In the Supreme Court of Georgia

Decided: March 5, 2024

S23A0900. THE STATE v. LEDBETTER.

S23X0901. LEDBETTER v. THE STATE.

 WARREN, Justice.

In October 2018, John Ledbetter was indicted for murder and 

other crimes associated with the January 2016 shooting death of

Jeremy Miller and the unrelated February 2015 shooting death of

Damian Stinchcomb. Before trial, Ledbetter filed two motions to 

suppress evidence. One motion sought to suppress evidence related 

to Miller’s shooting provided to Detective Kevin Leonpacher by 

Ledbetter’s previous attorney, Dennis Scheib, on the ground that the 

information was protected by attorney-client privilege. The other 

motion sought to suppress cell phone records related to Miller’s 

shooting and cell phone records related Stinchcomb’s shooting on the 

ground that the two warrants authorizing the search of his cell 

phone records were defective in several respects, including not being 
2

supported by probable cause. The trial court granted the first 

motion to suppress, and the State appeals. See OCGA § 5-7-1 (a) (5)

(permitting the State to appeal from a pretrial order excluding 

evidence under certain conditions). The trial court denied the 

second motion to suppress, and Ledbetter cross-appeals. See OCGA 

§ 5-7-1 (b) (“In any instances in which any appeal is taken by and on 

behalf of the State of Georgia in a criminal case, the defendant shall 

have the right to cross appeal.”). For the reasons explained below, 

we affirm both orders. Because each appeal has its own relevant 

facts and legal issues, we discuss them separately, addressing the 

State’s pretrial appeal first.

1. The State’s Appeal, Case No. S23A0900

(a) Miller was shot during a drug transaction on January 19, 

2016, and later died in the hospital.1 During the investigation into 

the shooting, Scheib, Ledbetter’s attorney at the time, contacted law 

enforcement, and on February 5, 2016, he met with Detective 

1 Stinchcomb’s murder is not at issue in the State’s appeal and will be 

discussed below in Division 2, which pertains to Ledbetter’s cross-appeal.
3

Leonpacher about the investigation and gave the detective 

information about the shooting, as well as physical evidence related 

to the shooting. Ledbetter was later arrested for Miller’s murder.

After Ledbetter changed attorneys, his new trial counsel 

moved to suppress “all evidence provided to law enforcement” by 

Scheib based on attorney-client privilege.2 At a hearing on this 

motion, the following evidence about Scheib’s meeting with 

Detective Leonpacher was presented. 

Detective Leonpacher testified that Scheib contacted him 

shortly after Miller’s shooting, “essentially gauging what the police 

knew about the incident.” Scheib was “very clear about having some 

limited information from his client and he proffered some 

generalized details of the incident . . . in somewhat hypothetical 

terms.” In a second call later that day, Scheib stated that Ledbetter 

was his client. The detective then met with Scheib at Scheib’s office. 

2 Ledbetter also argued to the trial court that the evidence should be 

suppressed based on Scheib’s providing ineffective assistance of counsel, but 

that is not the ground on which the trial court relied in granting Ledbetter’s 

motion to suppress, and Ledbetter does not pursue that argument on appeal.
4

The meeting at Scheib’s office was audio-recorded by the 

detective, and the recording was played at the hearing. Scheib first 

gave the detective information about the vehicle involved in the 

shooting. He explained that it was a rental car and gave the 

detective the name and number of the person at the rental car 

company to contact about the car. Scheib then provided the 

following account of the shooting.3 Ledbetter knew Miller “from 

before,” and he and Miller arranged to meet each other in the 

parking lot to “talk about” a marijuana transaction. In the parking 

lot, Miller got into the passenger’s side of Ledbetter’s car and then 

pulled out a “chrome and black automatic pistol.” Ledbetter put his 

hands up in the air and then reached out and grabbed the gun. They 

struggled. As Ledbetter pushed the gun away, it went off. Miller 

told Ledbetter that he had another gun. Ledbetter threw himself 

over Miller, and as soon as Ledbetter had control over the gun, he 

“fired twice.” 

3 During this account, Scheib repeatedly prefaced statements about the 

shooting with “he said” or “he told me,” indicating that Ledbetter had given 

him this information. 
5

Scheib also gave the detective physical evidence, including a 

backpack that Ledbetter said Miller was carrying when he entered 

the vehicle, the clothes Ledbetter was wearing on the night of the 

shooting, and two guns, at least one of which Scheib indicated 

Ledbetter had taken from Miller.4 At the end of the meeting, Scheib 

told Detective Leonpacher that Ledbetter had said that if the 

detective secured an arrest warrant for Ledbetter, Ledbetter would 

turn himself in within 24 hours because he did not want the “fugitive 

squad” looking for him. Scheib further explained that Ledbetter had 

said, “I’m not gonna run,” and “I gotta deal with this.” Scheib never 

stated that Ledbetter had waived attorney-client privilege or given 

Scheib permission to share any of this information.

Detective Leonpacher testified that when talking to Scheib, he 

was under the impression that Scheib was acting as an agent for 

4 When describing the incident to the detective, Scheib said Ledbetter 

described the gun Miller had as a “chrome and black automatic pistol,” and 

then said, “I’ll show you the gun that my client gave me.” After Scheib gave 

the detective the gun, he said, “He’s given you the weapon, and he’s described 

it as a silver and black weapon.” Scheib also gave the detective socks, a cap, a 

necklace, a receipt, and a shell casing. 
6

Ledbetter, noting that Scheib used Ledbetter’s and Miller’s names 

in his description of the incident, rather than using hypothetical 

names. The detective also recalled that as Scheib was providing 

details, Scheib referred to his notes, leading the detective to 

“presume[] . . . that [Scheib] had spoken with his client and made 

some notes and was trying to reproduce to me the information 

provided by his client to him.” Scheib did not provide and the 

detective never saw “anything that said that there was some sort of 

waiver of attorney-client privilege” allowing Scheib to provide this 

proffer.

