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: February 18, 2025
S24G0707. THE STATE v. ISLAM.
BETHEL, Justice.
After police executed a search warrant at his business and
seized, among other things, Delta-8 THC gummies, Md Nazmul
Islam was charged with possession of a Schedule I controlled
substance with intent to distribute. Islam subsequently filed a
motion pursuant to OCGA § 17-5-30, which sought exclusion of the
seized property as evidence against him and the return of the
property. The trial court granted Islam’s motion, finding that the
seizure of the property was “unlawful” and ordering the State to
return “all property seized during the execution of the search
warrant[.]”Relying on OCGA § 5-7-1 (a) (4), which permits the State
to take an appeal from an order excluding evidence on the ground
that it was unlawfully seized, the State filed a timely notice of
appeal to the Court of Appeals. The Court of Appeals dismissed the
State’s appeal, however, concluding that the appeal was not
authorized by OCGA § 5-7-1 (a) (4) because, though the trial court’s
order required the property’s return, it did not expressly exclude any
evidence. We granted certiorari to determine whether the Court of
Appeals correctly dismissed the State’s appeal.1 We now reverse the
decision of the Court of Appeals and remand for consideration of the
merits of the State’s appeal.
“Appeals by the State in criminal cases are limited to the issues
listed and the circumstances identified under OCGA § 5-7-1[.]” State
v. Stephens, 310 Ga. 57, 61 (2) (849 SE2d 459) (2020). As such,
Georgia’s “appellate courts do not have jurisdiction to entertain an
appeal filed by the State in a criminal case that falls outside the
ambit of that provision.” State v. Arroyo, 315 Ga. 582, 583 (883 SE2d
781) (2023) (citation and punctuation omitted). In this case, the
State cited OCGA § 5-7-1 (a) (4) as the basis for its appeal. That
subsection provides in pertinent part that the State may appeal
1 The case was orally argued before this Court on November 6, 2024.
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[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[.]
OCGA § 5-7-1 (a) (4). Consistent with the plain meaning of the
statutory text, this Court has recognized that “OCGA § 5-7-1 (a) (4)
authorizes the State to take appeals from pretrial orders that
suppress or exclude evidence on the ground that it was obtained in
violation of law.” State v. Rosenbaum, 305 Ga. 442, 448 (1) (826 SE2d
18) (2019) (citation and punctuation omitted). The question
presented in this case, then, is whether the trial court’s order
granting Islam’s motion under OCGA § 17-5-30 is an order
“excluding evidence” on the ground that it was “illegally seized.”
We have previously characterized OCGA § 17-5-30 as “a
procedural statute, establishing a mechanism for the application of
an exclusionary rule” for evidence obtained by way of an unlawful
search and seizure. Mobley v. State, 307 Ga. 59, 72 (4) (a) (834 SE2d
785) (2019). Pursuant to OCGA § 17-5-30 (a), “[a] defendant
aggrieved by an unlawful search and seizure may move the court for
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the return of property, the possession of which is not otherwise
unlawful, and to suppress as evidence anything so obtained” on the
basis that the search and seizure were conducted without a warrant
or, where a warrant was issued, on one of three statutory grounds:
“the warrant is insufficient on its face, there was not probable cause
for the issuance of the warrant, or the warrant was illegally
executed.” The statute further provides that, “[i]f the motion is
granted the property shall be restored, unless otherwise subject to
lawful detention, and it shall not be admissible in evidence against
the movant in any trial.” OCGA § 17-5-30 (b) (emphasis supplied).
Pointing to the statutory language emphasized above, the
State argues that an order granting a motion brought under OCGA
§ 17-5-30 is necessarily an order “excluding evidence.” And because
the only basis for granting such a motion is that the property at issue
was obtained as the result of an unlawful search and seizure, the
State asserts that the order on appeal clearly constitutes an order
“excluding evidence illegally seized,” OCGA § 5-7-1 (a) (4), from
which the State is authorized to appeal. Islam, for his part, largely
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focuses on the fact that the trial court’s order is silent as to the
exclusion of the seized property and contends that it should be
construed as ruling only on the issue of the property’s return from
which the State has no right of appeal. But the mere fact that the
order does not speak expressly to the exclusion of the seized property
does not lead to an inescapable conclusion that the order is not one
excluding evidence. Rather, it is well settled that “the appealability
of an order is ultimately determined by its substance and effect, not
its nomenclature.” State v. Singh, 291 Ga. 525, 526 (1) (731 SE2d
649) (2012). And determining the substance and effect of the trial
court’s order in this case requires an examination of OCGA § 17-5-30, which provided the basis for Islam’s motion.
