¶1 NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: February 21, 2023
¶4 S22A0967. THE STATE v. WILSON.
¶5 COLVIN, Justice.
¶6 The State appeals from the grant of defendant Roceam
¶7Wilson’s motion to suppress. 1 The State contends that the trial court
¶8erred in concluding that the search warrant issued for Wilson’s cell
¶9phones was overbroad and authorized a general search in violation
¶10of the Fourth Amendment to the United States Constitution. In
¶11reviewing the trial court’s grant of the motion to suppress, “we apply
¶12the well-established principles that the trial court’s findings as to
¶13disputed facts will be upheld unless clearly erroneous and the trial
¶14court’s application of the law to undisputed facts is subject to de novo
¶15review.” State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009)
¶16 Wilson was indicted for, among other things, murder in connection with 1
¶17the shooting death of Bradly Jordan. The State appeals the trial court’s pretrial ruling pursuant to OCGA § 5-7-1 (a) (5), and we have jurisdiction to consider this appeal. See Ga. Const. of 1983, Art. VI, Sec. VI, Par. III (8). (citation and punctuation omitted). Applying that standard here,
¶18we see no error in the trial court’s order. Accordingly, we affirm.
¶19 The record shows that, on January 28, 2021, Bradly Jordan
¶20was shot and killed while performing pest control services at an
¶21apartment complex. After conducting an investigation at the crime
¶22scene, officers determined that the shooter was a “black male”
¶23driving a teal green “[1990]s model Ford Aerostar van” with a
¶24missing hubcap. Utilizing a license plate tracking system, officers
¶25located a van matching this description a few miles from the incident
¶26location. Wilson was listed as the registered owner of the vehicle.
¶27Officers conducted a traffic stop on the Ford Aerostar and spoke with
¶28Wilson, who was in the driver’s seat. After answering some
¶29questions, Wilson was arrested and officers impounded his vehicle,
¶30which was later searched pursuant to a warrant. During that
¶31search, officers located, among other things, two cell phones, both of
¶32which belonged to Wilson.
¶33 One of the lead investigators subsequently sought a second
¶34search warrant “for a forensic examination” of the cell phones. The
¶35 2 investigator completed a sworn affidavit and submitted it to the
¶36magistrate in support of the search warrant application. Other than
¶37the information contained in the search warrant affidavit, no other
¶38material or testimony was provided to the magistrate.
¶39 The magistrate subsequently issued a warrant that authorized
¶40a forensic search of Wilson’s cell phones “to be completed in order to
¶41obtain any and all stored electronic information, including but not
¶42limited to; user account information, stored phone information,
¶43images, text messages, videos, documents, e-mails, internet activity,
¶44call logs, contact information, phone information, or any deleted
¶45data.” The warrant further included preprinted form language
¶46stating that “[t]he foregoing described property, items, articles,
¶47instruments, and person(s) to be searched for and seized constitute
¶48evidence connected with the foregoing listed crime(s)[2] and is/are:
¶49(check all that are applicable) (OCGA § 17-5-21)3.” The swearing
¶50 2 The search warrant asserted that Wilson was believed to have committed felony murder, aggravated assault, and possession of a firearm during the commission of a felony. 3 This code section does not reference criminal activity. Instead, it lists
¶51 3 officer then checked four boxes on the preprinted form, indicating
¶52that investigators believed the cell phones were: “intended for use in
¶53the commission of the crime(s) herein described;” “used in the
¶54commission of the crime(s) herein described;” “tangible, corporeal or
¶55visible evidence of the commission of the crime(s) set forth above,”
¶56and “intangible, incorporeal or invisible evidence of the commission
¶57of the crime(s) set forth above.”
¶58 Wilson challenged the validity of the cell phone search warrant
¶59in a pretrial motion to suppress. After a hearing, the trial court
¶60granted Wilson’s motion, finding that the search warrant was
¶61“overly broad and authorized a general search of [Wilson’s] personal
¶62effects without probable cause in violation of the Fourth
¶63Amendment and OCGA § 17-5-21.” The State alleges that this was
¶64error, contending that the warrant included sufficient probable
¶65cause and sufficient particularity to avoid authorizing a general
¶66search. Pretermitting the issue of probable cause, we agree with the
¶67the process by which law enforcement officers must abide when seeking a warrant. 4 trial court that the warrant did not meet the particularity
¶68requirement and therefore authorized an impermissible general
¶69search.
¶70 The Fourth Amendment to the United States Constitution
¶71“require[s] that a search warrant particularly describe the article or
¶72articles sought.” Dobbins v. State, 262 Ga. 161, 164 (3) (415 SE2d
¶73168) (1992) (citations omitted). In addition to requiring that officers
¶74have enough guidance to locate and seize only those items the
¶75warrant authorizes them to seize, see Fair v. State, 284 Ga. 165, 170
¶76(3) (a) (664 SE2d 227) (2008), this particularity requirement also
¶77prevents general searches—that “general, exploratory rummaging
¶78in a person’s belongings” by the government that has been rejected
¶79since the founding as a violation of “fundamental rights.” Coolidge
¶80v. New Hampshire, 403 U.S. 443, 467 (II) (C) (91 SCt 2022, 29 LE2d
¶81564) (1971), holding modified by Horton v. California, 496 U.S. 128
¶82(110 SCt 2301, 110 LE2d 112) (1990); Marron v. United States, 275
¶83U.S. 192, 195 (1) (48 SCt 74, 72 LE 231) (1927) (“General searches
¶84have long been deemed to violate fundamental rights. It is plain that
¶85 5 the [Fourth] Amendment forbids them.”). See also Groh v. Ramirez,
¶86540 U.S. 551, 559 (II) (124 SCt 1284, 157 LE2d 1068) (2004); Wayne
¶87R. LaFave, 2 Search & Seizure § 4.6 (a) (6th ed. 2022). The
¶88particularity requirement is “applied with a practical margin of
¶89flexibility, depending on the type of property to be seized, and a
¶90description of property will be acceptable if it is as specific as the
¶91circumstances and nature of activity under investigation permit.”
