In the Supreme Court of Georgia
Decided: September 8, 2021
S21A0773. NELSON v. THE STATE.
PETERSON, Justice.
This Court granted murder defendant Corey Nelson’s
application for interlocutory appeal of the trial court’s denial of his
motion to suppress evidence. At issue is evidence extracted from his
cell phone and other electronic devices pursuant to search warrants.
Nelson argues that the delay of more than two years between the
date on which the electronic devices were seized pursuant to a
search warrant for his residence, and the dates on which the devices
were examined pursuant to subsequent search warrants for their
contents, violated his Fourth Amendment rights. Although we posed
a question to the parties regarding the significant legal question of
when a search warrant has been executed, we need not — and so do
not — answer that question to decide this case. The evidence
challenged here was extracted days after warrants issued in 2020.
The only challenge Nelson now offers to this evidence is the long
delay between the 2017 seizure of the devices and the 2020 issuance
of the warrants. But his possessory interest in the devices was
greatly diminished by the combination of his incarceration for the
entire period of the delay and his failure to request the devices’
return. Thus, we conclude that the trial court did not err in denying
the motion to suppress, and we affirm.
On October 14, 2017, Cobb County police officers responded to
a report of a shooting at a residence, where they found Khristopher
Dixon dead from multiple gunshot wounds. Nelson was identified as
a suspect, in part based on a post made on the victim’s Instagram
account just minutes before the first 911 call reporting the shooting.
On October 15, 2017, Detective Philip Stoddard obtained and
executed a warrant to search Nelson’s home, including for electronic
communication devices. Pursuant to the warrant, the police seized
an iPhone, a Samsung cell phone, and a laptop computer. Nelson
was arrested on the same day. On January 4, 2018, a Cobb County
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grand jury indicted Nelson for malice murder, felony murder,
aggravated assault, and possession of a firearm during the
commission of a felony.
On January 18, 2018, Stoddard obtained separate warrants to
search each of Nelson’s devices for electronic data related to the
crimes. On that same day, he submitted a written request for
forensic analysis of each device to what is now known as the Cobb
Police Department’s Technology Based Crimes Unit (“TBCU”). But
more than a year passed before TBCU analysts performed the
examinations: data extraction was completed for the iPhone on
February 6, 2019; the Samsung phone on January 8, 2020; and the
laptop on January 9, 2020.1
Nelson filed a motion to suppress the evidence taken from
these devices, arguing that the January 2018 warrants were void
because they had not been executed within ten days as required by
1 The record indicates that the Samsung cell phone did not belong to Nelson and had not been used since 2014. Nelson focuses on the iPhone in his appellate briefing.
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the warrants themselves and by OCGA § 17-5-25.2 At a hearing, the
State offered various excuses for the delay, including that the TBCU
was understaffed and shifting to a new system for tracking requests
for forensic tasks, that different matters such as missing persons
cases may have taken higher priority, and that data extraction is
time consuming. On February 4, 2020, the trial court granted
Nelson’s motion to suppress on the ground that the State had failed
to comply with OCGA § 17-5-25 by not extracting the data within
ten days of the issuance of the warrants. Following that order,
Detective Stoddard applied for and was granted new search
warrants, which were issued on February 7, 2020. Within ten days,
the TBCU extracted data anew from the iPhone (on February 11,
2020), the Samsung cell phone (on February 14, 2020), and the
laptop (on February 13, 2020).3
2 OCGA § 17-5-25 provides: “Any search warrant not executed within ten days from the time of issuance shall be void and shall be returned to the court of the judicial officer issuing the same as ‘not executed.’”
3 The trial court found that it was undisputed that Detective Stoddard
relied on no information derived from the data extractions pursuant to the 2018 search warrants in seeking the 2020 search warrants, a finding that was supported by the record.
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Nelson again moved to suppress the evidence extracted from
the devices. He argued among other things that the delay of more
than two years from the date on which the electronic devices were
seized until the date of the data extraction pursuant to the 2020
warrants violated his federal and state constitutional rights against
unreasonable search and seizure, as well as his federal
constitutional due process rights. The trial court denied the motion.
The trial court concluded that the 2020 search warrants were
properly issued and executed, ruling that they were supported by
probable cause and executed within ten days of issuance, and that
any delay in the filing of their returns did not render them invalid.
The court also held that the delay between the seizure of the
electronic devices and the issuance of the 2020 search warrants was
not unreasonable. The court explained that it was “satisfied with the
reason for the delay as presented by the State” in obtaining the new
warrants — identifying that reason in the order as a lack of
manpower and resources within the TBCU, as well as the necessity
of obtaining the new warrants given the suppression of the evidence
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pursuant to the 2018 warrants. The trial court found no substantial
violation of Nelson’s rights arising from the delay, noting that he
had been in custody since October 2017.
This Court granted Nelson’s interlocutory application, which
argued that the delay between the seizure of the electronic devices
and their searches pursuant to the 2020 warrants was unreasonable
under the Fourth Amendment. We heard oral argument in the case
on August 26, 2021.4
In reviewing a trial court’s ruling on a defendant’s motion to
suppress evidence, the trial court’s decision with regard to questions
of fact and credibility must be accepted unless clearly erroneous; we
will not disturb the trial court’s findings based on conflicting
evidence if there is any evidence to support them. See State v.
