¶1 SUPREME COURT OF GEORGIA Case No. S23A1063
¶2 March 14, 2024
¶3 The Honorable Supreme Court met pursuant to adjournment.
¶4The following order was passed:
¶5 ANDRE PUGH v. THE STATE.
¶6 Upon consideration, the Court has revised the deadline for motions for reconsideration in this matter. It is ordered that a motion for reconsideration, if any, including motions submitted via the Court’s electronic filing system, must be received in the Clerk’s Office by 12:00 p.m. on Friday, March 22, 2024.
¶7 SUPREME COURT OF THE STATE OF GEORGIA Clerk’s Office, Atlanta
¶8 I certify that the above is a true extract from the minutes of the Supreme Court of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.
¶9 , Clerk 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.
¶10In the Supreme Court of Georgia
¶11 Decided: March 14, 2024
¶12 S23A1063. PUGH v. THE STATE.
¶13 BETHEL, Justice.
¶14 Andre Pugh was convicted of the malice murder of his wife
¶15Tiffany Jackson-Pugh and possession of a firearm during the
¶16commission of a felony. 1 In this appeal, Pugh contends that the trial
¶17court erred by denying his motion to suppress evidence obtained
¶18pursuant to a search warrant for his cell phone records, that trial
¶19 1 The crimes occurred on November 23, 2014. On February 16, 2016, a
¶20Fulton County grand jury indicted Pugh and co-indictee Adrian Earl Harley for malice murder (Count 1), felony murder (Count 2), aggravated assault (Count 3), conspiracy to commit murder (Count 4), and possession of a firearm during the commission of a felony (Count 5). Pugh was tried alone before a jury from September 24 to October 5, 2018, and was found guilty of all counts. The trial court sentenced Pugh to serve life in prison without the possibility of parole on Count 1 and five years on Count 5, to run consecutively to Count 1. The remaining counts were vacated or merged. On October 23, 2018, Pugh, through new counsel, filed a timely motion for new trial, which he amended on December 18, 2020. Following a hearing, the trial court denied the motion, as amended, on April 18, 2023. Pugh thereafter filed a timely notice of appeal. The case was docketed to this Court’s August 2023 term and submitted for a decision on the briefs. 1 counsel was ineffective for failing to raise a particularity challenge
¶21to the same search warrant, and that motion-for-new-trial counsel
¶22was ineffective in various respects. Concluding that these claims are
¶23meritless, we affirm.
¶24 1. The evidence presented at Pugh’s trial showed the following.
¶25Around 6:00 a.m. on November 23, 2014, Tiffany was shot and killed
¶26while asleep in her bed at the Pughs’ East Point residence. At 6:05
¶27a.m., Pugh called his boss to report that someone had broken into
¶28his home. Pugh’s boss drove to Pugh’s home, and when he arrived,
¶29Pugh indicated that he had not been inside the residence but had
¶30noticed a suspected intrusion upon his return from overnight
¶31employment. At approximately 6:15 a.m., Pugh called 911 and
¶32informed the operator that he was at the residence, the garage door
¶33was open, and a downstairs window was broken. He told the
¶34operator that Tiffany had been murdered but again claimed that he
¶35had not been inside the home.
¶36 When responding officers arrived, Pugh was outside the home,
¶37waving his arms, and exclaiming, “My kids are in there. She’s not
¶38 2 picking up the phone.” Pugh stated that he received a call from ADT,
¶39his alarm-service provider, alerting of a break-in at the residence.
¶40Pugh further noted that the garage door and a rear window were
¶41open. Pugh also called a neighbor early that morning while “it was
¶42still dark” to report that someone broke into the house, that “they
¶43hurt Tiffany,” and that Pugh thought Tiffany was dead.2
¶44 Upon entering the house, officers found Tiffany in bed in the
¶45main-level bedroom; she was bleeding from a gunshot wound to her
¶46left eye, which was “obviously swollen and oozing,” and had no
¶47pulse. 3 Her crying toddler was sitting on her chest; two older
¶48children were asleep in an upstairs bedroom. Officers found the
¶49basement door and storm door unlocked, a basement window open
¶50with its screen cut, and the gate to the backyard open; during a
¶51sweep of the house, they found nothing else of interest.
¶52 2 A precise timeline for this conversation was not clearly established at
¶53trial. But, immediately following the call, the neighbor dressed and walked from two doors down to the Pugh residence where he found police already on the scene. 3 A subsequent autopsy revealed that Tiffany was shot twice, once in the
¶54left eye and once near the left breast; the gunshot wound to the head was determined to be the cause of her death. 3 That morning, Pugh, whom law enforcement did not yet
¶55consider a suspect in Tiffany’s murder, provided a statement to
¶56police, a video-recording of which was played at trial. According to
¶57Pugh, he left work around 5:15 a.m., and, sometime between 5:30
¶58a.m. and 5:50 a.m. while driving home, he missed a call from ADT.
¶59Pugh returned the call and requested that ADT turn off the alarm
¶60so as not to disturb his children. Pugh stated that, upon arriving at
¶61home, he went inside to find the alarm still armed. When he turned
¶62on a light in Tiffany’s bedroom, he “just saw a body,” but he claimed
¶63that he did not notice any blood and that she appeared to be
¶64sleeping. He also claimed that he did not try to wake Tiffany because
¶65he was “scared.” Pugh then went downstairs and found broken glass.
¶66Pugh stated that he told responding officers that he could not find
¶67his son and that his wife was not moving. When asked why he left
¶68his children inside the home despite signs of an apparent break-in,
¶69Pugh responded that he did not want to wake the older children and
¶70that he was unable to find his son.
¶71 During the interview, Pugh expressly stated that he had only
¶72 4 one cell phone; the next day, however, investigators learned that
¶73Pugh in fact had a second cell phone. Thereafter, officers secured
¶74search warrants to obtain the records for both phone numbers from
¶75Sprint, the cell-service provider, as well as for a tower dump of phone
¶76numbers used on the Sprint cell phone tower near Pugh’s residence
¶77around the time of the crime. By cross-referencing phone numbers
¶78appearing in the tower dump with those in Pugh’s contact list,
¶79investigators identified co-indictee Adrian Harley as a person of
¶80interest.4 Data from Pugh’s and Harley’s cell phones showed that
¶81both phones were near the residence just before the murder and that
¶82several calls were exchanged between the phones.
¶83 Investigators also obtained security footage from Pugh’s and a
¶84neighbor’s5 residences around the time of the murder, which
¶85investigators determined occurred at approximately 5:58 a.m. The
¶86footage showed two vehicles on the street and in the cul-de-sac near
¶87 4 At the time of the crimes, Pugh worked as a disc jockey at Club Onyx,
¶88an adult entertainment club. Harley, Pugh’s long-time friend, was employed as his assistant. 5 The neighbor testified that he lived two houses down from the Pugh
¶89residence. 5 Pugh’s residence shortly before the murder. One vehicle, which had
¶90a non-operative driver-side parking light, first passed the neighbor’s
¶91residence at 4:50 a.m., corresponding to Harley’s phone records
¶92placing him in Pugh’s neighborhood at 4:49 a.m. That same vehicle
¶93pulled into the cul-de-sac about ten minutes before the murder,
¶94where it remained parked for several minutes. At 5:57 a.m., the
¶95vehicle’s headlights flashed, and a second vehicle pulled alongside
¶96it. At 5:58 a.m., the vehicle with the non-operative parking light
¶97moved forward and stopped in front of Pugh’s house for two or three
¶98minutes; the other vehicle drove away. Security footage showed that,
¶99soon thereafter, a light came on in the rear of the residence. Also at
¶1005:58 a.m., Pugh received a phone call from ADT. Investigators later
¶101determined that the vehicle with the non-operative parking light
¶102matched the appearance of Harley’s vehicle, which also had a non-
¶103operative driver-side parking light.