¶92Rickman v. State, 309 Ga. 38, 42 (2) (842 SE2d 289) (2020) (citation
¶93and punctuation omitted). “The uniformly applied rule is that a
¶94search conducted pursuant to a warrant that fails to conform to the
¶95particularity requirement of the Fourth Amendment is
¶96unconstitutional.” Groh, 540 U.S. at 559 (quoting Stanford v. Texas,
¶97379 U.S. 476 (85 SCt 506, 13 LE2d 431) (1965) (punctuation
¶98omitted)).
¶99 While the State concedes that the warrant “broadly target[s]
¶100the data” in Wilson’s cell phones, the State argues that, when read
¶101as a whole, the warrant sufficiently limits the search of the phones
¶102to evidence connected with the crimes. We disagree. As the State
¶103 6 acknowledges, the search warrant broadly authorizes the seizure of
¶104“any and all stored electronic information” on the phones, “including
¶105but not limited to” various kinds of electronic information. The State
¶106points to the preprinted form language following this sweeping
¶107authorization as “limiting” in nature. However, that language
¶108clearly states that “[t]he foregoing described property”—that is, “any
¶109and all stored electronic information” on the phones—“constitutes
¶110evidence connected with the crimes.” This language cannot
¶111plausibly be read, as the State suggests, to limit the otherwise
¶112limitless authorization to search for and seize any and all data that
¶113can be found on Wilson’s cell phones. Indeed, the warrant’s complete
¶114absence of limiting language distinguishes it from other warrants
¶115we have upheld in prior cases based on the presence of so-called
¶116“residual clauses” or other limiting language. Compare Palmer v.
¶117State, 310 Ga. 668, 675 (1) (c) (853 SE2d 650) (2021) (search warrant
¶118authorizing search and seizure of, among other things, “cell phones
¶119(to include all data contained therein) . . . which are being possessed
¶120in violation of Georgia law(s): OCGA § 16-5-1 Murder” was
¶121 7 sufficiently particularized when, reading the warrant as a whole and
¶122“in a common-sense fashion,” it sufficiently “listed classes of items
¶123that, as a practical matter, were likely to be found relevant” to the
¶124crimes in the warrant, and it further limited those “classes of items
¶125to those relevant to [the crime]” (emphasis supplied)); Westbrook v.
¶126State, 308 Ga. 92, 97-98 (3) (a) (839 SE2d 620) (2020) (search
¶127warrant for “electronic data” on defendant’s cell phone was
¶128sufficiently particularized “to enable a prudent officer to know to
¶129look for photographs and videos” because the language of the
¶130warrant “limited the scope of the search to evidence pertaining to the
¶131commission of the murder” (emphasis supplied)); and Rickman, 309
¶132Ga. at 42 (warrants that included language authorizing officers to
¶133search cell phones for “messages, photographs, videos, contacts, and
¶134any other application data, or any other evidence of the crime of
¶135murder” were sufficiently particularized because the language of the
¶136warrants limited the search of the cell phones “to items reasonably
¶137appearing to be connected to [the victim’s] murder.” (emphasis
¶138supplied)). Because the warrant in this case was not sufficiently
¶139 8 particularized, the trial court did not err in concluding that the
¶140warrant authorized an impermissible general search of Wilson’s cell
¶141phones.
¶142 The State also contends that the evidence obtained from
¶143Wilson’s cell phones is admissible under the Davis4 good-faith
¶144exception to the exclusionary rule. This good-faith exception applies
¶145to “searches conducted [by police officers] in objectively reasonable
¶146reliance on binding appellate precedent that is later overruled.”
¶147Outlaw v. State, 311 Ga. 396, 400 (2) (b) (858 SE2d 63) (2021)
¶148(citation and punctuation omitted). The State asserts that the
¶149search here was lawful under current Georgia precedent, and that if
¶150we conclude otherwise, we would be “revising” our precedent.
¶151However, the State incorrectly assumes that this Court must
¶152overrule Georgia precedent in order to affirm the trial court’s order.
¶153As shown above, well-established legal precedent supports our
¶154conclusion that the trial court properly suppressed the cell phone
¶155 4Davis v. United States, 564 U.S. 229, 241 (III) (131 SCt 2419, 180 LE2d 285) (2011). 9 evidence in this case. As a result, Davis does not apply and the
¶156State’s argument fails. Accordingly, we affirm the trial court’s order
¶157granting Wilson’s motion to suppress.
¶158 Judgment affirmed. All the Justices concur, except LaGrua, J., who concurs in judgment only.
¶159 10 PETERSON, Presiding Justice, concurring.
¶160 I fully agree that the trial court correctly suppressed evidence
¶161derived from the general warrants issued in this case. I write
¶162separately to highlight that our cases involving so-called “residual
¶163clauses” (i.e., boilerplate language purporting to limit officers to
¶164searching and seizing “other items related to the crime [at issue],”
¶165Reaves v. State, 284 Ga. 181, 185 (2) (d) (664 SE2d 211) (2009)), may
¶166be unduly complicating the issue.
¶167 “The problem posed by the general warrant is not that of
¶168intrusion per se, but of a general, exploratory rummaging in a
¶169person’s belongings. The Fourth Amendment addresses the problem
¶170by requiring a ‘particular description’ of the things to be seized.”
¶171Andresen v. Maryland, 427 U.S. 463, 480 (96 SCt 2737, 49 LE2d 627)
¶172(1976) (cleaned up) (quoting Coolidge v. New Hampshire, 403 U.S.
¶173443, 467 (91 SCt 2022, 29 LE2d 564) (1971)). In practice, that
¶174requirement means that the warrant allows the officer to identify
¶175the object of the search or seizure “definitely and with reasonable
¶176certainty.” Hourin v. State, 301 Ga. 835, 844 (3) (b) (804 SE2d 388)
¶177 11 (2017) (citation and punctuation omitted). Naturally, the degree of
¶178specificity required “will vary with the circumstances involved.” Id.
