE 652) (1914), the

United States Supreme Court has developed and refined an

exclusionary rule as the federal constitutional remedy for Fourth

Amendment violations. Although applicable at first only in federal

courts, this exclusionary rule was made applicable in criminal

proceedings in the state courts by the decision in Mapp v. Ohio, 

 (

, 6 LE2d 1081) (1961).




Beatty, 

 (III) (A) (11th Cir. 2018) (exigent circumstances
exception applies when there is danger of “imminent destruction of evidence,”
such that “a reasonable, experienced agent . . . believe[s] that [the] evidence
might be destroyed before a warrant could be secured” (citation and
punctuation omitted)).
       We recognize that neither the trial court nor the Court of Appeals opined
on the applicability of these exceptions. But because the evidence presented at
the hearing on the motion to suppress forecloses both exceptions as a matter
of law, there is no reason for us to remand for consideration of these exceptions.
We caution, however, that these exceptions perhaps could apply to the retrieval
of ACM data at the scene of an accident in a case with different facts and a
different record. Our decision today is based on the record before us.
                                       19
     “When evidence is obtained in violation of the Fourth

Amendment, the judicially developed exclusionary rule usually

precludes its use in a criminal proceeding against the victim of the

illegal search and seizure.” Illinois v. Krull, 

 (II)

(A) (

, 94 LE2d 364) (1987) (citations omitted). “The

purpose of the exclusionary rule is not to redress the injury to the

privacy of the search victim,” however, but instead “to deter future

unlawful police conduct and thereby effectuate the guarantee of the

Fourth Amendment against unreasonable searches and seizures.”

United States v. Calandra, 

 (III) (

, 38

LE2d    561)   (1974).   Consequently,     the   judicially   developed

exclusionary rule has been limited to “those situations in which its

remedial purpose is effectively advanced,” Krull, 

 (II)

(A), and the courts have identified a number of exceptions to the

usual rule of exclusion. At the urging of the State, the trial court and

two judges of the Court of Appeals concluded that one such exception

— the inevitable discovery exception — applies here and would allow

the admission into evidence of the data retrieved from the Charger

                                  20
at the scene of the collision, even if its retrieval violated the Fourth

Amendment. Mobley says that this conclusion was error.

     (a) Before we address whether the judges below were right to

conclude that the inevitable discovery exception applies on the facts

of this case, we must consider a threshold question. Mobley contends

that OCGA § 17-5-30 is a statutory exclusionary rule that — unlike

its federal counterpart, which developed and has been refined

judicially — admits of no exceptions. According to Mobley, OCGA §

17-5-30 categorically precludes the recognition in Georgia of any

exception to the exclusionary rule, and in support of this argument,

he relies principally on our decision in Gary v. State, 

(

) (1992). And because the inevitable discovery

exception is not cognizable in Georgia, Mobley says, we need not

decide whether the facts of this case fit within the exception. For the

reasons that follow, we are unpersuaded.

     As we have explained before, “[w]hen we consider the meaning

of a statute, we must presume that the General Assembly meant

what it said and said what it meant.” Deal v. Coleman, 

,

                                  21
172 (1) (a) (

) (2013) (citation and punctuation omitted).

“To that end, we must afford the statutory text its plain and ordinary

meaning, we must view the statutory text in the context in which it

appears, and we must read the statutory text in its most natural and

reasonable way, as an ordinary speaker of the English language

would.” 

 (1) (a) (citations and punctuation omitted).

“The common and customary usages of the words are important, but

so is their context.” Zaldivar v. Prickett, 

 (1) (

) (2015) (citation and punctuation omitted). “For context,

we may look to other provisions of the same statute, the structure

and history of the whole statute, and the other law — constitutional,

statutory, and common law alike — that forms the legal background

of the statutory provision in question.” May v. State, 

 (

) (2014) (citations omitted). Our consideration

of OCGA § 17-5-30 begins with a brief discussion of the legal context

in which the statute was adopted.

