Johnson v. State

FINAL COPY

                S20A1289. JOHNSON v. THE STATE.


      WARREN, Justice.

      Sharod Johnson was convicted of malice murder and other

crimes in connection with a string of armed robberies that

culminated in the shooting death of David Lee Casto.1 On appeal,


      1 The crimes occurred on August 25 to 26 and September 5, 2010.         On
March 15, 2011, a Forsyth County grand jury issued a multiple-count
indictment against Johnson and four of his accomplices. The indictment
charged Johnson with armed robbery of Alicia Richard, aggravated assault of
Kenneth Barrett, armed robbery of Suzette McCrary, burglary of an Ingles
store, armed robbery of Casto, armed robbery of Rosa Marie Turpin,
aggravated assault of Turpin, malice murder of Casto, felony murder of Casto
predicated on armed robbery of Turpin, and felony murder of Casto predicated
on burglary. Johnson was tried separately in August 2013, and the jury found
him guilty of all counts. The trial court sentenced Johnson to life in prison for
malice murder, a consecutive term of life imprisonment for the armed robbery
of Casto, a consecutive term of 20 years for the aggravated assault of Turpin,
two concurrent terms of 20 years each for the armed robberies of Richard and
McCrary, and a concurrent term of 20 years for the aggravated assault of
Barrett. The remaining counts were merged or vacated by operation of law.
Although the trial court erred in merging the burglary count with one of the
felony murder counts, see Carter v. State, 

 (

) (2016),
this merger error benefits Johnson, and the State has not raised it by crossappeal, so we decline to correct the error. See Dixon v. State, 

(

) (2017). Johnson filed a timely motion for new trial on August
22, 2013, and he amended it through new counsel on November 28, 2018. After
a hearing, the trial court denied the motion, as amended, on June 24, 2019.
Johnson timely appealed, and this case was docketed in this Court to the
August 2020 term and submitted for a decision on the briefs.
Johnson contends that the trial court erred when it failed to strike

the testimony of a State witness and that Johnson was deprived of

the effective assistance of counsel with regard to that witness.

Johnson also contends that the trial court erred when it denied his

motions to suppress evidence related to searches of his cell phone,

home, and car. Seeing no reversible error, we affirm.

     1. Viewed in the light most favorable to the verdicts, the

evidence presented at trial showed that Johnson and his co-indictees

— Tyrice Adside, Travarius Jackson, Nakitta Holmes, and Darren

Slayton — were friends or acquaintances and spent time together in

the summer of 2010. In late August and early September 2010,

Johnson and the others engaged in three separate armed robberies,

as detailed below.

     The Waffle House Robbery.

     In August 2010, Johnson, Adside, and Slayton decided to rob a

Waffle House in Forsyth County. To carry out the robbery, the men

used Johnson’s shotgun (which he kept in the trunk of his car) and

a .40 caliber Glock handgun that they borrowed from another

                                 2
acquaintance, Ardansac McMillan. Around 1:00 a.m. on August 25,

the trio drove to the Waffle House in Johnson’s car and parked at

the back of the building. Johnson and Adside then got out, jumped

over a fence, and ran inside the Waffle House dressed in all-black

clothing and with their faces covered with t-shirts. Adside carried

the shotgun and Johnson carried the handgun, though both weapons

were unloaded at the time.       Inside the restaurant, the men

encountered a server, Alicia Richard, and the cook, Kenneth Barrett.

Adside threatened Richard with the shotgun and had her give him

money from the cash register. Meanwhile, Johnson pointed a gun

at Barrett and demanded that he open the safe. When Barrett said

he was unable to do so, Johnson threatened to kill him. Adside and

Johnson then took the money from the cash register and left.

     The Chevron Robbery.

     After robbing the Waffle House, Johnson and his accomplices

decided to rob a Chevron gas station on Buford Highway, where

Adside had been a customer and “knew the lady inside.” This time,

five men participated in the robbery: Johnson, Adside, Jackson,

                                 3
Holmes, and Slayton. Early in the morning of August 26, the group

drove to the gas station in Johnson’s car and parked behind the

building. Adside stayed in the car while Johnson and the others

went inside the gas station, where Suzette McCrary was working

the night shift as a cashier. Holmes carried Johnson’s shotgun, and

Jackson carried McMillan’s handgun.       The four men confronted

McCrary, forced her at gunpoint to give them cash from the

registers, and stole some cigarettes. After the robbery, on the way

home, Slayton and Jackson referred to Holmes as a “beast” because

he was “good at what he does,” and Johnson and the others laughed.

