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Unreasonable Delay in Obtaining Search Warrant after Lawful Seizure Requires Suppression of Evidence, Announces Georgia Supreme Court

by Douglas Ankney

In a case of first impression for the Supreme Court of Georgia, it held that an unreasonable delay in obtaining a search warrant after items were lawfully seized requires suppression of the evidence.

In December 2015, police seized from Jennifer and Joseph Rosenbaum their iPhones, iPad, and MacBook laptop computer when the Rosenbaums were arrested in connection with the death of a foster child in their care. The laptop and iPad were placed in the evidence room of the Henry County Police Department, while the iPhones were put in the evidence room of the Henry County Jail. The first search warrant was not obtained until May 26, 2017, while the last warrants were procured on November 6, 2017 — or 702 days after the seizure.

On January 28, 2018, the Rosenbaums filed a motion to suppress the evidence recovered from those devices. At the hearing on the motion, defense counsel argued that from the beginning of the case she had “repeatedly sought the return of [the] electronic devices.” Counsel stated she specifically sought the return of the devices from Henry County assistant district attorney Blair Mahaffey shortly after the Rosenbaums’ arrest, again in March 2016, and again in September 2016. But Mahaffey testified that he did not recall being asked about the electronic devices.

However, an investigator for the DeKalb County district attorney testified that Rosenbaums’ counsel asked her in May 2017 for the return of the devices. She further testified that she located the devices at the Henry County Police Department, and the first warrants were issued shortly thereafter. Lead Detective Aris Thompson testified that he did not even know the devices had been taken. When it was pointed out that the property sheet listing the seized items was attached to the case file in his possession, he stated he did not read all of the file. The trial court granted the motion to suppress, and the State appealed.

The Supreme Court observed that no Georgia authority addressed the question of whether an unreasonable delay in obtaining a search warrant made an otherwise lawful seizure unlawful. However, the Court was persuaded by the substantial body of law on the issue established by the Eleventh Circuit. “A seizure that is lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment’s prohibition on ‘unreasonable searches.’” United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009) (quoting United States v. Jacobsen, 466 U.S. 109 (1984). 

From this, the Eleventh Circuit had reasoned, “[E]ven a seizure based on probable cause is unconstitutional if the police act with unreasonable delay in securing a warrant. The reasonableness of the delay is determined in light of all the facts and circumstances, and on a case-by-case basis. The reasonableness determination will reflect a careful balancing of governmental and private interests.” Mitchell. Balancing those interests, the Eleventh Circuit concluded there was no compelling justification for a 21-day delay in seeking a warrant to search Mitchell’s computer hard drive. 

And in United States v. Laist, 702 F.3d 608 (11th Cir. 2012), the Eleventh Circuit established a framework composed of four factors for balancing governmental and private interests under the totality of the circumstances: (1) significance of the interference with the person’s possessory interest, (2) duration of the delay, (3) whether there was consent to the seizure, and (4) the government’s legitimate interest in holding the property as evidence.

In evaluating the significance of the interference with the person’s possessory interest, the Court explained that courts must consider the degree of possessory interest in the property, the duration of the delay as it affects that interest, and the efforts of the defendant to secure the return of the items. The State conceded that the Rosenbaums had substantial possessory interest in their personal computer and cellphones as “unique possessions ... in which individuals may have a particularly powerful possessory interest.” Laist. And the State also conceded the delay of almost a year and a half was in favor of the defendants. But the State asserted that the Rosenbaums’ demands for the return of their property were not “sufficiently robust” to prevent diminishment of their property interests, arguing that no evidence supported the trial court’s ruling to the contrary.

The Georgia Supreme Court observed the longstanding rule that the statements of attorneys are evidence. “Attorneys are officers of the court and a statement to the court in their place is prima facie true and needs no further verification unless the same is required by the court or the opposite party....” Sherman v. City of Atlanta, 744 S.E.2d 689 (Ga. 2013). Defense counsel made several statements at the suppression hearing detailing her numerous attempts to have the devices returned. Such evidence overcame any alleged diminishment of the Rosenbaums’ possessory interests.

Finally, the Court concluded there was no complexity to the case, no lack of manpower, and no lack of resources to justify the delay. The Court agreed with the trial court that the delay was caused by the State’s multiple errors and lack of diligence. Thus, the delay was unreasonable. Accordingly, the Court affirmed the trial court’s order suppressing the evidence. See: State v. Rosenbaum, 2019 Ga. LEXIS 155 (2019). 

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Writer’s note: This decision cites to over a dozen cases ruling on the issue from several federal circuits that are helpful in determining the strength of a potential claim in jurisdictions other than Georgia. 

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