     Before Mapp, there was no exclusionary rule in Georgia courts

for unlawful searches and seizures. As early as 1897, this Court

                                 22
squarely rejected an exclusionary rule as a matter of state law in

Williams v. State, 

 (

) (1897), a decision

that we reaffirmed in Calhoun v. State, 

 (

)

(1916). Although Georgia law provided other remedies for unlawful

searches and seizures, the exclusion of evidence in criminal

proceedings was not among them.11 After Mapp was decided, the

Georgia courts promptly acknowledged the federal exclusionary

rule. See, e.g., Raif v. State, 

 (1) (

) (1964). Our laws of criminal procedure, however, were not

designed to facilitate the application of such a rule. In particular,

the trial courts in Georgia had no procedural mechanism by which

they properly could entertain and resolve a motion to suppress

evidence obtained in violation of the Fourth Amendment prior to

trial. See generally Donald E. Wilkes, Jr., “A Most Deplorable




     11 See, e.g., Shafer v. State, 

 (2) (

) (1942)

(execution of search warrant issued without probable cause is a trespass);
Smoot v. State, 

 (

) (1925) (citizen may resist
execution of unlawful search warrant); Walker v. Whittle, 

 (1) (

) (1951) (aggrieved homeowner has right of action in
tort for unlawful arrest inside home).
                                    23
Paradox”: Admitting Illegally Obtained Evidence in Georgia, 

, 130-131 (1976). See also J. Robert Sparks, Search and

Seizure, 1 GA. ST. B.J. 427, 429 (1965).

     Five years after Mapp, the General Assembly enacted the

Search and Seizure Act of 1966, “[a]n Act to provide procedures for

searches and seizures and for suppression of evidence illegally

seized.” Ga. L. 1966, p. 567. Section 13 of the Act — now codified in

the Criminal Procedure Code as OCGA § 17-5-3012 — established a

procedure for the filing, consideration, and resolution of motions to

suppress. In pertinent part, it provides:

           (a) A defendant aggrieved by an unlawful search and
     seizure may move the court for the return of property, the
     possession of which is not otherwise unlawful, and to
     suppress as evidence anything so obtained on the grounds
     that:
                 (1) The search and seizure without a
           warrant was illegal; or
                 (2) The search and seizure with a warrant
           was illegal because the warrant is insufficient
           on its face, there was not probable cause for the
           issuance of the warrant, or the warrant was
           illegally executed.
           (b) The motion shall be in writing and state facts
     showing that the search and seizure were unlawful. The

     12 The statute has not been amended since its original enactment in 1966.

                                     24
    judge shall receive evidence out of the presence of the jury
    on any issue of fact necessary to determine the motion;
    the burden of proving that the search and seizure were
    lawful shall be on the state. If the motion is granted the
    property shall be restored, unless otherwise subject to
    lawful detention, and it shall not be admissible in
    evidence against the movant in any trial.
                                ...
The text of OCGA § 17-5-30 was borrowed substantially from

Federal Rule of Criminal Procedure 41 (e),13 something of which our

Court of Appeals took notice shortly after the enactment of the




        13 When OCGA § 17-5-30 was enacted, Rule 41 (e) provided in pertinent

part:
        A person aggrieved by an unlawful search and seizure may move
        the district court for the district in which the property was
        seized for the return of the property and to suppress for the use
        as evidence anything so obtained on the ground that (1) the
        property was illegally seized without a warrant, or (2) the
        warrant is insufficient on its face, or (3) the property seized is
        not that described in the warrant, or (4) there was not probable
        cause for believing the existence of the grounds on which the
        warrant was issued, or (5) the warrant was illegally executed.
        The judge shall receive evidence on any issue of fact necessary
        to the decision of the motion. If the motion is granted the
        property shall be restored unless otherwise subject to lawful
        detention and it shall not be admissible in evidence at any
        hearing or trial. . . .
Fed. R. Crim. P. 41 (e) (1964). See also John H. Harper, Evidence—Illegally
Obtained by State Officers, Inadmissible in Federal and State Courts, 23 Ga.
B.J. 383, 386-387 (1961) (discussing Rule 41 (e) and the need for similar
provision in Georgia in the wake of Mapp).