     The Ingles Robbery.

     After the Chevron robbery, Johnson suggested to Adside and

the others that they rob the Ingles grocery store where Johnson

worked as a cashier; Johnson said the robbery would net “a lot of

money” — over $20,000 — and would be easy to accomplish.

Johnson informed the group that a security guard would be present,

so the men devised a plan to “tie him up and put him in the freezer,”

and Holmes said that “if the guard tried to buck or anything, he was

                                 4
going to shoot him.” The night before the robbery, Johnson, along

with Adside and Jackson, drove by Ingles to “case the place.”

Afterward, the trio drove to a nearby Waffle House, where they

ordered a drink.

     On the evening of September 5, after Johnson began his shift

at Ingles, Adside, Jackson, and Holmes drove to Ingles in Johnson’s

car, parked in the back of the store near the loading dock, and texted

Johnson to alert him of their arrival. Johnson opened the back door,

let the others inside, and told them to wait inside the meat freezer,

though he moved the men to the milk cooler when Adside

complained that the freezer was too cold. As they had planned,

Holmes carried the shotgun, and Jackson carried the handgun.

     Around 11:00 p.m., only three employees remained at the store:

Johnson, Casto (the security guard), and Rosa Marie Turpin (the

assistant manager). When all three employees went to the back of

the store to check the security door, Adside and his group came out

of the cooler with their faces covered, pointed their guns at the

employees, and told them to get down. The men then placed tape on

                                  5
Casto’s eyes and wrists and removed his gun and bulletproof vest.

When Holmes took the guard’s gun, Adside took the shotgun Holmes

had been carrying. Adside then placed Casto in the freezer and

closed the door, while Holmes and Jackson went to the front of the

store and forced Turpin at gunpoint to give them cash from the safe

and the self-check-out counters. As the money was being retrieved,

Holmes went to the back of the store and shot Casto, who was still

tied up in the freezer.

      After collecting the money and some cigarettes, Adside and his

group took Johnson and Turpin to the back of the store and placed

tape on Turpin’s eyes and wrists, while Johnson did the same to

himself. The trio then moved Turpin and Johnson into the freezer

where Casto was lying, though Turpin did not know at the time that

Casto had been shot or that he was in the freezer with them. Adside,

Holmes, and Jackson left the store and drove to McMillan’s house in

Buford, where they split the proceeds of the robbery. Meanwhile,

Johnson was able to free himself relatively quickly, and Turpin —

not realizing at the time that he was involved in the robbery —

                                 6
asked him to call the police. Johnson did not want to use his own

phone, however, and suggested that Turpin use hers. When the

police arrived on the scene, they found Casto lying in the back of the

freezer and determined that he was deceased. An autopsy revealed

that Casto died from a close-range gunshot wound to the head.2

     Johnson 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 Johnson was guilty of the crimes for




     2  Much of the evidence against Johnson came from the testimony of
Adside, who participated in all three robberies, and the testimony of the
robbery victims: Richard, Barrett, McCrary, and Turpin. The State also
presented the testimony of Johnson’s friend, Adaria Cooper, who testified that
she had seen a shotgun in the trunk of Johnson’s car, that she was present
when Adside, Holmes, and Jackson arrived at McMillan’s house after the
Ingles robbery, and that the men discussed the robbery and flaunted the
proceeds.



                                      7
which he was convicted. See Jackson v. Virginia, 

, 318-

319 (

, 61 LE2d 560) (1979).3

         2. Johnson contends that the trial court erred when it failed to

strike the testimony of Darren Slayton after he invoked the Fifth

Amendment privilege against self-incrimination and refused to

testify further at trial. Slayton had pleaded guilty to two charges of

armed robbery for his involvement in the Waffle House and Chevron

robberies, and he was called by the State as a witness at Johnson’s

trial.     The prosecutor began the direct examination by eliciting

background information from Slayton. Among other things, Slayton

testified that he had introduced Adside to Johnson, that Slayton had

talked to Johnson “at community service,” and that he, Johnson,

Jackson, and McMillan regularly spent time at McMillan’s home,

where they smoked marijuana and consumed “X pills.” Slayton also

testified that he had seen a shotgun in the trunk of Johnson’s car.