As we have explained before, “[w]hen we consider the meaning
of a statute, we must presume that the General Assembly meant
what it said and said what it meant.” Deal v. Coleman, 294 Ga. 170,
172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted).
“To that end, we must afford the statutory text its plain and ordinary
meaning, we must view the statutory text in the context in which it
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appears, and we must read the statutory text in its most natural and
reasonable way, as an ordinary speaker of the English language
would.” Id. at 172-173 (1) (a) (citations and punctuation omitted).
The most natural and reasonable understanding of OCGA § 17-5-30 is the one that the State proposes: an order granting a motion
brought under this statute, regardless of nomenclature, is an order
“excluding evidence.” When such a motion is granted, the statute
requires that property “shall be restored, unless otherwise subject
to lawful detention, and it shall not be admissible in evidence”
against the defendant. OCGA § 17-5-30 (b). By providing that the
seized property “shall not be admissible in evidence,” subsection (b)
makes exclusion of the seized property mandatory.2 See Hall County
Bd. of Tax Assessors v. Westrec Props., 303 Ga. 69, 75 (3) (809 SE2d
780) (2018) (“The word ‘shall’ is generally construed as a word of
2 This Court has recognized that, though “shall” generally indicates a
mandatory directive, it can be permissive depending on the context in which it
appears. See Bell v. Hargrove, 313 Ga. 30, 34 (2) n.5 (867 SE2d 101) (2024).
But in this case, “we discern no contextual basis for concluding that the word
‘shall,’” as used in OCGA § 17-5-30, “does not function as a mandatory
directive.” Id.
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command. The import of the language is mandatory.” (citation and
punctuation omitted)). So where a trial court grants such a motion,
the seized property at issue is excluded by operation of law, and a
trial court has no discretion to order otherwise. See Republic Claims
Svc. Co. v. Hoyal, 264 Ga. 127, 128 (441 SE2d 755) (1994)
(construing OCGA § 9-2-60 (b), which states that “[a]ny action . . . in
which no written order is taken for a period of five years shall
automatically stand dismissed,” and concluding that “[t]he
provisions of this section are mandatory,” “dismissal occurs by
operation of law,” and “a trial court is without authority to order the
action reinstated” (citation and punctuation omitted; emphasis
supplied)). Cf. Benton v. State, 314 Ga. 498, 502 (2) (877 SE2d 603)
(2022) (construing statute providing for revocation of first-offender
status based upon a probation violation and concluding that,
because statute provides that a court “may enter an adjudication of
guilt and proceed to sentence the defendant” following a probation
violation, such violation “does not automatically result in a
conviction or preclude [the defendant’s] exoneration by operation of
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law” but rather “gives the court discretion to enter an adjudication
of guilt” (citation and punctuation omitted; emphasis supplied)).
Islam urges a contrary reading of this statutory language,
seizing on subsection (b)’s caveat that, where a motion brought
under OCGA § 17-5-30 is granted, the seized property “shall be
restored, unless otherwise subject to lawful detention . . . .”
(Emphasis supplied.) As Islam views it, this qualifying phrase
demonstrates that there are two distinct grounds upon which a
motion made under OCGA § 17-5-30 may be granted and, his
argument goes, authorizes a trial court to order the return of
property without concomitantly ordering its exclusion. But Islam’s
argument ignores elementary rules of statutory construction. This
qualifying phrase, which follows the requirement that the seized
property “shall be restored” and precedes the requirement that the
property “shall not be admissible in evidence,” OCGA § 17-5-30 (b),
plainly has no effect on the mandatory nature of that latter
requirement. See Scott v. State, 299 Ga. 568, 572 (2) (788 SE2d 468)
(2016) (“Under the canon of statutory construction known as the
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‘rule of the last antecedent,’ a qualifying phrase should ordinarily be
read as modifying only the noun or phrase that it immediately
follows.” (citation and punctuation omitted)). Rather, this phrase
simply indicates that return of the seized property under OCGA §
17-5-30 (b) is not automatic and instead depends on whether the
seized property, as the statutory qualifying phrase further reflects,
is “otherwise subject to lawful detention.”
