In the Supreme Court of Georgia

Decided: April 5, 2021

S21A0422

. THOMAS v. THE STATE

.

B ETHEL , Justice. A Fulton County jury found Courtney Thomas guilty of malice murder and other offenses in connection with the shooting death of his girlfriend, Shevonta Hardwick. Following the denial of his motion for new trial, Thomas appeals, arguing that his trial counsel provided constitutionally ineffective assistance b y withdrawing a motion to suppress evidence obtained by the police during a search of Th omas’s vehicle. We affirm. 1

1 The crimes occurred on October 31, 2013. On January 28, 2014, a Fulton County grand jury returned an indictment charging Thomas with malice murder, felony murder predicated on aggravated assault, aggravated assault, and possession of a fi rearm during the commission of a felony. At a jury trial held from September 14 to 16, 20 16, Thomas was found guilty on a ll counts. The trial cour t sentenced Thomas to life in prison for malice murder an d a consecutive term of 5 years in prison for possession of a firearm during the commission of a felony. The remaining counts were either vacated by operation of law or merged for sentencing. On September 22, 2016, Thomas2 1. T he evidence presented at trial showed the following. Thomas a nd Hardwick lived together in Hapeville in a ground

- level apartment with one of Thomas’s brother s , Dennis Thomas. The apartment had a balcony that was about seven feet above the ground. Several witnesses , including Thomas, testified that Thomas and Hardwick had a good relationship and that there had never b een any violence, arg uments, or ag gressive behavior between them. On the evening of October 30, 2013, Thomas and Hardwick were in the apartment alone together. Two upstairs n eighbors reported hearing three loud bangs, consistent with the sound of gunshots, coming from an apart ment below them around 11:00 p.m

. One neighbor also heard a man and woman arguing inside an apartment prior to hearing the bang s. The neighbor testifi ed that it was obvious the argument was “turning physical.”

filed a motion for new trial, which he amended through new counsel on Novem ber 12, 2019

. T he trial court held a hearing on the motion, as amended, on January 9, 2020, and it denied the motion , as amended, on January 30, 2020. Thomas filed a motion for an out

- of

- time a ppeal on June 8, 2020, which the trial court granted that day. Thomas filed a notice of appeal on June 12, 2020. This case was docketed to this Court’s term commencing in December 2020 and submitted for a decision on the briefs.3 Dennis had spent the evening at a friend’s house. He came back to the apartment after midnight and went to sleep. He did not see Thomas or Hardwick when he came in. The next morning , Dennis went into the bedroom that Thomas and Hardwick shared and found Hardwick’s body on the floor, against the foot of the bed and facing the balcony door

. She was unresponsive. Dennis called Marquez Higgins , and they both tried un successfully to call Thomas. They then called 911. Hapeville police officers responded to the 911 call and began searching the apartment. In the bedroom, they found a receipt for the purchase of a firearm in Thomas’s name, 2 a broken cell phone that belonged to Hardwick , four Luger Hornad y 9mm shell casings, one blood spot on the bed, and a b ullet fragment

. There were signs of a struggle, including clothing and personal items strewn on the floor, a broken shower curtain in the adjacent bathroom , and broken

2 A salesman from a pawn shop testified that he sold Thomas a Smith & Wesson handgu n, mode l SD9VE, in August 2013.4 wires on the bedroom television. 3 It did not appear to the police that Hardwick’s body h ad been moved. The balcony door was open when Dennis and Higgins came in the bedroom and when the officers searched the apartment

. Beneath the balcony, the officers located a black left

- foot Nike sandal that Dennis indicated belonged to Thomas

. The officer s also noticed that bushes surro unding the balcony were damaged

. Later that day, a detective from the Hapeville P olice Department obtained a court order d irecting Thomas’s cell phone service provider to release to the police certain data associated with Thomas’s cell phone , including cell

- site location information (“CSLI”)

. 4 The detective then worked with the service provider to

3 Dennis testified that Thomas and Hardwick normally k ept the bedroom neat and clean. 4 A “cell site” typically consists of a set of either three or six directional radio antennas mounted on a tower, light post, flagpole, church st eeple, or the side of a building. See Carpenter v. United States , __ U. S. __, __ (I) (A) (138 SCt 2206, 2211, 201 LE2d 507) (2018). Unless powered off, a cell phone continuously scans its environment looking for the strongest signal, which generally comes from the nearest cell site. See id. Each time a phone connects to a cell site, the connection generates a time

