CourtListener 10680305

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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
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official text of the opinion.

In the Supreme Court of Georgia

Decided: June 11, 2024

S23G0955. TATUM v. THE STATE.

COLVIN, Justice.

Appellant Mark Joseph Tatum was convicted of a “peeping

Tom” violation and invasion of privacy in relation to his

surreptitious recording of a female neighbor through her window.1

1 The incident occurred late at night on July 15, 2018, and Appellant was

arrested either on July 15, 2018, or very early in the morning on July 16, 2018.
On October 17, 2018, Appellant was indicted by a Madison County grand jury
for a “peeping Tom” violation pursuant to OCGA § 16-11-61 (Count 1), invasion
of privacy in violation of OCGA § 16-11-62 (Count 2), and tampering with
evidence in violation of OCGA § 16-10-94 (Count 3). On January 18, 2019,
Appellant filed a motion to suppress the evidence obtained from his cell phone.
The trial court conducted a hearing on Appellant’s motion on October 9, 2019,
and denied it by summary order on October 17, 2019. Following Appellant’s
waiver of his right to a jury trial, the trial court held a bench trial on October
21, 2021. The trial court found Appellant guilty of a “peeping Tom” violation
and invasion of privacy but found him not guilty of tampering with evidence.
The court sentenced Appellant to five years in prison, with two years and six
months to serve for Count 1, and five years of probation for Count 2, to be
served consecutively to Count 1, along with various fines and fees. On October
21, 2021, the same day of his sentencing, Appellant appealed his conviction to
the Court of Appeals. On April 17, 2023, the Court of Appeals issued a decision
affirming Appellant’s conviction. See generally Tatum v. State, 367 Ga. App.
Appellant was stopped within several minutes of the neighbor’s call

to 911, and his cell phone was lawfully seized. 2 Appellant was not

placed under arrest, however, until after the arresting officer viewed

the contents of Appellant’s cell phone without a warrant.

Information from this warrantless search was then used in an

affidavit to obtain a warrant for the search of Appellant’s cell phone,

the contents of which the arresting officer had already seen, at least

in part. Appellant moved to suppress evidence obtained from the

warrantless and warrant-authorized searches of his cell phone

under the Fourth Amendment to the United States Constitution and

Article I, Section I, Paragraph XIII of the Georgia Constitution, 3 but

439 (886 SE2d 845) (2023). We granted Appellant’s petition for a writ of
certiorari on October 11, 2023. The case was docketed to the term of this Court
beginning in December 2023, and oral argument was held on February 8, 2024.
The American Civil Liberties Union and the American Civil Liberties Union of
Georgia filed a joint brief as amici on behalf of Appellant. The Georgia
Association of Criminal Defense Lawyers also filed a separate amicus brief on
behalf of Appellant. We thank them for their assistance.
2 Appellant’s counsel previously argued that the seizure was unlawful

but conceded in his briefing to the Court of Appeals and during oral argument
before this Court that Appellant’s cell phone was lawfully seized.
3 As a general matter, “[w]e have said that because Paragraph XIII

contains the same language as the Fourth Amendment, it is to be applied in
accord with the Fourth Amendment.” Olevik v. State, 302 Ga. 228, 234 (2) (b)

2
the trial court denied his motion, and the Court of Appeals affirmed.

See Tatum v. State, 367 Ga. App. 439 (886 SE2d 845) (2023). In its

analysis, the Court of Appeals assumed without deciding that the

arresting officer’s warrantless viewing of the video on Appellant’s

cell phone constituted an illegal search, but it nevertheless

concluded that evidence from Appellant’s cell phone was admissible

under the independent source doctrine. Id. at 442. The Court of

Appeals reasoned that the affidavit made in support of the warrant

application contained evidence sufficient to support a finding of

probable cause even after excising information gleaned from the

arresting officer’s warrantless search. See id. at 442-443.

We granted certiorari and posed the following question:

Does the independent source doctrine allow the admission
of cell-phone evidence obtained via search warrant
without consideration of whether the decision to seek the

n.3 (806 SE2d 505) (2017) (citation and punctuation omitted). Although
Appellant references both provisions on appeal, he makes no argument that
Paragraph XIII should be interpreted as “‘provid[ing] a rule substantively
different as applied to this case from that of the Fourth Amendment. This case
therefore presents no occasion for consideration of whether Paragraph XIII
differs from the Fourth Amendment in some circumstances.’” Hinkson v. State,
310 Ga. 388, 398 n.5 (5) (a) (850 SE2d 41) (2020) (quoting White v. State, 307
Ga. 601, 602 n.2 (2) (837 SE2d 838) (2020)).

3
search warrant was prompted by a prior, warrantless
search of that cell-phone?

Appellant argues, and the State concedes,4 that courts must consider

whether the State’s decision to seek a search warrant was so

prompted. Because the record on appeal does not reflect that the

trial court considered whether the warrant application was

prompted in this way, we vacate the decision of the Court of Appeals

and remand with direction to vacate the judgment of the trial court

and to remand to that court for further proceedings consistent with

this opinion.

