Tempering Great Expectations After Mobley v. State
Sherwin Nam, CLS ’21
On October 21, 2019, the Supreme Court of Georgia issued its opinion in Mobley v. State, extending Fourth Amendment protection to warrantless retrievals of electronic data from cars.
Victor Mobley was involved in a car collision that killed both occupants of the other car. Mobley’s 2014 Dodge Charger had a built-in airbag control module (ACM). ACMs automatically record the speed of the vehicle, the status of the brakes, and various other electronic data. At the scene of the accident, investigators retrieved the data from the ACM of Mobley’s car and discovered that Mobley was speeding at nearly 100 miles per hour in the moments leading up to the collision. Law enforcement soon after launched a criminal investigation into Mobley. A grand jury later indicted Mobley, charging him with two counts of first-degree vehicular homicide. Mobley moved to suppress the ACM data, but the trial court denied the motion. Mobley was subsequently tried and convicted. The Georgia Court of Appeals affirmed.
At issue before the Georgia Supreme Court was (1) whether investigators searched Mobley’s vehicle when they collected the ACM data; (2) if so, whether that search was reasonable; and (3) if the search was unreasonable, whether the procedural protections of Georgia Code § 17-5-30[1] barred any exception to the exclusionary rule.[2]
The Court found that investigators did conduct a search and that that search was unreasonable. The traditional Fourth Amendment test for determining a search or seizure is grounded in trespass. In other words, if law enforcement physically intrudes on a constitutionally protected area,[3] then it has conducted a search.[4] To obtain the ACM data here, law enforcement physically intruded on Mobley’s car, which is “plainly among the ‘effects’ with which the Fourth Amendment[] . . . is concerned[.]”[5] Thus, the Court found that the government had conducted a search. This search was unreasonable because the government failed to rebut the presumption that warrantless searches are per se unreasonable. That is, the government did not identify any applicable exception to the warrant requirement.
In finding that the government’s search was unreasonable, the Court partially overruled its prior decision in Gary v. State. In Gary, the Court held that Georgia Code § 17-5-30 statutorily barred all exceptions to the exclusionary rule.[6] Gary provided incredible protection to Georgia defendants because all evidence obtained without the proper constitutional process would be excluded from the record. This was significant because other jurisdictions might make available, for example, an inevitable discovery exception to admit otherwise unlawfully obtained evidence if it “inevitably would have been discovered by lawful means[.]”[7] In partially overruling Gary, the Court made available, moving forward, exceptions to the warrant requirement and strongly limited Fourth Amendment protections. It did, however, explicitly leave open the question whether the Leon exception[8] would remain barred under Gary.
While Mobley is a step in the right direction—and commentators have already recognized the importance of this decision for privacy rights[9]—we should temper expectations of significantly greater Fourth Amendment protections for electronic data, even those obtained from ACMs, for three reasons.
First, the Court treaded lightly in reaching its decision. It noted in its analysis on the reasonableness of the search, albeit relegated to a footnote, that its decision was “based on the record before [it].”[10] The Court’s careful words sound in Carpenter v. United States,[11] where Chief Justice Roberts cautioned, “Our decision today is a narrow one. We do not express a view on matters not before us[.]”[12] Many lower courts in the wake of Carpenter have clung to those words as a failsafe when declining to extend Fourth Amendment protection to historical cell-site location data and other surveillance and tracking technologies.[13] Lower courts in Georgia may follow suit and deny Mobley protection to ACM data and other forms of electronic data-recording devices.
Second, the Court left open the question whether the Leon exception might still apply where law enforcement agents obtain evidence relying in good faith on the validity of a search or seizure. The Court welcomed, moving forward, government challenges to motions to suppress based on the good-faith exception. This could arm lower courts with further legal backing to restrict Fourth Amendment protections, at least in cases where searches occurred prior to Mobley. Indeed, after Carpenter, many lower courts relied on Leon to bar Fourth Amendment protection.[14] Until the Georgia Supreme Court decides on the issue, we can expect Leon challenges to proliferate, potentially admitting evidence when lower courts would not have admitted it pre-Mobley.
Lastly, and perhaps most importantly, the Court explicitly uprooted Gary, which once provided vast evidentiary protection to defendants. While the Leon exception may or may not remain barred, courts now have free range over the buffet of options including the automobile exception,[15] the exigent circumstances exception,[16] and the inevitable discovery exception,[17] among others. Thus, Georgia law enforcement gained significant procedural backstops to admitting evidence, even if the evidence was collected using otherwise constitutionally dubious methods.