Scheib testified that he was trying to use “hypotheticals” to 

“guide [Detective Leonpacher] toward looking into Mr. Miller as a 

robber” who had a weapon. Scheib explained, “I was using 

hypotheticals because I knew I couldn’t say my client has actually 

said this without my client giving up the attorney-client privilege.”5

Scheib testified that Ledbetter had not waived attorney-client 

5 The recording of the interview does not reflect that Scheib spoke in 

hypotheticals.
7

privilege or given him permission to share what Ledbetter told 

Scheib with “the police, the prosecution, or anybody else”; Scheib 

also did not have authority from Ledbetter to say that any of the

items he gave the detective came from Ledbetter. Scheib further

testified that Ledbetter wrote him a letter with specific information 

about what he wanted to do “as far as turning himself in.”6 

Ledbetter testified that he never gave Scheib permission to 

reveal private communications or share physical evidence. When he 

learned in 2018 that Scheib had given information to Detective 

Leonpacher, he “contact[ed] the fee arbitration people” because he 

“felt like [Scheib] needed to be disbarred and I needed my money 

6 During cross-examination, the prosecutor asked Scheib if he 

remembered telling the prosecutor that Ledbetter had “signed a document that 

was in [Scheib’s] file that allowed [Scheib] to say certain things to Detective 

Leonpacher about the case.” Scheib did not state whether he recalled making 

that statement, but testified that he “may have misspoken” and clarified that 

Ledbetter wrote him “several letters as to what to do and what not to do,” but

Scheib did not have any letters allowing him “to go in and give certain things.”
8

returned.”7 And Ledbetter hired a different attorney to represent 

him going forward.

(b) On December 6, 2021, the trial court granted Ledbetter’s 

motion to suppress evidence provided by Scheib, finding, based on 

the evidence presented at the hearing that: 

Scheib obtained privileged information from Defendant 

Ledbetter during the course of legal representation. This 

information included statements as well as physical 

evidence. Attorney Scheib, unilaterally and without 

knowledge or permission of Defendant Ledbetter, and in 

violation of the attorney-client privilege, violated this 

statutory privilege and unlawfully shared this privileged 

information/evidence with law enforcement. This was 

error. 

Citing OCGA § 24-5-501 (a) (2) and several cases, the trial court

therefore ruled that “[i]n order to cure this error, the prosecution as 

well as all of its witnesses are hereby notified that they are not to 

use, directly or indirectly, any privileged evidence obtained from 

Attorney Scheib which includes, but is not limited to, Defendant’s 

statements as well as physical evidence provided by Attorney Scheib 

7 It is not clear from the record whether Ledbetter was referencing the 

fee arbitration program at the State Bar, the General Counsel’s office at the 

State Bar, or some other person or entity.
9

to Homicide Detective Leonpacher.” The order further held that “it 

cannot be mentioned that Attorney Scheib ever met with the police 

. . . and Attorney Scheib cannot be called as a witness at trial by the 

State.” 

The State appeals the trial court’s grant of Ledbetter’s motion 

to suppress, arguing that Ledbetter has not shown a violation of 

attorney-client privilege through any of Scheib’s communications.

The State further argues that, even if there was a violation of 

Ledbetter’s attorney-client privilege, the physical evidence provided 

by Scheib to Detective Leonpacher should not be suppressed, and 

the State should be permitted to present evidence of the source of 

the physical evidence, i.e., that it came from Scheib, Ledbetter’s 

attorney. Finally, the State argues that the trial court erred by 

suppressing “derivative evidence”—that is, evidence derived from 

Scheib’s statements to Detective Leonpacher. 

For the reasons discussed below, we agree with the trial court 

that Ledbetter has shown that his attorney-client privilege was 

violated through Scheib’s disclosures to Detective Leonpacher. And 
10

because Ledbetter concedes that physical evidence is not suppressed 

by the trial court order at issue in this appeal, we need not decide 

whether the trial court could have suppressed the physical evidence

Ledbetter gave to Scheib based on attorney-client privilege. 

However, we conclude that the trial court’s order properly prohibits 

the State from presenting evidence to the jury that Scheib, 

Ledbetter’s attorney, was the source of the physical evidence given 

to law enforcement. Finally, we conclude that the trial court order 

does not suppress “derivative evidence” as protected by attorneyclient privilege. We therefore affirm the trial court’s order granting 

Ledbetter’s motion to suppress the evidence provided by Scheib.8

8 The State and Ledbetter both mention certain videos of interviews with 

potential witnesses that Scheib allegedly gave to Detective Leonpacher. 

Evidence in the record indicates that Scheib provided these videos to the 

detective at some point after his recorded meeting with the detective. These 

videos were briefly mentioned by Detective Leonpacher at the motion to 

suppress hearing, but no clear evidence was presented about their contents or 

when and how they were given to the detective. Ledbetter now argues that 

these recordings must be suppressed as protected attorney work product. We 

do not address that argument, however, because it appears that it was not 

raised by Ledbetter in the trial court, and it was not ruled on in the suppression 

order at issue in this appeal.
11

(c) “The attorney-client privilege is ‘the oldest of the privileges 

for confidential communications known to the common law,’” and 

“has long been recognized in Georgia.” St. Simons Waterfront, LLC 

v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419, 421 (746 SE2d 

98) (2013) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (101 

SCt 677, 66 LEd2d 584) (1981)). To that end, OCGA § 24-5-501 (a) 

(2) prevents evidence protected by the attorney-client privilege from 

being introduced as evidence: “There are certain admissions and 

communications excluded from evidence on grounds of public policy, 

including, but not limited to, the following: . . . Communications 

between attorney and client.” See also St. Simons Waterfront, 293 

Ga. at 421 (explaining that the “attorney-client privilege” is 

“currently codified” in OCGA § 24-5-501 (a) (2)).9 

9 As noted in St. Simons Waterfront, “[p]rior to the adoption of the 2013 

Georgia Evidence Code, there were four different statutes in our evidence code 

addressing the attorney-client privilege.” Id. at 421 n.1. The current Evidence

Code “greatly simplified the statutory language constituting the privilege and 

eliminated certain awkward language in the prior statutes,” but “the rules 

governing the privilege in Georgia generally remain the same.” Id. (citation 

and punctuation omitted). Neither party has argued that any aspect of 

attorney-client privilege at issue in this case changed with the introduction of 

the current Evidence Code, and we conclude that at least as to the issues raised 
12

“The [attorney-client] privilege generally attaches when legal 

advice is sought from an attorney, and operates to protect from 

compelled disclosure any communications, made in confidence, 

relating to the matter on which the client seeks advice.” St. Simons 

Waterfront, 293 Ga. at 421-422. See also Rogers v. State, 290 Ga. 18, 

20 (717 SE2d 629) (2011) (“[T]he attorney-client privilege protects 

communications between the client and the attorney that are 

intended to be confidential[.]”) (citation and punctuation omitted). 