Rosenbaum, 305 Ga. 442, 449 (2) (826 SE2d 18) (2019). The trial
court’s legal conclusions are reviewed de novo, however. See id. at
451 (2).
4 We thank the amicus curiae for its brief and oral argument regarding the application of corpus linguistics to some of the questions presented.
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Here, the trial court decided that the warrant authorizing the
seizure of the devices at issue was insufficiently particular to allow
a thorough review of the electronic data contained therein, such that
additional search warrants were required. We need not decide
whether this holding was correct because we conclude that the trial
court did not err in declining to suppress the electronic data
ultimately culled pursuant to the 2020 warrants.
A seizure that is “lawful at its inception can nevertheless
violate the Fourth Amendment” due to subsequent events that
unreasonably infringe upon a person’s possessory interests in the
seized property. See United States v. Jacobsen, 466 U.S. 109, 124
(104 SCt 1652, 80 LE2d 85) (1984). Delay in obtaining a warrant to
search a seized item is one example of conduct that can unlawfully
interfere with a defendant’s possessory interests. See Rosenbaum,
305 Ga. at 454-455 (2) (e); United States v. Mitchell, 565 F3d 1347,
1350-1351 (11th Cir. 2009).The reasonableness of the delay in
getting a warrant is determined on a case-by-case basis, in the light
of all of the facts and circumstances. See Rosenbaum, 305 Ga. at 450
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(2). We have adopted a four-factor test for balancing governmental
and private interests in this context, considering (1) the significance
of the interference with the person’s possessory interest; (2) the
duration of the delay; (3) whether or not the person consented to the
seizure; and (4) the government’s legitimate interest in holding the
property as evidence. See Rosenbaum, 305 Ga. at 450 (2) (citing
United States v. Laist, 702 F3d 608, 613-614 (11th Cir. 2012)).
Here, it is not seriously disputed that, on the one hand, the
State had a legitimate interest in holding the electronic devices as
evidence, and that, on the other hand, the duration of the delay was
unusually long and Nelson did not consent to the seizure of his
devices. This leaves for our examination the significance of the
State’s interference with any possessory interest held by Nelson. In
evaluating that factor, we consider “the degree of possessory interest
in the subject property, the duration of the delay as it affects that
interest, and the efforts of [the] defendant[ ] to secure the return of
the items.” Rosenbaum, 305 Ga. at 451 (2) (a).
Applying those sub-factors, we again note that the delay in
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examining the devices was lengthy. And people often have a
significant possessory interest in personal electronic devices, such
as those at issue here. See Rosenbaum, 305 Ga. at 451 (2) (a)
(personal computers, tablets, and cell phones are “unique
possessions in which individuals may have a particularly powerful
possessory interest” (citation and punctuation omitted)). But the
trial court found that it was “aware of no demand from or on behalf
of [Nelson] for the return of these devices,” a finding that is not
clearly erroneous. 5 Moreover, the trial court found that Nelson could
not personally use or possess the devices, given that he had been in
custody without bond since October 2017. “Where individuals are
incarcerated and cannot make use of seized property, their
possessory interest in that property is reduced.” United States v.
Sullivan, 797 F3d 623, 633 (9th Cir. 2015) (citing Segura v. United
5 Nelson argued to the trial court that his counsel’s request for discovery of data contained on his phone was akin to requesting a return of the device. The trial court rejected that argument, saying that “[a] request for discovery and the subsequent disclosure of discoverable materials by the State does not result in the release of physical evidence.” We agree.
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States, 468 U.S. 796, 813 (104 SCt 3380, 82 LE2d 599) (1984)
(plurality opinion)).6
This case presents unusual facts and an extremely lengthy
delay. But given the government’s strong interest in holding the
devices at issue, Nelson’s significantly reduced possessory interest
in the devices, and the consequently limited nature of the State’s
interference with that interest, even weighed against the lengthy
duration of the delay and lack of consent to the seizure, the trial
court was authorized to conclude that the delay in securing the 2020
warrants did not violate the Fourth Amendment. Compare
Rosenbaum, 305 Ga. at 451-455 (2) (totality of circumstances
confirmed trial court’s conclusion that 539-day delay in securing
warrants for search of electronic devices seized incident to arrest
was unreasonable, where State made no showing of particular
6 In Rosenbaum, we did not rely on the custodial status of the defendants in our analysis, nor is it dispositive here in and of itself. But we did rely on the trial court’s finding that the defendants had made sufficiently robust demands for the return of their property to prevent any diminishment of their possessory interest — a finding contrary to the one here. See 305 Ga. at 451-452 (2) (a), 454-455 (2) (e).
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complexity, difficulty in drafting the warrant, or competing
demands on a limited number of officers, and record showed that
defense had sought return of the devices for a year and a half).7
Judgment affirmed. All the Justices concur.
7 Although Nelson cited the Georgia Constitution’s corollary to the Fourth Amendment in his motion to suppress, he makes no independent argument to this Court under the Georgia Constitution, and we do not consider whether the data might properly have been suppressed as a matter of state constitutional law (or, indeed, whether there even is a state constitutional exclusionary rule that could apply in these circumstances). We also need not decide the other issues that have been briefed by the parties, such as whether the State complied with OCGA § 17-5-25 in its initial examinations of the devices pursuant to the 2018 warrants. The challenged records are not the result of those initial examinations. And Nelson has made no argument to this Court that the execution of the 2020 warrants failed to comply with OCGA § 17-5-25.
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