¶179 But a general, catch-all phrase (a “residual clause”) in the
¶180description of places to be searched or things to be seized does not
¶181necessarily invalidate an otherwise proper warrant. In Andresen,
¶182the United States Supreme Court rejected an argument that
¶183warrants that were otherwise “models of particularity . . . were
¶184rendered fatally ‘general’ by the addition . . . of the phrase ‘together
¶185with other fruits, instrumentalities, and evidence of crime at this
¶186(time) unknown.’” 427 U.S. at 480. The petitioner argued that this
¶187clause, read in isolation, permitted the search for and seizure of any
¶188evidence of any crime. See id. at 479. But the Court read the phrase
¶189in context, explaining that “the challenged phrase” — that is, the
¶190residual clause — “must be read as authorizing only the search for
¶191and seizure of evidence relating to the crime of false pretenses
¶192[alleged in that case].” Id. at 480 (internal quotation marks omitted).
¶193“The warrants, accordingly, did not authorize the executing officers
¶194to conduct a search for evidence of other crimes but only to search
¶195 12 for and seize evidence relevant to the crime [charged.]” Id. at 481-
¶19682. Thus, Andresen teaches that residual clauses do not necessarily
¶197render an otherwise particularized warrant an unconstitutional
¶198general warrant.
¶199 For a time, we correctly applied that holding. See Lance v.
¶200State, 275 Ga. 11, 21 (19) (b) (560 SE2d 663) (2002) (the warrant was
¶201sufficiently particularized despite using the phrase “‘any other fruits
¶202of the crime of murder’” where those words were preceded by a list
¶203of specified items, because “the quoted phrase [was best] understood
¶204as limiting the search to items . . . reasonably appearing to be
¶205connected to the specific crime delineated in the warrant” and “the
¶206nature of the probable evidence”), disapproved on other grounds by
¶207Willis v. State, 304 Ga. 686, 706 n.3 (11) (a) (820 SE2d 640) (2018));
¶208Reaves, 284 Ga. at 184-88 (2) (d) (four search warrants specifying
¶209certain items followed by different residual clauses covering “‘any
¶210other item of evidence,” “any other item of evidentiary value,” and
¶211“any trace evidence” that would show that the named crime had
¶212been committed were not impermissible general warrants, and so
¶213 13 “provided [adequate] guidelines for the officers conducting the
¶214search”) (citations omitted); see also Lawler v. State, 276 Ga. 229,
¶215233 (4) (c) (576 SE2d 841) (2003) (objects of a search warrant for
¶216“‘guns, ammunition, clothing, shoes, and other related items to the
¶217crime of murder,’” were “described with sufficient particularity”).
¶218 But in the last few years, our cases have begun to suggest that
¶219an otherwise general warrant might be made particularized by a
¶220residual clause. In Rickman v. State, 309 Ga. 38, 42 (2) (842 SE2d
¶221289) (2020), for example, we cited Reaves (our seminal residual
¶222clause case) for the proposition that “warrants containing residual
¶223clauses limiting the items to be seized to those relevant to the crimes
¶224identified are sufficiently particular and do not authorize a general
¶225search in violation of the Fourth Amendment.” But when we applied
¶226that principle to the facts in that case, we held that “the warrants
¶227[there], read as a whole,” sufficiently “limited the search of the
¶228contents of Rickman’s cell phones to items reasonably appearing to
¶229be connected to [the victim’s] murder.” Id. In other words, we seemed
¶230to suggest that the residual clause of the warrant (covering “any
¶231 14 other evidence of the crime of murder” after a list of specific items
¶232like messages, photographs, and videos) was a reason to find the rest
¶233of the description sufficiently particular. See also Palmer v. State,
¶234310 Ga. 668, 675 (2) (c) (853 SE2d 650) (2021) (“‘Read in a common-
¶235sense fashion and in the context of the preceding list of items and
¶236the residual clause,’ warrants limiting items to be seized to those
¶237relevant to enumerated crimes ‘have sufficient specificity, satisfying
¶238the particularity requirement of the Fourth Amendment.’” (quoting
¶239Reaves, 284 Ga. at 188)); Westbrook v. State, 308 Ga. 92, 97-98 & n.5
¶240(3) (a) (839 SE2d 620) (2020) (search warrant describing “Phone
¶241identification data, Phone number assigned to the unit, Address
¶242book, Incoming and outgoing call logs, Incoming and outgoing SMS
¶243text logs,” and “Electronic data” on cell phone was sufficiently
¶244particularized in context “to enable a prudent officer to know to look
¶245for photographs and videos stored on Westbrook’s cell phone,”
¶246especially because the warrant “limited the scope of the search to
¶247evidence pertaining to the commission of the murder” — so
¶248ineffectiveness claim failed since the objection would have been
¶249 15 meritless); Leili v. State, 307 Ga. 339, 344 (2) (a) (834 SE2d 847)
¶250(2019) (a warrant that authorized search and seizure of “all
¶251electronic devices which are capable of analyzing, creating,
¶252displaying, converting, transmitting or storing electronic or
¶253computer impulses or data” was sufficiently particularized because
¶254“when read as a whole, ‘the warrant here must be understood as
¶255limiting the search to items (in addition to the items specifically
¶256mentioned in the warrant) reasonably appearing to be connected to
¶257the specific crimes delineated in the warrant.” (citations and
¶258punctuation omitted, cleaned up)).
¶259 I joined each of these decisions. But upon further consideration,
¶260I am concerned that we may have mistaken the import of the
¶261relevant principles.
¶262 First, the Supreme Court in Andresen held only that an
¶263otherwise particularized warrant was not made unconstitutionally
¶264general by the presence of residual language — instead, the residual
¶265clause had to be read in the light of the language before it. 427 U.S.
¶266at 480-482. But the inverse does not follow; the logic of Andresen
¶267 16 does not support the idea that an otherwise general warrant, lacking
¶268particularity in the places to be searched or things to be seized, can
¶269be saved by this sort of boilerplate language.5 Taking the warrants
¶270in this case as an example, a warrant that fails to give any
¶271parameters “for a forensic examination” of cell phones is not
¶272narrowed by the empty assurance that the search will only be
¶273looking for evidence of a particular crime. Perhaps such a warrant
¶274may once have been sufficient, when cell phones had a fraction of
¶275the functionality and storage capacity that they do now. But today,
¶276a caveat that the search is limited to evidence of a particular crime
¶277might narrow the object of the search, but it gives little or no clarity
¶278to an officer as to where to look, for what to look, or how to look for
¶279it. See Hourin, 301 Ga. at 844.