                                      25
statute. See Thomas v. State, 

 (2) (

) (1968). And that version of Rule 41 (e) was understood to be “no

broader than the constitutional [exclusionary] rule” and not to

amount to “a statutory expansion of the exclusionary rule.”14

Calandra, 

 (III) n.6 (citing Alderman v. United

States, 

 (

, 22 LE2d 176) (1969), and Jones v.

United States, 

 (

, 4 LE2d 697) (1960)).

     Mobley urges that OCGA § 17-5-30 should be understood to

absolutely and without exception require the suppression of any

evidence obtained by way of any search and seizure that is described

in paragraph (a) (1) or (a) (2) of the statute — a search without a

warrant that is unlawful for any reason, a search pursuant to a

warrant that is unlawful because “the warrant is insufficient on its

face,” a search pursuant to a warrant that is unlawful because “there

was not probable cause for the issuance of the warrant,” or a search




     14 We note that the inevitable discovery exception had been recognized

in the federal courts — in which Rule 41 (e) was the law — before our General
Assembly borrowed from Rule 41 (e) to enact OCGA § 17-5-30. See, e.g., Wayne
v. United States, 318 F2d 205, 209 (3) (a) (D.C. Cir. 1963).
                                     26
pursuant to a warrant that is “illegally executed” — irrespective of

whether the federal constitutional exclusionary rule would require

its suppression. Read without regard to its context, perhaps that

would be the most reasonable understanding of OCGA § 17-5-30,

although it is not the only way in which the statute reasonably could

be understood.15 But we do not endeavor to give meaning to statutes




      15  The statute provides that the circumstances enumerated in
paragraphs (a) (1) and (a) (2) are “grounds” for “[a] defendant aggrieved by an
unlawful search and seizure” to file a motion to suppress. Perhaps the statute
could be understood to mean that those circumstances are, without more, also
grounds for a court to grant such a motion, although the statute does not say
so explicitly. But other statutory exclusionary rules are far less equivocal. See,
e.g., OCGA §§ 16-11-67 (“No evidence obtained in a manner which violates any
of the provisions of this part shall be admissible in any court of this state except
to prove violations of this part.”), 24-8-824 (“To make a confession admissible,
it shall have been made voluntarily, without being induced by another by the
slightest hope of benefit or remotest fear of injury.”).
       Moreover, even without an appreciation of the broader context of OCGA
§ 17-5-30, it is not unreasonable to understand the provisions of subsection (a)
in a more limited sense to mean just what they say — that the enumerated
circumstances are merely “grounds” for the filing of a motion to suppress. After
all, although a defendant aggrieved by a search and seizure reasonably can be
made responsible for ascertaining whether the search and seizure was
unlawful — and put to the burden of filing a motion to suppress on the ground
that it was — the defendant commonly will be without knowledge of the sorts
of circumstances that commonly form the basis for the established exceptions
to the judicially developed exclusionary rule; it would, therefore, make little
sense to limit the grounds upon which a motion properly can be filed by
reference to those circumstances.
                                        27
without consideration of their context. See Zaldivar, 

(1).

       The legal context of OCGA § 17-5-30 points to a different

understanding. The Georgia courts consistently rejected an

exclusionary rule for violations of the Fourth Amendment until

Mapp left our courts with no choice but to recognize such a rule. The

existing laws of criminal procedure, however, made no provision for

a procedure by which the exclusionary rule could be applied before

trial, a problem that was widely acknowledged in the contemporary

legal scholarship. Within a short time, the General Assembly acted

to adopt a law “to provide procedures for search and seizures and for

the suppression of evidence,” Ga. L. 1966, p. 567 (emphasis

supplied), and in particular, to provide “procedures . . . for the

suppression of evidence,” the General Assembly borrowed from

Federal Rule of Evidence 41 (e), a rule that was understood to confer

no greater right to exclude evidence than the constitutional

exclusionary rule. This context leads to the conclusion that OCGA §

17-5-30 is most naturally and reasonably understood to be merely a

                                 28
procedural statute, establishing a mechanism for the application of

an exclusionary rule, the scope and limits of which must be

ascertained from the decisional law by which it developed.