¶104 At trial, the State presented evidence undermining Pugh’s
¶105various stories about his actions on the morning of Tiffany’s murder.
¶106Records from ADT showed that ADT called Pugh at 5:58 a.m. and
¶107 6 that Pugh returned the call at 6:03 a.m., contradicting Pugh’s claim
¶108that the call regarding the triggered alarm came between 5:30 a.m.
¶109and 5:50 a.m. Surveillance footage showed that, upon parking and
¶110exiting his vehicle in front of the home, Pugh in fact did not enter
¶111the home in the manner he described and instead waited for the
¶112police outside, despite his fairly detailed statement to the contrary.
¶113 The State also presented significant evidence of Pugh and
¶114Tiffany’s marital difficulties and impending divorce. In September
¶1152014, Tiffany consulted a divorce attorney, made plans to move out
¶116of the marital residence on December 1, and intended to file for
¶117divorce. According to Pugh’s boss, Pugh was angry with Tiffany for
¶118wanting a divorce. Text messages between Pugh and Tiffany
¶119reflected discord in the relationship. Five days before the crimes,
¶120Pugh texted Tiffany, “I won’t let you leave me now or never.” Tiffany
¶121responded that she took the statement “as a threat.” In other text
¶122messages found on Pugh’s phone, Pugh engaged in sexually explicit
¶123conversations with multiple women, exchanged sexually explicit
¶124photographs with other women, and stated that he cheated on
¶125 7 Tiffany every time she was out of town. In addition, a co-worker of
¶126Tiffany’s with whom she had a romantic relationship in the weeks
¶127before her death testified regarding Pugh’s suspicions about that
¶128relationship. Pugh’s boss testified that Pugh placed a second phone
¶129in Tiffany’s vehicle to use as a GPS tracker because Pugh had been
¶130“speculating” that Tiffany “was possibly cheating” and that Pugh
¶131had previously sent Harley to the marital residence to lock Tiffany
¶132out of the home.
¶133 Evidence of Pugh’s financial motive for the murder was also a
¶134prominent focus of the State’s case, with text messages showing that
¶135Pugh would be unable to maintain the marital home following the
¶136divorce. Within 36 hours after Tiffany’s murder, Pugh reported to
¶137his boss that he went to the social security office to “find out how
¶138much — what he can get for the passing of his wife” and that, “based
¶139upon what social security told him, he was going to be able to
¶140maintain paying his mortgage.” And a family friend testified that,
¶141before Tiffany’s funeral, Pugh sought her help in contacting
¶142Tiffany’s employer’s benefits provider. Finally, the State presented
¶143 8 testimony regarding Pugh’s unusual conduct and demeanor in the
¶144wake of Tiffany’s murder, particularly his general lack of emotion
¶145and apparently contrived expressions of grief.
¶146 2. On appeal, Pugh challenges the trial court’s denial of his
¶147motion to suppress evidence obtained pursuant to a search warrant
¶148for his cell phone records. As he did below, Pugh argues that the
¶149warrant application failed to establish probable cause to believe that
¶150he had committed a crime or that evidence of such crime would be
¶151found in the phone records. He also asserts for the first time on
¶152appeal that the warrant authorized the seizure of items for which
¶153there was no probable cause and, thus, was overbroad. And in a
¶154related claim, Pugh contends that trial counsel was ineffective for
¶155failing to challenge the warrant on particularity grounds.
¶156 (a) The search warrant at issue was obtained by Sergeant Allyn
¶157Glover on November 24, 2014, the day after the crimes. The affidavit
¶158submitted in support of the search warrant application identified
¶159the place to be searched as “Records of Sprint Phone Number
¶160 9 [Ending] -7281,”6 indicated that the search warrant was sought in
¶161connection with the offense of murder, and recited the following
¶162factual basis:
¶163 On November 23rd 2014 at approximately 0616 hours, East Point Police was dispatched to 3782 Lake Haven Way, East Point, Fulton County, GA in reference to a trouble unknown call. Prior to their arrival, East Point Police Communications advised that they had previously received an alarm call from that location at 0558 hours, but the alarm was cancelled shortly thereafter. Communications advised that the resident, Mr. Andre Pugh would be standing by in front of the residence and that he noted damage to a rear window. Upon officers arrival, they were met by Mr. Pugh, who was waving his arms in the middle of the street continually stating “my kids are in there! She’s not picking up the phone”.
¶164 Officers entered the residence and located a female victim laying on the bed, on her back, partially covered up by a blanket with an apparent gunshot wound to the left eye. A small child was seen straddling the deceased victim.
¶165 Mr. Pugh stated that he was not at the residence during the incident and came home as a result of being notified by ADT of his house alarm going off. Mr. Pugh later stated that he missed a phone call from ADT and then returned their call. Upon arrival to the residence, Mr. Pugh advised that he looked in on his wife and saw her in the bedroom, though he didn’t see any blood (though the victim had
¶166 6 Though Pugh complains that the affidavit mentions neither the -7281
¶167phone number nor Sprint, he overlooks the enlarged, bold heading which reads “Records of Sprint Phone Number [Ending] -7281.” 10 visible blood coming from her head). He then looked in on his kids and then went downstairs to see the broken glass and then went outside the residence to make phone calls; thus, leaving his wife and two children inside the residence. It is believed that this phone would contain evidence in reference to this crime to include but not limited to GPS data, call logs, texts, etc.
¶168The affidavit also detailed Sergeant Glover’s experience in law
¶169enforcement.
¶170 The search warrant itself identified the place to be searched as
¶171“Records of Sprint Phone Number [Ending] -7281” and authorized
¶172the seizure of the following categories of items:
¶173 [1] Subscriber information, credit information, account comments, billing records from November 6th 2014 through present (or up to time phone may have been turned off), [2] Detailed inbound and outbound call lists from and to above dates to include call origination and termination location, [3] Cell site tracking reference above dates, [4] Physical address of cell sites and RF coverage map, [5] All incoming and outgoing text messages detail and text message content for above dates, [6] Subscriber information on any cellular numbers that the above number dialed or received calls from that belong to Sprint [7] All stored communications or files, including voice mail, email, digital images, buddy lists, and any other files associated with user accounts identified with account
¶174 11 listed. [8] Any other records or accounts, including archived records related or associated to the above referenced names, user names, or accounts and any data field name definitions that describe these records, [9] Any GPS location history available. [10] Any other information pertaining to this phone number. [11] Address books and calendars; [12] Audio and video clips related to the above-described criminal activity and further described in this affidavit in support of the search warrant, for the above-described item(s); [13] Call histories and call logs related to the above-described criminal activity and further described in this affidavit in support of the search warrant, for the above-described item(s); [14] Photographs and associated metadata related to the above-described criminal activity and further described in this affidavit in support of the search warrant, for the above-described item(s); [15] E-mail messages and attachments, whether read or unread and related to the above-described criminal activity and further described in this affidavit in support of the search warrant, for the above-described item(s); [16] Internet World Wide Web (WWW) browser files including, but not limited to, browser history, browser cache, stored cookies; browser favorites, auto-complete form history and stored passwords; [17] Global position system (GPS) data including, but not limited to coordinates, way points and tracks for the previous 5 days; [18] Documents and other text based files related to the above described criminal activity and further described in this affidavit in support of the search warrant, for the
¶175 12 above described item(s);
¶176 which is being possessed in Violation of O.C.G.A. 16-5-1 Murder[.]
