CourtListener 10846052

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In the Supreme Court of Georgia

Decided: January 21, 2026

S25A0994. FRANKLIN v. THE STATE.

COLVIN, Justice.

Appellant Marco Franklin was convicted of felony murder and

a related crime in connection with the shooting death of Jamarco

Royal. 1 On appeal, he argues that his trial counsel was ineffective

1 The crimes occurred on December 3, 2018. On March 5, 2019, a Dekalb

County grand jury returned an indictment against Appellant and Cortez
Nabors, which charged Appellant with malice murder (Count 1), felony murder
(Counts 2 and 3), armed robbery (Count 4), aggravated assault (Count 5), and
possession of a firearm during the commission of a felony (Count 6). Appellant
was tried separately before a jury in March 2022, but the trial ended in a
mistrial. Appellant was then retried from September 12 through 16, 2022. The
jury found Appellant guilty of all charges against him except for malice murder
(Count 1). The trial court sentenced Appellant to life in prison with the
possibility of parole for felony murder (Count 2) and imposed a consecutive
term of five years in prison for possession of a firearm during the commission
of a felony (Count 6). The court merged Counts 4 and 5 with Count 2 for
sentencing purposes. And although the trial court purported to merge the
felony murder count charged in Count 3 with the felony murder count charged
in Count 2, Count 3 was actually vacated by operation of law. See Noel v. State,
297 Ga. 698, 700 (2015).
Appellant timely filed a motion for new trial on September 19, 2022, and
amended the motion through new counsel on May 14, 2024, and September 19,
for failing to move to suppress evidence obtained from a warrantless

search of a Motorola phone found at the scene of the crime, as well

as evidence obtained pursuant to a search warrant for an iPhone

found at Appellant’s mother’s house. For the reasons explained

below, we affirm.

1. The evidence presented at trial showed the following.

Around 7:00 p.m. on December 3, 2018, Royal, who was a drug

dealer, was napping with his girlfriend, Daysha Hollings, at a

relative’s apartment on Covington Highway in DeKalb County.

While in bed, Hollings heard Royal’s phone ring, and Royal

answered, saying, “I’m not there yet. I’ll be there in about ten

minutes.” Hollings then heard someone knocking on the door. While

Hollings stayed in bed, Royal went downstairs with a “rifle” style

gun, after which Hollings heard Royal say, “f**k,” and a gunshot

rang out. Hollings then went downstairs, finding Royal lying on the

2024. Following a hearing, the trial court denied Appellant’s motion for new
trial on December 2, 2024. Appellant timely filed a notice of appeal directed to
this Court. The case was docketed to this Court’s August 2025 term and
submitted for a decision on the briefs.
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floor, shot but still breathing. The gun Royal had carried to the door

was gone.

Carmesha Pearson, who was visiting a friend at the apartment

complex at the time, heard someone scream that “Marco” had been

shot. She saw “two young boys” running from the direction of the

screaming and testified that one of the “boys” doubled back to pick

up a shoe he had dropped before “r[unning] behind the building.”

Officers responded to a call of shots fired and found Royal lying

dead on the floor, face down in a “puddle of blood.” The State’s

medical examiner later determined that Royal had died from a

single gunshot wound to his arm.

While securing the scene, officers found a Motorola phone lying

about 17 feet from Royal’s open apartment door and in the direction

in which Pearson saw the “boys” running. A warrantless extraction

of the Motorola phone revealed that the device was registered to

Appellant’s mother; that the device had access to a social media

account with the handle “312sparc,” which was registered to an

email address with a handle containing Appellant’s name

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(“marcofranklin312”); and that the “312sparc” social media account

communicated with two other accounts, “bigsmoke_tezo” (which the

trial evidence indicated belonged to Appellant’s co-indictee, Cortez

Nabors) and “bnj_20” (which belonged to an unknown individual).

Records from the social media accounts were obtained from the

social media company pursuant to a search warrant. In relevant

part, those records, which were introduced into evidence at trial and

explained by an officer familiar with “street vernacular” and

“shorthand that’s used in text messages,” showed the following.

Three days before the shooting, bigsmoke_tezo messaged 312sparc,

“need to hit that plug” (with “plug” meaning a “go-to for the dope”).

312sparc stated, “Hell you want we can.” And bigsmoke_tezo

responded, “uk I do.”

Two days before the shooting, 312sparc messaged

bigsmoke_tezo, “[g]otta lick” (with “lick” referring to an armed

robbery). bigsmoke_tezo then messaged bnj_20, “Sparc gotta move.”

bnj_20 responded, “ight cum get me to[o],” and asked, “what type of

move is it[?]” bigsmoke_tezo answered, “[g]uns [m]oney,” and bnj_20

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said, “Let me get da gun tho.” bigsmoke_tezo responded, “talk to

sparc street.”