The cases relied upon by the Court of Appeals in dismissing
this appeal do not require a different result because neither case
applies here. First, the Court of Appeals pointed to its decision in
State v. McIntyre, 191 Ga. App. 565, 565-566 (382 SE2d 669) (1989),
which also concerned the State’s appeal from the grant of a motion
brought under OCGA § 17-5-30. There, the trial court issued two
separate rulings on the defendant’s motion — the first ordered the
exclusion and the second ordered the return of the property at issue.
On appeal, the State challenged only the second order requiring the
return of the property but expressly declined to challenge the
exclusion ruling contained in the first order. In light of the State’s
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failure to challenge the exclusion ruling, the Court of Appeals
concluded that the State was not permitted under OCGA § 5-7-1 (a)
(4) to appeal only the return of the property. By contrast, in this
case, the State is challenging both the exclusion of the property at
issue as well as its return. As such, McIntyre is distinguishable from
and thus inapplicable to the case at hand.
The other case cited by the Court of Appeals, King v. State, 264
Ga. 282 (443 SE2d 844) (1994), is likewise inapposite. As an initial
matter, there was no discussion of, let alone analysis of and a
holding on, the issue of the State’s right to appeal an order granting
a motion made under OCGA § 17-5-30. Rather, King merely noted
in a footnote detailing the case’s procedural history that the State’s
prior appeal of an order requiring the return of seized property had
been dismissed based on the “lack of a right to appeal that issue,” id.
at 283 n.1, but the analytical basis for the dismissal of the prior
appeal is unclear. That alone makes King inapplicable here. See
Cook v. State, 313 Ga. 471, 478 (2) (a) (870 SE2d 758) (2022)
(“Decisions of this Court and of the Court of Appeals do not stand for
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points that were neither raised by the parties nor actually decided
in the resulting opinion, and questions which merely lurk in the
record, neither brought to the attention of the court nor ruled upon,
are not to be considered as having been so decided as to constitute
precedents.” (citation and punctuation omitted)).
Moreover, the facts of this case are distinguishable from the
facts of King. Though King also concerned an appeal from an order
requiring the return of seized property, the order at issue in King
did not follow from the exclusion of evidence under OCGA § 17-5-30.
Instead, the order in King required the return of property as a result
of this Court’s reversal of King’s conviction in King v. State, 262 Ga.
147 (414 SE2d 206) (1992). See King, 264 Ga. at 182-183. And
because the exclusion of evidence was not the basis for ordering the
return of King’s property, OCGA § 5-7-1 (a) (4) was inapplicable. To
the extent either King or McIntyre could be understood to suggest
that the State never has the right to appeal from an order granting
a motion brought under OCGA § 17-5-30, we disapprove any such
reading.
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Here, the trial court found that the State’s seizure of the
property at issue was unlawful and, on that basis, granted Islam’s
motion brought under OCGA § 17-5-30. Even absent express
language indicating that the seized property would be excluded as
evidence against Islam, exclusion occurred by operation of law and,
thus, was the necessary consequence of the order being appealed.3
Accordingly, the trial court’s order is an order “excluding evidence
illegally seized” for purposes of OCGA § 5-7-1 (a) (4), and the State
is authorized to take an appeal. The judgment of the Court of
Appeals dismissing this appeal is therefore reversed, and this case
is remanded for consideration of the merits of the State’s appeal.
Judgment reversed and case remanded. All the Justices concur.
3 Both in his briefing and at oral argument before this Court, Islam
argued that the property at issue was not excluded and that the State was not
precluded from seeking to introduce that property into evidence at trial. But,
of course, a party’s after-the-fact characterization of an order does not subvert
the plain meaning of the controlling statutory language.
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