Ledbetter, as “the proponent of the privilege,” has the burden “to 

establish that the privilege exists.” St. Simons Waterfront, 293 Ga. 

at 429. “[T]he privilege belongs to the client, not the attorney,” 

Moclaire v. State, 215 Ga. App. 360, 363 (451 SE2d 68) (1994) 

(citation and punctuation omitted), and the client can waive the 

here, Georgia cases decided before the enactment of our current evidence code 

remain applicable law. Compare Volkova v. State, 311 Ga. 187, 194 (855 SE2d 

616) (2021) (treating the rule about when attorney-client privilege is waived as 

to communications with “an expert engaged by the attorney” as a “judicially 

created exclusionary rule[] based on an interpretation of Georgia’s old 

Evidence Code” that has been “statutorily abrogated by the enactment of our 

current Evidence Code”). 
13

privilege explicitly or implicitly, see Hill, Kertscher & Wharton, LLP 

v. Moody, 308 Ga. 74, 79 (839 SE2d 535) (2020).

(i) Attorney-Client Communications

In granting Ledbetter’s motion to suppress evidence that was 

shared in violation of Ledbetter’s attorney-client privilege, the trial 

court found that Scheib “obtained privileged information from

Defendant Ledbetter during the course of legal representation,” and

that Scheib shared this information “unilaterally and without 

knowledge or permission of Defendant Ledbetter.” We review these 

fact-findings for clear error. See State v. Wilson, 315 Ga. 613, 613 

(884 SE2d 298) (2023) (“In reviewing the trial court’s grant of the 

motion to suppress, we apply the well-established principles that the 

trial court’s findings as to disputed facts will be upheld unless 

clearly erroneous and the trial court’s application of the law to 

undisputed facts is subject to de novo review.”) (punctuation and 

citation omitted). 

The State does not dispute that Scheib obtained information 

from Ledbetter as part of his representation of Ledbetter and that 
14

Scheib then conveyed that information to Detective Leonpacher. 

And the trial court’s findings that Scheib acted “unilaterally” and 

“without knowledge or permission” of Ledbetter were supported by 

ample evidence that Ledbetter did not waive his attorney-client 

privilege, including Scheib’s testimony that he did not have any 

waiver or permission to share information from Ledbetter and 

Ledbetter’s testimony that he never gave Scheib permission to share 

any information with the detective and did not learn about Scheib’s 

disclosures until 2018. 

The State argues, however, that Scheib did not share the 

information “unilaterally” and without Ledbetter’s “knowledge or 

permission” because, in fact, Ledbetter intended for Scheib to share 

the information he provided with Detective Leonpacher and thereby 

implicitly waived his attorney-client privilege. In support of this 

contention, the State points to “[t]he fact that Scheib disclosed this 

information while pursuing [a] favorable outcome for Ledbetter.”

But in the absence of any evidence that the client knew about and 

approved of the disclosure, an attorney’s disclosure alone, even if it 
15

was intended to benefit the client, does not establish that such 

disclosure was authorized. See Moclaire, 215 Ga. App. at 363 (“The 

mere fact that the attorney discussed the communications with 

others, without evidence that [the client] authorized those 

discussions, does not prove that [the client] waived the attorneyclient privilege.”) (citation and punctuation omitted); McKie v. State, 

165 Ga. 210, 210 (140 SE 625) (1927) (“Communications between 

client and attorney are excluded from public policy and are 

incompetent as evidence against the client upon her trial for the 

homicide of her husband; and this is so, whether such letters

[written by the client to her attorney] were voluntarily produced by 

the attorney to be used against the client, or were surreptitiously or 

otherwise taken from the possession of the attorney.”). See also

Rouse v. State, 275 Ga. 605, 607 & n.12 (571 SE2d 353) (2002) 

(affirming the trial court’s denial of admission into evidence a tape 

recording of a witness talking to his attorney, where the “record 

fail[ed] to establish conclusively” how the defendant obtained the 

recording but where the attorney “apparently . . . inadvertently 
16

disclosed” the recording and the record was “devoid of any evidence 

that shows that [the witness] authorized the release of this tape to 

anyone”).10 

The State further argues that Scheib’s testimony that 

Ledbetter said, “I gotta deal with this” and indicated that he would 

turn himself in if he heard that there was an arrest warrant is 

evidence that Ledbetter knew about and implicitly authorized 

Scheib’s meeting with and disclosures to Detective Leonpacher. 

This argument—that Ledbetter saying he wanted to “deal with this” 

and avoid pursuit from the “fugitive squad” is an implicit waiver of 

attorney-client privilege—is strained at best. See Kennestone Hosp. 

v. Hopson, 273 Ga. 145, 148 (538 SE2d 742) (2000) (explaining that 

10 In support of this argument, the State cites United States v. Tyerman, 

701 F3d 552, 559 (8th Cir. 2012), and United States v. Beltramea, 2015 U.S. 

Dist. LEXIS 121195 (N.D. Iowa Sep. 11, 2015). Even assuming we would follow 

these federal cases in deciding an issue about attorney-client privilege, both 

cases are distinguishable: there was evidence in both that the defendants knew 

about their attorneys’ disclosures. See Tyerman, 701 F3d at 559 (explaining 

that during plea negotiations, Tyerman helped his attorney find the gun “[a]t 

the Court’s request” and “the County Attorney’s request,” and concluding that 

Tyerman implicitly waived the attorney-client privilege as to that 

information); Beltramea, 2015 U.S. Dist. LEXIS at *17-24 (concluding that the 

defendant waived attorney-client privilege with respect to information that his 

attorney shared in open court at his sentencing hearing).
17

“[a]n implied waiver is one shown by a party’s decisive, unequivocal 

conduct reasonably inferring the intent to waive,” and concluding 

that there was no implicit waiver in that case) (punctuation and 

citation omitted). We cannot say that the trial court’s finding that 

Scheib acted without Ledbetter’s knowledge or permission was 

clearly erroneous.11 We therefore affirm the trial court’s holding

that Ledbetter’s communications with Scheib were protected by the

11 The State also argues in its reply brief that the statement of 

Ledbetter’s new attorney at an August 2020 bond hearing that Ledbetter “had 

engaged the services of an attorney, Dennis Scheib, and in fact was cooperating 

and providing information and physical evidence to Detective Leonpacher”

shows that Ledbetter authorized the disclosures Scheib made to the detective. 