1. (a) At the pre-trial motion to suppress hearing, the State

called Deputy Will Townsend, who testified regarding his arrest of

Appellant and the circumstances surrounding it. Deputy

Townsend’s body-worn camera recorded his interactions with

Appellant, as described further below. This video was admitted into

evidence at the motion to suppress hearing and played for the court.

4 The State argued it in its brief that we should affirm the decision of the

Court of Appeals but conceded at oral argument before this Court that we
should vacate the Court of Appeals’s decision and remand for further
proceedings.
4
Following the trial court’s denial of Appellant’s motion to suppress,

the parties filed stipulations concerning essentially all of the factual

issues in the case, including the victim’s call to 911, Deputy

Townsend’s encounter with and arrest of Appellant, Deputy

Townsend’s warrantless viewing of an incriminating video on

Appellant’s phone, facts relating to the warrant application, and a

description of photographs and of a video of the victim obtained

pursuant to the warrant-authorized search. Rather than re-

introduce Deputy Townsend’s testimony and the recording from his

body-worn camera at trial, the State relied entirely upon these

stipulations. Accordingly, no evidence was admitted by either party

during the guilt phase of Appellant’s bench trial.

Evidence from Deputy Townsend’s testimony, his body-worn

camera, and the parties’ stipulations was largely consistent and

shows the following. On July 15, 2018, at 10:34 p.m., 5 the Madison

5 The parties jointly stipulated that the call was received at 10:34 p.m.,

but the warrant affidavit states that the call was received at 10:41 p.m., and
Deputy Townsend testified that the call was received around 11:30 p.m. A
recording of the 911 call is not a part of the record on appeal, and the timing of
the call is not material to our legal analysis.
5
County 911 call center received a call regarding an unknown

individual taking photographs of an 18-year-old female through a

bedroom window. The caller described the individual’s cell phone as

having a camera lens in the back center of the phone. Deputy

Townsend was on duty in the area and was dispatched to respond to

the call.

Within minutes of the 911 call, Deputy Townsend encountered

Appellant walking in the vicinity of the home from which the call

had been made. According to Deputy Townsend, who stated that he

regularly patrolled this portion of Madison County, it was unusual

for there to be foot traffic in the area at this time of night. Upon

encountering Appellant, Deputy Townsend got out of his vehicle and

spoke to him. Deputy Townsend told Appellant about the 911 call

and asked Appellant if he had a cell phone with him. Though

Appellant denied having a cell phone on him, Deputy Townsend

observed the outline of an object that appeared to be a cell phone in

Appellant’s front pants pocket. When Deputy Townsend asked

Appellant about the object, Appellant pulled out his cell phone and

6
stated that he had forgotten that he had it with him. Deputy

Townsend noticed that Appellant was shaking and that he appeared

extremely nervous. Deputy Townsend also noticed that Appellant’s

phone had a camera lens in the back center of the phone, as

described in the 911 call.

Deputy Townsend asked if Appellant would show him the last

photograph he had taken. Appellant initially declined, but after

Deputy Townsend told Appellant that he could detain him and

obtain a search warrant, Appellant agreed. As Appellant was

pulling up the gallery of photos on his phone, he tilted his phone

away from the deputy, preventing the deputy from seeing its screen.

According to Deputy Townsend, Appellant appeared as if he was

trying to delete something, and so Deputy Townsend “grabbed the

phone out of his hand” to “preserve the evidence.” Immediately after

seizing Appellant’s phone, and without interacting with it further,

Deputy Townsend saw that the phone’s camera roll was displayed,

and he observed a thumbnail image of a young woman standing in

a room through a window. Deputy Townsend put Appellant’s phone

7
down on the front seat of his patrol vehicle, handcuffed Appellant,

and placed him in the back of the vehicle but left the door open.

When placing Appellant in the back seat of his patrol vehicle,

Deputy Townsend stated, “You are not under arrest at this point,

but you are being detained right now.” Once Appellant was seated,

Deputy Townsend picked up Appellant’s cell phone, clicked on the

thumbnail image he had seen while seizing Appellant’s phone and

watched the corresponding video, which depicted a female standing

in a bedroom, with her breasts exposed, folding laundry. Deputy

Townsend then locked the screen and did not search the cell phone

any further. Deputy Townsend then closed the back door of his

patrol car, placed Appellant under arrest, and provided him with a

Miranda warning. See Miranda v. Arizona, 384 U.S. 436 (86 SCt

1602, 16 LE2d 694) (1966).

Following Appellant’s arrest, law enforcement officers drafted

a search warrant application for the phone’s digital contents. The

affidavit in support of the warrant included much of the information

summarized above, including the fact that Deputy Townsend viewed

8
a video on Appellant’s phone, which depicted “a topless white female

inside her room being videoed from outside.” The warrant

application was granted, and, on execution of the warrant,

investigators found photographs and a video of the victim on

Appellant’s phone.