On the day before the shooting, bigsmoke_tezo asked, “what

y’all finna get into[?]” 312sparc responded, “he not even answering

but prolly stain buddy” (with “stain” referring to robbery). Later that

day, bigsmoke_tezo asked 312sparc, “[w]tm” (meaning “what is the

move” or “what are we doing”). 312sparc responded, “IDK you know

what I’m trying to do.” 312sparc then said, “[r]ob every plug in

[A]merica,” and, “we can rob Covington highway after this,” to which

bigsmoke_tezo responded, “s**t he should.”

At 6:28 p.m. on the day of the shooting, 312sparc messaged

bigsmoke_tezo, “[w]e pulling up.” bigsmoke_tezo responded, “iggt.”

At 6:50 p.m., 312sparc messaged bigsmoke_tezo, “[c]ome down

here.” No further exchange of messages occurred.

Several days after the shooting, officers visited the home of

Appellant’s mother to speak to her about the Motorola phone left at

the scene of the crime, which was registered to her. Appellant’s

sister, Essence, opened the door and allowed the officers to come

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inside. Once inside, officers observed Appellant inside the house

with a friend and saw an iPhone in the area where Appellant

appeared to be staying. Essence claimed that the phone was hers

and unlocked it for the officers, revealing contents that belonged to

Appellant, rather than Essence. At that point, Essence told the

officers that, “after [Appellant] lost his phone, she specifically let

him use [the iPhone].”

Officers seized the iPhone and later searched it pursuant to a

search warrant. The contents of the phone, which were admitted

into evidence at trial, revealed several searches for “Covington

highway shooting” starting less than an hour after the shooting, as

well as a search inquiry the next day for “what caliber is 5.56 x 45.”

At trial, a firearms expert testified that an AR-15 style rifle typically

utilizes a .223 Remington or 5.56 as ammunition.

The record shows that Appellant was later interviewed at the

police department, where he waived his Miranda 2 rights and agreed

to speak to the detectives. During his interview, which was video

2 Miranda v. Arizona, 384 US 436 (1966).

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recorded and played for the jury at trial, Appellant gave conflicting

stories about what happened on the day of the shooting. First,

Appellant said that he went to an apartment complex off

“Covington” to buy marijuana from a person he knew only as “Bean.”

When he arrived, there were other people waiting to buy drugs there

as well, and Bean invited him inside. Appellant said that another

customer then told Bean to “give [him] everything” and pulled out a

gun, at which point Appellant ran. According to Appellant, he

dropped his “shoe” as he ran but went back to get it before

continuing to run away.

When confronted with the social media records obtained from

the Motorola phone, which appeared to discuss a robbery on

Covington Highway, Appellant changed his story. Appellant

admitted that he went by the name “Sparc.” Appellant further

admitted that he rode to the apartment complex with a person

known both as “Trezzo” and “Big Smoke,” who, according to an

officer’s trial testimony, Appellant later identified in a photo lineup

as co-indictee Nabors. In his interview, Appellant said that Trezzo

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told the victim, “B**ch give me everything.” According to Appellant,

the victim then tried to reach for the victim’s gun, creating a “kill[ ]

or be killed situation,” at which point Trezzo shot the victim “once.”

Appellant further said that Appellant grabbed two items from the

victim, an “AR with a tan clip” and “twelve grams of crack.”

When the detectives showed Appellant the Motorola phone

found at the crime scene, Appellant admitted that he recognized the

phone, and that he was “with her [i.e., his mother’s] phone” when

the shooting occurred, and that he told his mother that he “lost her

phone.”

2. Appellant argues that trial counsel was constitutionally

ineffective for failing to move to suppress evidence obtained from the

warrantless search of the Motorola phone and from the search of the

iPhone pursuant to an overbroad warrant. Both of these claims fail.

To establish a claim of ineffective assistance of counsel, a

defendant must show that his trial counsel’s performance was

deficient and that, but for such deficient performance, there is a

reasonable probability that the result of the trial would have been

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different. Vivian v. State, 312 Ga. 268, 272 (2021) (citing Strickland

v. Washington, 466 US 668, 687 (1984)). To prove deficient

performance, Appellant must establish that his counsel “performed

at trial in an objectively unreasonable way considering all the

circumstances in light of prevailing professional norms, and in doing

so, he must overcome the strong presumption that trial counsel’s

conduct falls within the broad range of reasonable professional

conduct.” Vivian, 312 Ga. at 272 (cleaned up). “When trial counsel’s

failure to file a motion to suppress is the basis for a claim of

ineffective assistance, the defendant must make a strong showing

that the damaging evidence would have been suppressed had

counsel made the motion.” Feder v. State, 319 Ga. 66, 70 (2024)

(quotation marks omitted). If Appellant fails to establish either

prong of the Strickland test, we need not examine the other. See

Vivian, 312 Ga. at 273.