First, we note that it does not appear the State made this argument to the trial 

court, and evidence about what was said during the bond hearing was not 

introduced into evidence at the hearing on the motion to suppress. See 

Middleton v. State, 316 Ga. 808, 810 n.3 (890 SE2d 713) (2023) (declining to 

consider an argument that was “never raised in proceedings below”). Even if 

we did consider this argument, however, we would reject it. This statement

from Ledbetter’s counsel was not a clear representation on Ledbetter’s behalf 

that he had waived his attorney-client privilege in relation to Scheib’s earlier 

meeting with Detective Leonpacher, and later in the bond hearing, Ledbetter’s 

counsel indicated to the court that Scheib’s disclosure of evidence to law 

enforcement was “among some of the things” that Ledbetter would be raising 

before the trial court. Even if counsel’s assertion that Ledbetter “was 

cooperating” with the State through Scheib was inconsistent with Ledbetter’s 

assertion that he did not authorize Scheib to make any disclosures to law 

enforcement, it does not constitute a sufficiently clear statement that 

Ledbetter authorized Scheib’s disclosures to cause us to conclude that the trial 

court’s fact-finding was clearly erroneous.
18

attorney-client privilege and should be suppressed under OCGA 

§ 24-5-501 (a) (2). 

(ii) Physical Evidence

The State also argues that even if evidence about the 

communications between Ledbetter and Scheib that Scheib shared 

with Detective Leonpacher should be suppressed based on attorneyclient privilege, the trial court order should be reversed to the extent 

it also suppresses physical evidence Scheib gave the detective, such 

as guns. Notably, however, in his brief and at oral argument before 

this Court, Ledbetter asserted that the trial court’s order does not

categorically suppress physical evidence itself and has conceded that 

the physical evidence is not covered by attorney-client privilege and

may be admissible.12 In other words, the State and Ledbetter agree 

12 Specifically, in one of his appellate briefs before this Court, Ledbetter 

asserted: “The trial court did not exclude the physical evidence from being 

introduced at trial but it did exclude all privileged evidence that was obtained 

by the prosecution in violation of Appellee’s rights. Thus, if the prosecution 

can find a lawful way to introduce the physical evidence at trial, same would 

not violate the trial court’s Order.” And at oral argument, Ledbetter’s counsel 

was asked: “[I]t seems like you concede that the physical evidence is not 

covered by attorney-client privilege or any other privilege. Is that your 

position?” And counsel answered, “In this particular case, yes.”
19

on this point. We accept Ledbetter’s interpretation of the trial court 

order and hold that the order does not suppress the physical 

evidence Scheib provided to Detective Leonpacher.13 

However, if the physical evidence is admitted at trial, it should

not be linked to Scheib as Ledbetter’s attorney.14 Ledbetter 

asserts—and we agree—that although the trial court’s order does 

not suppress the physical evidence itself, the trial court order does 

prohibit the State from identifying Scheib—as Ledbetter’s 

attorney—as the source of any physical evidence the State might 

seek to introduce. Specifically, the trial court’s order prohibits “the 

prosecution as well as all of its witnesses” from using “directly, or 

13 To the extent language in the order could be read to suppress the

physical evidence itself, we reject that reading. And because this Court’s 

interpretation of the trial court’s order is now law of the case, Ledbetter may 

not later attempt to rely on that order in an effort to suppress the physical 

evidence at issue in this appeal. See Cartwright v. Caldwell, 305 Ga. 371, 382 

(825 SE2d 168) (2019) (“Under [the law of the case] doctrine, ‘any ruling by the 

Supreme Court or the Court of Appeals in a case shall be binding in all 

subsequent proceedings in that case in the lower court and in the Supreme 

Court or the Court of Appeals.’ OCGA § 9-11-60 (h). It is well-established that 

the law of the case doctrine applies to holdings by appellate courts in criminal 

cases.”) (citation and punctuation omitted).

14 We do not evaluate how the State may be able to admit this physical

evidence, such as through a different theory of authentication. 
20

indirectly, any privileged evidence obtained from Attorney Scheib 

which includes . . . physical evidence provided by Attorney Scheib.” 

The State would violate this prohibition if it introduced at trial the 

physical evidence Ledbetter gave to Scheib accompanied by

testimony or other evidence that the items originated from Scheib

(who was serving as Ledbetter’s attorney). This is so because the 

evidence presented at the motion to suppress hearing indicated that 

Ledbetter (as a client) gave the physical evidence to Scheib

(Ledbetter’s attorney) as part of his attorney-client communications 

with Scheib. 

Scheib’s explanation of the “chrome and black” gun he gave 

Detective Ledbetter, which is reflected in the recording of the 

meeting played at the motion to suppress hearing, helps illustrate 

this point. Scheib’s statements to Detective Leonpacher indicate 

that when Ledbetter gave Scheib this gun, Ledbetter told Scheib it 

was the gun Miller had when he arrived at the drug transaction and 

that Miller and Ledbetter struggled over it, eventually resulting in 

Miller’s shooting and death. If the State sought to introduce that 
21

gun into evidence at trial and mentioned that law enforcement 

officials obtained the gun through Ledbetter’s attorney, Scheib, that 

would constitute an indirect use of “privileged evidence obtained 

from Attorney Scheib” and would violate the trial court’s order. That 

would be so even if neither Ledbetter’s nor Scheib’s statements 

about the gun were repeated to the jury and even if the fact of 

Scheib’s conversations with Ledbetter and Detective Leonpacher

were not otherwise made known to the jury. Evidence that 

Ledbetter’s attorney gave law enforcement a gun that was linked to 

the shooting would be indirect evidence of the communications 

Ledbetter had with Scheib (his attorney) when he gave Scheib this 

gun, thereby constituting the type of indirect use of “privileged 

evidence obtained from Attorney Scheib” the trial court prohibited 

in its order.15 

15 We note that it likely would be difficult to present evidence that 

Ledbetter’s attorney Scheib gave any physical evidence to Detective 

Leonpacher without running afoul of the trial court’s directive that “it cannot 

be mentioned that Attorney Scheib ever met with the police.” 
22

The State argues that it should be allowed to present evidence 

that the gun and other physical evidence came from Scheib and the 

trial court erred in deciding otherwise. Responding to the State’s 

argument, Ledbetter points to Williams v. State, 258 Ga. 281 (368 

SE2d 742) (1988), and maintains that the trial court’s suppression

of any mention of his attorney as the source of any physical evidence

is proper. We agree with Ledbetter. In Williams, the State 

presented evidence to the jury that the attorney of Williams, a 

criminal defendant, revealed the location of a murder victim’s body 

to law enforcement. See 258 Ga. at 284. This Court explained that 

the attorney, Flanagan, likely learned this information from 

Williams and reasoned that “if the state was not trying to create an 

inference that the victim’s body was discovered because Williams 

had revealed its location to his attorney, it was not necessary to tell 

the jury that Flanagan was Williams’ attorney.” Id. We therefore

disapproved of the State’s presenting evidence that the defendant’s 

attorney was the source of the evidence used against the defendant. 

