by Anthony W. Accurso

The Supreme Court of Georgia overruled the Court of Appeals’ line of cases starting with McBee v. State, 491 S.E.2d 97 (Ga. Ct. App. 1997), that apply a “relevance” standard to whether evidence seized outside the scope of a search warrant must be suppressed because that’s the incorrect legal standard. The Court explained that the plain view doctrine is the correct standard and held that the Court of Appeals erred by affirming the denial of the defendant’s suppression motion based upon the relevance standard.

Harold William George, a youth minister at a church in Walton County, was alleged to have “touched [a] victim’s genitals on multiple occasions under the pretext of taking measurements of his body while supervising a physical conditioning program.”

During the investigation, the Walton County Sheriff’s Office obtained a warrant to seize George’s electronic devices from his residence. However, the lead investigator testified that—during the execution of the warrant—she was looking for any evidence that would support the 16-year-old victim’s statement, “which would be measuring tapes, any kind of electronic devices, notes, measurements, anything that the child mentioned during his forensic interview.”

Officers ultimately seized “a measuring tape, a calendar, and other papers from inside George’s briefcase or bag, as well as notepads, a book, another measuring tape, and other items from inside several drawers in the residence.”

Prior to his June 2018 jury trial, George moved to exclude all non-electronic evidence seized because the warrant failed to specify such materials. The trial court denied the motion, relying on Walsh v. State, 512 S.E.2d 408 (Ga. Ct. App. 1990), and stating that “[officers] were not compelled to overlook relevant evidence simply because it was not listed in the warrant.”

George was convicted at trial, and his conviction was upheld by the Court of Appeals, also relying on Walsh. However, the Supreme Court reversed, and in doing so, it overruled McBee, Walsh, and their progeny.

The Court began its analysis by noting that the Court of Appeals’ relevance standard requires the State simply to establish that evidence is relevant or related to the matter under investigation to justify seizure of such evidence that’s beyond the scope of the warrant. But the Court explained that the relevance standard of McBee, Walsh, and their progeny is in error “because the seizure of such evidence not subject to any other exception to the warrant requirement must comply with the well-established plain view doctrine.”

The U.S. Supreme Court has explained that the plain view doctrine permits the warrantless seizure of evidence if it can be plainly seen from a location police have a lawful right to be; its incriminating nature must be “immediately apparent”; and police “must also have a lawful right of access to the object itself.” Horton v. California, 496 U.S. 128 (1990). Additionally, the item at issue must be clearly visible, and police may not move or manipulate it in order to develop probable cause to believe it’s evidence of a crime. Arizona v. Hicks, 480 U.S. 321 (1987) (moving piece of stereo equipment to view serial number constituted new search separate from initial search conducted with warrant because police didn’t have probable cause to believe the item was stolen until serial number was exposed).

The Georgia Supreme Court explained that under the plain view doctrine, police may seize items not described in a warrant if (1) “the officer collecting the evidence [did not] violate[] the Fourth Amendment in arriving at the place from which he or she sees the evidence,” and (2) “the incriminating nature of the object must be immediately apparent.” Moss v. State, 561 S.E.2d 382 (Ga. 2002). The Supreme Court instructed that in “applying the plain view exception to documents, the proper standard is whether the documents’ evidentiary value is immediately apparent upon a mere glance or cursory inspection.” Reaves v. State, 664 S.E.2d 207 (Ga. 2008).

After reviewing the applicable federal and state case law, the Court concluded that the Court of Appeals has erred in evaluating the relevance of evidence alone in permitting seizure of items outside the scope of a search warrant. Consequently, the Court overruled “McBee, Walsh, and their progeny, to the extent those decisions suggest that relevance alone is a sufficient basis to seize items beyond the scope of a search warrant.”

Turning to the present case, the Court ruled that the trial court erred in focusing only on whether the items in question were relevant, relying on Walsh, and the Court of Appeals similarly erred in affirming the decision.  

Accordingly, the Court vacated the decision of the Court of Appeals with instructions to remand the case for a rehearing on the suppression issue to determine whether the State’s evidence could meet the proper standard by showing the incriminating nature of the additional items seized was immediately apparent upon a glance. See: George v. State, 865 S.E.2d 127 (Ga. 2021). 

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