(b) As recounted above, the trial court denied Appellant’s

motion to suppress by means of summary order, which included no

findings of fact. Following Appellant’s bench trial, the court found

Appellant guilty of a “peeping Tom” violation (Count 1) and invasion

of privacy (Count 2), but not guilty of tampering with evidence

(Count 3). Appellant then appealed his conviction to the Court of

Appeals.

The Court of Appeals affirmed the trial court’s denial of

Appellant’s motion to suppress. See Tatum, 367 Ga. App. at 443-444.

Quoting Brundige v. State, 291 Ga. 677, 682 (735 SE2d 583) (2012),

the Court of Appeals stated that “[w]hen faced with potentially

improperly obtained evidence, the question becomes whether,

excising the evidence improperly obtained, probable cause

9
nonetheless exists to issue a warrant.” Id. at 442 (citation and

punctuation omitted). In applying this rule, the Court of Appeals

assumed without deciding that Deputy Townsend’s warrantless

viewing of the video on Appellant’s cell phone constituted an

unlawful search. 6 See id. It then considered other facts contained in

the affidavit, including Appellant’s proximity to the scene of the

crime, his dishonesty about having his phone with him, and his

furtive movements in an apparent attempt to delete evidence, and

concluded that these facts — all of which occurred prior to Deputy

Townsend’s unlawful viewing of the phone’s contents — were

sufficient to support a finding of probable cause, independent of any

unlawfully obtained information. See id. at 443.

2. (a) Though the Fourth Amendment protects “the people”

from “unreasonable searches and seizures,” U.S. Const. amend. IV,

“it is silent about how this right is to be enforced,” Davis v. United

States, 564 U.S. 229, 231 (131 SCt 2419, 180 LE2d 285) (2011). “To

6 The Court of Appeals did not address whether Deputy Townsend’s
initial viewing of the thumbnail image on Appellant’s phone was an unlawful
search.
10
supplement the bare text, [the United States Supreme] Court

created the exclusionary rule, a deterrent sanction that bars the

prosecution from introducing evidence obtained by way of a Fourth

Amendment violation.” Id. at 231-232. See also Mapp v. Ohio, 367

U.S. 643, 655 (III) (81 SCt 1684, 6 LE2d 1081) (1961) (applying the

federal exclusionary rule to the states through the Fourteenth

Amendment to the United States Constitution); Mobley v. State, 307

Ga. 59, 75 (4) (a) (834 SE2d 785) (2019) (holding that OCGA

§ 17-5-30 “establishes a procedure for applying the exclusionary

rule” developed by the United States Supreme Court in state

criminal proceedings). The United States Supreme Court has

recognized certain exceptions to the exclusionary rule, however,

under which impermissibly obtained evidence may remain

admissible: one such exception is the independent source doctrine.

See Murray, 487 U.S. 533, 537 (II) (108 SCt 2529, 101 LEd2d 472)

(1988) (citing Silverthorne Lumber Co. v. United States, 251 U.S.

385, 392 (40 SCt 182, 64 LEd 319) (1920)). As the Supreme Court

explained in Murray, the independent source doctrine applies “to

11
evidence initially discovered during, or as a consequence of, an

unlawful search, but later obtained independently from activities

untainted by the initial illegality.” Id. See also Wilder v. State, 290

Ga. 13, 16 (2) (717 SE2d 457) (2011) (explaining that the

independent source doctrine “operates when evidence discovered as

the result of an initial unlawful search is later discovered in a second

search conducted by lawful means using information gained

independently of the initial search”).

In Murray, the United States Supreme Court held that the

independent source doctrine does not apply if the decision to seek

the warrant “was prompted” by information obtained during a prior

unlawful search or if information obtained during that unlawful

search “was presented to the Magistrate and affected his decision to

issue the warrant.” Murray, 487 U.S. at 542 (III). In Murray, federal

agents forced entry into a warehouse believed to contain illegal

drugs without a warrant. See id. at 535 (I). Upon entry, the agents

noted that the warehouse was unoccupied and observed “in plain

view numerous burlap-wrapped bales.” Id. The agents left the

12
warehouse and kept it under surveillance while they applied for and

ultimately obtained a warrant several hours later. See id. at 535-

536 (I). The warrant application “did not mention the prior entry[ ]

and did not rely on any observations made during that entry.” Id. at

536 (I). After the warrant was issued, agents immediately reentered

the warehouse and seized numerous bales of marijuana and

notebooks containing information regarding the customers to whom

the marijuana was to be shipped. See id. The defendants filed a

motion to suppress evidence obtained from the agent’s warrant-

authorized search on the ground that it was tainted by the agents’

prior unlawful search. See id. The trial court denied the defendants’

motion, and the appellate court affirmed, but the United States

Supreme Court granted certiorari, vacated, and remanded for a

factual determination of whether the agents’ decision to seek a

warrant was prompted by their prior unlawful search. See id. at 536

(I), 543-544 (III).

