State v. Hamlett A13A0474; A13A0882 Court of Appeals of Georgia, decided 7/16/13, 8/7/13. The Court of Appeals of Georgia picked up the fumble by a Cobb County Superior Court judge and overturned the conviction of the brothers Hamlett. The judge had issued an order allowing for the placement of a GPS monitor on Jalim Hamlett’s truck. As a result of police tracking the truck, brothers Salim and Jalim Hamlett were convicted of possession of burglary tools and a burglary alleged to have occurred on August 5, 2010 in Fulton County. However, the conviction was overturned once the Court of Appeals ruled that the State had failed to establish probable cause existed to allow for such an invasion of privacy.
The victim of the Fulton County burglary had called the police the following evening stating that a black male had appeared at his front door and asked if he could do some yard work, in spite of the fact it was raining. Alarmed by the situation, the victim followed the black male as he walked away from his home and into a truck bearing tag number BMP0476. The tag number was registered to a truck owned by Jalim, who had been wanted for seven months on a dealing in stolen property case out of Atlanta.
Armed with this information, the detective applied for an order from a Cobb County Superior Court judge allowing for the covert placement of a GPS device on the truck in question. The order was granted and Jalim’s truck was monitored by the police for the next two weeks. On August 30, 2010, Jalim was stopped in Sandy Springs by police that had been monitoring his whereabouts via the GPS tracker.
At the time of the stop Jalim’s truck had an expired tag and an inoperable break light. The truck had been parked outside a Sandy Springs residence for twenty-eight minutes shortly before the stop.
The Court of Appeals had to tackle a few issues in this case. First, the Court had to decide whether the placement of the GPS tracker on Jalim’s truck constituted an invasion of privacy. Using common sense bolstered by the recent case of United States v. Jones, the Court found that, “the installation and monitoring of the GPS tracking device in this case constituted a search that had to be authorized by a valid warrant. See United States v. Jones, 132 S. Ct 945 (2012).
Next, the Court determined that the detective failed to establish probable cause for the issuance of a search warrant in his affidavit to the Cobb County Superior Court. The Court of Appeals reasoned that there was a seven month old warrant for Jalim’s arrest for dealing in stolen property relating to a January 2010 burglary out of Atlanta. However, the detective admitted there was no evidence tying Jalim or his truck to the January 2010 Atlanta burglary. Furthermore, it was undisputed that the black male who offered to do yard work for the August 5, 2010 burglary victim had committed no crime. Additionally, the Court factored in the fact that the police had Jalim’s home address for seven months prior to placing the GPS tracker on his truck and had passed on all attempts to locate him. The Court cited State v. Brantley in touching on the timeliness, or staleness, factor of a warrant. See Brantley, 264 Ga. App. 153-155 (“if the prior circumstances relied on to establish probable cause have grown stale with time, they are unlikely to provide a reliable barometer of present criminal conduct”).
In a last ditch Hail Mary, the State attempted to argue that the taint of the illegal traffic stop was cured by the fact that Jalim was committing a traffic infraction when he was stopped. The Court of Appeals stiffed armed that argument, stating that the traffic stop would not have occurred but for the State’s illegal use of the GPS device. See State v. King, 287 Ga. App. 681-683 (evidence obtained as a direct result of the exploitation of the initial illegality, a pat-down search, was properly excluded).
What we take from this case is that, unlike the trial court in Cobb County, the Court of Appeals is willing to follow the law as laid down by the United States Supreme Court. In Jones, supra, the Court stated, “The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment.” Somewhere James Madison and Thomas Jefferson are dancing in the end zone.
-by Eric Bernstein