- stamped digital record in the service provider’s account records that includes the particular cell site and the specific antenna activated (“sec tor” information); such records are known as cell

- sit e location information. See id.5 track Thomas’s cell phone using CSLI as the phone traveled away from the Atlanta area to a location on a highway near the borde r between Missouri and Iowa

. The detective co ntacted the Iowa State Patrol , stated that Thomas was a murder suspect and was being tracked, and gave a description of the vehicle Th omas was thought to be driving. Minutes later, an Iowa p atrol o fficer stopped Thomas’s vehicle and arrested him without incident

. After obtaining a search warrant, officers from the Iowa State Patrol and the Council Bluffs, Iowa , Police Department searched Thomas’s vehicle. They found an i Phone; two unfired Luger Hornad y 9mm rounds of ammunition, a disassembled Smith & Wesson handgun (model SD9VE), 5 an empty 9mm handgun magazine, a black handgun holster, clothing, $32 in cash, and a black right

- foot Nike sandal

. The police searched and photographed Thomas after he was arrested. During the search, the police found Hardwick’s bank debit card in Thomas’s wallet

. Records from the bank showed that

5 The handgun was found in three separate pieces.6 Hardwick was the only authorized user of the card and that the card had been used on October 31 at a gas station in Tenne ssee. Thomas later admitted using the card to buy gas. Photographs of Thomas showed that he had a bump on his forehead, a scrape on his elbow, a swollen ankle, and other minor injuries. Hardwick’s autopsy revealed that she was shot four times and that sh e died of multiple gunshots to the torso. The manner of her death was homicide. The medical examiner recovered three bullet s from Hard wick’s body during the autopsy. There was no soot or stippling on Hardwick’s body or clothing, which, according to the med ical examiner , indicated that she had been sh ot from at least two feet away. The medical examiner also testified that Hardwick had a bruise and cut s on her right arm that appeared to have been caused at or near the time of her death. Hardwick had entry wou nds on both her front and back , which were consistent with Hardwick turning away as she was being shot

. Further, t he bullets recovered during Hardwick’ s autopsy and the bullet and cartridge casings found near Hardwick’s b ody were determined to be Hornad y 9mm7 ammunition that had been fired from the handgun found in Thomas’s car. Thomas testified at trial. He admitted shooting H ardwick , b ut he claimed he acte d in self

- defense. He specifically testified as follows. Thomas told the jury that he owned a gun tha t he often kept on the nightstand of the bedroom he shared with Hardwick

. H e kept the gun loaded and “ready to shoot” because he was worried that someone could get into the apartment through the ground

- level balcony. Thomas said that Hardwick owned a .38

- c aliber handgun that he had bought for her, but he did not know where she kept it. On the night of the shooting, Thomas and Hardwick got into a protracted argument after Hardwick became suspicious that Thomas was sending text messages to other women. Their argument escalated into a physical confr ontation. Hardwick hit him in the face, which broke his braces and caused his mouth to bleed. Later, Hardwick came into the bathroom and hit him several times. Thomas then shoved Hardwi ck against the bathroo m wall. S he8 began crying, and Thomas apologized. Hardwick then stood up and said, “You’re dead.” Hardwick then began rummaging through her belongings in the apartment. In the bedroom, she tried to pull the television from the wall, again told Thomas, “You’re dead,” and walked out of the room, slamming the door behind her. Thomas could hear her opening and closing kitchen drawers, and then Hardwick “busted” into the bedroom and again shouted, “You’re dead.” According to Thomas, she had her arm raised, and something w as in her hand. Thomas was sitting on the bed. He grabbed his gun from the nightstand and began firing. He fired four shots and stopped firing when Hardwick fell to the ground next to the foot of bed. Thomas testified that he was not trying to kill Hardwic k and was only trying to stop her from coming toward him. Thomas did not check on Hardwick. Rather, he immediately grabbed clothes from his closet and ran out of the bedroom through the balcony door. He jumped over the balcony rail, went to his car, and dr ove away. As Thomas drove away from the Atlanta area , he9 received numerous phone calls and text messages but refused to answer because he was “ashamed.” While driving, he called a suicide hotline because he considered committing suicide. He said that he disassembled the gun and placed its pieces in different parts of the

car to “sav[e] his life” and that he threw unused rounds of ammunition from his gun out of the car as he was driving. 6 2. In his sole enumeration of error, Thomas argues that his trial c ounsel provided constitutionally ineffective assistance by withdrawing a motion to suppress evidence obtained by the police during the search of Thomas’s car, the location of which was determined by the use of “ real