(a) First, Appellant has not shown that trial counsel was

deficient for failing to move to suppress evidence obtained from the

warrantless search of the Motorola phone found at the crime scene.

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The trial court rejected this claim, concluding that a motion to

suppress would have been denied on the basis that the Motorola

phone had been abandoned. In reaching this conclusion, the court

noted that the evidence showed that Appellant dropped the phone

while fleeing the scene, and that there was no evidence that

Appellant had made any effort to recover the phone. As explained

below, we discern no error in the trial court’s ruling.

“The question of abandonment for Fourth Amendment

purposes does not turn on strict property concepts but on whether

the accused has relinquished his interest in the property to the

extent that he no longer has a reasonable expectation of privacy at

the time of the search.” Teal v. State, 282 Ga. 319, 328 (2007)

(cleaned up).

Here, as the trial court correctly concluded, the record

supported a determination that Appellant had relinquished his

interest in the Motorola phone and had therefore abandoned it. The

record showed that Appellant dropped the phone while fleeing the

scene. And although there was evidence that Appellant went back

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to retrieve another item of personal property that he had dropped

while running away (his shoe), there was no evidence suggesting

that he made any efforts to retrieve the Motorola phone. Further,

the evidence indicated that Appellant had relinquished the Motorola

phone because, after leaving the Motorola behind, he obtained a

different phone from his sister to use in place of the Motorola. We

have held that a defendant who, like Appellant, dropped property

while fleeing the scene had abandoned his property for Fourth

Amendment purposes. See Teal, 282 Ga. at 328 (holding that the

defendant had “abandoned” a duffel bag “found … sitting in grass

near the driveway after [the defendant] had fled from the premises,”

and that the trial court properly denied a motion to suppress

evidence obtained from the bag on that basis). See also Burgeson v.

State, 267 Ga. 102, 103, 106 (1996) (holding that, where a defendant

“fle[d] on foot” during an “attempted police stop,” the defendant

“abandoned, for Fourth Amendment purposes, the stolen vehicle

and her personal belongings inside”). Because this precedent and

the record as a whole supported an abandonment finding, a motion

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to suppress evidence obtained from the Motorola phone “would not

clearly have succeeded,” and thus “trial counsel was not deficient in

failing to make such a motion.” Pugh v. State, 318 Ga. 706, 723

(2024) (cleaned up).3

(b) Second, Appellant argues that trial counsel was

constitutionally ineffective for failing to move to suppress evidence

obtained pursuant to a search warrant for the iPhone found at

Appellant’s mother’s house. Relying on State v. Wilson, 315 Ga. 613

(2023), Appellant argues that trial counsel should have moved to

suppress this evidence on the basis that the warrant for the iPhone

authorized an all-data search of the phone and thus failed to satisfy

3 To the extent that Appellant argues that trial counsel should have
moved to suppress evidence indirectly derived from the initial warrantless
search of the Motorola phone under the fruit-of-the-poisonous-tree doctrine,
that argument also fails. A violation of constitutional rights is “a pre-requisite
for the suppression of derivative evidence” under the fruit-of-the-poisonous-
tree doctrine. See State v. Ledbetter, 318 Ga. 457, 468 (2024). See also State v.
Chulpayev, 296 Ga. 764, 773 (2015) (explaining that, under “the fruit of the
poisonous tree doctrine, the court must suppress … evidence derived from the
tainted primary evidence” (emphasis added)). And because Appellant has not
made a strong showing that the warrantless search of the Motorola phone
violated his constitutional rights, he cannot make a strong showing that
derivative evidence obtained as a result of that search would have been
suppressed as fruit of the poisonous tree.
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the particularity requirement of the Fourth Amendment to the

United States Constitution. 4 We conclude, however, that Appellant

has failed to show deficient performance.

