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.
In the Supreme Court of Georgia
Decided: April 8, 2025
S25A0208. THE STATE v. BRANTLEY.
PETERSON, Chief Justice.
The State appeals an order excluding incriminating phone calls
Barron Brantley made while incarcerated in jail before his trial; the
State brings that appeal under OCGA § 5-7-1 (a) (4). As an initial
matter, we conclude that our unchallenged precedent permits the
State to appeal this order under OCGA § 5-7-1 (a) (4). And on the
merits, the trial court made two errors. It erred in holding that the
District Attorney’s access to the recorded calls violated Brantley’s
state and federal rights to privacy, because our precedent makes
clear Brantley had no reasonable expectation of privacy in recorded
jail calls not made to counsel. And the trial court also erred in
holding that Brantley’s equal protection rights were violated when
compared to nonincarcerated people; Brantley is incarcerated, and
so is not similarly situated to such people, and the State has a
rational basis to treat him differently. We reverse.
1. Brantley is charged with malice murder, felony murder,
aggravated assault, false imprisonment, concealing a death, rape,
and aggravated sexual battery in connection with the sexual assault
and murder of Alexis Janaé Crawford. While awaiting trial,
Brantley was incarcerated in the Fulton County jail, where he made
multiple incriminating statements to others on the jail phones. None
of the calls were to his attorney. The jail phones are monitored and
recorded by the Fulton County Sheriff’s Office, and an automated
message at the beginning of each call informed Brantley that his
calls were monitored and recorded. The Fulton County District
Attorney’s Office reviewed Brantley’s calls and sought to use three
calls at trial.
Three weeks before his scheduled trial, Brantley filed a
“motion in limine to exclude jail telephone calls” arguing that the
use of the calls by the District Attorney’s Office violated the Due
Process and Equal Protection Clauses of the Fourteenth
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Amendment to the United States Constitution and the right to
privacy in the Georgia Constitution and under the Fourth
Amendment to the United States Constitution. Brantley also argued
that the calls should be excluded because they referenced
inadmissible evidence, such as Brantley’s prior criminal history,
Brantley’s previous statements to police, and news media reports.
Following a hearing, the trial court granted Brantley’s motion
to exclude the jail phone calls, reasoning that the District Attorney’s
Office’s “acquisition” of, and “access” to, Brantley’s jail phone calls
violated his federal equal protection rights and right to privacy
under the federal and state constitutions. The State filed a timely
notice of appeal, citing OCGA § 5-7-1 (a) (4) as the statutory basis
for its appeal.
2. As a preliminary matter, we address Brantley’s argument
that the State’s appeal should be dismissed because (1) the State is
not authorized to appeal under OCGA § 5-7-1 (a) (4) and (2) it failed
to comply with the requirements of OCGA § 5-7-1 (a) (5). “The State’s
right to appeal in criminal cases is derived from Georgia’s statutory
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law,” specifically OCGA § 5-7-1 (a). State v. Wheeler, 310 Ga. 72, 74
(1) (849 SE2d 401) (2020). OCGA § 5-7-1 (a) (5) provides that the
State may appeal
[f]rom an order, decision, or judgment excluding any other
evidence to be used by the state at trial on any motion
filed by the state or defendant at least 30 days prior to
trial and ruled on prior to the impaneling of a jury or the
defendant being put in jeopardy, whichever occurs first,
if:
(A) Notwithstanding the provisions of Code Section
5-6-38, the notice of appeal filed pursuant to this
paragraph is filed within two days of such order,
decision, or judgment; and
(B) The prosecuting attorney certifies to the trial
court that such appeal is not taken for purpose of
delay and that the evidence is a substantial proof of
a material fact in the proceeding[.]
The State did not comply with the requirements of subsection (a) (5)1
and instead asserts that its notice of appeal is proper under
subsection (a) (4). Because unchallenged precedent supports the
State’s argument, we agree.
1 Because Brantley’s motion in limine was filed less than 30 days before
the trial’s scheduled start date, the State’s appeal of the order granting that
motion would not be permitted under OCGA § 5-7-1 (a) (5). Additionally, the
State did not include the certifications required by OCGA § 5-7-1 (a) (5) (B).