¶177 Pugh filed a pre-trial motion to suppress, which summarily
¶178asserted that the search warrants 7 were “insufficient on their face
¶179and there was not probable cause for their search.” Pugh sought
¶180suppression of “all the records searched and seized, and all
¶181information derived therefrom.” At a hearing, Pugh argued that the
¶182affidavit lacked probable cause because “[t]he facts therein do not do
¶183anything besides give rise to speculation o[r] conjecture about Mr.
¶184Pugh’s involvement in the death of his wife.” Pugh contended that
¶185“[a]ll [investigating officers] knew at that time is Pugh’s wife was
¶186 7 The motion also addressed a second search warrant obtained by Sergeant Glover for “Records of Sprint Phone Number [Ending] -2985.” While Pugh’s brief references the search warrants for both phone numbers, his arguments on appeal concern only the search warrant for the -7281 phone number. Under these circumstances, Pugh has abandoned any claim concerning the validity of the search warrant for the -2985 phone number. See former Supreme Court Rule 22 (“Any enumerated error not supported by argument or citation of authority in the brief shall be deemed abandoned.” (applicable to Pugh’s brief based on its filing date)). See also Moon v. State, 312 Ga. 31, 57 (4) n.12 (860 SE2d 519) (2021) (deeming abandoned under former Rule 22 unsupported argument that search warrant was invalid). We note that Pugh concedes that “nothing of evidentiary value was discovered” in the records for the -2985 phone number. 13 dead. She was shot; that’s it. Pugh was outside. They didn’t like the
¶187way he was reacting, but that’s it. They had nothing else.” The trial
¶188court denied the motion, and later entered a written order finding
¶189that the issuing magistrate “had a substantial . . . basis” for finding
¶190that “probable cause existed for each search warrant.” Against this
¶191procedural backdrop, we turn to Pugh’s claims on appeal.8
¶192 (b) Pugh first contends that the affidavit for the search warrant
¶193failed to establish probable cause to support the issuance of the
¶194warrant and that the trial court therefore erred by denying his
¶195motion to suppress. We disagree.
¶196 8 We note that, in the trial court, the State argued that a good-faith
¶197exception to the exclusionary rule should apply to preclude suppression of the evidence seized pursuant to the warrant, though the State also acknowledged that “Georgia has historically not recognized the good-faith exception.” See Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992) (construing OCGA § 17-5-30 to hold that Georgia does not recognize the good-faith exception to the exclusionary rule established in United States v. Leon, 468 U. S. 897 (104 SCt 3405, 82 LE2d 677) (1984)). The State has not reasserted this argument on appeal, nor has it asked this Court to overrule Gary. Cf. State v. Ledbetter, ___ Ga. ___ (___ SE2d ____) (2024 Ga. LEXIS 58, 2024 WL 923930) (Case Nos. S23A0900, S23X0901, decided Mar. 5, 2024) (Peterson, P. J., concurring specially, joined by Boggs, C. J., and LaGrua, J.) (criticizing Gary’s holding and urging this Court to overrule Gary); id. at *40-41 (Bethel, J., concurring, joined by Warren, McMillian, and Pinson, JJ.) (agreeing with “the concerns raised in Presiding Justice Peterson’s special concurrence” and opining that “the ‘mess’ [arising from Gary] the Presiding Justice describes is due to be cleaned up”). 14 The Fourth Amendment to the United States Constitution
¶198demands that “no Warrants shall issue, but upon probable cause.”
¶199There must be probable cause to believe both “that a crime is being
¶200committed or has been committed” and “that contraband or evidence
¶201of a crime will be found in a particular place.” State v. Britton, 316
¶202Ga. 283, 286 (888 SE2d 157) (2023) (citations and punctuation
¶203omitted). Whether there is probable cause to issue a search warrant
¶204is a question directed in the first instance to the magistrate. And in
¶205assessing whether probable cause exists, the magistrate simply
¶206must make “a practical, common-sense decision,” based on “all the
¶207circumstances set forth in the affidavit before him,” whether there
¶208is “a fair probability” that the particular place to be searched
¶209contains the items to be seized — that is, evidence of a crime.
¶210Copeland v. State, 314 Ga. 44, 49 (3) (875 SE2d 636) (2022) (citation
¶211and punctuation omitted).
¶212 Probable cause is “not a high bar,” District of Columbia v.
¶213Wesby, 583 U. S. 48, 57 (III) (A) (138 SCt 577, 199 LE2d 453) (2018)
¶214(citation and punctuation omitted); it requires merely a fair
¶215 15 probability — “less than a certainty but more than a mere suspicion
¶216of possibility — which by no means is to be equated with proof by
¶217even so much as a preponderance of the evidence,” Copeland, 314
¶218Ga. at 49 (3) (citation and punctuation omitted). Thus, our duty as a
¶219reviewing court is to determine “whether the magistrate had a
¶220substantial basis for concluding that probable cause existed to issue
¶221the search warrant.” Glenn v. State, 302 Ga. 276, 281 (III) (806 SE2d
¶222564) (2017). And we bear in mind that a magistrate’s decision to
¶223issue a search warrant upon a finding of probable cause is afforded
¶224“substantial deference,” and “[e]ven doubtful cases should be
¶225resolved in favor of upholding a magistrate’s determination that a
¶226warrant is proper.” Id. (citation and punctuation omitted).
¶227 Pugh says the facts in the affidavit are lacking and fail to show
¶228that evidence of a crime would be found in his phone records. In
¶229Pugh’s view, the facts in the affidavit do not tie the phone records to
¶230the investigation of Tiffany’s murder and do not connect the -7281
¶231phone number to Pugh or to the phone he possessed at the time of
¶232the murder. Pugh is correct that the affidavit does not expressly tie
¶233 16 the phone records to the murder investigation or connect the target
¶234phone number to Pugh, but that does not necessarily defeat a finding
¶235of probable cause. We judge the affidavit supporting a search
¶236warrant “on the adequacy of what it does contain, not on what it
¶237lacks, or on what a critic might say should have been added.” United
¶238States v. Allen, 211 F3d 970, 975 (III) (6th Cir. 2000). Thus, in
¶239assessing probable cause, we take reasonable inferences into
¶240account. See Britton, 316 Ga. at 286 (1). Considering the totality of
¶241the circumstances outlined in the affidavit, the magistrate was
¶242authorized to make “certain common-sense conclusions about
¶243human behavior,” Illinois v. Gates, 462 U. S. 213, 231 (III) (103 SCt
¶2442317, 76 LE2d 527) (1982), and infer that Pugh was somehow
¶245involved in Tiffany’s murder, that evidence of his location and
¶246communications in the time surrounding the murder might be found
¶247in his cell phone records, and that the target phone number belonged
¶248to Pugh. See State v. Ledbetter, ___ Ga. ___ (2) (___ SE2d ____) (2024
¶249WL 923930, 2024 Ga. LEXIS 58) (Case Nos. S23A0900, S23X0901,
¶250decided Mar. 5, 2024); Taylor v. State, 303 Ga. 57, 61 (2) (810 SE2d
¶251 17 113) (2018).