         3 We remind litigants that, starting with cases docketed to the term of

this Court that began in December 2020, we will end our practice of considering
sufficiency sua sponte in non-death penalty cases. See Davenport v. State, 

 (

) (2020). This Court began assigning cases to
the December term on August 3, 2020.
                                        8
     The prosecutor then started questioning Slayton about the

events of August 25, 2010; Slayton testified that, on that day,

Johnson called him and asked what he was doing, after which they

went to meet with McMillan and Jackson. Before providing any

more details, however, Slayton said, “I’m sorry, I can’t do this. I’m

sorry, I can’t do this. I can’t — I plead the Fifth. I can’t talk

anymore. I’m sorry.” After confirming that Slayton had invoked his

Fifth Amendment privilege against self-incrimination, Johnson’s

lawyer moved to strike Slayton’s “entire testimony.”        The State

opposed the motion, stating that Johnson could “cross-examine

[Slayton] on the stuff that he’s testified about,” but that Johnson

“just apparently can’t go any further, unless [Slayton] chooses to

testify further.” The trial court told Johnson’s lawyer: “I will permit

you to cross-examine [Slayton] on what he’s testified about. But he’s

indicated he’s not going to go further.” Johnson’s lawyer responded,

“Then I don’t believe I have any questions.” At that point, Slayton

left the stand, and the State called its next witness.



                                  9
      On appeal, Johnson argues that the trial court’s failure to

strike Slayton’s testimony violated his right to confrontation. We

disagree.4    “The main and essential purpose of the right of

confrontation is to secure for the opponent the opportunity of cross-

examination.” State v. Vogleson, 

 (

)

(2002) (quoting Davis v. Alaska, 

 (

, 39

LE2d 347) (1974)) (punctuation omitted). See also OCGA § 24-6-611

(b) (“. . .The right of a thorough and sifting cross-examination shall

belong to every party as to the witnesses called against the party. . .

.”). Here, the trial court expressly gave Johnson the opportunity to

cross-examine Slayton about the events to which Slayton testified,

but Johnson expressly declined to do so. As a result, Johnson cannot

show that he was improperly deprived of his right to confront


      4 The State argues that we should review this enumeration only for plain

error because Johnson did not expressly assert his right to confrontation when
he moved to strike Slayton’s testimony. But we need not address whether to
review Johnson’s claim under our ordinary standard of review or the more
stringent “plain error” standard; as discussed below, Johnson has not shown
any error, plain or otherwise, and so his claim fails under either standard of
review. See Barton-Smith v. State, 

, 804 n.6 (

) (2020)
(declining to decide whether defendant preserved his claim of error because the
alleged error was harmless under both the ordinary standard of review and the
plain error standard).
                                      10
Slayton. See, e.g., Rice v. State, 

 (

)

(2006) (defendant was not denied his right to confrontation because

he “was afforded a sufficient opportunity for cross-examination,”

and “the lack of cross-examination in this case is the result of his

waiving that opportunity”); Sherrell v. State, 

 (

) (2001) (“‘By refusing to cross[-]examine, defense counsel

waived any right to object based on a denial of cross[-]

examination.’”) (quoting Lively v. State, 

 (

) (1976)); Green v. State, 

 (

)

(2009) (defendant was not denied the right of confrontation where

the witness was available for cross-examination “but defense

counsel expressly declined the opportunity to cross-examine him”).5


      5 To support his claim, Johnson relies primarily on Soto v. State, 

 (

) (2009), in which we stated that, “when a witness refuses
to continue to testify after having already done so, the proper remedy is to
strike pertinent portions of the witness’ testimony.” This statement, however,
refers to a scenario where the witness refuses to testify on cross[-]examination.
See 