¶280 And second, we appear to have lost sight of the fact that the
¶281 5 This misstep may have stemmed from a slight ambiguity in the wording of Reaves. We held that “[t]he residual clauses in the search warrants at issue in this case limit the items which may be seized to evidence of cruelty to children and . . . murder.” 284 Ga. at 215. In context, that meant that the residual clauses themselves were limited to evidence of those crimes. See id. But it’s easy enough to see how one might mistakenly read this language — specifically the direct object, “items” — to mean the list of items preceding the residual clauses. And indeed, that seems to be what we’ve done in recent years. 17 actual words of the warrant matter; not all clauses do the same
¶282work. In fact, several of these cases do not actually involve “residual
¶283clauses” at all, at least as Andresen and Reaves used that term. The
¶284warrant in Palmer “authorized the search and seizure of ‘[a]ny
¶285fingerprints, any and all firearms, any and all ammunition, shell
¶286casings, identification cards, receipts, photos, hand written
¶287statements, cell phones (to include all data contained therein),
¶288currency, and any and all blood evidence, and DNA, which are being
¶289possessed in Violation of Georgia Law(s): O.C.G.A. [§] 16-5-1
¶290Murder.’” 310 Ga. at 675 (2) (c) (emphasis supplied); see also Leili,
¶291307 Ga. at 344 (the warrant used broad language like “all electronic
¶292devices which are capable of analyzing, creating, displaying,
¶293converting, transmitting or storing electronic or computer impulses
¶294or data,” but no catch-all residual clause); Westbrook, 308 Ga. at 97-
¶29598 & n.5 (the warrant described, among other things, “electronic
¶296data,” and “limited the scope of the search to evidence pertaining to
¶297the commission of the murder”). So the language at the end of the
¶298Palmer warrant modifies the rest of the list, it does not add items to
¶299 18 it. And yet this group of cases relies on residual clause precedents
¶300like Reaves, misunderstanding their holdings and muddying the
¶301waters on the effect of a true residual clause.
¶302 The warrants in Andresen and Reaves, by contrast, featured
¶303catch-all language, not a modifying clause. Andresen, 427 U.S. at
¶304480 (“together with other fruits, instrumentalities, and evidence of
¶305crime at this (time) unknown”); Reaves, 284 Ga. at 185 (residual
¶306clause covering “‘any other item(s) that tend to lead to probable
¶307cause that [a particular] crime has been committed’”). So it is a
¶308different matter to say that the search warrants in cases like Palmer
¶309are not “general” because they “list[] classes of items that, as a
¶310practical matter, were likely to be found relevant to the shooting . .
¶311. and the removal of [the victim’s body] to the location where it was
¶312found.” 310 Ga. at 675 (2) (c). In that context, a phrase like “[items]
¶313which are being possessed in Violation of Georgia Law(s)” actually
¶314does modify (and perhaps in some marginal sense could limit) the
¶315 19 enumerated items. 6 Id. It seems to me, therefore, that the words of
¶316the warrant matter more than our recent cases reflect.
¶317 Our “residual clause” cases, in short, have started to suggest a
¶318different proposition than the principle upon which they are based,
¶319and applied it to a broader spectrum of language than the principle
¶320covers. The Court today properly rejects the State’s bid to save the
¶321warrants here by reference to pre-printed language only distantly
¶322resembling a residual clause. But in an appropriate case, we may
¶323need to reconsider some of our related precedent.
¶324 I am authorized to state that Chief Justice Boggs, Justice
¶325Warren, Justice Bethel, Justice Colvin, and Justice Pinson join in
¶326this concurrence.
¶327 6 Although I’m skeptical that this was the case with the actual language used in Palmer. What it means to possess an item in violation of the law prohibiting murder is wholly unclear to me; that statute does not prohibit the possession of anything. Once again, it matters what actual language a warrant uses. 20 LAGRUA, Justice, concurring in judgment only.
¶328 In Riley, the United States Supreme Court provided clear
¶329guidance: “Our answer to the question of what police must do before
¶330searching a cell phone seized incident to an arrest is accordingly
¶331simple—get a warrant.” Riley, 573 U.S. at 403 (IV). Warrants, of
¶332course, require probable cause. See id. at 381 (quoting U.S. Const.,
¶333amend. IV). “To determine whether probable cause exists, the
¶334magistrate must review the search-warrant application and make a
¶335practical, common-sense decision whether, given all the
¶336circumstances set forth in the affidavit before him, there is a fair
¶337probability that contraband or evidence of a crime will be found in a
¶338particular place.” Willis v. State, ___ Ga. ___ (4) (c) (880 SE2d 158,
¶339168) (Oct. 25, 2022) (citation and punctuation omitted).
¶340 I am quite skeptical that the warrant in this case contained
¶341sufficient probable cause because it merely stated that a suspect had
¶342been arrested, a cell phone was discovered in his vehicle, and in the
¶343law enforcement officer’s general “knowledge, training, and
¶344experience investigating violent crimes and homicides, [he was]
¶345 21 aware that perpetrators commonly use their cell phones to
¶346communicate about crimes.” This case illustrates a troublesome
¶347issue post-Riley, which is that many law enforcement officers believe
¶348that when a cell phone is discovered during the course of an
¶349investigation, probable cause simply exists to search it. I remind the
¶350government that the affidavit in support of the search warrant
¶351application should establish a link showing that the phone was used
¶352to facilitate, commit, or cover up the crime. See United States v.
¶353Mathis, 767 F3d 1264, 1276 (II) (A) (1) (11th Cir. 2014) (“[A]n
¶354affidavit should establish a connection between the defendant and
¶355the property to be searched and a link between the property and any
¶356criminal activity.” (abrogated on other grounds by Lockhart v.