- time ” CSLI that identified the location of his iPhone as Thomas was driving . Thomas argues that his trial counsel should not have withdrawn the motion because she should have been aware of then

- existing case law from various state and federal courts before the United States Supreme Court’s

6 Thomas does not argue that the evidence was insufficient to support his convictions, and because this case was docketed to the term beginning in December 2020 , we no longer routinely review that issue sua sponte. See Davenport v. State , 309 Ga. 385, 391

- 392 (4) (846 SE2d 83) (2020).10 decis ion in Carpenter v. United States , __ U. S. __ (138 SCt 2206, 201 LE2d 507) (2018), which generally requires that law enforcement obtain a search warrant supported by probable cause in order to obtain “historical” CSLI

. Thomas argues that had counsel pursu ed the motion to suppress, the evidence obtained from Thomas’s car after he was located through the use of CSLI would have been excluded at trial, or, at a minimum, issues relating to the search would have been properly preserved for appeal. The trial cou rt determined that Thomas’s trial counsel did not perform deficiently by not pursuing the motion to suppress

. We

agree. To prevail on this claim, Thomas has the burden of provin g both that the performance of his lawyer was professionally deficient and that he was prejudiced as a result. To prove deficient performance, [ Thomas ] must show that his trial counsel acted or failed to act in an objectively unreasonable way, considering all of the circumstances and in light of prevailing professional norms. To prove resulting prejudice, [ Thomas ] must show a reasonable probability that, but for counsel’s deficiency, the result of the trial would have been different. In examining an ineffectiveness claim, a court need not address both components of the inquiry if11 the defendant makes an insufficient showing on one. (P unctuation omitted.) Stuckey v. State , 301 Ga. 767, 771 (2) (804 SE2d 76) (2017) (citing Strickland v. Washington , 466 U. S. 668, 687 (104 SCt 2052, 80 LE2d 674) (1984 )). “A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct.” (Citation omitted.) Ford v. State , 298 Ga. 560, 566 (8) (783 SE2d 906) (2016). In October 2015, Thomas’s first trial counsel filed a pre

- trial

m otion to suppress evidence obtained during the search of Thomas’s vehicle following his arrest in Iowa. In that motion , Thomas argued that the police had been able to locate Thomas only by unlawfully tracking his movements in real time utilizing CSLI

. Thom as asserted that the surveillance constituted a search under the Fourth Amendment and that, although Georgia courts had yet to address the issue, the Florida Supreme Court had recently held that individuals have a reasonable expectation of privacy in the l ocation data transmitted from a personal cell phone, even while traveling on public roads

. See Tracey v. State , 152 S3d 504, 526 (Fla. 2014).12 Thomas argued that his arrest violated the United States Constitution and the Georgia Constitution and that all ev idence obtained in the arrest and the subsequent search of his car should be suppressed. Thomas’s first trial counsel later withdr ew from representing him, and Thomas obtained new counsel. At the start of Thomas’s trial in September 2016, his new counsel withdrew the motion to

suppress. Counsel informed the trial court that, after reviewing the motion to suppress, discussing it with Thomas, and conducting further research, she did not believe there was a legal basis for the motion and specifically no t ed a then

- recent decision from the United States District Court for the Northern District of Georgia denying a defendant’s motion to suppress CSLI records based on the determination that the defendant in that case had no legitimate expectation of privacy in those records and that the Fourth Amendment was not violated. See United States v. Wilson , No. 1:11