¶252 Here, the affidavit provided facts about Tiffany and her
¶253connection to Pugh, including that she and Pugh were married, that
¶254they had children, and that the family resided together. The
¶255affidavit also described Pugh’s conduct and his interactions with
¶256police, including what could be viewed as the very unusual decision,
¶257made under the purported belief that an intruder had broken into
¶258his home, to leave his sleeping wife and children in the home while
¶259he waited outside. As detailed in the affidavit, Pugh’s behavior was
¶260flatly inconsistent with his frantic cries to the first responding
¶261officers about his kids being in the home and Tiffany not answering
¶262her phone. Further, Pugh’s own account of returning home and his
¶263claim that he did not notice Tiffany bleeding was contradicted by
¶264physical evidence at the scene. And while a window of the residence
¶265was damaged, the fact that the sounding alarm was quickly
¶266deactivated indicated that whoever entered the residence, and
¶267presumably killed Tiffany, had knowledge of the alarm code. Taken
¶268together, Pugh’s implausible behavior, his relationship with the
¶269 18 victim and connection to the residence where the crime occurred, the
¶270inconsistency between his statement and the evidence at the scene,
¶271and evidence suggesting that the crime was committed by someone
¶272familiar with the residence’s alarm code showed a fair probability
¶273that Pugh was involved in Tiffany’s murder. See Wesby, 583 U. S. at
¶27459 (III) (A) (“Based on the vagueness and implausibility of the
¶275[suspects’] stories, the officers could have reasonably inferred that
¶276they were lying and that their lies suggested a guilty mind.”); United
¶277States v. Ameling, 328 F3d 443, 449 (8th Cir. 2003) (A suspect’s
¶278“apparently false statements and inconsistent stories,” in the
¶279totality of the circumstances, can provide probable cause that he was
¶280“involved in criminal conduct.”).
¶281 Not only did the affidavit support the inference that Pugh had
¶282some involvement in Tiffany’s murder, it also offered a substantial
¶283basis for the magistrate to conclude that a fair probability existed
¶284that Pugh’s cell phone records would contain evidence of the crime.
¶285The facts in the affidavit indicated that Pugh was using his cell
¶286phone around the time of the murder—he reported missing the
¶287 19 initial call from ADT, he indicated to police that he had attempted
¶288to call Tiffany but that she failed to answer, and he said he made
¶289phone calls while waiting on police to respond to the residence. From
¶290these facts, the magistrate could reasonably infer that Pugh’s cell
¶291phone records would contain information about his communications
¶292and whereabouts around the time of the crime, which, logically,
¶293could provide evidence of his involvement in Tiffany’s murder.
¶294Indeed, Sergeant Glover averred as much; after detailing his
¶295experience and training and Pugh’s conduct at the scene, including
¶296making several phone calls, he indicated his belief that “this phone”
¶297would contain evidence related to the crime,9 including “but not
¶298 9 Pugh takes issue with this statement, arguing that “[m]ere belief or
¶299suspicion is never enough to support a search warrant.” But the affidavit at issue here is not remotely comparable to the bare-bones affidavits entirely devoid of facts that were found insufficient in the cases upon which Pugh relies. Specifically, Pugh points to Nathanson v. United States, 290 U. S. 41, 44, 47 (54 SCt 11, 78 LE 159) (1933) (holding insufficient affidavit which stated only that the affiant “has cause to suspect and does believe” that “[c]ertain liquors of foreign origin” illegally brought into the United States were located at a particular premises); Smoot v. State, 160 Ga. 744, 746-747 (128 SE 909) (1925) (“The affidavit is based only upon the statements of the affiant that ‘he has reason to believe that a quantity of intoxicating liquor is in the dwelling-house of [appellant], and verily believes upon probable cause that the intoxicating liquor is kept in violation of the laws of the State of Georgia.’ . . . [I]t
¶300 20 limited to GPS data, call logs, texts, etc.” See United States v. Floyd,
¶301740 F3d 22, 35 (II) (B) (3) (1st Cir. 2014) (“[A] law enforcement
¶302officer’s training and experience may yield insights that support a
¶303probable cause determination.”).
¶304 Though Pugh complains that the -7281 phone number was not
¶305explicitly connected to him or to the phone he possessed at the time
¶306of the murder, this argument fails. As we recently explained in
¶307rejecting a similar claim in Ledbetter, at *27 (2) (a) (i), the absence
¶308of an express connection, “by itself, is not a fatal flaw” and, as with
¶309other questions of probable cause, requires the reviewing court to
¶310consider “all the circumstances” presented in the affidavit to
¶311determine whether the magistrate could have inferred the necessary
¶312is apparent from the affidavit that no fact which would have afforded the basis for a legal conclusion of probable cause was before the court[.]” (punctuation omitted)); and Johnson v. State, 111 Ga. App. 298, 305 (1) (c) (1965) (“Certainly, since no facts of any kind were stated in the affidavit, it was deficient in this respect. . . . Does the recital in the warrant, ‘evidence having been submitted to me to show probable cause,’ meet the requirement? . . . Obviously not.”). Pugh’s complaint that Sergeant Glover believed evidence would be found on “this phone,” rather than phone records, is also unavailing, as such “hypertechnical” assessments have no place in the test for probable cause. See Gates, 462 U. S. at 236 (III) (“[C]ourts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense, manner.” (citations and punctuation omitted)). 21 link. Here, as in Ledbetter, the affidavit indicated that law
¶313enforcement had an opportunity to learn Pugh’s phone number by
¶314noting that Pugh made multiple statements to police regarding his
¶315phone use around the time of the crime. See Ledbetter, at *36-37 (b)
¶316(i). Pugh’s was the only name mentioned in the affidavit, he was the
¶317focus of the affidavit’s narrative, and only one phone number was
¶318referenced in the affidavit. See Taylor, 303 Ga. at 61 (2) (rejecting
¶319argument that warrant was not supported by probable cause for
¶320failure to expressly state that address to be searched was appellant’s
¶321address because, in light of other information in the affidavit, “the
¶322magistrate, making a practical and common-sense decision, was
¶323entitled to infer that there was a ‘fair probability’ that [appellant]
¶324lived at” the target address); United States v. Hunter, 863 F3d 679,
¶325682 (I) (7th Cir. 1996) (although affidavit did not explicitly state that
¶326address to be searched was appellant’s residence, “that is the only
¶327logical conclusion supported by a common-sense reading of the
¶328affidavit,” which “referred four times to [appellant’s] residence” and
¶329“made no reference to any other place connected to [appellant]”).
