Tatum v. State

A Madison County deputy responding to a 911 call about a peeping Tom stopped a man near the scene, seized his phone, and viewed a video on it without a warrant before arresting him. Officers then used information from that warrantless viewing in an affidavit to get a search warrant for the phone, which turned up evidence used to convict the man of a peeping Tom violation and invasion of privacy. The Court of Appeals of Georgia upheld the conviction, reasoning that even without the illegally viewed information, the warrant affidavit had enough evidence to support probable cause. The Supreme Court of Georgia agreed that courts must also ask a second question under the U.S. Supreme Court's Murray decision: whether the officers' decision to seek the warrant in the first place was prompted by what they saw in the illegal search. Because the trial court never addressed that question, the Supreme Court of Georgia vacated the Court of Appeals' decision and sent the case back for further proceedings.

The independent source doctrine requires courts to consider not only whether a warrant affidavit, once illegally obtained information is removed, still shows probable cause, but also whether police would have sought the warrant even without the earlier unlawful search; if not, the evidence cannot be admitted under that doctrine.

The ruling affects how Georgia courts handle evidence obtained after police conduct an illegal search and then get a warrant. Prosecutors and trial judges statewide must now separately determine whether the warrant application itself was motivated by the earlier unlawful search, not just whether enough lawful evidence existed to support it.

Vacated and remanded

1. The court explained that the exclusionary rule, developed by the U.S. Supreme Court, generally bars using evidence obtained through an illegal search, but the independent source doctrine is an exception allowing evidence later obtained through a lawful, separate path.
2. Relying on the U.S. Supreme Court's decision in Murray v. United States, the court held that the independent source doctrine does not apply if the illegally obtained information was shown to the magistrate who issued the warrant, or if the decision to seek the warrant was itself prompted by the earlier unlawful search.
3. The court adopted a two-part test used by the Eleventh Circuit: first, remove any illegally obtained information from the warrant affidavit and see if what remains still supports probable cause; second, ask whether the officer would have sought the warrant anyway even without the illegal search.
4. Applying this to the case, the court found the deputy's second viewing of the video on the phone was conceded to be unlawful, but the trial court's one-line order denying the motion to suppress never addressed whether the warrant request was prompted by that unlawful viewing.
5. Because the appellate record did not show the trial court considered this required second question, the Supreme Court of Georgia could not decide the issue itself and instead sent the case back so the trial court can make that factual and legal determination.
6. The court also clarified that two of its own prior decisions, Reaves and Brundige, should not be read as skipping this required inquiry, and disapproved them to that extent.

• peeping Tom conviction
• cell phone search
• independent source doctrine
• Fourth Amendment
• search warrant