See id. 
23

It is true, as the State points out, that this Court in Williams

ultimately held that evidence of Williams’s attorney’s involvement 

was harmless in light of the strength of the evidence against 

Williams. See 258 Ga. at 285. But the reasoning in Williams is

nonetheless persuasive here. As with admitting evidence of the 

attorney’s knowledge of the body’s location in Williams, admitting 

evidence that Ledbetter’s attorney was the source of the physical 

evidence given to Detective Leonpacher would allow the jury to draw 

inferences about Ledbetter’s communications with his attorney 

Scheib that should not be permitted because of the attorney-client 

privilege. To put it another way, the only reason Scheib gave 

Detective Leonpacher the physical items was because of their 

connection to the shooting, and the only reason Scheib was aware of 

the items’ connection to the shooting was through his privileged 

communications with his client. And the information discussed in 

those privileged communications—whether presented directly 

through Scheib’s statements about what Ledbetter said or presented 

indirectly through inferences that can be drawn from the fact that
24

Ledbetter shared physical evidence of the crimes with his attorney—

is what the attorney-client privilege protects from the jury’s view.16 

Thus, we affirm the trial court’s suppression of evidence that Scheib 

(as Ledbetter’s attorney) was the source of the physical evidence.17 

(iii) Derivative Evidence

16 Other states have reached a similar conclusion. For example, in State 

v. Olwell, 64 Wash.2d 828 (394 P2d 681) (1964), which Williams cited with 

approval, the Supreme Court of Washington held that when an attorney 

surrenders physical “evidence he has in his possession,” the prosecution 

“should be well aware of the existence of the attorney-client privilege” and 

“when attempting to introduce such evidence at the trial, should take extreme 

precautions to make certain that the source of the evidence is not disclosed in 

the presence of the jury.” Id. at 834. That court reasoned that by “allowing 

the prosecution to recover such evidence, the public interest is served, and by 

refusing the prosecution an opportunity to disclose the source of the evidence, 

the client’s privilege is preserved and a balance is reached between these 

conflicting interests.” Id. See also Sanford v. State, 21 SW3d 337, 344 (Tex. 

App. 2000) (explaining that “several other jurisdictions hold that the State may 

not, when introducing the evidence received from counsel, reveal the source of 

the evidence in the presence of the jury because it would violate the attorneyclient privilege” and concluding that “this balancing of interests is the correct 

approach”); State v. Abdullah, 348 P3d 1, 103-104 (158 Idaho 386) (2015) 

(collecting cases prohibiting presenting the defendant’s attorney as the source 

of physical evidence, but also explaining that if the location of physical 

evidence “was revealed to defense counsel by a non-client third party, then the 

attorney-client privilege does not prohibit the State from proving . . . where 

and how the evidence was located”).

17 We take no position, however, on the question of whether Ledbetter 

could open the door to such evidence by raising a chain-of-custody or similar 

challenge at trial.
25

The State also argues that the trial court erred by suppressing

“derivative evidence related to Scheib’s disclosures,” such as 

testimony from witnesses later located with information Scheib 

provided to Detective Leonpacher. See Black’s Law Dictionary (11th 

ed. 2019) (defining “derivative evidence” as “[e]vidence that is later 

discovered by using evidence that was illegally obtained”). We 

disagree, however, with the premise of the State’s argument in this 

regard, because the trial court’s order does not suppress such 

evidence.

As discussed in subdivision (ii) above, the trial court’s order 

prohibits “the prosecution as well as all of its witnesses” from 

“indirectly” using “privileged information obtained from Attorney 

Scheib.” But the order does not otherwise restrict law enforcement’s 

use of the privileged information to aid further investigation. 

Moreover, the text of the order does not mention “derivative 

evidence” and neither OCGA § 24-5-501 (a) (2) nor any of the cases 

the trial court cited in the order expressly suppress derivative 
26

evidence on the basis of attorney-client privilege.18 The order also 

does not hold that Ledbetter’s constitutional rights were violated, 

which is often a pre-requisite for the suppression of derivative 

evidence. See State v. Chulpayev, 296 Ga. 764, 776 (770 SE2d 808) 

(2015) (“The broad exclusionary rule, with its fruit of the poisonous 

tree extension, operates only in limited circumstances, usually only 

where a defendant’s constitutional rights have been violated.”). 

Finally, at oral argument before this Court, Ledbetter’s counsel 

appeared to acknowledge that the trial court’s order does not 

suppress “derivative evidence,” while emphasizing the court’s 

prohibition on the indirect use of the privileged information 

discussed in subdivision (ii) above.19 We accordingly conclude that 

18 We acknowledge that the title of the order broadly describes its 

contents as an order “GRANTING THE SUPPRESSION OF ANY AND ALL 

EVIDENCE, AS WELL AS DERIVATIVE EVIDENCE.” However, for the 

reasons explained in this subdivision, we do not view the nomenclature in the

title of the order as prevailing over the substance of the order. See Sotter v. 

Stephens, 291 Ga. 79, 82 (727 SE2d 484) (2012) (explaining that although it 

was titled “Final Order and Judgment,” the order was not final because the 

substance of the order indicated that it was interlocutory).

19 Specifically, when counsel was asked at oral argument about what 

derivative evidence was suppressed by the trial court’s order, he answered: “I 
27

the trial court’s order does not prohibit the State from seeking to

introduce evidence that may be obtained from the use of privileged 

information Scheib disclosed to Detective Leonpacher, so long as 

that evidence does not reveal communications protected by the 

attorney-client privilege and so long as the State does not identify 

Scheib as the original source of any such evidence.