¶357United States, 577 U.S. 347 (136 SCt 958, 194 LE2d 48) (2016)
¶358(citation and punctuation omitted; emphasis supplied)). And, judges
¶359are entrusted to uphold the law requiring this link. But, because I
¶360agree with the majority opinion’s ultimate conclusion affirming the
¶361trial court’s order granting Wilson’s motion to suppress, I concur in
¶362judgment only.
¶363 22 PINSON, Justice, concurring.
¶364 We need to talk about cell phones.
¶365 In Riley v. California, 573 U.S. 373 (134 SCt 2473, 189 LE2d
¶366430) (2014), the United States Supreme Court took a small step
¶367down the road of applying the Fourth Amendment to the modern cell
¶368phone. Riley addressed the question whether the police could,
¶369without a warrant, search digital information on a cell phone seized
¶370from someone who’d been arrested. The answer was no: to search a
¶371cell phone incident to arrest, you generally need to “get a warrant.”
¶372Id. at 403. That holding was important on its own, and it gave
¶373needed guidance to both law enforcement and courts. See, e.g.,
¶374Hawkins v. State, 290 Ga. 785 (723 SE2d 924) (2012) (pre-Riley,
¶375holding that police could search a cell phone incident to an arrest
¶376without a warrant), abrogated by Riley, 573 U.S. 373.
¶377 But there is more to Riley. Along the way to its straightforward
¶378holding, Riley addressed the nature of modern cell phones and how
¶379to view them for purposes of applying the Fourth Amendment. This
¶380reasoning was central to Riley’s holding, and it demands careful
¶381 23 attention in cases like this one and others in which the Fourth
¶382Amendment and cell phones intersect.
¶383 Before Riley, courts (including ours) often applied the Fourth
¶384Amendment to cell phones as if they were little different from
¶385articles or containers found on or near someone’s person. See, e.g.,
¶386Hawkins, 290 Ga. 785; United States v. Finley, 477 F3d 250, 260 (5th
¶387Cir. 2007), overruled by Riley, 573 U.S. 373; United States v. Deans,
¶388549 FSupp.2d 1085, 1094 (D. Minn. 2008), overruled by Riley, 573
¶389U.S. 373. That was why courts would conclude that police could
¶390search them without a warrant if they were seized incident to an
¶391arrest: United States Supreme Court precedent had long allowed
¶392such warrantless searches of personal property—like clothes,
¶393cigarette packs, wallets, and purses—found on or near an arrestee.
¶394See United States v. Robinson, 414 U.S. 218 (94 SCt 467, 38 LEd2d
¶395427) (1973); Chimel v. California, 395 U.S. 752 (89 SCt 2034, 23
¶396LE2d 685) (1969).
¶397 Riley rejected this understanding of cell phones. Indeed, the
¶398Riley Court supposed treating cell phones like other physical items
¶399 24 that could be found on a person was “like saying a ride on horseback
¶400is materially indistinguishable from a flight to the moon. Both are
¶401ways of getting from point A to point B, but little else justifies
¶402lumping them together.” Riley, 573 U.S. at 393. That is because
¶403“[m]odern cell phones, as a category, implicate privacy concerns far
¶404beyond those implicated by the search of a cigarette pack, a wallet,
¶405or a purse.” Id. Today’s “phones” are “in fact minicomputers” that
¶406serve not only as telephones, but also as “cameras, video players,
¶407rolodexes, calendars, tape recorders, libraries, diaries, albums,
¶408televisions, maps, or newspapers”; they have “immense storage
¶409capacity” to support these functions and store other data like
¶410“Internet search and browsing history,” “[h]istoric location
¶411information,” and other “app” data; and they collect these “many
¶412distinct types of information” “in one place,” dating “back to the
¶413purchase of the phone, or even earlier.” Id. at 393-396.
¶414 Based on all of this, the Court reasoned that the “consequences
¶415for privacy” of searching a cell phone are substantial. Unlike a
¶416search of a wallet or purse or cigarette pack, searching a cell phone
¶417 25 can allow police to “reconstruct” “the sum of an individual’s private
¶418life” going back months or even years, potentially revealing
¶419someone’s “private interests or concerns,” “specific movements down
¶420to the minute, not only around town but also within a particular
¶421building,” and a “montage of the user’s life” from whatever apps the
¶422person happens to use. Id. at 394-396. And cell phones are “now such
¶423a pervasive and insistent part of daily life that the proverbial visitor
¶424from Mars might conclude they were an important feature of human
¶425anatomy.” Id. at 385; see also id. at 395 (“[I]t is no exaggeration to
¶426say that many of the more than 90% of American adults who own a
¶427cell phone keep on their person a digital record of nearly every
¶428aspect of their lives—from the mundane to the intimate.”);
¶429Carpenter v. United States, 138 SCt 2206, 2211 (201 LE2d 507)
¶430(2018) (“There are 396 million cell phone service accounts in the
¶431United States—for a Nation of 326 million people.”).
¶432 In light of these unique characteristics of modern cell phones
¶433and their “consequences for privacy,” the Court held that police
¶434generally need to “get a warrant” to search one. Riley, 573 U.S. at
¶435 26 394, 403. But it is pretty hard to read all of the reasons Riley gave
¶436for this holding and come away thinking that the rest of the Fourth
¶437Amendment is business as usual when it comes to cell phones.
¶438Again, the big premise of Riley was that searching a cell phone is
¶439not much at all like searching a pocket or a purse. “Indeed, a cell
¶440phone search would typically expose to the government far more
¶441than the most exhaustive search of a house: A phone not only
¶442contains in digital form many sensitive records previously found in
¶443the home; it also contains a broad array of private information never
¶444found in a home in any form—unless the phone is.” Id. at 396-397
¶445(emphasis added). And as a general matter, the Fourth Amendment
¶446“was the founding generation’s response to the reviled ‘general
¶447warrants’ and ‘writs of assistance’ of the colonial era, which allowed
¶448British officers to rummage through homes in an unrestrained
¶449search for evidence of criminal activity.” Id. at 403. The issue is
¶450apparent. If a cell phone is a handheld “house” and may hold the
¶451sum total of one’s private “papers” and “effects,” then a search of that
¶452device or a seizure of its contents that lacks appropriate restraints
¶453 27 seems little different from the general searches that the Fourth
¶454Amendment unequivocally forbids. 7
¶455 Take the search warrant in this case. As far as I can tell, that
¶456warrant allowed the search and seizure of the data from two cell
¶457phones on the theory that (1) they were found in the suspect’s van,
¶458and (2) criminals commonly use cell phones to talk about crimes.