¶330 22 Moreover, “[t]here was nothing in the affidavit . . . to lead the
¶331magistrate to believe that the . . . phone number[ ] [was] associated
¶332with” anyone other than Pugh. Ledbetter, at *29 (2) (a). While it
¶333would have been helpful to include the fact that Pugh used the -7281
¶334phone number, see Ledbetter, at *31 and n.24 (2) (a) (i) (noting that
¶335“argument on this point would have been more easily resolved if the
¶336drafter of the warrant had taken the small, but important, extra
¶337step of expressly linking” the target phone number to the user and
¶338“encourag[ing] law enforcement to provide such information on the
¶339face of the warrant application or affidavit”), we conclude, in light of
¶340all the circumstances, that the affidavit nevertheless provided the
¶341issuing magistrate with sufficient information from which the
¶342magistrate could reasonably infer that the -7281 phone number
¶343belonged to Pugh. For all these reasons, we conclude that the
¶344magistrate had a substantial basis for finding that probable cause
¶345existed to issue the search warrant, and this claim fails.
¶346 (c) Pugh next asserts, for the first time on appeal, that the
¶347affidavit failed to establish probable cause to search for and seize
¶348 23 certain categories of evidence specified in the search warrant.
¶349Because Pugh did not challenge the warrant on this basis in the trial
¶350court, we review only for plain error. See Williams v. State, 315 Ga.
¶351490, 494-495 (2) (883 SE2d 733) (2023) (applying plain-error review
¶352to particularity challenge to search warrant where appellant did not
¶353move to suppress evidence procured by the warrant on that basis in
¶354the trial court). To establish plain error, Pugh must demonstrate
¶355that the alleged error was not “affirmatively waived”; was “clear or
¶356obvious, rather than subject to reasonable dispute”; “affected his
¶357substantial rights,” meaning that “it affected the outcome of the trial
¶358court proceedings”; and “seriously affects the fairness, integrity[,] or
¶359public reputation of judicial proceedings.” Hampton v. State, 302 Ga.
¶360166, 167 (2) (805 SE2d 902) (2017) (citation and punctuation
¶361omitted). “Satisfying all four prongs of this standard is difficult, as
¶362it should be.” Id. at 168 (2) (citation and punctuation omitted).
¶363 Pugh contends that the scope of the items to be seized under
¶364the warrant “exceed[ed] the facts justifying” the warrant’s issuance.
¶365The thrust of Pugh’s argument, as we understand it, is not that the
¶366 24 warrant was an unconstitutional general warrant but that it
¶367contained some overly broad provisions that authorized the seizure
¶368of items for which there was no probable cause.
¶369 The Fourth Amendment, besides requiring probable cause to
¶370issue a search warrant, requires “probable cause to seize the
¶371particular things named in the warrant.” United States v. Sanjar,
¶372876 F3d 725, 735 (II) (5th Cir. 2017); see Reaves v. State, 284 Ga.
¶373236, 237 (1) (b) (664 SE2d 207) (2008) (“[W]hether probable cause
¶374has been shown for the search for and seizure of the specific items”
¶375described in the warrant is “separate from the question” of whether
¶376there is probable cause “to believe that a certain crime has been
¶377committed and that there is a fair probability that ‘evidence’ of that
¶378crime will be located at the place specified[.]”). If those requirements
¶379are not met, an issue of overbreadth may arise. See Ninety-Two
¶380Thousand Four-Hundred Twenty-Two Dollars & Fifty-Seven Cents,
¶381307 F3d at 148-149 (IV) (A). A warrant suffering from overbreadth
¶382“describes in both specific and inclusive generic terms what is to be
¶383seized, but it authorizes the seizure of items as to which there is no
¶384 25 probable cause.” Id. at 149 (IV) (A) (citation and punctuation
¶385omitted); see also United States v. Wilson, 897 F2d 1034, 1039 (10th
¶386Cir. 1990) (The “breadth of a warrant must be justified by the
¶387breadth of the probable cause[.]” (citation and punctuation
¶388omitted)).
¶389 Critically, the inclusion of overly broad provisions does not
¶390necessarily doom the warrant in its entirety. See United States v.
¶391Cotto, 995 F3d 786, 798 (II) (B) (2) (10th Cir. 2021) (“[E]ven if the
¶392warrant at issue here is overbroad, suppression of evidence should
¶393be a last resort, not a first impulse.” (citation and punctuation
¶394omitted)). In such cases, the warrant “can be cured by redaction, that
¶395is, by striking from the warrant those severable phrases and clauses
¶396that are invalid for lack of probable cause or generality and
¶397preserving those severable phrases and clauses that satisfy the
¶398Fourth Amendment.” Ninety-Two Thousand Four-Hundred Twenty-
¶399Two Dollars & Fifty-Seven Cents, 307 F3d at 149 (IV) (A).
¶400 With these principles in mind, we return our focus to Pugh’s
¶401arguments on appeal. As an initial matter, Pugh does not argue that
¶402 26 a warrant containing some overly broad provisions is necessarily
¶403wholly invalid. Nor does it appear that Pugh’s overbreadth challenge
¶404concerns records of his communications and location, and, in fact, he
¶405appears to concede that there was probable cause to seize such
¶406records. Instead, without identifying the specific provisions of the
¶407warrant with which he takes issue,10 he complains that the items to
¶408be seized included “internet browser history, photographs and
¶409videos, documents and text-based files, unread emails, and much,
¶410much more,” for which he says probable cause was lacking.
¶411Assuming without deciding that Pugh is correct that the warrant
¶412was overbroad in the respects he contends, his claim nonetheless
¶413fails on the third prong of plain error review because he has not
¶414 10 Pugh also notes that the affidavit referenced only “GPS data, call logs,
¶415and texts, etc.,” while the warrant authorized the search for and seizure of a wider array of items. To the extent Pugh asserts that probable cause to search for and seize an item is established only if that item is specifically identified in the supporting affidavit, he is incorrect. See Groh v. Ramirez, 540 U. S. 551, 557 (II) (124 SCt 1284, 157 LE2d 1068) (2004) (“The Fourth Amendment, by its terms, requires particularity in the warrant, not in the supporting documents.”); United States v. Barajas, 710 F3d 1102, 1109 (B) (1) (10th Cir. 2013) (rejecting argument “that [the] probable cause determination [for seizure of cell phone GPS data] hinges on the government’s failure to specifically request GPS data” in the supporting affidavit). 27 shown harm from the inclusion of the allegedly overbroad portions
¶416of the warrant. See Hampton, 302 Ga. at 168 (2) (To prevail on the
¶417third step of the plain error analysis, an “appellant has the burden
¶418to make an affirmative showing that the error probably did affect
¶419the outcome below.” (citation and punctuation omitted)).
¶420 Specifically, Pugh has not shown that any evidence admitted
¶421against him at trial was seized solely pursuant to the allegedly
¶422overbroad portions of the warrant as opposed to the requests for
¶423communication and location records that we have already
¶424concluded—and that he has conceded—were supported by probable
¶425cause. Indeed, as far as we can tell—and Pugh does not argue
¶426otherwise—the only evidence obtained pursuant to the warrant that
¶427was later admitted at trial were records of Pugh’s phone calls and
¶428text messages, as well as cell-site location information. 11 See Cotto,
¶429995 F3d at 800 (II) (B) (2) (where warrant contained both valid
¶430provisions and overly broad provision but no evidence was seized
¶431 11 Pugh does not argue that the seizure of this evidence led to the discovery of other evidence that was admitted against him at trial. 28 pursuant to overly broad provision, none of the evidence obtained
¶432during the search should have been suppressed); United States v.