Though decisions of the United States Court of Appeals for the

Eleventh Circuit are not binding on this Court, see State v.

13
Rosenbaum, 305 Ga. 442, 449-450 (2) (826 SE2d 18) (2019), we take

note of two recent Eleventh Circuit cases applying Murray: United

States v. Barron-Soto, 820 F3d 409 (11th Cir. 2016) and United

States v. Noriega, 676 F3d 1252 (11th Cir. 2012). In both cases, the

Eleventh Circuit assessed the applicability of the independent

source doctrine using a two-part test. See Barron-Soto, 820 F3d at

415 (III) (A); Noriega, 676 F3d at 1260 (III) (C). The first part of the

test requires courts to “excise from the search warrant affidavit any

information gained during the alleged illegal entry and determine

whether the remaining information supports a finding of probable

cause.” Barron-Soto, 820 F3d at 415 (III) (A). See Noriega, 676 F3d

at 1260 (III) (C) (same). This part of the test addresses the Supreme

Court’s direction in Murray regarding whether unlawfully obtained

evidence “was presented to the Magistrate and affected his decision

to issue the warrant.” Murray, 487 U.S. at 542 (III). If, after excising

information regarding unlawfully obtained evidence from the

warrant affidavit, the remaining evidence is sufficient to support a

finding of probable cause, courts reach the second part of the test, in

14
which they must “determine whether the officer’s decision to obtain

a search warrant was ‘prompted by’ what he observed during the

illegal entry.” Barron-Soto, 820 F3d at 415 (III) (A) (quoting Murray,

487 U.S. at 543 (III)); see Noriega, 676 F3d at 1260 (III) (C) (same).

When applying the second part of this test, the Eleventh Circuit asks

“whether the officer would have sought the warrant even if he had

not” engaged in the prior unlawful search. Noriega, 676 F3d at 1260-

161 (III) (C).

Unlike the Eleventh Circuit, this Court has not expressly

stated that the independent source doctrine requires consideration

of whether the decision to seek a search warrant was prompted by a

prior unlawful search. In most of our past cases, however, we have

either engaged with this consideration implicitly or resolved the

issue in such a way that the officer’s motivation in seeking the

warrant was not the determinative issue. See, e.g., State v. Lejeune,

277 Ga. 749, 753-755 (3) (A) (594 SE2d 637) (2004) (holding that the

independent source doctrine was applicable where evidence was

first obtained pursuant to a warrant unsupported by probable cause,

15
but after that first warrant was held invalid, the State gave a

redacted version of the case file to a new investigator who lacked

particular knowledge of the prior evidence and who later obtained

similar evidence based on an independent source pursuant to a

second, lawful warrant); Wilder, 290 Ga. at 16-17 (2) (holding,

without consideration of the State’s motivations for pursuing the

warrant, that the independent source doctrine did not apply to

evidence found in a briefcase that was unlawfully seized but lawfully

searched pursuant to a warrant based on information independent

of the seizure); Price v. State, 270 Ga. 619, 622-623 (2) (513 SE2d

483) (1999) (applying the independent source doctrine without

consideration of the State’s motivations for pursuing a warrant, but

doing so only in dicta after concluding that the search and seizure of

evidence were lawful on other grounds).

We are aware of two cases where we seemingly applied the

independent source doctrine without considering whether the

State’s decision to seek a warrant was prompted by a prior unlawful

search: Reaves v. State, 284 Ga. 181 (664 SE2d 211) (2008) and

16
Brundige v. State, 291 Ga. 677 (735 SE2d 583) (2012). But those

cases do not foreclose the holdings we explain below. In Reaves, we

appeared to apply the independent source doctrine without

consideration of whether the State was prompted to seek a warrant

by a prior unlawful search, and without other facts or analysis that

made clear why this consideration was unnecessary. See Reaves, 284

Ga. at 183-184 (2) (c). The analysis of the independent source

doctrine in Reaves was scant, however, and nothing said there

requires us to forgo application of the analysis called for by Murray.

See id.

In Brundige, we did not expressly apply the independent

source doctrine, but we did allow the admission of evidence obtained

by means of a warrant-authorized search without addressing

whether it was prompted by a prior search held to be unlawful.

There, the State suspected that a home was being used as a grow-

house for marijuana. See Brundige, 291 Ga. at 677. The State

obtained a search warrant to use a thermal camera to detect

anomalous heat associated with growing activities. See id. at 678.

17
After the State’s thermal search of the building revealed heat

consistent with grow-lights, the State applied for a second warrant

to search the building’s interior. See id. The State’s second warrant

affidavit contained all the information from the first affidavit, plus

additional information resulting from the State’s thermal search.