¶459And the scope of the authorized search and seizure looks unlimited:
¶460police could search and seize the entire contents of the phones, with
¶461no apparent restrictions on the type or category of data or
¶462information that could be seized, or on how any of that data or
¶463information could be used. A warrant supported by such generic
¶464“probable cause” to search someone’s house and seize the entirety of
¶465its contents, with no restrictions on their use, would never fly. See,
¶466e.g., Bryant v. State, 301 Ga. 617, 619-620 & n.3 (2) (800 SE2d 537)
¶467 7 The nature of cell phones also raises questions about how to apply OCGA § 17-5-21, which describes the kinds of things that a warrant can authorize seizure of. For example, that statute treats “private papers” differently than some other types of evidence. See id. § (a) (5), (b). What information on a cell phone, if any, counts as “private papers” subject to this statute’s limitations? 28 (2017) (warrant that named house and cars to be searched but did
¶468not specify items or evidence sought violated particularity
¶469requirement); United States v. Travers, 233 F3d 1327, 1330 (11th
¶470Cir. 2000) (warrant that authorized seizure of all “material
¶471reflecting identity” and “anything reflecting potential fraud”
¶472violated particularity requirement); State v. Rothman, 779 P2d 1, 3,
¶4739, 10-11 (Haw. 1989) (holding that warrant that authorized the
¶474seizure of all items in a home that related to the defendant’s
¶475financials or that tended to show his identity violated particularity
¶476requirement and explaining, “If the authorities have only to say ‘I
¶477have reason to believe that X has committed a crime based on what
¶478Y has told me’ to get authorization to search X’s home for anything
¶479and everything X possesses, then no one’s papers or possessions are
¶480safe”). Yet I suspect that such warrants for cell-phone data remain
¶481all too common, even in Riley’s wake.
¶482 Of course, part of the reason for that is Riley itself. Riley’s “get
¶483a warrant” holding was more or less a mic drop, and the Court has
¶484 29 yet to return for an encore.8 But in the meantime, people haven’t
¶485stopped using cell phones or committing crimes (would that it were
¶486so!). And cell-phone technology keeps advancing, adding both to the
¶487value of cell phones for law enforcement seeking to combat crime,
¶488and to the privacy consequences the Court worried about.9 The
¶489Court may say more someday about just how the Fourth
¶490Amendment applies to and limits warrants for cell-phone data, but
¶491until then, our courts must grapple with these questions, in light of
¶492Riley, ourselves.
¶493 Today’s decision is a start. The Court holds that a warrant to
¶494search and seize “any and all” data stored on a cell phone, not even
¶495limited to evidence of the crime at issue, with no specificity about
¶496how any of the data could be used, violates the Fourth Amendment’s
¶497 8 To be fair, the Court has since Riley addressed related questions about cell-site location information, or CSLI. See Carpenter v. United States, 138 S. Ct. 2206, 2220 (201 LE2d 507) (2018) (holding that acquiring CSLI is a search and generally requires a warrant supported by probable cause). 9 For example, the Riley Court pointed out at the time that “[t]he current
¶498top-selling smart phone has a standard capacity of 16 gigabytes,” which “translates to millions of pages of text, thousands of pictures, or hundreds of videos.” Id. at 394. Some popular smart phones today come with up to one terabyte—1000 gigabytes—of storage capacity. 30 particularity requirement. To be sure, the warrant here has a veneer
¶499of particularity to it: the description of the “things to be seized” listed
¶500“any and all stored electronic information, including but not limited
¶501to” specific kinds of data like images, text messages, videos, and
¶502internet activity. In a way, this description arguably “enabled a
¶503prudent officer to locate” the things to be seized “definitely and with
¶504reasonable certainty,” which is how the particularity requirement
¶505typically prevents the fishing expeditions that the Fourth
¶506Amendment protects against. See Fair v. State, 284 Ga. 165, 170 (3)
¶507(a) (664 SE2d 227) (2008) (cleaned up). See also Orin S.
¶508Kerr, Executing Warrants for Digital Evidence: The Case for Use
¶509Restrictions on Nonresponsive Data, 48 Tex. Tech L. Rev. 1, 3 (2015)
¶510(citing Stanford v. Texas, 379 U.S. 476, 480-486 (85 SCt 506, 13
¶511LE2d 431) (1965) (explaining that the idea behind the Fourth
¶512Amendment’s particularity requirement was to prevent the general
¶513search by “limiting where agents can go and what they can take”)).
¶514But if an officer could understand what to search for and seize from
¶515the phones here, that was only because the sheer breadth of the
¶516 31 warrant’s description didn’t allow for the officer to be wrong: the
¶517warrant “specified” that the “things to be seized” included every bit
¶518of data an officer might find on the phone. Our rejection of that basis
¶519for demonstrating particularity is rooted in the unique nature of
¶520modern cell phones, including their “immense” capacity to store
¶521information of all kinds—analogous to cramming the entirety of
¶522one’s life into a small slab of plastic, metal, glass, and silicon. When
¶523we view cell phones through that lens, the closest analogy I can come
¶524up with is a warrant to search a house and seize “any and all atoms
¶525of matter stored within, including but not limited to matter in solid,
¶526liquid, and gaseous states.” I suppose an officer would know what to
¶527search for and seize based on that description, too. But both that
¶528hypothetical warrant and its digital equivalent here authorize a
¶529forbidden general search, and our decision today rightly concludes
¶530as much.
¶531 But there are plenty more questions where that one came from.