¶433Timley, 443 F3d 615, 623 (I) (8th Cir. 2006) (although warrant may
¶434have been overbroad in certain respects, any failure to suppress
¶435seized evidence was harmless because warrant was sufficient “as to
¶436items seized that formed the basis for the criminal charges”); United
¶437States v. Blakeney, 942 F2d 1001, 1027 (I) (6th Cir. 1991) (where
¶438evidence “seized pursuant to the overbroad portion of the search
¶439warrant was not introduced into evidence,” appellant “was not
¶440prejudiced by the defect in the warrant”). Further, although Pugh
¶441bears the burden of showing harm in the context of plain error
¶442review, see Hampton, 302 Ga. at 168 (2), it is not readily apparent
¶443to us, based on a comprehensive review of the record, what harm
¶444Pugh suffered as a result of this assumed error. For all these
¶445reasons, we conclude that this claim fails.
¶446 (d) In his final enumeration of error concerning the search
¶447warrant, Pugh contends that the warrant was insufficiently
¶448particularized such that it constituted a general warrant and that
¶449 29 trial counsel was ineffective for failing to raise this claim below. For
¶450the reasons explained below, we cannot agree.
¶451 The Fourth Amendment requires a warrant to “particularly”
¶452describe “the place to be searched, and the persons or things to be
¶453seized.” The particularity requirement guards against the “specific
¶454evil” of the “general warrant,” which was “abhorred by the colonists”
¶455and permitted “a general, exploratory rummaging in a person’s
¶456belongings.” Coolidge v. New Hampshire, 403 U. S. 443, 467 (II) (C)
¶457(91 SCt 2022, 29 LE2d 564) (1971) (punctuation omitted). Pugh
¶458raises his particularity challenge through the lens of ineffective
¶459assistance of counsel. To succeed on this claim, Pugh bears the
¶460burden of showing both that trial counsel’s performance was
¶461deficient and that he suffered prejudice as a result. See Strickland
¶462v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674)
¶463(1984). To establish deficient performance, Pugh must show that his
¶464trial counsel performed his duties in an objectively unreasonable
¶465way. See id. at 687-690 (III) (B). To “eliminate the distorting effects
¶466of hindsight,” we must consider Pugh’s claim in light of “counsel’s
¶467 30 perspective at the time” and “indulge a strong presumption” that
¶468counsel’s performance was reasonable. Id. at 689 (III) (B). Pugh
¶469“bears the burden of overcoming this presumption” by “show[ing]
¶470that no reasonable lawyer would have done what his lawyer did, or
¶471would have failed to do what his lawyer did not.” Hurston v. State,
¶472310 Ga. 818, 825 (3) (854 SE2d 745) (2021) (citation and punctuation
¶473omitted). To establish prejudice, Pugh must show a reasonable
¶474probability that, but for counsel’s deficient performance, the result
¶475at trial would have been different. See id. at 694 (III) (B).
¶476 In addition, “[w]here, as here, an appellant claims that trial
¶477counsel was deficient for failing to file a motion to suppress, the
¶478appellant must make a strong showing that the damaging evidence
¶479would have been suppressed had counsel made the motion.” Tabor
¶480v. State, 315 Ga. 240, 249 (3) (b) (882 SE2d 329) (citation and
¶481punctuation omitted). See also Evans v. State, 306 Ga. 403, 509 (2)
¶482(a) (831 SE2d 818) (2019) (“[T]rial counsel cannot be deficient for
¶483failing to file a meritless motion[.]”). In determining whether an
¶484appellant has carried his burden of making this showing, we ask
¶485 31 whether a motion to suppress on the specific basis proposed by the
¶486appellant would “clearly have succeeded” had his trial counsel raised
¶487it. Ward v. State, 313 Ga. 265, 275 (4) (b) (869 SE2d 470) (2022); see
¶488also Reese v. State, 317 Ga. 189, 201-202 (4) (891 SE2d 835) (2023).
¶489Also relevant to our analysis is whether appellant’s argument was
¶490supported by binding appellate precedent at the time of trial. See
¶491Hurston, 310 Ga. at 829 (3) (b); Esprit v. State, 305 Ga. 429, 438 (826
¶492SE2d 7) (2019) (“A criminal defense attorney does not perform
¶493deficiently when he fails to advance a legal theory that would
¶494require an extension of existing precedents and the adoption of an
¶495unproven theory of law.” (citation and punctuation omitted)). We
¶496conclude that Pugh has failed to make the required strong showing.
¶497 The substantive predicate of Pugh’s claim appears to be that
¶498the warrant at issue here is analogous to the warrant we recently
¶499concluded was an invalid general warrant in State v. Wilson, 315
¶500Ga. 613 (884 SE2d 298) (2023) (decided Feb. 21, 2023). In that case,
¶501we addressed a particularity challenge to a warrant that authorized
¶502a “forensic examination” of a cell phone for “any and all stored
¶503 32 electronic information, including but not limited to” various
¶504categories of electronic data. Id. at 613-614. Noting the warrant’s
¶505“complete absence of limiting language,” we agreed with the trial
¶506court that the warrant “authorized an impermissible general search
¶507of [the appellant’s] cell phones” and, thus, affirmed the trial court’s
¶508ruling suppressing evidence obtained pursuant to the warrant. Id.
¶509at 615-616. Pugh sees similarities between the warrant we held
¶510invalid in Wilson and the warrant at issue in this case, which he
¶511characterizes as “an illegal general warrant.” Pugh says that, like in
¶512Wilson, the warrant in this case “essentially” permitted “an
¶513unlimited general search of information and records relating to the
¶514[target] phone number” and “authorize[d] the broadest possible
¶515search of the phone records for the most general categories of data
¶516imaginable.”12 Pugh’s claim thus turns on our decision in Wilson and
¶517his assertion that the warrant in this case is as obviously general in
¶518nature as the warrant in Wilson.
¶519 12 Pugh does not argue that officers in fact conducted an unconstitutional
¶520general search. 33 As an initial matter, however, Wilson was decided more than
¶521four years after Pugh’s 2018 trial, so his trial counsel would not have
¶522been able to rely on Wilson in challenging the warrant’s compliance
¶523with the particularity requirement. See Hurston, 310 Ga. at 829 (3)
¶524(b). Although Wilson does not represent a change in the law on
¶525particularity, see Wilson, 315 Ga. at 616 (noting that “well-
¶526established legal precedent supports our conclusion that the trial
¶527court properly suppressed the cell phone evidence”), it is the first
¶528decision in which this Court applied the particularity requirement
¶529to invalidate a warrant that authorized a search of the entirety of
¶530electronic data contained on a cell phone and, thus, reflects an
¶531extension of existing precedent. And as we have explained before,
¶532 when addressing a claim of ineffectiveness of counsel, the reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial. Thus, a new decision does not apply in a manner that would require counsel to argue beyond existing precedent and anticipate the substance of the opinion before it was issued.