See id. On review of a challenge from the defendant, this Court held

that the State’s first search was unlawful for statutory, rather than

constitutional reasons: at the time of the search, OCGA

§ 17-5-21 (a) (5) permitted the search and seizure only of “tangible”

things, and heat, we concluded, was not tangible within the meaning

of the statute. 7 See id. at 680. We nevertheless held that the second

search was lawful, because, even after excising all information

obtained during the first search from the second search warrant

affidavit, there was sufficient information to support a finding of

probable cause. See id. at 682. Though Brundige failed to consider

7 OCGA § 17-5-21 (a) (5) has since been amended to permit the search

and seizure of “anything that is tangible or intangible, corporeal or incorporeal,
visible or invisible evidence of the commission of a crime for which probable
cause is shown, other than the private papers of any person.” Ga. L. 2015, p.
1047, § 3.
18
whether the second search was prompted by the first, it is

distinguishable from the instant case. Because the first search

warrant was invalid for statutory reasons, Brundige does not

expressly ground itself on any constitutional issue, and therefore

does not directly involve the Fourth Amendment, the federal

exclusionary rule, or exceptions to that rule.8 Accordingly, it does not

affect our decision here.

After consideration of Murray, persuasive authority from the

Eleventh Circuit Court of Appeals, and our own prior case law, we

recognize the following. When applying the independent source

doctrine, we are bound to follow Murray and therefore must consider

whether the State’s decision to seek a warrant for evidence

previously obtained through unlawful means was prompted by the

prior unlawful search. See Murray, 487 U.S. at 542 (III). We

conclude that the Eleventh Circuit’s decisions in Barron-Soto and

Noriega are persuasive as faithful applications of Murray. See

8 As noted below, see n.10, infra, to the extent Brundige can be read as

having applied the independent source doctrine, we disapprove of it as
inconsistent with the analysis required in Murray.
19
Barron-Soto, 820 F3d at 415 (III) (A); Noriega, 676 F3d at 1260-161

(III) (C). Accordingly, we hold, like the Eleventh Circuit, that if the

State would have sought the warrant even without the prior

illegality, then its decision was not prompted by the prior unlawful

search. See Noriega, 676 F3d at 1260-161 (III) (C). But if the State

would not have sought the warrant but for its prior unlawful

activities, then the warrant was so prompted, and the evidence is

not admissible under the independent source doctrine. 9 See id. This

is a mixed question of fact and law. As the Supreme Court reasoned

in Murray, the purpose of the independent source doctrine is to

“put[ ] the police in the same, not a worse, position than they would

have been in if no police error or misconduct had occurred.” Murray

487 U.S. at 537 (II) (quoting Nix v. Williams, 467 U.S. 431, 443 (II)

(B) (104 SCt 2501, 81 LE2d 377) (1984)). By the same token, the

police should not be in a better position because of their misconduct.

9 Nothing we have said here obviates the need for courts to consider

whether, after excising any unlawfully obtained information from the warrant
affidavit, information sufficient to support a finding of probable cause remains.
See Barron-Soto, 820 F3d at 415 (III) (A); Noriega, 676 F3d at 1260 (III) (C).
20
The rule from Murray serves both of these aims: if the second, lawful

search was not prompted by the prior unlawful search, then the

independent source doctrine applies, and the State is in the same

position it would have been in if the unlawful conduct had not

occurred. But if the second search was prompted by the original

unlawful search, then the evidence must be excluded so that the

State does not benefit from its unlawful conduct. Under such

circumstances, the independent source doctrine should not and

cannot apply.10

(b) We now turn back to the facts of this case, as stipulated by

the parties. Here, Deputy Townsend seized Appellant’s phone based

on his belief that Appellant was attempting to delete evidence. As

noted above, Appellant no longer contests the lawfulness of this

seizure. See n.2, supra. Deputy Townsend then viewed the digital

contents of Appellant’s cell phone twice. First, immediately after

10 As a result of our holding, we disapprove of Reaves and Brundige to

the extent that either decision can be read as applying the independent source
doctrine without engaging in this type of consideration.

21
seizing Appellant’s phone, and without manipulating it, Deputy

Townsend saw a thumbnail image of a woman displayed on

Appellant’s screen. Second, after securing the phone and detaining

Appellant, Deputy Townsend picked Appellant’s phone back up and

viewed a video recording of the victim “standing in a bedroom, with

her breasts exposed, folding laundry.” The parties dispute whether

Deputy Townsend’s initial viewing of the thumbnail image

constituted an unlawful search, but the State concedes that Deputy

Townsend’s subsequent viewing of the video was unlawful. The

State also conceded at oral argument before this Court that proper

application of the independent source doctrine requires

consideration of whether an officer’s decision to seek a search

warrant was prompted by an earlier, unlawful search.