 (2) (“As it is said: ‘(W)hen a witness declines to answer on
cross examination certain pertinent questions relevant to a matter testified
about by the witness on direct examination, all of the witness’ testimony on the
same subject matter should be stricken.’”) (quoting Smith v. State, 

 (

) (1969)). See also Cody v. State, 

 (

) (2004) (“If the witness’s refusal to answer . . . denies a party a

                                       11
      Johnson argues that an attempt to cross-examine Slayton

would have been futile. See Green, 

 (“In some

instances, the failure to cross-examine may not waive a

confrontation clause claim because it is clear from the record that

an attempt at cross-examination would have been futile.”). But the

record here does not clearly show that Slayton would have refused

to answer questions on cross-examination about the testimony that

he already had given.           That testimony dealt primarily with

background information and did not delve into the crimes at issue,

and there is no indication that Slayton would have refused to answer

similar background questions posed by Johnson’s counsel. Thus, we

cannot say that an attempt to cross-examine Slayton would have

been futile. Johnson’s enumeration therefore fails.



thorough and sifting cross-examination of the specifics of the witness’s
testimony on direct, then the trial court is authorized to strike that witness’s
direct testimony.”). Indeed, in Soto, the witness “refused to answer questions
posed by the defense” and “continued to refuse to answer questions even after
the trial court ordered him to do so and threatened to hold him in contempt.”
Soto, 

. Here, by contrast, Slayton invoked his Fifth Amendment
privilege on direct examination, when the prosecution began asking him about
the crimes at issue, and Johnson’s lawyer declined to conduct any cross-examination. Johnson’s reliance on Soto is therefore unavailing.
                                      12
     3. As an alternative to his confrontation claim, Johnson

contends that he received ineffective assistance of counsel because,

he says, his trial lawyer failed to obtain a proper ruling on his motion

to strike, did not otherwise attempt to exclude Slayton’s testimony,

and did not attempt to cross-examine Slayton about the testimony

he already had given. Johnson’s claims, however, fail.

     To prevail on a claim of ineffective assistance of counsel, a

defendant generally must show that counsel’s performance was

constitutionally deficient and that the deficient performance

resulted in prejudice to the defendant.            See Strickland v.

Washington, 

 (

, 80 LE2d 674)

(1984); Wesley v. State, 

 (

) (2010). To

satisfy the deficiency prong, a defendant must demonstrate that his

attorney “performed at trial in an objectively unreasonable way

considering all the circumstances and in the light of prevailing

professional norms.” Romer v. State, 

 (

) (2013); see also Strickland, 

. This requires

a defendant to overcome the “strong presumption” that trial

                                  13
counsel’s performance was adequate. Marshall v. State, 

 (

) (2015) (citation and punctuation omitted).

To carry the burden of overcoming this presumption, a defendant

“must show that no reasonable lawyer would have done what his

lawyer did, or would have failed to do what his lawyer did not.”

Davis v. State, 

 (

) (2016).          “In

particular, decisions regarding trial tactics and strategy may form

the basis for an ineffectiveness claim only if they were so patently

unreasonable that no competent attorney would have followed such

a course.” 

 (citation and punctuation omitted). To satisfy the

prejudice prong, a defendant must establish a reasonable

probability that, in the absence of counsel’s deficient performance,

the result of the trial would have been different. Strickland, 

. “If an appellant fails to meet his or her burden of

proving either prong of the Strickland test, the reviewing court does

not have to examine the other prong.” Lawrence v. State, 

 (

) (2010).



                                 14
     Here, Johnson has failed to show that his trial counsel

performed deficiently in declining to cross-examine Slayton.       To

begin, Johnson did not call his trial lawyer to testify at the hearing

on his motion for new trial, and we have stated that, where “trial

counsel does not testify at the motion for new trial hearing, it is

extremely difficult to overcome the presumption that counsel’s

conduct resulted from reasonable trial strategy.”      Charleston v.