¶532Stay with particularity for a moment. Some of this Court’s post-Riley
¶533decisions have concluded that warrants with similarly broad
¶534 32 descriptions of the cell-phone data to be searched and seized were
¶535sufficiently particular because the warrant as a whole could be read
¶536to narrow the scope of the search to evidence of the crimes in
¶537question. See Rickman v. State, 309 Ga. 38 (842 SE2d 289) (2020);
¶538Westbrook v. State, 308 Ga. 92 (839 SE2d 620) (2020); Leili v. State,
¶539307 Ga. 339 (834 SE2d 847) (2019). But none of these decisions even
¶540mentions, much less accounts for, the characteristics of modern cell
¶541phones that Riley found critical to its Fourth Amendment analysis. 10
¶542As the Presiding Justice notes in his concurrence, it is not clear that
¶543warrants that allow police to search every bit of data on a cell phone
¶544necessarily avoid an unconstitutional general search merely by
¶545telling police to look only for unspecified evidence of the crime in
¶546question. At the least, we ought to be looking at questions like this
¶547through the same lens Riley did—that is, one that accounts for the
¶548uniquely expansive and complex nature of cell-phone data. See, e.g.,
¶549Kerr at 3 (“The facts of computer storage threaten [the particularity
¶550 10Only one of these decisions cited Riley, and then only because it relied on our decision in Hawkins, 290 Ga. 785, which was abrogated by Riley. See Westbrook, 308 Ga. at 98 (3) (a). 33 requirement’s] limiting role. They create the prospect that computer
¶551warrants that are specific on their face will resemble general
¶552warrants in execution simply because of the new technological
¶553environment.”).
¶554 Then there’s probable cause. I would not be surprised if many
¶555warrants to search cell phones are based on a set of facts much like
¶556the one here: the police have enough evidence to suspect someone of
¶557a crime; they know that person has a cell phone, or they find one in
¶558his vicinity or possession; and an officer avers that based on her
¶559training and experience, criminals commonly use cell phones to plan
¶560or talk about crimes. On its face, it is not crazy to think that a
¶561warrant application along these lines could support probable cause.
¶562The probable-cause question is a “practical, common-sense decision
¶563whether, given all the circumstances set forth in the affidavit before
¶564[the magistrate], there is a fair probability that contraband or
¶565evidence of a crime will be found in a particular place.” Willis v.
¶566State, 315 Ga. 19, 29-30 (4) (c) (880 SE2d 158) (2022). If the evidence
¶567in a given case is good enough to suspect someone of a crime, it may
¶568 34 well be true that the person did plan or talk about or otherwise put
¶569evidence of the crime on his cell phone, and I do not doubt that the
¶570experience of many police officers bears that out. And in fact, quite
¶571a few courts have upheld probable-cause determinations on similar
¶572bases—albeit ones with perhaps a bit more specificity than the
¶573warrant application offered in this case. See, e.g., State v. Goynes,
¶574927 NW2d 346, 354 (Neb. 2019) (finding probable cause to search
¶575cell phone based on officer’s training and experience, where officer
¶576“explained that cell phone data provides insight for criminal
¶577investigations in that cell phones are used for communication,
¶578access to information, socialization, research, entertainment,
¶579shopping, and other functionality and that these uses are often
¶580found to be tools in criminal activity,” that “the data from cell phones
¶581can provide information on the motivation, method, and participants
¶582involved in a crime,” and that “he was aware of numerous instances
¶583where cell phones were used by participants in crimes to
¶584communicate through voice and text messaging, take photographs
¶585of themselves with weapons or illegal narcotics, create videos of
¶586 35 their criminal activity, and research crimes in which they
¶587participated”); Moats v. State, 168 A3d 952, 955, 962-963 (Md. 2017)
¶588(collecting other cases where officer’s expertise was relied on to
¶589establish probable cause that defendant’s cell phone would contain
¶590evidence of crime and finding probable cause where officer, a 17-year
¶591veteran of drug enforcement, stated that he “knows through his
¶592training and experience as a Criminal Investigator that individuals
¶593who participate in such crimes communicate via cellular telephones,
¶594via text messages, call, e-mail etc.”); Stevenson v. State, 168 A3d 967,
¶595975-977 (Md. 2017) (probable cause to search cell phone of
¶596defendant, arrested for robbery-assault, where detective’s affidavit
¶597explained “that suspects in robberies and assaults will sometimes
¶598take pictures, videos and send messages about their criminal
¶599activities on their cellular phones”); United States v. Mathis, 767
¶600F3d 1264, 1269, 1275-1276 (11th Cir. 2014) (probable cause to
¶601search defendant’s cell phone about calls years earlier because,
¶602“based on [the officer’s] knowledge, experience and training,”
¶603individuals who sexually abuse children sometimes keep copies of
¶604 36 communications with their victims “for many years”); State v.
¶605Henderson, 854 NW2d 616, 632 (Neb. 2014) (probable cause to
¶606search defendant’s cell phone where “two men committed the
¶607shootings” and defendant was “seen running from the scene,” as
¶608affiant stated “that in his experience as a detective, he knew that
¶609suspects used cell phones to communicate about shootings they have
¶610been involved in before, during, and after the shootings”).
¶611 And yet it is not so easy to square that permissive view of
¶612probable cause for cell-phone search warrants with Riley. First
¶613return to the cell-phones-as-houses analogy: An officer might also
¶614reasonably say that in her experience, criminals often store evidence
¶615of their crimes—cash, weapons, drug paraphernalia, and more—
¶616where they live. Yet “[p]robable cause to believe that a man has
¶617committed a crime on the street does not necessarily give rise to
¶618probable cause to search his home.” Commonwealth of Pennsylvania
¶619v. Kline, 335 A2d 361, 364 (Pa. Super. 1975). See also Banks v. State,
¶620277 Ga. 543, 546-47 (2) (592 SE2d 668) (2004) (evidence implicating
¶621defendant in drug dealing was not sufficient to establish probable
¶622 37 cause to search his home for drugs); Shivers v. State, 258 Ga. App.
¶623253, 255 (573 SE2d 494) (2002) (probable cause to believe defendant
¶624was selling crack cocaine did not on its own furnish probable cause
¶625to search his home); Kelleher v. State, 185 Ga. App. 774, 777 (1) (365
¶626SE2d 889) (1988) (holding that even assuming there was “probable
¶627cause for a belief that the appellants were involved in drug
¶628trafficking,” that information did not establish probable cause to
¶629search their residence); United States v. Jones, 994 F2d 1051, 1055
¶630(3d Cir. 1993) (“[P]robable cause to arrest does not automatically
¶631provide probable cause to search the arrestee’s home.”). Instead,
¶632courts typically require something a little more specific and concrete
¶633to provide “a substantial basis for concluding that a search would
¶634uncover evidence of wrongdoing” in the suspect’s home. Marlow v.