Because the State was correct to make this concession, as

explained above, we must consider how to rule on the record before

us, as the trial court’s summary order denying Appellant’s motion to

suppress did not include express findings of fact or conclusions of

law. The State suggested at oral argument before this Court that we

22
should remand to allow the trial court to determine whether the

State’s decision to seek a search warrant was prompted by Deputy

Townsend’s prior unlawful search. Appellant instead asks us to

reverse the decision of the Court of Appeals and vacate his

conviction. Though we may consider “the pretrial testimony adduced

at the suppression hearing, as well as the trial transcript,” when a

trial court declines to make express findings of fact, and we are

required to “construe the evidence most favorably to uphold the trial

court’s judgment,” Jones v. State, 314 Ga. 605, 609 (2) (878 SE2d

505) (2022), the record on appeal remains insufficient to make this

determination. See Murray, 487 U.S. at 543-544 (III) (remanding for

the trial court to determine, in the first instance, whether the

warrant-authorized search was prompted by the prior unlawful

search). We accordingly vacate the decision of the Court of Appeals

and remand to that court with instructions to vacate the judgment

of the trial court and remand for further proceedings consistent with

this opinion. See Williams v. State, 301 Ga. 60, 62 (799 SE2d 779)

(2017) (vacating with direction to remand to the trial court for

23
clarification “[g]iven the uncertainty in the trial court’s order

[regarding the defendant’s motion to suppress]”); Parker v. State,

255 Ga. 167, 168 (1) (336 SE2d 242) (1985) (remanding for

clarification and further hearings, if necessary, because the “the

court’s rulings [were] unclear”). Cf. Hughes v. State, 296 Ga. 744,

746 n.6 (770 SE2d 636) (2015) (“If the trial court has made express

findings of fact, but not with sufficient detail to permit meaningful

appellate review, an appellate court may remand for further

findings.”).

Judgment vacated and case remanded. All the Justices concur.

319 Ga. 187
FINAL COPY

S23G0955. TATUM v. THE STATE.

COLVIN, Justice.

Appellant Mark Joseph Tatum was convicted of a “peeping

Tom” violation and invasion of privacy in relation to his

surreptitious recording of a female neighbor through her window.1

1 The incident occurred late at night on July 15, 2018, and Appellant was

arrested either on July 15, 2018, or very early in the morning on July 16, 2018.
On October 17, 2018, Appellant was indicted by a Madison County grand jury
for a “peeping Tom” violation pursuant to OCGA § 16-11-61 (Count 1), invasion
of privacy in violation of OCGA § 16-11-62 (Count 2), and tampering with
evidence in violation of OCGA § 16-10-94 (Count 3). On January 18, 2019,
Appellant filed a motion to suppress the evidence obtained from his cell phone.
The trial court conducted a hearing on Appellant’s motion on October 9, 2019,
and denied it by summary order on October 17, 2019. Following Appellant’s
waiver of his right to a jury trial, the trial court held a bench trial on October
21, 2021. The trial court found Appellant guilty of a “peeping Tom” violation
and invasion of privacy but found him not guilty of tampering with evidence.
The court sentenced Appellant to five years in prison, with two years and six
months to serve for Count 1, and five years of probation for Count 2, to be
served consecutively to Count 1, along with various fines and fees. On October
21, 2021, the same day of his sentencing, Appellant appealed his conviction to
the Court of Appeals. On April 17, 2023, the Court of Appeals issued a decision
affirming Appellant’s conviction. See generally Tatum v. State, 367 Ga. App.
439 (886 SE2d 845) (2023). We granted Appellant’s petition for a writ of
certiorari on October 11, 2023. The case was docketed to the term of this Court
beginning in December 2023, and oral argument was held on February 8, 2024.
The American Civil Liberties Union and the American Civil Liberties Union of
Georgia filed a joint brief as amici on behalf of Appellant. The Georgia
Appellant was stopped within several minutes of the neighbor’s call

to 911, and his cell phone was lawfully seized.2 Appellant was not

placed under arrest, however, until after the arresting officer viewed

the contents of Appellant’s cell phone without a warrant.

Information from this warrantless search was then used in an

affidavit to obtain a warrant for the search of Appellant’s cell phone,

the contents of which the arresting officer had already seen, at least

in part. Appellant moved to suppress evidence obtained from the

warrantless and warrant-authorized searches of his cell phone

under the Fourth Amendment to the United States Constitution and

Article I, Section I, Paragraph XIII of the Georgia Constitution

(“Paragraph XIII”),3 but the trial court denied his motion, and the

Association of Criminal Defense Lawyers also filed a separate amicus brief on
behalf of Appellant. We thank them for their assistance.
2 Appellant’s counsel previously argued that the seizure was unlawful

contains the same language as the Fourth Amendment, it is to be applied in
accord with the Fourth Amendment.” Olevik v. State, 302 Ga. 228, 234 (2) (b)
n.3 (806 SE2d 505) (2017) (citation and punctuation omitted). Although
Appellant references both provisions on appeal, he makes no argument that
Paragraph XIII should be interpreted as “‘provid[ing] a rule substantively

2
Court of Appeals affirmed. See Tatum v. State, 367 Ga. App. 439

(886 SE2d 845) (2023). In its analysis, the Court of Appeals assumed

without deciding that the arresting officer’s warrantless viewing of

the video on Appellant’s cell phone constituted an illegal search, but

it nevertheless concluded that evidence from Appellant’s cell phone

was admissible under the independent source doctrine. Id. at 442.