¶533Walker v. State, 306 Ga. 579, 583 (2) (b) (832 SE2d 420) (2019)
¶534(citations and punctuation omitted). Trial counsel therefore cannot
¶535 34 “be deemed ineffective for failing to argue precedent that was not in
¶536existence at the time of [the] trial.” Id.
¶537 Moreover, Pugh has not clearly shown, through his nearly
¶538singular reliance on Wilson,13 that a motion to suppress on the basis
¶539argued would have succeeded and, thus, has failed to make the
¶540required “strong showing that the damaging evidence would have
¶541been suppressed.” Reese, 317 Ga. at 201 (4) (a). Whereas the warrant
¶542we considered in Wilson was, on its face, a general warrant—it
¶543expressly authorized the seizure, without limitation, of “any and all
¶544stored electronic information,” Wilson, 315 Ga. at 613—the warrant
¶545here appears to be of a different character. Indeed, this warrant “did
¶546not simply provide an unbounded description authorizing the search
¶547and seizure of any and all data on the cell phone,” Perez v. State, 316
¶548Ga. 433, 447 (3) (888 SE2d 526) (2023), but, rather, identified 18
¶549separate categories of items, many of which appear to be sufficiently
¶550 13 In support of his claim of ineffective assistance, Pugh cites only Wilson
¶551and one other decision of this Court, both of which were issued after his trial. He also cites a decision of the District of Columbia Court of Appeals, which also was issued after his trial and, of course, is not binding on this Court. 35 particularized, while others appear significantly broader in scope.
¶552Further, unlike the warrant in Wilson and its “complete absence of
¶553limiting language,” Wilson, 315 Ga. at 615, certain categories of the
¶554warrant in this case are limited by time or by reference to the
¶555specific crime under investigation, and additional categories appear
¶556to be directed not toward facilitating a limitless search of Pugh’s cell
¶557phone but to obtaining business-type records from Sprint. In sum,
¶558taken as a whole, the warrant in this case is not as easily read as
¶559the warrant in Wilson as authorizing the seizure of all data without
¶560limitation on the target cell phone.
¶561 To be sure, certain portions of this warrant paint a broad stroke
¶562and raise questions about the sort of particularity required in
¶563warrants for the seizure of data contained on cell phones and of
¶564records held by cell-service providers. But it does not appear to us
¶565that Wilson alone can resolve these questions, and Pugh otherwise
¶566makes no effort to grapple with them. Nor does Pugh cite, and we
¶567have not found, any United States Supreme Court or Georgia
¶568appellate precedent that clearly held, at the time of Pugh’s trial, that
¶569 36 a search warrant authorizing the seizure of a wide range of data
¶570from a defendant’s cell phone and cell-service provider amounts to a
¶571general warrant under these circumstances. See Hourin v. State,
¶572301 Ga. 835, 844 (3) (b) (804 SE2d 388) (2017) (“In evaluating the
¶573particularity of a warrant’s description, we must determine whether
¶574the description is sufficient to enable a prudent officer executing the
¶575warrant to locate it definitely and with reasonable certainty. The
¶576degree of the description’s specificity is flexible and will vary with
¶577the circumstances involved.” (emphasis supplied; citations and
¶578punctuation omitted)). In short, whether this warrant constitutes a
¶579general warrant presents a difficult question, and it is not apparent
¶580to us that there is an obvious answer. We thus conclude that a
¶581motion to suppress “on the ground now proposed” by Pugh “would
¶582not clearly have succeeded,” and his trial counsel was not deficient
¶583“in failing to make such a motion.” Ward, 313 Ga. at 275 (4) (b); see
¶584also Reese, 317 Ga. at 201-202 (4) (a) (in the context of a different
¶585legal question that presented a similarly difficult legal analysis on
¶586the merits, identifying no deficient performance where appellant
¶587 37 failed to “clearly show” that a motion to suppress based on his
¶588proposed argument would have been successful). Compare Bryant v.
¶589State, 301 Ga. 617, 620 (2) (800 SE2d 537) (2017) (concluding that
¶590trial counsel was deficient for failing to raise particularity challenge
¶591to search warrant that “did not describe the items to be seized at all”
¶592(emphasis in original; citation and punctuation omitted)).
¶593 3. Finally, Pugh asserts that motion-for-new-trial counsel was
¶594constitutionally ineffective by failing to raise four claims of trial
¶595counsel’s ineffectiveness. But these claims, which “simply recast his
¶596trial-counsel ineffectiveness claims as motion-for-new-trial
¶597ineffectiveness claims,” are procedurally barred.14 See Robinson v.
¶598State, 306 Ga. 614, 616 (2) (b) (832 SE2d 411) (2019). This Court has
¶599 consistently held that a defendant cannot resuscitate a specific claim of ineffective assistance of trial counsel that was not raised at the motion for new trial stage by recasting the claim on appeal as one of ineffective
¶600 14 In one claim, Pugh ostensibly challenges the manner in which motion-
¶601for-new-trial counsel pursued a “properly raised” claim of trial counsel ineffectiveness concerning the motion to suppress cell phone records, but the crux of Pugh’s argument on appeal is that motion-for-new-trial counsel should have raised an additional or alternative claim of trial counsel ineffectiveness with respect to the motion to suppress. Accordingly, this, like Pugh’s other claims of motion-for-new-trial ineffectiveness, is simply another attempt at improper bootstrapping. 38 assistance of motion-for-new-trial counsel for failing to raise the specific claim of trial counsel’s ineffectiveness.
¶602Id. at 617 (2) (b) (citation and punctuation omitted). See also Elkins
¶603v. State, 306 Ga. 351, 362 (4) (b) (830 SE2d 217) (2019); King v. State,
¶604304 Ga. 349, 351 (818 SE2d 612) (2018). Accordingly, these claims,
¶605like the others, fail. 15
¶606 Judgment affirmed. All the Justices concur.
¶607 15 If Pugh “wishes to pursue a claim that his post-conviction counsel was
¶608ineffective[,] he must do so through a petition for a writ of habeas corpus.” Robinson, 306 Ga. at 617 (2) (b) n.5 (citation and punctuation omitted). 39 PINSON, J., concurring.
¶609 I concur fully in the Court’s opinion. Relevant to Division 2 (d)
¶610of that opinion, I want to flag one important point about the Fourth
¶611Amendment’s particularity requirement as applied to search
¶612warrants for cell phones, because it’s going to come up again and
¶613again.
¶614 In State v. Wilson, 315 Ga. 613 (884 SE2d 298) (2023), we held
¶615that the search warrant for cell phones in that case violated the
¶616Fourth Amendment’s requirement that a warrant “particularly”
¶617describe “the place to be searched, and the persons or things to be
¶618seized.” U.S. Const. amend. IV. The problem with that warrant was
¶619not merely that it allowed police to search the entire contents of the
¶620cell phones. The problem was that the warrant allowed police to
¶621search the phones, seize every bit of data on them, and use anything
¶622they found against the defendant without regard for whether any of
¶623that data was evidence of the crime the defendant was accused of
¶624committing. See Wilson, 315 Ga. at 615-616; id. at 624 (Pinson, J.,
¶625concurring). In other words, the warrant on its face authorized the
¶626 40 long forbidden “general search[ ]”: the “exploratory rummaging in a
¶627person’s belongings” for unspecified evidence of unspecified crimes.