     Against this understanding of the statute, however, stands our

decision in Gary. In that case, we were confronted with evidence

obtained by way of a search pursuant to a warrant that was issued

without probable cause. See Gary, 

. The Court of

Appeals had held that the evidence nevertheless was admissible

under an exception to the exclusionary rule for warrants issued

without probable cause but executed by officers relying in good faith

on the validity of the warrants, an exception that the United States

Supreme Court had adopted in United States v. Leon, 

(

, 82 LE2d 677) (1984). See Gary, 

.16

     In Gary, we issued a writ of certiorari and reversed, holding

that recognition of the Leon exception is foreclosed in Georgia by

OCGA § 17-5-30. We began our analysis of the statute with the


     16 See also State v. Gary, 

 (

) (1991).




                                    29
notion that it was enacted “‘to provide for searches and seizures and

for suppression of evidence illegally seized,’”17 

 and we then said

(without further analysis) that the adoption of the statute reflected

the determination of the General Assembly to “impose greater

requirements upon its law enforcement officers than that required

by the United States Constitution, as interpreted by the U. S.

Supreme Court.” 

. After reciting the relevant (in the

context of that case) provisions of OCGA § 17-5-30 (a) (2) and (b), we

summarily concluded: “OCGA § 17-5-30 is the legislature’s

unequivocal expression of its desire that evidence seized by means

of a warrant that is not supported by probable cause be suppressed.”

Id. at 575. From this broad understanding of the statute, we then

reasoned that the statute more specifically forecloses the application

in Georgia of the Leon exception. Id. at 575-576.18 We gave no



      17 Notably, Gary misquoted the preamble to the Search and Seizure Act

of 1966, omitting the word “procedures.” Compare Ga. L. 1966, p. 567 (“An Act
to provide procedures for searches and seizures and for suppression of evidence
illegally seized . . . .”).

      18 In a footnote, we said that “[t]he Leon good-faith exception has been



                                      30
rejected by the appellate courts of other states which have statutory
exclusionary rules.” Gary, 

 n.7. The cases cited in the Gary
footnote to support this proposition, however, hardly support the notion that
exceptions to the exclusionary rule are inconsistent with OCGA § 17-5-30.
Indeed, each of the cited cases from other jurisdictions either involved a statute
requiring suppression in far more unequivocal terms than OCGA § 17-5-30 or
the application of an exclusionary rule developed judicially under a state
constitution or statute. See, e.g., State v. Garcia, 547 S2d 628, 630 (Fla. 1989)
(rejecting Leon exception in face of statute providing that, “[w]henever any
wire or oral communication has been intercepted, no part of the contents of
such communication and no evidence derived therefrom may be received in
evidence in any trial, hearing, or other proceeding in or before any court . . . if
the disclosure of the information would be in violation of this chapter”(citation
and punctuation omitted)); Commonwealth v. Upton, 

(1), 554 (2) (Mass. 1985) (relying on exclusionary rule adopted judicially in
Commonwealth v. Monosson, 

 (Mass. 1966), for violations of
statute prescribing necessary form and content of applications for search
warrants); State v. Carter, 

 (N.C. 1988) (construing
exclusionary rule recognized judicially for violations of state constitution as
inconsistent with Leon exception); Davis v. State, 

 (Tex.
App. 1992) (rejecting Leon exception as incompatible with Tex. Code Crim.
Proc. art. 38.23 (a), which provides that “[n]o evidence obtained by an officer
or other person in violation of any provisions of the Constitution or laws of the
State of Texas or of the Constitution or laws of the United States of America,
shall be admitted in evidence against the accused on the trial of any criminal
case”).
       Remarkably, Gary did not cite State v. Marsala, 

 (Conn.
1990), a case in which the Connecticut Supreme Court — two years before Gary
was decided — considered whether the good faith exception was compatible
with a state statute governing motions to suppress. Like OCGA § 17-5-30, the
Connecticut statute was adopted in the wake of Mapp — in part to address the
lack of any procedural mechanism in Connecticut for addressing motions to
suppress before trial — and was based in significant part on former Federal
Rule of Criminal Procedure 41 (e). See Marsala, 

 (I).
Considering the context of the statute, the Connecticut Supreme Court
concluded that it was “procedural rather than substantive and, therefore,
do[es] not define the extent of the exclusionary rule under Connecticut law.”

 (I).