The Court of Appeals reasoned that the affidavit made in support of

the warrant application contained evidence sufficient to support a

finding of probable cause even after excising information gleaned

from the arresting officer’s warrantless search. See id. at 442-443.

We granted certiorari and posed the following question:

Does the independent source doctrine allow the
admission of cell-phone evidence obtained via search
warrant without consideration of whether the decision to
seek the search warrant was prompted by a prior,
warrantless search of that cell-phone?

different as applied to this case from that of the Fourth Amendment. This case
therefore presents no occasion for consideration of whether Paragraph XIII
differs from the Fourth Amendment in some circumstances.’” Hinkson v. State,
310 Ga. 388, 398 (5) (a) n.5 (850 SE2d 41) (2020) (quoting White v. State, 307
Ga. 601, 602 (2) n.2 (837 SE2d 838) (2020)).

3
Appellant argues, and the State concedes,4 that courts must consider

whether the State’s decision to seek a search warrant was so

prompted. Because the record on appeal does not reflect that the

trial court considered whether the warrant application was

prompted in this way, we vacate the decision of the Court of Appeals

and remand with direction to vacate the judgment of the trial court

and to remand to that court for further proceedings consistent with

this opinion.

1. (a) At the pre-trial motion to suppress hearing, the State

called Deputy Will Townsend, who testified regarding his arrest of

Appellant and the circumstances surrounding it. Deputy

Townsend’s body-worn camera recorded his interactions with

Appellant, as described further below. This video was admitted into

evidence at the motion to suppress hearing and played for the court.

Following the trial court’s denial of Appellant’s motion to suppress,

4 The State argued it in its brief that we should affirm the decision of the

Court of Appeals but conceded at oral argument before this Court that we
should vacate the Court of Appeals’s decision and remand for further
proceedings.
4
the parties filed stipulations concerning essentially all of the factual

issues in the case, including the victim’s call to 911, Deputy

Townsend’s encounter with and arrest of Appellant, Deputy

Townsend’s warrantless viewing of an incriminating video on

Appellant’s phone, facts relating to the warrant application, and a

description of photographs and of a video of the victim obtained

pursuant to the warrant-authorized search. Rather than re-

introduce Deputy Townsend’s testimony and the recording from his

body-worn camera at trial, the State relied entirely upon these

stipulations. Accordingly, no evidence was admitted by either party

during the guilt phase of Appellant’s bench trial.

Evidence from Deputy Townsend’s testimony, his body-worn

camera, and the parties’ stipulations was largely consistent and

shows the following. On July 15, 2018, at 10:34 p.m.,5 the Madison

County 911 call center received a call regarding an unknown

5 The parties jointly stipulated that the call was received at 10:34 p.m.,

but the warrant affidavit states that the call was received at 10:41 p.m., and
Deputy Townsend testified that the call was received around 11:30 p.m. A
recording of the 911 call is not a part of the record on appeal, and the timing of
the call is not material to our legal analysis.
5
individual taking photographs of an 18-year-old female through a

bedroom window. The caller described the individual’s cell phone as

having a camera lens in the back center of the phone. Deputy

Townsend was on duty in the area and was dispatched to respond to

the call.

Within minutes of the 911 call, Deputy Townsend encountered

Appellant walking in the vicinity of the home from which the call

had been made. According to Deputy Townsend, who stated that he

regularly patrolled this portion of Madison County, it was unusual

for there to be foot traffic in the area at this time of night. Upon

encountering Appellant, Deputy Townsend got out of his vehicle and

spoke to him. Deputy Townsend told Appellant about the 911 call

and asked Appellant if he had a cell phone with him. Though

Appellant denied having a cell phone on him, Deputy Townsend

observed the outline of an object that appeared to be a cell phone in

Appellant’s front pants pocket. When Deputy Townsend asked

Appellant about the object, Appellant pulled out his cell phone and

stated that he had forgotten that he had it with him. Deputy

6
Townsend noticed that Appellant was shaking and that he appeared

extremely nervous. Deputy Townsend also noticed that Appellant’s

phone had a camera lens in the back center of the phone, as

described in the 911 call.