-

cr - 53

- TCB , 2013 U.S. Dist. LEXIS 37320, at * 2 (N.D. Ga. March 19, 2013). Later, at the hearing on Tho mas’s motion for new trial, trial13 counsel testified tha t, at the time she withdrew the motion to suppress, it was her impression that courts had been split about whether a warrant would be required in order to obtain CSLI. At trial, as noted above, Thomas admitted shooting and killing Hardwi ck and testified at length about the circumstances of the shooting . He claimed he did not intend to kill Hardwick and that he was acting in self

- defense. 7 In her opening statement and closing argument, counsel argued that Thomas made a “split second” decision to shoot Hardwi ck in self

- defense when Hardwick came into the bedroom with her arm raised. Counsel emphasized to the jury that Thomas then fled from the apartment in a panic and later called a suic ide hotline and disassembled his gun in order to protect himse lf because h e was “distraught.” Counsel also emphasized that Thomas had cooperated with the police and was taken into custody

7 In addition to self

- defense, at Thomas’s request, the jury was instructed that it could find Thomas guilty of voluntary manslaughter as a lesser offense of m alice murder and felony murder. In her closing argument, without conceding that Thomas was guilty , Thomas’s trial counsel referred to the voluntary manslaughter charge as another “option” that the jury could consider instead of finding Thomas guilty of murder. We express no opinion on whether the evidence supported a charge on vo luntary manslaughter.14 without incident. At the hearing on Thomas’s motion for new trial, trial counsel testified that she abandoned the motion to suppress because

a ttempting to exclude items seized in the search of Thomas’s car would be inconsistent with the self

- defense theory she planned to pursue at trial. Counsel testified that , in her discussions with Thomas , he had been “adamant” that he acted in self

- defense and that counsel believed the evidence obtained in the search of his car actually furthered the self

- defense theory because it demonstrated how “ scared , ” “ panicked, ” and “ traumatized ” Thomas was after killi ng Hardwick

. In light of Thomas’s decision to testify, his detailed testimony regarding the circumstances of Hardwick’s shooting, and his “adamant” claim to his counsel that he had acted in self

- defense, it was reasonable for counsel to vigorously pursue a self

- de fense theory at trial and to characterize any evidence at her disposal in any way that could advance that theory. Counsel’s testimony at the hearing on Thomas’s motion for new trial makes clear that she15 believed at the time that, even if there w ere a legal basis for suppressing the evidence found in Thomas’s car, it could be advantageous to Thomas’s defense to have the evidence admitted because counsel could use it to support the self

- defense claim. This decision was not objectively unreasonable und er the circumstances and therefore cannot form the basis of a claim of ineffective assistance of counsel

. See Reyes v. State , 309 Ga. 660, 671 (3) (a) (847 SE2d 194) (2020) (no deficient performance where counsel could reasonably determine that best defens e strategy was to forgo a motion to suppress DNA evidence, welcome its admission, and offer a plausible explanation for its presence at the crime scene); Dent v. State , 303 Ga. 110, 118 (4) (a) (810 SE 2d 527 ) (2018) (“[A]t the motion

- for

- new - trial hearing, trial counsel testified that he wanted the video of the custodial interrogation admitted because, in his opinion, it assisted his client’ s defense. Thus, this was a strategic decision which has not been shown to be professionally unreasonable.”) ; Gomez v. State , 301 Ga. 445, 459 (6) (a) (801 SE 2d 847) (2017) (no deficient performance where counsel could16 reasonably determine that best strategy was to forgo objection to certain testimony and instead use i t to challenge the State’s theory of the case)

. Because Thomas has failed to show that his trial counsel performed deficiently by withdrawing the motion to suppress , his claim of constitutionally ineffective assistance of counsel fail s . 8 Judgment affirmed. All the Justices concur.

8 We note that this Court recently held that the exclusionary rule does not apply where, before Carpenter was decided, law enforcement officers relied on statutory law and then

- binding appellate precedent to obtain CSLI without a warr ant. See Lofton v. State , __ Ga. __ , __ (2) (__SE2d __) 2021 WL 536259, at *10 ( Case N o. S20A1101, decided Feb. 15, 2021). Because we hold that Thomas’s trial counsel did not perform deficiently because she had a reasonable strat egic purpose for withdrawin g the motion to suppress, we need not address wh ether her decision constitute d ineffective assistance of counsel related to the merits of the underlying motion.