*

In light of the discussion above, we affirm the trial court’s order 

granting Ledbetter’s motion to suppress any evidence that attorney 

Scheib gave to Detective Leonpacher that is protected by Ledbetter’s 

attorney-client privilege.

2. The Cross-Appeal, Case No. S23X0901

As part of the investigation into the murders, law enforcement 

officers completed two search warrants for Ledbetter’s cell phone 

didn’t take derivative the way . . . I thought it was indirect or direct. And by 

that I meant, OK, we’ll exclude all the statements the trial court is saying. So 

you can’t say what appellee said to the lawyer. But you can say that the lawyer 

turned it over to us. And I thought that’s the indirect evidence. . . . And . . . 

Williams says exactly what to do. Omit everything directly and indirectly that 

came from the lawyer for the client, and then the prosecution has to figure out 

a way to get it in. And that’s how I look at it.”
28

records. A February 2016 search warrant obtained cell phone 

records related to Miller’s murder, and a February 2020 search 

warrant obtained cell phone records related to Stinchcomb’s 

murder.20 Ledbetter moved to suppress these cell phone records, 

arguing, among other things, that the search warrants were not 

supported by probable cause. The trial court held a hearing on the 

motion to suppress, during which the search warrant affidavits and 

applications were admitted into evidence.21 The trial court then 

20 The phone records related to Stinchcomb’s murder were first obtained 

with an “Order Releasing Cellular Telephone Records” issued in March 2015. 

The State’s attorney explained to the trial court that law enforcement 

completed a search warrant for the same phone records in February 2020 due 

to the United States Supreme Court’s issuing Carpenter v. United States, 138 

SCt 2206 (201 LE2d 507) (2018). Ledbetter raised objections to the March 2015 

order in the trial court and again on appeal, but we need not address those 

because we conclude that Ledbetter’s challenges to the February 2020 warrant 

fail. Ledbetter does not allege that the March 2015 order supplied any 

information different from the information gathered with the February 2020 

search warrant. Thus, we would still conclude that the trial court properly 

denied Ledbetter’s motion to suppress these records even if we conclude that 

the March 2015 order was invalid. See, e.g., McKinney v. State, 307 Ga. 129, 

138 (834 SE2d 741) (2019) (explaining that we did not need to decide whether 

admitting evidence to prove other purposes under OCGA § 24-4-404 (b) was 

proper, when we had determined that the evidence was admissible to prove 

identity).

21 There is no evidence in the record that the magistrates who granted 

the warrants were presented with anything more than the applications and 
29

denied Ledbetter’s motion to suppress, concluding, among other 

things, that the search warrants were supported by probable cause. 

Ledbetter appeals this order. As explained more below, we rely on 

well-settled precedent applying the Fourth Amendment to the 

United States Constitution to conclude the warrants were supported 

by probable cause, and we also reject Ledbetter’s other challenges to 

the warrants.

A search warrant will issue only based upon an oath or 

affirmation stating “facts sufficient to show probable cause that a 

crime is being committed or has been committed.” OCGA § 17-5-21 

(a). See U.S. CONST. amend. IV (stating, in pertinent part, that “no 

Warrants shall issue, but upon probable cause, supported by Oath 

or affirmation, and particularly describing the place to be searched, 

and the persons or things to be seized”). 

affidavits in support of the requested warrants, and Ledbetter and the State 

agreed that the issues presented in Ledbetter’s motion to suppress should be 

decided based only on the warrant application and affidavit. See 

Messerschmidt v. Millender, 565 U.S. 535, 568 (132 SCt 1235, 182 LE2d 47) 

(2012) (explaining that a court reviewing the validity of a warrant should 

consider “only information brought to the magistrate’s attention”).
30

An affidavit supporting a search warrant generally “should 

establish a connection between the defendant and the property to be 

searched and a link between the property and any criminal activity.” 

United States v. Mathis, 767 F3d 1264, 1276 (11th Cir. 2014) 

(citation and punctuation omitted). In determining if a warrant is 

supported by probable cause, the magistrate must “make a practical, 

common-sense decision whether, given all the circumstances set 

forth in the affidavit” supporting the warrant “there is a fair 

probability that contraband or evidence of a crime will be found” in 

the place requested to be searched. Perez v. State, 316 Ga. 433, 440 

(888 SE2d 526) (2023) (citation and punctuation omitted). A

magistrate may “draw such reasonable inferences as he will from 

the material supplied to him by applicants for a warrant.” Illinois 

v. Gates, 462 U.S. 213, 236 (103 SCt 2317, 76 LE2d 527) (1983). See 

also State v. Britton, 316 Ga. 283, 286 (888 SE2d 157) (2023). 

“On appellate review, our duty is to determine if the magistrate 

had a substantial basis for concluding that probable cause existed to 

issue the search warrant.” Perez, 316 Ga. at 440. “[I]n passing on 
31

the validity of a warrant, the reviewing court may consider only 

information brought to the magistrate’s attention.” Messerschmidt 

v. Millender, 565 U.S. 535, 568 (132 SCt 1235, 182 LE2d 47) (2012).

The magistrate’s determination of probable cause is “entitled to 

substantial deference.” Perez, 316 Ga. at 440. “[E]ven doubtful 

cases should be resolved in favor of upholding a magistrate’s 

determination that a warrant is proper.” Id.

(a) February 2016 Search Warrant Related to Miller’s Murder

With the February 2016 search warrant, the State sought 

subscriber information, call detail records, cell tower locations, and 

other information related to three phone numbers from January 1 

through February 3, 2016, to find evidence of murder. Detective 

Leonpacher completed the affidavit, providing the following 

information under oath. He had been employed by the Atlanta 

Police Department since July 2002 and worked in the Homicide 

Unit. Miller was shot in Atlanta on January 19, 2016. “A tip from 

the Cobb County Police Department indicated that . . . Ledbetter 

admitted to a third-party that he shot . . . Miller.” After the shooting 
32

and before he died, Miller called his cousin, Shera Lett, from the 

hospital, saying that he wanted to talk to her and did not believe he 

would survive his injuries. When Lett came to the hospital, Miller 

told her that “he met a man he knows as ‘John B’ or ‘Lil’ John’ to 

purchase marijuana,” but then “John” “either shorted or provided 

fake marijuana” and shot Miller when Miller confronted him; “John” 

then drove away with Miller’s backpack. 