Deputy Townsend asked if Appellant would show him the last

photograph he had taken. Appellant initially declined, but after

Deputy Townsend told Appellant that he could detain him and

obtain a search warrant, Appellant agreed. As Appellant was

pulling up the gallery of photographs on his phone, he tilted his

phone away from the deputy, preventing the deputy from seeing its

screen. According to Deputy Townsend, Appellant appeared as if he

was trying to delete something, and so Deputy Townsend “grabbed

the phone out of his hand” to “preserve the evidence.” Immediately

after seizing Appellant’s phone, and without interacting with it

further, Deputy Townsend saw that the phone’s camera roll was

displayed, and he observed a thumbnail image of a young woman

standing in a room through a window. Deputy Townsend put

Appellant’s phone down on the front seat of his patrol vehicle,

7
handcuffed Appellant, and placed him in the back of the vehicle but

left the door open. When placing Appellant in the back seat of his

patrol vehicle, Deputy Townsend stated, “You are not under arrest

at this point, but you are being detained right now.” Once Appellant

was seated, Deputy Townsend picked up Appellant’s cell phone,

clicked on the thumbnail image he had seen while seizing

Appellant’s phone and watched the corresponding video, which

depicted a female standing in a bedroom, with her breasts exposed,

folding laundry. Deputy Townsend then locked the screen and did

not search the cell phone any further. Deputy Townsend then closed

the back door of his patrol car, placed Appellant under arrest, and

provided him with a Miranda warning. See Miranda v. Arizona, 384

U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

Following Appellant’s arrest, law enforcement officers drafted

a search warrant application for the phone’s digital contents. The

affidavit in support of the warrant included much of the information

summarized above, including the fact that Deputy Townsend viewed

a video on Appellant’s phone, which depicted “a topless white female

8
inside her room being videoed from outside.” The warrant

application was granted, and, on execution of the warrant,

investigators found photographs and a video of the victim on

Appellant’s phone.

(b) As recounted above, the trial court denied Appellant’s

motion to suppress by means of summary order, which included no

findings of fact. Following Appellant’s bench trial, the court found

Appellant guilty of a “peeping Tom” violation (Count 1) and invasion

of privacy (Count 2), but not guilty of tampering with evidence

(Count 3). Appellant then appealed his conviction to the Court of

Appeals.

The Court of Appeals affirmed the trial court’s denial of

Appellant’s motion to suppress. See Tatum, 367 Ga. App. at 443-444.

Quoting Brundige v. State, 291 Ga. 677, 682 (735 SE2d 583) (2012),

the Court of Appeals stated that “[w]hen faced with potentially

improperly obtained evidence, the question becomes whether,

excising the evidence improperly obtained, probable cause

nonetheless exists to issue a warrant.” Id. at 442 (citation and

9
punctuation omitted). In applying this rule, the Court of Appeals

assumed without deciding that Deputy Townsend’s warrantless

viewing of the video on Appellant’s cell phone constituted an

unlawful search.6 See id. It then considered other facts contained in

the affidavit, including Appellant’s proximity to the scene of the

crime, his dishonesty about having his phone with him, and his

furtive movements in an apparent attempt to delete evidence, and

concluded that these facts — all of which occurred prior to Deputy

Townsend’s unlawful viewing of the phone’s contents — were

sufficient to support a finding of probable cause, independent of any

unlawfully obtained information. See id. at 443.

2. (a) Though the Fourth Amendment protects “the people”

from “unreasonable searches and seizures,” U. S. Const. Amend. IV,

“it is silent about how this right is to be enforced,” Davis v. United

States, 564 U. S. 229, 231 (131 SCt 2419, 180 LE2d 285) (2011). “To

supplement the bare text, [the United States Supreme] Court

6 The Court of Appeals did not address whether Deputy Townsend’s
initial viewing of the thumbnail image on Appellant’s phone was an unlawful
search.
10
created the exclusionary rule, a deterrent sanction that bars the

prosecution from introducing evidence obtained by way of a Fourth

Amendment violation.” Id. at 231-232. See also Mapp v. Ohio, 367

U. S. 643, 655 (III) (81 SCt 1684, 6 LE2d 1081) (1961) (applying the

federal exclusionary rule to the states through the Fourteenth

Amendment to the United States Constitution); Mobley v. State, 307

Ga. 59, 75 (4) (a) (834 SE2d 785) (2019) (holding that OCGA

§ 17-5-30 “establishes a procedure for applying the exclusionary

rule” developed by the United States Supreme Court in state

criminal proceedings). The United States Supreme Court has

recognized certain exceptions to the exclusionary rule, however,

under which impermissibly obtained evidence may remain

admissible: one such exception is the independent source doctrine.

See Murray v. United States, 487 U. S. 533, 537 (II) (108 SCt 2529,

101 LE2d 472) (1988) (citing Silverthorne Lumber Co. v. United

States, 251 U. S. 385, 392 (40 SCt 182, 64 LE 319) (1920)). As the

Supreme Court explained in Murray, the independent source

doctrine applies “to evidence initially discovered during, or as a

11
consequence of, an unlawful search, but later obtained

independently from activities untainted by the initial illegality.” Id.

See also Wilder v. State, 290 Ga. 13, 16 (2) (717 SE2d 457) (2011)

(explaining that the independent source doctrine “operates when

evidence discovered as the result of an initial unlawful search is

later discovered in a second search conducted by lawful means using

information gained independently of the initial search”).