4 Appellant also claims on appeal that trial counsel was ineffective for

failing to move to suppress evidence obtained pursuant to the search warrant
for the iPhone because the warrant application failed to establish a nexus
between the phone and the crime and therefore failed to provide probable
cause. But Appellant did not enumerate this ineffective-assistance-of-counsel
claim in his motion or amended motions for new trial. He claimed only that
“[t]rial counsel provided ineffective assistance of counsel by failing to move to
suppress the search of his [iPhone] … on the grounds that the search warrant
… was unconstitutionally overbroad.” And the trial court did not rule on
Appellant’s probable-cause-based claim. Although Appellant argued that trial
counsel was ineffective for failing to raise a probable cause challenge to the
warrant in a supplemental brief in support of his motion for new trial, “[a] brief
normally does not amend a motion for new trial to add new grounds.” Cowart
v. State, 294 Ga. 333, 338 (2013). And the fact that “the trial court did not
address [this] ineffective assistance claim in ruling on his motion for new
trial[ ] indicat[es] that the court did not treat his supplemental brief as an
amendment to the motion.” Id. at 338. Because Appellant, who amended his
motion for new trial through new counsel, did not “amend[ ] his motion to add
such a claim,” the claim is “procedurally barred,” and “there is no ruling on the
issue for this Court to review.” Id. at 337–38. Cf. Rickman v. State, 304 Ga. 61,
66 (2018) (“[A]lthough a trial court may under some circumstances allow a
motion for new trial to be amended implicitly by treating a claim as if it had
been raised in the motion, the trial court’s failure to address any
ineffectiveness claim in its ruling on the motion for new trial indicates an
absence of any such amendment, and this means that, even though there was
questioning on the issue at the hearing on the motion, there is no ruling on the
issue for this Court to review.” (quotation marks omitted)); Hornbuckle v. State,
300 Ga. 750, 756 (2017) (explaining that, “[w]hile [the defendant’s] counsel
arguably raised the general grounds in his brief, … a brief normally does not
amend a motion for new trial to add new grounds,” and holding that the
defendant “abandoned the general grounds by failing to include them in the
motion for new trial” (cleaned up)).
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Here, Appellant has not made a “strong showing” that a motion

to suppress evidence obtained from the iPhone on particularity

grounds would have succeeded. Pugh, 318 Ga. at 722 (quotation

marks omitted). As an initial matter Wilson, which issued after

Appellant’s trial, was “the first decision in which this Court applied

the particularity requirement to invalidate a warrant that

authorized a search of the entirety of electronic data contained on a

cell phone and, thus, reflects an extension of existing precedent.” Id.

And “[t]rial counsel … cannot be deemed ineffective for failing to

argue precedent that was not in existence at the time of the trial.”

Id. (cleaned up).

To the extent that Appellant contends that trial counsel should

have made a particularity argument like the one in Wilson, he has

not shown “that a motion to suppress on the basis argued would

have succeeded” at the time of Appellant’s trial. See Pugh, 318 Ga.

at 722. “Whereas the warrant we considered in Wilson was, on its

face, a general warrant” because “it expressly authorized the seizure,

without limitation, of ‘any and all stored electronic information,’” id.

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(quotation marks omitted), the warrant for Appellant’s iPhone was

different in that it authorized the search and seizure of all content

on the iPhone “[w]hich is important to the investigation of[ ]

MURDER.” Id. (quotation marks omitted). Prior to Appellant’s trial,

we had held that such language narrowed the scope of the data that

could be searched and seized to data relevant to the crime, and on

that basis we had upheld cell phone warrants challenged on

particularity grounds. See, e.g., Rickman v. State, 309 Ga. 38, 42

(2020) (holding that warrants authorizing officers to search cell

phones for “messages, photographs, videos, contacts, and any other

application data, ‘or any other evidence of the crime of murder’” were

sufficiently particularized because the language of the warrants

limited the search of the cell phones “to items reasonably appearing

to be connected to the victim’s murder”); Westbrook v. State, 308 Ga.

92, 97–98 & n.5 (2020) (holding that a search warrant for “electronic

data” on the defendant’s cell phone was sufficiently particularized

“to enable a prudent officer to know to look for photographs and

videos,” and noting that the language of “[t]he warrant also limited

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the scope of the search to evidence pertaining to the commission of

the murder” (emphasis added)). Because a motion to suppress on the

ground proposed by Appellant would not have clearly succeeded at

the time of Appellant’s trial, Appellant has not shown that trial

counsel was deficient in failing to make such a motion. 5 Pugh, 318

Ga. at 722–23.

Judgment affirmed. All the Justices concur.

5 Some of us question whether, as a general matter, language in a search

warrant that authorizes police to search for evidence of a crime meaningfully
limits the object of the search “definitely and with reasonable certainty.”
Wilson, 315 Ga. at 616–17 (Peterson, P. J., concurring) (quotation marks
omitted); id. at 625 (Pinson, J., concurring) (“[I]t is not clear that warrants that
allow police to search every bit of data on a cell phone necessarily avoid an
unconstitutional general search merely by telling police to look only for
unspecified evidence of the crime in question.”). See also Pugh, 318 Ga. at 725
(Pinson, J., concurring) (“[T]he warrant must limit the object of the search to
evidence of the crimes that the police have probable cause to believe the
suspect committed. And ‘evidence of murder’ generally is not particular
enough[.]” (citations omitted)). Nevertheless, as explained above, some of our
pre-Wilson precedent at the time of Appellant’s trial offered support for the
view that this warrant satisfied the particularity requirement, which means
that counsel did not render constitutionally ineffective assistance at that time
by not challenging the warrant here on particularity grounds.
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