State, 

 (

) (2013) (citation and

punctuation omitted). Johnson does not explain, and the record does

not show, how cross-examination would have been particularly

helpful to him — especially given that much of Slayton’s testimony

pertained only to background information and did not delve into the

crimes at issue. Indeed, cross-examination might have produced

more background evidence linking Johnson to his accomplices, or it

might have led Slayton to reconsider his invocation of the Fifth

Amendment and could have opened the door to the prosecutor

asking about the charged crimes on redirect examination. Johnson’s

counsel reasonably could have viewed Slayton’s refusal to testify as

                                 15
a benefit counsel did not want to risk undermining. Thus, Johnson

has not overcome the presumption that his lawyer’s decision not to

cross-examine Slayton was reasonable trial strategy. See Sullivan

v. State, 

 (

) (2017) (“[A] matter such as

the cross-examination of a witness is most often grounded in matters

of trial tactics and strategy and, in those instances, provides no basis

for   finding    counsel’s   performance   deficient.”)   (citation   and

punctuation omitted); Lawrence, 

 (“[T]rial counsel’s

decision not to cross-examine certain State’s witnesses was

reasonable trial strategy and did not amount to ineffective

assistance.”).

      Moreover, Johnson’s trial counsel was not deficient for not

pursuing the motion to strike Slayton’s testimony. Because defense

counsel received an opportunity to cross-examine Slayton but made

a strategic decision not to do so, an attempt to exclude Slayton’s

testimony would have been meritless. See Evans v. State, 

 (

) (2019) (“[T]rial counsel cannot be deficient

for failing to file a meritless motion . . . .”); Hampton v. State, 295

                                   

, 670 (

) (2014) (“[T]he failure to make a

meritless motion or objection does not provide a basis upon which to

find ineffective assistance of counsel.”).

     Johnson further contends that his counsel at least could have

attempted to cross-examine Slayton, and if Slayton had refused to

testify, then counsel could have renewed the motion to strike, which

the trial court would have granted. As mentioned above, however,

it was reasonable trial strategy for Johnson’s counsel to leave

Slayton’s testimony as it was, rather than to risk eliciting

additional, potentially damaging testimony.       And even if trial

counsel rendered deficient performance by neglecting to confirm

with Slayton whether he would agree to cross-examination, Johnson

has failed to show prejudice under Strickland; he has offered no

evidence — only pure speculation — that Slayton would have

refused to testify on cross-examination. See Baker v. State, 

 (

) (2013) (to show Strickland prejudice,

appellant “was required to offer more than mere speculation that,

absent the counsel’s alleged errors, a different result probably would

                                   17
have occurred at trial”) (citation and punctuation omitted); Whitus

v. State, 

 (

) (2010) (“Speculation is

insufficient to satisfy the prejudice prong of Strickland.”) (citation

and punctuation omitted).      Accordingly, Johnson has failed to

establish that he was deprived of the effective assistance of counsel

with regard to Slayton’s testimony.

     4. Johnson also contends, in several enumerations of error,

that the trial court erred when it admitted certain evidence obtained

from a search of his cell phone. The record shows that, after the

Ingles robbery, Johnson voluntarily came to the police station for an

interview, which began shortly after midnight on September 6.

While Johnson — who was not under arrest at that point — was in

the interrogation room, the interviewing officer observed Johnson

receiving calls or text messages on his iPhone, so the officer asked

to see the phone. Johnson handed the phone to the officer, who saw

that someone named “Tye” was contacting Johnson. At one point,

the officer took the iPhone outside the interrogation room and looked

at the recent-call log and contact list. Johnson initially had been

                                 18
treated as a victim, but officers began to suspect that he actually

was a participant in the robbery based on his calm demeanor (as

compared to Turpin’s) and certain inconsistencies in his statements.

Eventually, at 9:40 a.m., another officer obtained a search warrant

for Johnson’s phone.

     Before trial, Johnson filed a motion to suppress all evidence

derived from his phone, claiming that the pre-warrant search and

seizure of his phone during interrogation was illegal and that the

warrant itself was invalid because it was issued based on

information recovered from the warrantless search of the phone.

After a hearing, the trial court granted Johnson’s motion in part,

suppressing “all information and data obtained from Johnson’s

iPhone prior to 9:40 a.m. on September 6, 2010” — i.e., all

information obtained from the phone before a search warrant was

issued — prohibiting the State “from presenting any witness

testimony discussing any of the phone numbers or other data

appearing on Johnson’s iPhone that was collected prior to 9:40 a.m.”