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OCGA § 5-7-1 (a) (4) provides that the State may appeal “[f]rom
an order, decision, or judgment suppressing or excluding evidence
illegally seized . . . in the case of motions made and ruled upon prior
to the impaneling of a jury or the defendant being put in jeopardy,
whichever occurs first[.]” This Court repeatedly has held that
subsection (a) (4) authorizes the State to appeal from orders
suppressing or excluding evidence on the basis that “it was obtained
by unlawful means.” See State v. Andrade, 298 Ga. 464, 464-465 (782
SE2d 665) (2016) (collecting cases), disapproved on other grounds by
State v. Rosenbaum, 305 Ga. 442, 448 n.11 (1) (826 SE2d 18) (2019);
Strickman v. State, 253 Ga. 287, 288 (319 SE2d 864) (1984) (holding
that an order granting a motion “to exclude evidence on the ground
that it was obtained in violation of law” is appealable under the
materially identical predecessor to OCGA § 5-7-1 (a) (4)).
It seems doubtful that, as a textual matter, the statutory right
to appeal from an order suppressing or excluding evidence illegally
“seized” extends to appealing an order suppressing or excluding
evidence on the basis that it was illegally “obtained.” See, e.g.,
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Andrade, 298 Ga. at 464-465 (holding that OCGA § 5-7-1 (a) (4)
authorizes an appeal of an order suppressing a defendant’s
statement as involuntary). But our controlling case law is clear on
this point, Brantley does not ask us to reconsider this precedent, and
stare decisis considerations might well warrant retaining it even if
we did reconsider it. See Allen v. State, 310 Ga. 411, 421 (6) (851
SE2d 541) (2020) (“‘Even those who regard stare decisis with
something less than enthusiasm recognize that the principle has
even greater weight where the precedent relates to interpretation of
a statute.’” (quoting Etkind v. Suarez, 271 Ga. 352, 358 (5) (519 SE2d
210) (1999))). Accordingly, we faithfully apply it here.
The trial court order in this case excluded the jail phone calls
on the basis that the District Attorney’s Office unlawfully
“acqui[red]” and “access[ed]” — i.e., obtained — those calls. Thus,
the State was permitted to appeal under subsection (a) (4). See
Anderson v. State, 267 Ga. 116, 116-117 (1) (475 SE2d 629) (1996)
(holding that the State’s appeal of an order suppressing
incriminating phone conversations “on the basis that the taped
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conversations were published to the agent and republished to other
IRS officials in violation of” the wiretap statute was appealable
under the predecessor to OCGA § 5-7-1 (a) (4)). See also Andrade,
298 Ga. at 464-465 (holding that the State is authorized to appeal
from an order suppressing a statement as involuntary under OCGA
§ 5-7-1 (a) (4)). Because the State’s appeal was authorized under
subsection (a) (4), it was not required to appeal under subsection (a)
(5). See Andrade, 298 Ga. at 466 (holding that the State is required
to bring its appeal under subsection (a) (5) only if the appeal “could
not be brought under” subsection (a) (4)).
3. We now turn to the trial court’s ruling on Brantley’s motion
in limine. The trial court excluded Brantley’s jail phone calls on the
basis that the use of the calls at trial violated Brantley’s reasonable
expectation of privacy under the Fourth Amendment to the United
States Constitution and the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution. We
reverse the trial court’s order.
(a) First, the trial court erred in concluding that the Sheriff’s
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practice of sharing jail phone calls with the District Attorney’s Office
violated the Fourth Amendment. 2 In Preston v. State, 282 Ga. 210
(647 SE2d 260) (2007), we unequivocally held that there is no
reasonable expectation of privacy in a jail phone call (at least when
the call was not with counsel). Id. at 214 (4) (considering calls with
the defendant’s mother). See also Keller v. State, 308 Ga. 492, 497
(2) (b) (842 SE2d 22) (2020) (holding that the defendant did not have
a reasonable expectation of privacy in a jail phone call made to his
ex-wife and thus counsel’s failure to file a motion to suppress the jail
phone calls was not deficient performance). Because pretrial
detainees do not have a reasonable expectation of privacy in their
jail phone calls, the Sheriff’s practice of sharing recorded calls with
the District Attorney’s Office and the use of those calls at trial does
2 Because neither the parties nor the trial court distinguished Brantley’s
federal privacy claim from his state privacy claim and because Brantley does
not argue that the Georgia Constitution provides more protections than the
United States Constitution in this context, we limit our analysis to a pretrial
detainee’s expectation of privacy under the Fourth Amendment to the United
States Constitution. See Regan v. State, 317 Ga. 612, 612 n.2 (894 SE2d 584)
(2023) (declining to consider the defendant’s equal protection claims under the
Georgia Constitution where neither the defendant nor the trial court
distinguished between the defendant’s claims under the federal and state
Constitutions).
