Tatum v. State

The “exclusionary rule” prohibits the State from using unlawfully obtained evidence to prosecute someone, serving as a critical tool for promoting law enforcement compliance with the Constitution. The “independent source” doctrine is a narrow exception to that exclusionary rule, which applies only when law enforcement acquired evidence through means that were truly “independent” of any prior unlawful search or seizure.

In 2018, a police officer was dispatched to investigate an unknown individual taking recordings with a cellphone through the bedroom window of a female resident. The police officer encountered Mr. Tatum in the vicinity of the complainant’s residence and asked to see the last picture on his phone. After some discussion, the officer grabbed the phone, looked at it, and saw a video of the female resident without a shirt on. This was an unconstitutional, warrantless search.

The police then described the incriminating evidence from this illegal search in an application for a warrant to again search that very same phone. A magistrate issued the warrant, the police conducted the search, and a court allowed the evidence in Mr. Tatum’s subsequent trial on “peeping Tom” charges. Mr. Tatum was convicted, and he appealed.

The Georgia Court of Appeals held that the trial court had properly admitted evidence during the warranted search under the independent source doctrine. The Court of Appeals reasoned that, despite the State’s reliance on unlawfully obtained evidence, the second search was valid because if, hypothetically, the illegal evidence had been “excised” from the warrant application, the remaining evidence would have established probable cause.

The Georgia Supreme Court has taken the case, and the ACLU of Georgia and the ACLU filed an amicus brief arguing that the independent source doctrine does not apply in Mr. Tatum’s case. The brief argues that the independent source doctrine applies only when law enforcement obtained the evidence by means that were “genuinely independent” from the illegal search. That standard requires the State to demonstrate that an illegal search or seizure did not have “any effect”—any—in producing a warrant. The state therefore must prove that information obtained during an illegal search neither prompted law enforcement to seek a warrant nor was presented to the magistrate and affected the magistrate’s decision to issue a warrant. That is not what happened in Mr. Tatum’s case. The brief also explains that allowing evidence from the tainted warrant to be used to convict would undermine the respect for Constitutional rights by encouraging officers to conduct unlawful searches and then seek warrants only if their illegal searches turn up evidence.