The trial court also determined, however, that because the search

                                19
warrant for the phone was valid, it was not the “fruit of the

poisonous tree.” Thus, the trial court denied Johnson’s motion to

suppress evidence recovered from the post-warrant search of the

phone.

     At trial, the State presented evidence — over Johnson’s

objection — that Adside was contacting Johnson’s phone repeatedly

after the Ingles robbery and that, in the afternoon following the

robbery, officers used Adside’s number to track Adside’s phone to the

Mall of Georgia, where Adside and two other people (Jackson and

McMillan) were arrested as they entered Johnson’s car. Johnson

raises three claims of error pertaining to this evidence.

     (a)   First, Johnson argues that the trial court should have

excluded testimony that Adside had called Johnson repeatedly after

the Ingles robbery because, Johnson says, the trial court previously

ruled that this evidence was inadmissible because it was obtained

from a pre-warrant search of his phone. We disagree. Although the

trial court suppressed the evidence obtained from the pre-warrant

search of Johnson’s phone, the court declined to suppress any

                                  20
evidence retrieved from the phone after the issuance of the search

warrant. The court also found that Adside’s phone number was

obtained from a forensic analysis of the phone after the search

warrant was issued, and this finding is supported by the

investigating officers’ testimony. See State v. Gates, 

 (

) (2020) (“We review the trial court’s findings of

fact under the clearly erroneous standard, meaning that we uphold

a factual finding if there is any evidence in the record to support it.”).

See also Douglas v. State, 

, 181 (

) (2018).

Because the evidence about which Johnson complains was derived

from a post-warrant search of the phone, its admission did not

violate the trial court’s suppression order.

      (b) Johnson further challenges the validity of the search

warrant itself, contending that there was no probable cause to issue

the warrant for his phone. Specifically, Johnson argues that the

affidavit used to obtain the warrant failed to specify with

particularity the items to be searched, failed to allege a sufficient

connection between the phone and the crimes at issue, and

                                   21
improperly relied on tainted information obtained during the illegal

search of the phone. We again disagree.

     To determine whether probable cause exists to issue a search

warrant, the task of the magistrate judge evaluating an application

for a search warrant “is simply to make a practical, common-sense

decision whether, given all the circumstances set forth in the

affidavit before him, . . . there is a fair probability that contraband

or evidence of a crime will be found in a particular place.” State v.

Palmer, 

 (

) (2009) (citation and

punctuation omitted).      On appellate review, our duty “is to

determine if the magistrate had a ‘substantial basis’ for concluding

that probable cause existed to issue the search warrant.” 

(citation and punctuation omitted). Moreover, “a magistrate’s

decision to issue a search warrant based on a finding of probable

cause is entitled to substantial deference by a reviewing court.”

Glispie v. State, 

 (

) (2016) (citation and

punctuation omitted).



                                  22
        Here, the affidavit used to apply for the warrant for Johnson’s

phone described the applying officer’s training and experience in law

enforcement; recited the facts of the Ingles robbery, including a

description of Johnson’s actions suggesting that he opened the

store’s security door to allow the other perpetrators inside; and

stated that a “black in color I-phone 8gb” was found in Johnson’s

possession at the time of the incident. The affidavit further stated

that,

        [d]ue to variations in [Johnson’s] account of the events of
        September 4, and 5, 2010 as compared to the statements
        of other witnesses, the inconsistencies in his statements
        regarding [the meeting at the Waffle House near Ingles],
        the violation of store policy, and his presence inside the
        store at the time of David Casto’s death, Affiant has
        probable cause to believe that [Johnson] caused the death
        of David Casto.

The affidavit concluded that, “[b]ased on your Affiants [sic] training,

knowledge and experience in the field of cellular phone forensics

your affiant knows that evidence of Armed Robbery and Murder”

may be revealed by a search of the phone. Among other things, the

warrant application sought “all evidence of Armed Robbery and


                                    23
Murder recovered from the aforementioned I-phone,” including

“contact lists, call histories,” and “any other data stored on the

phone.”