Detective Leonpacher’s affidavit further averred that Scheib, 

Ledbetter’s attorney, met with him and “proffered information on 

behalf of his client,” including that Ledbetter met with Miller to sell 

marijuana, Miller tried to rob him, and Ledbetter grabbed the gun 

and “fired two shots at Miller.” Scheib also “turned over evidence 

from his client that was related to the shooting including the firearm 

used to shoot the victim and the victim’s light blue Jansport 

backpack.”22 Detective Leonpacher then obtained arrest warrants 

22 Ledbetter does not argue that law enforcement’s reliance on 

statements and physical evidence gathered from Scheib and detailed in the 

affidavit was improper or is a basis to suppress the cell phone records. We do 

not decide this issue, but note that, as explained above in Divisions 1 (c) (ii) 
33

for Ledbetter for murder and other crimes, and Ledbetter turned 

himself in.

In light of this information, the application said the following:

It is now requested that a Search Warrant be issued by 

the Magistrate Court of Fulton County to compel the 

wireless phone service provider of:

• John Ledbetter (accused)

• Jeremy Miller (victim)

• Shera Lett (dying declaration witness)

which is T-Mobile/MetroPCS, to produce the call detail 

records (CDR) associated with those numbers. The 

records are material, relevant, and evidence in the 

ongoing criminal investigation into the crime of Murder, 

which is in violation of OCGA § 16-5-1.

CDR’s, including the cell towers utilized during each call, 

can be used to aid in approximating the area from which 

calls were made and received and it is believed that the

CDR’s for these three will illustrate that:

• John Ledbetter communicated with the victim prior 

to their meeting during which Ledbetter shot the 

victim AND that his phone showed activity on cell 

towers in the same general geographic area as the 

crime scene at/about the time of the shooting.

and (iii), the trial court’s order granting Ledbetter’s motion to suppress 

information given to Detective Leonpacher by Scheib in violation of Ledbetter’s 

attorney-client privilege does not also have the effect of suppressing physical 

or derivative evidence.
34

• Jeremy Miller communicated with Ledbetter prior 

to the meeting/shooting.

• Shera Lett received a call from Grady Hospital prior 

to hearing the dying declaration from Miller.

The next paragraph listed the information requested, including 

subscriber information and call detail records, for:

the MetroPCS/T-Mobile wireless telephone numbers of:

504-223-4160

470-259-8589

404-671-5486

These are the only phone numbers, other than 911, mentioned in the 

warrant affidavit and application. The affidavit and application

were presented in the magistrate court of Fulton County and were 

signed by a judge.

(i) Ledbetter argues that the warrant was not supported by 

probable cause because the affidavit and application failed to 

connect any of the target numbers to criminal activity or to 

Ledbetter. Thus, we must determine whether, “given all the 

circumstances set forth in the affidavit,” the magistrate had a 

“substantial basis” for concluding that there was a fair probability 

that evidence of the murder would be found in the records of the 
35

three phone numbers listed in the warrant. Perez, 316 Ga. at 440. 

We conduct this inquiry keeping in mind that the magistrate may 

draw “reasonable inferences” from the affidavit, Gates, 462 U.S. at 

236, and that the magistrate’s decision is entitled to “substantial 

deference,” Perez, 316 Ga. at 440.

Here, we have no trouble concluding that the affidavit offered 

a substantial basis for the magistrate to conclude that there was a 

fair probability that evidence of Miller’s murder would be found on 

Ledbetter’s cell phone. According to the affidavit, Miller said that 

he met someone named “John” to buy marijuana, and that John shot 

him. Further, Ledbetter told someone that he shot Miller, and

Scheib, Ledbetter’s attorney, said that Ledbetter met Miller to sell 

marijuana and fired shots at Miller at this meeting. The affidavit 

then said that the requested phone records were expected to show 

that Ledbetter “communicated with the victim prior to their 

meeting” and was around the crime scene at the time of the shooting. 

These circumstances support the common-sense inference that 

Ledbetter used his phone to contact Miller to set up the meeting to 
36

sell Miller drugs, and at that meeting, Ledbetter shot Miller. See 

United States v. Eggerson, 999 F3d 1121, 1127 (8th Cir. 2021) 

(concluding that “it was not unreasonable for [the state magistrate] 

to infer that cell phones were being used in connection with the 

alleged drug dealing”) (citation and punctuation omitted). 

We further conclude that, although the affidavit and 

application did not state expressly that one of the three numbers for 

which records were sought was Ledbetter’s phone number, the 

magistrate could reasonably infer from the affidavit that one of the 

target numbers belonged to Ledbetter. See Taylor v. State, 303 Ga. 

57, 61 (810 SE2d 113) (2018) (rejecting Taylor’s argument that the 

warrant was not supported by probable cause because it failed to 

state expressly that the address to be searched (1751 Bergen Court)

was Taylor’s address; in light of the other information contained in 

the affidavit, “the magistrate, making a practical and common-sense 

decision, was entitled to infer that there was a ‘fair probability’ that 

Taylor lived at 1751 Bergen Court”); United States v. Hunter, 86 F3d 

679, 681 (7th Cir. 1996) (“The affidavit’s failure to state explicitly 
37

that Palace Court was Hunter’s residence, by itself, is not a fatal 

flaw.”). 

In particular, the affidavit and application indicated that law 

enforcement had opportunities to learn Ledbetter’s phone number 

by noting that Scheib “proffered information on behalf of his client” 

to Detective Leonpacher and that Ledbetter turned himself in for 

arrest. The warrant application then asked the court “to compel the 

wireless phone service provider of,” listed three people—Ledbetter, 

Miller, and Lett—in separate bullet points, and said their phone 

service provider was T-Mobile/MetroPCS. The warrant application 

used a similar sequence and format in the next paragraph when 

explaining what was expected to be found in the phone records of 

“these three.” Again, a bulleted list was used, with one bullet point 

corresponding to each person listed above:

• John Ledbetter communicated with the victim 

[Miller] prior to their meeting during which 

Ledbetter shot the victim AND that his phone 

showed activity on cell towers in the same general 

geographic area as the crime scene at/about the time 

of the shooting.
38

• Jeremy Miller communicated with Ledbetter prior 

to the meeting/shooting.

• Shera Lett received a call from Grady Hospital prior 

to hearing the dying declaration from Miller.