¶628Coolidge v. New Hampshire, 403 U.S. 443, 467 (II) (C) (91 SCt 2022,
¶62929 LE2d 564) (1971), holding modified by Horton v. California, 496
¶630U.S. 128 (110 SCt 2301, 110 LE2d 112) (1990); Marron v. United
¶631States, 275 U.S. 192, 195 (1) (48 SCt 74, 72 LEd 231) (1927).
¶632 So Wilson’s takeaway was not that a search warrant for a cell
¶633phone necessarily must list each specific kind or category of data the
¶634police may look through when they search the phone’s contents. Just
¶635as specifying the address of a home can be particular enough to allow
¶636police to search rooms, closets, and cabinets throughout the home,
¶637identifying a specific cell phone as the “place to be searched” may
¶638well be particular enough to authorize police to look through the
¶639contents of the phone. See United States v. Ross, 456 U.S. 798, 820-
¶640821 (IV) (102 SCt 2157, 72 LE2d 572) (1982) (“A lawful search of
¶641fixed premises generally extends to the entire area in which the
¶642object of the search may be found and is not limited by the possibility
¶643that separate acts of entry or opening may be required to complete
¶644 41 the search.”); Peacock v. State, 314 Ga. 709, 717 (3) (b) (878 SE2d
¶645247) (2022) (noting “it is well settled that a search warrant for a
¶646home authorizes searching . . . containers” like “desks, cabinets,
¶647closets, or ‘any other item of personal property’ in which the items
¶648described in the search warrant might be stored” “without
¶649separately identifying them with particularity” (cleaned up)).
¶650Instead, the point to take from Wilson is that a search warrant for a
¶651cell phone also needs to tell the police, with sufficient particularity,
¶652what they can look for in their search of the phone. As we indicated
¶653in Wilson, the warrant must limit the object of the search to evidence
¶654of the crimes that the police have probable cause to believe the
¶655suspect committed. Wilson, 315 Ga. 615-616; see id. at 617
¶656(Peterson, P.J., concurring) (explaining the particularity
¶657requirement, when met, “means that the warrant allows the officer
¶658to identify the object of the search or seizure ‘definitely and with
¶659reasonable certainty’”); Westbrook v. State, 308 Ga. 92, 97-98 (3) (a)
¶660& n.5 (839 SE2d 620) (2020) (holding ineffective claim based on
¶661failure to object to particularity of warrant was meritless because
¶662 42 search warrant “enable[d] a prudent officer to know to look for
¶663photographs and videos” relating to the murder on the cell phone).
¶664And “evidence of murder” generally is not particular enough,
¶665although what further specificity is required will depend on the
¶666nature of the crimes in question and the circumstances of a
¶667particular case. See, e.g., Groh v. Ramirez, 540 U.S. 551, 554-555 (I),
¶668557-559 (II) (124 SCt, 157 LE2d 1068) (2004) (warrant was not
¶669sufficiently particular when it authorized a search of defendant’s
¶670house, and was based on probable cause to believe house contained
¶671illegal explosive weapons, but did not identify any items to be
¶672seized); Bryant v. State, 301 Ga. 617, 619-620 (2) & n.3 (800 SE2d
¶673537) (2017) (warrant was not sufficiently particular when it
¶674authorized a search of defendant’s house and cars, and stated there
¶675was probable cause to believe he had committed murder, but did not
¶676specifically identify any property, items, articles, or instruments to
¶677be searched for and seized); Dobbins v. State, 262 Ga. 161, 163-164
¶678(3) (415 SE2d 168) (1992) (warrant was not sufficiently particular
¶679when it authorized seizure of “certain property and/or materials of
¶680 43 a pornographic nature, to-wit, movies, pictures and magazines
¶681which are contrary to the laws of the State of Georgia,” because it
¶682did not specify how or why the items were believed to be obscene but
¶683instead left that determination “entirely to the discretion of the
¶684officers executing the warrant”). 16
¶685 In short, under Wilson, a search warrant for a cell phone must
¶686identify with sufficient particularity both the cell phone that may be
¶687searched and the object of that search. Anything less will not hold
¶688up against a Fourth Amendment challenge.
¶689 With this understanding, I join the Court’s opinion.
¶690 I am authorized to state that Justice Warren, Justice Bethel,
¶691and Justice McMillian join in this concurrence.
¶692 16 Of course, another question lurking here is what police can do with
¶693something they find on a cell phone while searching for whatever the warrant authorizes them to search for—that is, whether police can seize and use nonresponsive data. As I noted in Wilson, we have not answered that question yet. Wilson, 315 Ga. at 628-629 & n.12 (Pinson, J., concurring) (citing Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Tex. Tech L. Rev. 1 (2015)). 44 PETERSON, Presiding Justice, concurring specially.
¶694 The majority’s analysis in Division 2 (b) regarding probable
¶695cause supporting the warrant at issue in this appeal represents a
¶696faithful application of Divisions 2 (a) (i) and 2 (b) (i) of our recent
¶697decision in Ledbetter. I did not join that division of Ledbetter,
¶698arguing that we should instead overrule our all-but-already-
¶699overruled precedent of Gary v. State and resolve the issue by
¶700applying the Leon good faith exception. See Ledbetter, __ Ga. at __
¶701(Peterson, P.J., concurring specially). That remains my view, and so
¶702I similarly concur specially in Division 2 (b) today.
¶703 But I write separately today to express an additional concern.
¶704I am unconvinced by the Ledbetter majority’s probable cause
¶705analysis. The probable cause required to support a valid warrant is
¶706probable cause to believe that evidence will be found at the place to
¶707be searched. The “place” to be searched in the warrants at issue in
¶708Ledbetter were phone numbers. There was nothing at all in the
¶709warrant affidavits about whose phones the numbers represented.
¶710 45 For the reasons the majority pointed out in Ledbetter, I’m not certain
¶711that defeats probable cause. But I’m not certain it doesn’t, either. It
¶712seems to me the only reasonable inference supported by the
¶713Ledbetter majority’s reasoning is that the officers writing the
¶714affidavits subjectively believed the numbers to belong to people
¶715named in the affidavits; without some detail in the affidavits
¶716explaining why they held that belief, I question whether it is
¶717reasonable to take the next step the majority essentially took, that
¶718of presuming from the fact of the officers’ belief that such belief was
¶719itself supported by probable cause. We generally require warrant
¶720affidavits to provide detail from which a neutral magistrate can
¶721determine for themselves whether probable cause exists, rather
¶722than merely defer to the unexplained implicit belief of law
¶723enforcement. Because my concern about the majority’s probable-
¶724cause analysis in Ledbetter applies equally to this case, I do not join
¶725the majority’s application of that analysis here.
¶726 Making matters more difficult, little helpful federal precedent
¶727 46 exists on this question, because under federal law federal courts
¶728rarely need to decide it because the Leon good faith exception
¶729virtually always applies. And until we finally erase the last traces of
¶730Gary, we’ll have to keep deciding these difficult, fact-bound
¶731questions that federal law has rendered largely irrelevant.
¶732 47