                                        31
consideration in Gary to the legal context of OCGA § 17-5-30,

including the background law of Georgia at the time of its enactment

and the understanding of Rule 41 (e), from which its provisions were

substantially borrowed. Because Gary failed to consider this

important context, we conclude that its broader reasoning is

unsound, and its understanding of OCGA § 17-5-30 is simply

incorrect.

      The question, therefore, is what to do with Gary. In the nearly

30 years since that decision, this Court has relied on it in only three

cases to reject an exception to the exclusionary rule, all involving

claims that evidence obtained by officers relying in good faith on the

validity of a search warrant should be admitted, notwithstanding

the unlawfulness of the search and seizure.19 See Beck v. State, 

 (1) (

) (2008) (officers relied on search

warrant issued by person not authorized to issue warrants); Harper

v. State, 

 (2) (

) (2008) (officers relied


      19 In a handful of other cases, we have cited Gary in passing or for other

propositions. In none of those other cases have we relied on Gary and its
construction of OCGA § 17-5-30 to reject an exception to the exclusionary rule.
                                      32
on search warrant issued without probable cause); Miley v. State,

 (

) (2005) (officers relied on search

warrant issued without probable cause). We never have extended

Gary and its construction of OCGA § 17-5-30 to foreclose application

of any other established exception to the exclusionary rule. To the

contrary, we and the Court of Appeals have applied other exceptions

in a number of cases without mention of Gary. See, e.g., Teal v.

State, 

 (2) (

) (2007) (inevitable

discovery exception); Taylor v. State, 

 (3) (

) (2001) (inevitable discovery exception); Stephens v. State,

, 691-693 (2) (

) (2018) (independent

source exception); Pinkney v. State, 

 (2) (

) (2015) (independent source exception); Ansley v. State,

 (1) (b) (

) (2013) (independent

source exception); Schweitzer v. State, 

 (

) (2013) (inevitable discovery exception); Williams v. State,

 (2) (

) (2011) (inevitable discovery

exception); Cunningham v. State, 

 (

) (2007) (inevitable discovery exception). And before this case, no

case appears to have ever suggested that OCGA § 17-5-30 could be

understood to foreclose the inevitable discovery or any other

exception, although we must concede in fairness to Mobley that a

logical extension of the broad reasoning of Gary — that OCGA § 17-

5-30 is a statutory exclusionary rule that admits of no exceptions —

would seemingly lead to that conclusion.20


      20 In Harvey v. State, 

 (

) (1996), this Court was

confronted with a motion to suppress evidence obtained in a search incident to
arrest, where the arrest was premised on the reliance of an officer in good faith
on the existence of a bench warrant. The officer had been told that the bench
warrant was outstanding and valid, but in fact, it had been recalled prior to
the arrest. See 

. The trial court denied the motion to suppress, the
Court of Appeals affirmed, and after issuing a writ of certiorari, this Court
affirmed. We did so by acknowledging that Gary foreclosed the application of
the Leon exception, see 

, but we then re-characterized the issue
presented as whether the officer had probable cause to believe that the accused
had committed a crime, so as to authorize an arrest without a warrant (rather
than the good faith reliance of the officer on the existence of a warrant). See 

And we held that his belief in the existence of the bench warrant gave the
officer probable cause. See 

. The analysis in Harvey seems
strained, especially since a bench warrant issued for a failure to appear in court
is no ground for believing that the subject of the bench warrant has committed
any crime (other than the crime for which he already was arrested and for
which he subsequently failed to appear in court). The author of Gary dissented
in Harvey, suggesting that the Harvey decision “amount[ed] to a sub silentio
overruling of Gary.” 