     Given all of this, we conclude that the officer’s affidavit

provided a “substantial basis” for the magistrate to determine that

probable cause existed for the issuance of a warrant for Johnson’s

phone. See Palmer, 

. The affidavit described with

sufficient particularity the phone to be seized and the data to be

collected from that phone, which was limited to evidence of armed

robbery and murder. See Rickman v. State, 

 (

) (2020) (search warrants did not lack sufficient

particularity where, “read as a whole,” they “limited the search of

the contents of [defendant]’s cell phones to items reasonably

appearing to be connected to [victim]’s murder”); Westbrook v. State,

 (

) (2020) (“[T]he use of the phrase

‘electronic data’ was specific enough to enable a prudent officer to

know to look for photographs and videos stored on [defendant]’s cell

phone.”); Reaves v. State, 

 (

) (2008) (a

                                 24
warrant authorizing a search “for specified items of potential

evidence, as well as for ‘other related items to the crime of murder’

or for ‘any other fruits of the crime of murder,’ is sufficiently

particular and does not authorize a general search in violation of the

Fourth Amendment”) (citations omitted). See also Hourin v. State,

 (

) (2017) (“The degree of the

description’s specificity [in the search warrant] is flexible and will

vary with the circumstances involved.”) (citation and punctuation

omitted). The affidavit also alleged a sufficient connection between

the phone and the crimes at issue. The facts laid out in the affidavit

showed that several people were involved in the robbery and that

Johnson helped the robbers enter the store through the back door.

It was reasonable to infer from these facts that Johnson likely used

his phone to communicate with the other perpetrators. See Taylor

v. State, 

 (

) (2018) (“[A] magistrate may

draw ‘reasonable inferences . . . from the material supplied to him

by applicants for a warrant.’”) (quoting Illinois v. Gates, 

 (

, 76 LE2d 527) (1983)); Glispie, 

133 (“In light of the facts and circumstances detailed in the search

warrant application, it was reasonable for the magistrate to infer

that the cell phones in [defendant]’s possession at the time of his

arrest were used as communicative devices with third parties for

drug deals.”).

     Finally, nothing in the affidavit references the information

derived from the pre-warrant search of Johnson’s phone, and so the

trial court properly concluded that the evidence obtained pursuant

to the warrant was not, as Johnson claims, the “fruit of the

poisonous tree.” See Reaves, 

 (search warrants were

not tainted by an earlier, warrantless search because “no

information obtained during a warrantless search was used to

obtain the warrants”). See also United States v. Barron-Soto, 

 (11th Cir. 2016) (evidence derived from

defendants’ cell phones was admissible because, although the initial

search of the phones was illegal, officers later obtained a warrant for

the phones without relying on any information learned during the

illegal search).   Because the warrant for Johnson’s phone was

                                  26
sufficiently particularized and supported by probable cause without

the use of tainted evidence, the trial court did not err in denying

Johnson’s motion to suppress on this ground.

     (c) Johnson also contends that the trial court erred in failing to

suppress “cell site location data” pertaining to Adside’s phone, given

that Adside’s phone number was found on Johnson’s phone. In its

suppression order, the trial court made the following finding of fact:

     Investigator Strano . . . faxed a Mandatory Information
     for Exigent Circumstances Request to Sprint’s Legal
     Compliance      department       making      an     “exigent
     circumstances request” for [Adside’s phone number]. The
     request, which Strano made at 9:34 a.m., failed to state a
     specific exigent description to support the request. The
     request sought the following information: subscriber
     information; call detail records with cell site information;
     and precision location of mobile device (GPS location).

(Emphasis supplied.) The trial court did not expressly rule on the

admissibility of the cell site location data, but noted that “Johnson

can claim no privacy interest in a cell phone number that was not

registered or used by him.” See Hampton v. State, 

(

) (2014) (“[R]ights under the Fourth Amendment are

personal, and in order to challenge the validity of a government

                                  27
search an individual must actually enjoy the reasonable expectation

of privacy, that is, the individual must have standing.”). On appeal,

Johnson argues that Adside’s cell site location data should have been

suppressed because it was derived from an illegal search of

Johnson’s phone. He reasons that the cell site data was requested

from Sprint at 9:34 a.m., before Adside’s phone number was legally

obtained from Johnson’s phone based on the 9:40 a.m. search

warrant.