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not violate the Fourth Amendment.
Brantley does not challenge Preston’s holding but suggests
there is an exception. Citing several cases, Brantley argues that
when a search is initiated solely for the purpose of bolstering the
prosecution’s case against the pretrial detainee, the detainee retains
a limited expectation of privacy. See Davis v. State, 307 Ga. 625, 631
(3) (837 SE2d 817) (2020) (citing Leslie v. State, 301 Ga. 882, 887 (3)
(804 SE2d 351) (2017); State v. Henderson, 271 Ga. 264 (517 SE2d
61) (1999)). But here, Brantley concedes that the recording served a
legitimate security measure, and he points to no evidence that the
recording was done solely for the purpose of uncovering
incriminating evidence that could be used against him.
Nevertheless, Brantley argues that the “sharing” of his calls with
the District Attorney’s Office violated his Fourth Amendment rights.
Not so. Once Brantley talked to a third-party on the jail’s recorded
phone system, he “necessarily risked” that this information would
be disclosed to law enforcement. See United States v. White, 401 U.S.
745, 751 (91 SCt 1122, 28 LE2d 453) (1971). See also Smith v.
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Maryland, 442 U.S. 735, 740 (99 SCt 2577, 61 LE2d 220) (1979) (The
Supreme Court has “consistently . . . held that a person has no
legitimate expectation of privacy in information he voluntarily turns
over to third parties.”). In short, our precedent directly on point
about jail calls applies, and it requires us to conclude that Brantley,
who was explicitly warned that his calls would be monitored and
recorded, did not have a “reasonable expectation of privacy in the
calls he placed . . . from jail.” Preston, 282 Ga. at 214 (4).
(b) Second, the trial court erred in concluding that recording
Brantley’s jail phone calls for use at trial violated the Equal
Protection Clause of the Fourteenth Amendment. Specifically, the
trial court reasoned that, unlike a defendant who is in custody, a
defendant who is out on bond “has the ability to call his family and
friends without his calls being monitored by the State” absent a
wiretap warrant; thus, the trial court concluded that, because
Brantley was treated differently than a defendant who is out on
bond, the State’s access to Brantley’s jail phone calls violated his
equal protection rights.
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The Equal Protection Clause requires that “similarly situated
persons be treated alike[.]” See Regan v. State, 317 Ga. 612, 616 (3)
(b) (894 SE2d 584) (2023). Although it prohibits classifications that
fail to promote a legitimate state purpose, the Equal Protection
Clause does not forbid all classifications. See id. at 616-617 (3) (b).
Thus, to prevail on an equal protection challenge, a claimant must
demonstrate that the classification scheme at issue “bears no
rational relationship to a legitimate government interest,” when, as
is the case here, the claimant is not a member of a suspect class and
a fundamental right is not at stake.3 See Reyes v. State, 318 Ga. 340,
345-346 (2) (a) (i) – (ii) (898 SE2d 473) (2024) (citation and
punctuation omitted).
Here, the trial court erred; a nonincarcerated defendant is not
similarly situated to an incarcerated defendant as relevant to
Brantley’s claims here. And the State’s differing treatment is
rationally related to a legitimate purpose, namely maintaining jail
3 Brantley does not argue on appeal that he is a member of a suspect
class or that the State’s practice of recording incarcerated defendants’ phone
calls implicates a fundamental right.
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security. Accordingly, recording Brantley’s jail phone calls for use at
trial does not violate the Equal Protection Clause. We reverse the
trial court’s order. On remand, the trial court should consider the
remaining grounds Brantley raised for excluding portions of his jail
calls to the extent that Brantley still asserts those grounds and the
trial court has not yet reached them.
Judgment reversed. Warren, PJ, and Bethel, Ellington,
McMillian, LaGrua, Colvin, and Pinson, JJ, concur.
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