 (Benham, C. J., dissenting). We agree that
Harvey could be fairly understood to imply a retreat from the broad reasoning
of Gary. We note, however, that under our view of OCGA § 17-5-30, the Harvey
court likely would have reached the same result but without the need to recharacterize the issue as it did.
                                        34
     Gary involved the admission of evidence obtained by way of a

search conducted by officers relying in good faith on the validity of a

search warrant issued without probable cause, and the three cases

in which we have relied on Gary all involved officers relying in good

faith on the validity of search warrants. Whether the holdings of

Gary and its progeny should be squarely overruled is a question that

would require a consideration of the doctrine of stare decisis, see

State v. Jackson, 

 (5) (

) (2010), but

that is not a question that we must answer to resolve this case. This

case does not involve good faith reliance on the validity of a search

warrant, and we never have relied on the broader reasoning of Gary

to foreclose consideration of an exception to the exclusionary rule in

any other context, including with respect to the inevitable discovery

exception. Today, we disavow the unsound reasoning of Gary, hold

that it does not extend to any context other than the reliance of an

officer in good faith upon the validity of a search warrant, and

conclude that, in all other contexts, OCGA § 17-5-30 means what it

most naturally and reasonably is understood in context to mean —

                                  35
it establishes a procedure for applying the exclusionary rule but does

not itself require the suppression of any evidence. It does not,

therefore, categorically foreclose the application of any other

exception to the exclusionary rule.21

      (b) We turn at last to consider whether the inevitable discovery

exception applies on the facts of this case, and we conclude that it

does not. This Court has explained that, for the inevitable discovery

exception to apply,

      there must be a reasonable probability that the evidence
      in question would have been discovered by lawful means,
      and the prosecution must demonstrate that the lawful
      means which made discovery inevitable were possessed
      by the police and were being actively pursued prior to the
      occurrence of the illegal conduct.

Taylor v. State, 

 (3) (

) (2001)

(citation and punctuation omitted), disapproved in part on other




      21 Whether stare decisis compels the retention of the particular holding

in Gary that OCGA § 17-5-30 forecloses application of the Leon exception,
notwithstanding the unsound reasoning from which that holding followed, is a
question that will have to await a case involving the reliance of an officer in
good faith on the validity of a search warrant.



                                      36
grounds in State v. Chulpayev, 

 (3) (b) (

) (2015).22 See also Teal v. State, 

 (2) (

) (2007). In this case, the State urges that, if Investigator Hatcher

had not retrieved the ACM data from the Charger at the scene of the

collision, the data would have been discovered in any event pursuant

to a search warrant, as illustrated by the search warrant that

Investigator Thornton obtained on the day after the crash.

     The State is right that a search warrant issued upon probable

cause may be a “lawful means” to discover evidence. See Teal, 

 (2). See also United States v. Delva, 

, 1245-

1246 (IV) (B) (11th Cir. 2019). And for the purposes of this opinion,

we accept that the investigating officers had the requisite probable

cause to obtain a warrant even before Investigator Hatcher

retrieved the data from the Charger at the scene of the collision. The

record in this case, however, does not show that the officers were

“actively pursu[ing]” a search warrant at the time Investigator


     22 In Taylor, we borrowed this standard from the United States Court of

Appeals for the Eleventh Circuit. See United States v. Terzado-Madruga, 897
F2d 1099, 1114 (11th Cir. 1990).
                                    37
Hatcher retrieved the data without a warrant. Absent proof that the

officers were actively pursuing a warrant at that point in time, the

mere fact that Investigator Thornton actually obtained a warrant on

the following day is not enough to bring this case within the

inevitable discovery exception. See United States v. Satterfield, 743

F2d 827, 846 (IV) (B) (11th Cir. 1984). Cf. Delva, 

(IV) (B) (“Here, in addition to obtaining a warrant to search the

Mercedes later that same day, the Agents were actively pursuing

that warrant before they initially searched the Mercedes.”

(Emphasis supplied)). Indeed, “[b]ecause a valid search warrant

nearly always can be obtained after a search has occurred,” allowing

law enforcement to use a warrant from after-the-fact to justify an

earlier search would threaten to vitiate the warrant requirement.

Satterfield, 743 F2d at 846 (IV) (B). Cf. United States v. Johnson,

 (III) (A) (11th Cir. 2015).