     Johnson’s claim fails because, even if he could show that the

trial court erred in this regard, any such error was harmless beyond

a reasonable doubt. See Ensslin v. State, 

 (

) (2020) (an error of constitutional magnitude “may be deemed

harmless if the State can prove beyond a reasonable doubt that the

error did not contribute to the verdict”) (citation and punctuation

omitted). The only evidence introduced at trial relating to Adside’s

cell site location data was that officers “pinged” Adside’s number on

the day after the Ingles robbery and tracked his location from

McMillan’s house to the Mall of Georgia, where he was arrested.

                                 28
Johnson did not dispute that information at trial, and it did little, if

anything, to incriminate Johnson.       We thus see “no reasonable

possibility that th[is] evidence may have contributed to the verdict,”

Ramirez v. State, 

 (

) (2005) (even if

the trial court erred in admitting evidence obtained as a result of

improper seizure, any such error was “harmless beyond a reasonable

doubt” because the evidence did not pertain to a disputed issue at

trial), and Johnson’s contention therefore fails. See also Hill v.

State, __ Ga. __ (

) (2020) (admission of cell site location

data, even if erroneous, was harmless error).

     5. Johnson contends that the trial court erred when it failed to

suppress the evidence gathered from a search of his house at 3555

Ballybandon Court and a search of his car — a black Nissan Altima.

The house and car were searched using separate warrants, and

these searches yielded incriminating evidence that was introduced

at trial. Johnson argues that the affidavit supporting the warrant

for his house contained no facts to show that he lived at the



                                  29
residence, and that the warrant affidavit for his car failed to show

that he owned the car. We are not persuaded.

     The warrant affidavit for Johnson’s home stated that, during a

police interview, Johnson eventually admitted to being involved in

the Ingles, Waffle House, and Chevron robberies, and that “the

clothing worn by him during the Chevron and Waffle House Armed

Robberies would be located in his residence . . . .” The affidavit

further stated that, on September 6, 2010, the affiant “conducted a

drive by of 3555 Ballybandon Court . . . . This is the residence of

Sherod [sic] Johnson.”

     The search warrant affidavit for Johnson’s car likewise

recounted his confession, including his admission that “he gave the

shotgun” to Adside, that Johnson “loaned his vehicle” to Adside, that

Adside drove Johnson to Ingles, and that Adside used the vehicle “in

the commission of the crime.” Further, according to the affidavit,

Johnson identified Adside and Jackson as among his co-conspirators

“involved in the Armed Robberies” and that Johnson “believes that

[Adside] is in possession of his vehicle.” Moreover, the affidavit

                                 30
indicated that, right before Adside and Jackson were arrested at the

mall, “[t]hey entered a 2005 Nissan Altima . . . Georgia registration

BJU4394 and [VIN] registered to Zora Johnson,” and “a large sum

of currency was found in their possession.”

     We    conclude   that   the    affidavits   contained   sufficient

information to give the magistrate probable cause to conclude that

items related to the robberies would be found at 3555 Ballybandon

Court and in the Nissan Altima. See Taylor, 

 (the

magistrate, “making a practical and common-sense decision, was

entitled to infer that there was a ‘fair probability’” that defendant

lived at the address listed in the warrant application); Carter v.

State, 

 (

) (2008) (the “test for probable

cause is not hypertechnical,” but “must be based on the factual and

practical considerations of everyday life on which reasonable and

prudent” people act) (citations and punctuation omitted). Because

the search warrants for Johnson’s house and car were supported by

probable cause, the trial court did not err in denying Johnson’s

motion to suppress the evidence found using those warrants.

                                   31
     Judgment affirmed. Melton, C. J., Nahmias, P. J., and Boggs,
Peterson, Bethel, Ellington, and McMillian, JJ., concur.




                    DECIDED JANUARY 11, 2021.
     Murder. Forsyth Superior Court. Before Judge Bagley.
     Clark & Towne, Jessica R. Towne, for appellant.
     Penny A. Penn, District Attorney; Christopher M. Carr,
Attorney General, Patricia B. Attaway Burton, Deputy Attorney
General, Paula K. Smith, Senior Assistant Attorney General, Eric
C. Peters, Michael A. Oldham, Assistant Attorneys General, for
appellee.




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