Undoubtedly, Mobley will eventually provide great Fourth Amendment protection to defendants navigating the criminal justice system in Georgia. In current and future criminal investigations, law enforcement will be bound by Mobley when attempting to collect ACM data. But unfortunately, it may take years before Georgia courts apply this protection uniformly and realize the true potential of Mobley.
[1] Georgia Code § 17-5-30 is a rule of criminal procedure that governs motions to suppress evidence. Prior to this case, Georgia courts held that the rule bars all exceptions to the exclusionary rule.
[2] The Court also considered whether the inevitable discovery doctrine applied to this case, but that issue goes beyond the scope of this blog post.
[3] The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” U.S. Const. amend. IV.
[4] See United States v. Jones, 565 U.S. 400, 406 n.3 (2012).
[5] Mobley v. State, No. S18G1546, 2019 WL 5301819, at *5 (Ga. 2019) (citation omitted).
[6] 262 Ga. 573 (1992).
[7] Mobley, 2019 WL 5301819, at *12.
[8] In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court held that evidence obtained from law enforcement agents who rely in good faith on the constitutionality of a search or seizure is an exception to the exclusionary rule.
[9] See Karl Bode, Cops Need a Warrant to Access Your Car’s Data, Court Rules, Vice: Motherboard (Oct. 22, 2019 8:00 AM), https://www.vice.com/en_us/article/ne8kxk/cops-need-a-warrant-to-access-your-cars-data-court-rules (quoting Nathan Wessler, ACLU Staff Attorney, and Guarav Laroia, Senior Policy Counsel at Free Press); Jeffrey Neuburger, Warrantless Retrieval of Electronic Automobile Data Held to Be Unreasonable Search – Ruling Points to Private Nature of Digital Data in Today’s World, Proskauer Rose LLP: New Media and Technology Law Blog (Oct. 21, 2019), https://newmedialaw.proskauer.com/2019/10/21/warrantless-retrieval-of-electronic-automobile-data-held-to-be-unreasonable-search-ruling-points-to-private-nature-of-digital-data-collected-in-todays-world/ (calling [Mobley] an “important follow-up to . . . Riley [v. California] and Carpenter”).
[10] Mobley, 2019 WL 5301819, at *6 n.10 (finding that the government had not shown the applicability of the automobile exception and the exigent circumstances exception).
[11] For a digest of Carpenter and its place in Fourth Amendment jurisprudence, see Sean Lerner, Fourth Amendment Law and Third-Party Doctrine After Carpenter v. US, Columbia University School of Law Journal of Law & Social Problems: The Common Law (Nov. 16, 2018), https://jlsp.law.columbia.edu/2018/11/16/fourth-amendment-law-and-third-party-doctrine-after-carpenter-v-us/.
[12] 138 S. Ct. 2206, 2220 (2018).
[13] See, e.g., United States v. Kelly, 385 F. Supp. 3d 721, 726 (E.D. Wis. 2019) (highlighting the narrow holding of Carpenter); United States v. Felton, 367 F. Supp. 3d 569, 575 (W.D. La. 2019) (holding that the narrow ruling of Carpenter does not apply to the instant case); Hicks v. State, No. 129654C, 2019 WL 4233844, at *13 (Md. Ct. Spec. App. Sep. 6, 2019) (declining to extend Carpenter’s “narrow” holding to the instant case).
[14] See, e.g., United States v. Korte, 918 F.3d 750, 759 (9th Cir. 2019) (affirming the district court’s application of the good-faith exception); United States v. Ackies, 918 F.3d 190, 196 (1st Cir. 2019) (finding that even if the government did not prove probable cause for the warrants, the good-faith exception would apply); United States v. Streett, 363 F. Supp. 3d 1212, 1328 (D.N.M. 2018) (finding that the good-faith exception applies to the instant case).
[15] The automobile exception to the warrant requirement allows admission of evidence only when the vehicle in question is “readily mobile.” United States v. Delva, 922 F.3d 1228, 1243 (11th Cir. 2019). It does not apply where the suspect did not have access to the vehicle due to the officers impounding the vehicle. See State v. LeJeune, 276 Ga. 179, 182 (2003).
[16] “The exigent circumstances exception to the warrant requirement applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” 8A Barbara J. Van Arsdale et al., Federal Procedure, Lawyer’s Edition § 22:229 (2019) (citation omitted). Examples of exigent situations include danger of damage and possible loss or destruction of evidence, risk of physical harm to officers or others, when officers are in hot pursuit of a fleeing suspect. See id.
[17] The inevitable discovery applies only when “a reasonable probability that the evidence in question would have been discovered by lawful means[.]” Mobley, 2019 WL 5301819, at *12.