     There is no evidence that any of the investigating officers

applied for a warrant, were preparing an application for a warrant,

or even were contemplating a warrant before Investigator Hatcher

                                 38
retrieved the data. Nor is there evidence that the Henry County

Police Department has a policy, standard operating procedure, or

consistent practice that leads officers to always or even routinely

obtain search warrants for ACM data in the investigation of fatality

crashes. See Davis, 

 (4) (“The state has not shown that

a warrant would have been sought as part of the inevitable, routine

procedure of the Douglas County Sheriff’s Department [in these

circumstances].”). To the contrary, the officers in this case testified

that the most common practice in such investigations is to retrieve

ACM data at the scene of a crash without a warrant. Not one of the

officers suggested that they usually obtain warrants in cases like

this one.

     In its order denying the motion to suppress, the trial court

concluded that an application for a warrant was inevitable, a

conclusion based entirely on its finding that Investigator Thornton

“always seeks such a warrant in accidents involving fatalities.”

Investigator Thornton, however, was off duty on the day of the

collision, and there is no evidence that his involvement in the case

                                  39
was even contemplated until the next day. That a particular officer

always seeks a search warrant in similar circumstances cannot

logically show that a warrant was inevitable at a point in time prior

to that officer becoming involved in the case. Equally important,

Investigator Thornton did not actually testify that he always obtains

warrants in fatality crash investigations. To the contrary, he said

that he always retrieves ACM data in such investigations, most

commonly without a warrant at the scene of the crash. Investigator

Thornton testified that, if ACM data could not be retrieved at the

scene, he would seek a warrant, but that hardly suggests that

warrants always or usually are sought, considering that the routine

practice is to retrieve data at the scene without a warrant. 23 The

finding of the trial court that Investigator Thornton always seeks a


      23 On the day after the collision, Investigator Thornton sought a warrant

to remove and seize the ACMs from both vehicles, but he did not explain at the
hearing on the motion to suppress why he had done so. It could not have been
to retrieve data from the ACMs, considering that he knew that the data already
had been retrieved, and after the warrant was executed, no further effort was
made to retrieve data from the ACMs. Perhaps he sought the warrant simply
to ensure the preservation of the data in its original form pending resolution
of a prosecution that he already knew was likely to follow from the
investigation of the crash.

                                      40
warrant in cases like this one is clearly erroneous. See State v.

Rosenbaum, 

 (2) (

) (2019) (when this

Court reviews a ruling on a motion to suppress, we defer to the

factual findings of the trial court unless clearly erroneous).

      The State has failed to lay an evidentiary foundation for the

application of the inevitable discovery exception in this case. And

the State has failed to identify any other established exception to

the exclusionary rule that is applicable to the facts as shown by the

record in this case.24 Accordingly, the usual rule of exclusion holds,

and the trial court should have granted the motion to suppress. The


      24 At the suppression hearing in the trial court, the prosecuting attorney

argued that the good faith exception to the exclusionary rule that was
recognized in Davis v. United States, 

 (

, 180 LE2d
285) (2011), is applicable in this case. To begin, we note that the Davis good
faith exception is distinct from the Leon good faith exception and is not,
therefore, foreclosed by the specific holding of Gary. Even so, the Davis
exception does not apply in this case. The Davis exception only applies to
“searches conducted in objectively reasonable reliance on binding appellate
precedent.” 

. Here, the record reflects that Investigator
Hatcher, Sergeant Gagnon, and Investigator Thornton sincerely believed that
they did not need a warrant to download ACM data at the scene of a serious
crash, a belief that was based on advice that they received in the course of their
law enforcement training, as well as legal advice that the Henry County Police
Department apparently received at some point from an assistant district
attorney. It appears that they were not well advised. Even so, reliance on
training and the advice of a prosecuting attorney does not show that the officer
reasonably relied on “binding appellate precedent.”
                                       41
judgment of the Court of Appeals, affirming the decision of the trial

court, is reversed.

     Judgment reversed. All the Justices concur, except Melton, C.
J., who concurs in judgment only.




                      DECIDED OCTOBER 21, 2019.
       Certiorari to the Court of Appeals of Georgia — 

.
     Brandon A. Bullard, James C. Bonner, Jr., Margaret E.
Bullard, for appellant.
     Darius T. Pattillo, District Attorney, Sharon L. Hopkins,
Assistant District Attorney, for appellee.
     Sean J. Young, Kosha S. Tucker, Nathan F. Wessler, Jennifer
S. Granick, Riana Pfefferkorn, amici curiae.




                                 42