¶635State, 288 Ga. 769, 771 (707 SE2d 95) (2011) (citation and
¶636punctuation omitted) (finding probable cause existed for search of
¶637defendant’s home for keys to stolen car, where stolen car was in the
¶638driveway locked and with alarm activated and the defendant was
¶639seen inside the home but refused to answer the door). See also, e.g.,
¶640 38 Boldin v. State, 282 Ga. App. 492, 493-495 (2) (639 SE2d 522) (2006)
¶641(concluding probable cause existed for search of defendant’s home
¶642for drugs, where officer detected odor of burning marijuana coming
¶643from open garage door and, when officer approached to identify
¶644himself, defendant grabbed a garbage bag off the floor and ran into
¶645house, dropping a zip-lock bag appearing to contain marijuana
¶646residue); Perkins v. State, 220 Ga. App. 524, 525 (1) (469 SE2d 796)
¶647(1996) (finding probable cause for search of defendant’s home where
¶648confidential informant had conducted controlled buy of marijuana at
¶649the home, as well as probable cause to search defendant’s second
¶650home, based on the results of the search at the first home coupled
¶651with information from the informant that defendant was growing
¶652marijuana at both homes); Jones, 994 F2d at 1056 (finding
¶653substantial basis to support probable cause to search arrestee’s
¶654home for money, clothes, and guns because “cash is the type of loot
¶655that criminals seek to hide in secure places like their homes”; two
¶656weeks between the crime and the search was “long enough to enable
¶657the defendants to hide the cash” and “not so long as to dispel the
¶658 39 likelihood that it would still be in their residences”; and “the other
¶659items sought, clothing and firearms, are also the types of evidence
¶660likely to be kept in a suspect’s residence”). Sure, cell phones are not
¶661in fact houses, so the analysis might differ in some particulars. But
¶662after Riley, it is not clear why cell phones would not be treated in
¶663similar fashion.
¶664 If not—if this generic “criminals use cell phones, too” logic is
¶665enough for probable cause to get a warrant to search a suspect’s cell
¶666phone—it is hard to imagine a case in which police cannot get that
¶667warrant. As Riley reasoned in declining to apply the search-incident-
¶668to-arrest exception to the warrant requirement, “[i]t would be a
¶669particularly inexperienced or unimaginative law enforcement officer
¶670who could not come up with several reasons to suppose evidence of
¶671just about any crime could be found on a cell phone.” Riley, 573 U.S.
¶672at 399. But if that’s enough for probable cause, it would make Riley
¶673little more than a paperwork requirement. Maybe, but I am not so
¶674sure that Riley’s holding is so “hollow.” United States v. Morton, 46
¶675F4th 331, 340 (5th Cir. 2022) (Higginson, J., concurring in judgment)
¶676 40 (“Riley requires that officers first get a warrant, but if the fact that
¶677the arrestee was carrying a cell phone at the time of arrest is
¶678sufficient to support probable cause for a search, then the warrant
¶679requirement is merely a paperwork requirement. It cannot be
¶680that Riley’s holding is so hollow.”) (citation omitted). In any event,
¶681probable cause too requires careful thought when cell phones are the
¶682target.
¶683 And what about the “plain view” exception? When an officer
¶684executing an otherwise valid search warrant finds in plain view
¶685incriminating evidence that is outside the scope of the warrant, this
¶686exception says he may still seize the evidence without a warrant and
¶687use it even to investigate and prosecute other crimes. 11 See, e.g.,
¶688George v. State, 312 Ga. 801, 804-805 (865 SE2d 127) (2021)
¶689(explaining that a police officer may seize evidence outside the scope
¶690of a search warrant if the evidence is in plain view, the officer has
¶691not violated the Fourth Amendment in arriving at the place from
¶692 11 In Georgia, a person’s “private papers” are carved out from seizure under this exception by statute. See OCGA § 17-5-21 (b). 41 which he sees the evidence, and the incriminating nature of the
¶693evidence is “immediately apparent” (citing Horton v. California, 496
¶694U.S. 128 (110 SCt 2301, 110 LE2d 112) (1990))). How does this
¶695doctrine translate to a forensic search of a cell phone? The nature of
¶696searching electronic data is such that officers executing a carefully
¶697particularized warrant may well have to view a vast amount of
¶698nonresponsive data to find even information they’re properly
¶699authorized to seize—especially when the data they’re looking for is
¶700hidden or obfuscated. See, e.g., Kerr at 16-17. Is all of that
¶701nonresponsive data fair game for seizure and later use? Given the
¶702massive amounts and endless variations of data that cell phones can
¶703store, there is no ready analogue in the physical world, and yet
¶704significant consequences for law enforcement and privacy hang in
¶705the balance. 12
¶706 12 For one prominent Fourth Amendment scholar’s view on this issue, see Kerr generally and at 18-27 (proposing that the “plain view” exception still applies to searches of digital information, but later use of nonresponsive data “renders the ongoing seizure [of that data] unreasonable”). 42 I could go on, but you get the point: Riley made unmistakably
¶707clear that when it comes to applying the Fourth Amendment,
¶708modern cell phones are not just another physical object. So going
¶709forward, all of the courts of our State (including this one) should
¶710acknowledge and account for their unique nature when questions
¶711like these arise. In doing so, the pace of technological change
¶712requires us to “tread carefully” so we do not “embarrass the future.”
¶713Carpenter, 138 SCt at 2220 (quoting Northwest Airlines, Inc. v.
¶714Minnesota, 322 U.S. 292, 300 (64 SCt 950, 88 LEd 1283 (1944)). But
¶715tread we must.
¶716 With these things in mind, I concur in the majority’s opinion. I
¶717am authorized to state that Chief Justice Boggs and Justice Warren
¶718join in this concurrence.
¶719 43