Importantly, each bullet point listed information that would likely 

be found on a particular person’s phone. For example, Ledbetter’s 

communication with Miller would be expected to be found on 

Ledbetter’s phone, just as Miller’s communication with Ledbetter 

would be expected to be found on Miller’s phone. Additionally, the 

first bullet point expressly referred to “his phone” in explaining the 

expectation that the requested record would show that Ledbetter’s 

phone was in the area of the shooting around the time of the 

shooting. That is not surprising, given that the location of 

Ledbetter’s phone is something one would expect to find in the 

records of Ledbetter’s phone number.

Finally, the application listed the three “Metro PCS/T-Mobile 

wireless telephone numbers” to be searched:

504-223-4160

470-259-8589

404-671-5486
39

This format mirrors the two earlier bulleted paragraphs that listed 

three separate people (Ledbetter, Miller, and Lett, each time listed 

in that order), and in this way the format of this request ties the 

three listed phone numbers (the only non-emergency phone

numbers mentioned in the warrant) to the three listed people (who 

were in two separate places listed in the same order) and with the 

sets of information law enforcement expected to find associated with 

those three listed people. There was nothing in the affidavit and 

application to lead the magistrate to believe that the three phone 

numbers were associated with people other than the three listed 

people, or that law enforcement was mistaken as to which numbers 

belonged to the three people.

In light of “all the circumstances” presented here, the 

magistrate could have reasonably inferred that the three target 

phone numbers belonged to the three listed individuals, meaning—

as relevant to this case—one of those numbers belonged to 
40

Ledbetter.23 See Taylor, 303 Ga. at 61 (concluding that “the 

magistrate could easily have inferred a connection between Taylor 

and the residence at 1751 Bergen Court” in light of “all the 

circumstances,” including that the affidavit and its attachment 

described the location to be searched “as the residence located at 

1751 Bergen Court,” described the crimes “as occurring at ‘Taylor’s 

residence,’” asserted that “‘there is probable cause to believe that a 

crime has been committed . . . at said location,” and requested the 

warrant to gather evidence from “the crime scene”) (emphasis in 

original); Hunter, 86 F3d at 681 (“Attachment A to the search 

warrant and affidavit described the place to be searched as ‘[t]he 

residence at 510 Palace Court, Schaumburg, Illinois. . . .’ The 

affidavit referred four times to Hunter’s residence; it made no 

reference to any other place connected to Hunter. Although Hunter 

23 Ledbetter does not argue that the warrant was not supported by 

probable cause because it cannot be determined which of the three target 

numbers belonged to him; he argues only that the warrant did not tie him to 

any of the target numbers. We note, however, that given the way the 

information was presented—with Ledbetter coming first in the earlier two sets 

of bullet points—the magistrate could have reasonably inferred that the first 

phone number in the final list belonged to him. 
41

correctly notes that the affidavit did not explicitly state that 510 

Palace Court was his residence, that is the only logical conclusion 

supported by a common-sense reading of the affidavit.”).

Therefore, “the magistrate, making a practical and commonsense decision, was entitled to infer that there was a ‘fair 

probability’” that one of the target phone numbers belonged to 

Ledbetter and that evidence of the alleged murder would be found 

in the phone number’s records. Taylor, 303 Ga. at 61. Of course, 

Ledbetter’s argument on this point would have been more easily 

resolved if the drafter of the warrant had taken the small, but 

important, extra step of expressly linking the three listed people 

with the three listed phone numbers.24 But given all of the 

24 We encourage law enforcement to provide such information on the face 

of the warrant application or affidavit to alleviate any doubt that those aspects 

of the warrant comply with the United States Constitution and applicable 

Georgia law. And we emphasize that this case should not be read as a holding 

that an inference connecting a target phone number with a name listed in a 

warrant will always be possible or will always support probable cause, 

particularly when a warrant references multiple phone numbers and multiple 

people. See Taylor, 303 Ga. at 60 (declining to adopt the “broad rule” that when 

an affidavit describes one place connected to a suspect and lists a specific 

address to be searched, a connection between the address and the suspect will 
42

circumstances, and especially in light of the “substantial deference” 

we owe the magistrate’s determination of probable cause, we 

conclude that “the magistrate had a substantial basis for concluding 

that probable cause existed to issue the search warrant.” Perez, 316 

Ga. at 440.25

always be inferred as “the only logical conclusion supported by a common-sense 

reading of the affidavit”) (citation and punctuation omitted). 

25 The specially concurring opinion argues that this Court should forgo 

considering whether this warrant was supported by probable cause, overrule 

Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992), and apply a good-faith 

exception to affirm the trial court’s denial of Ledbetter’s motion to suppress the 

cell phone records. We disagree. The specially concurring opinion contends 

that we did something similar in Woodard v. State, 296 Ga. 803 (771 SE2d 362) 

(2015), where we overruled Heard v. State, 261 Ga. 262 (402 SE2d 438) (1991), 

thereby clarifying that trial counsel’s performance was not deficient, rather 

than attempting to distinguish Heard or resolve the ineffective-assistance-ofcounsel claim on the prejudice prong. See Woodard, 296 Ga. at 810, 814 (3) (b) 

& n.5. But Woodard explained that, under the circumstances of the case, it 

was “particularly appropriate” for us to “address whether there was error 

under Heard, which involve[d] deciding whether Heard [was] good law.” Id. at 

810 (3) (b) n.5. This was because, as we explained, it would have been a stretch 

“to distinguish th[e] case from Heard,” and whether the appellant suffered 

prejudice from the alleged deficient performance was a “very close” call. Id. at 

810, 814 (3) (b) & n.5. Here, by contrast, we can readily resolve the case by 

applying existing precedent. And because the application of this existing 

precedent clearly shows that the warrants in this case were supported by 

probable cause, Ledbetter’s challenges to the warrants fail, and we need not

consider whether to overrule Gary to make a good-faith exception available for 

warrants that are not supported by probable cause. 
43

(ii) Ledbetter next argues that the warrant is invalid under 

OCGA § 16-11-66.1 (c), which allows the “state-wide application or 

application as provided by the laws of the United States” of search 

warrants for production of certain communications and records 

“when issued by a judge with jurisdiction over the criminal offense 

under investigation and to which such records relate.” Ledbetter 

points out that this search warrant was signed by a magistrate 

judge, the alleged offense is murder, and magistrate judges do not 

have jurisdiction over murder trials. Ledbetter did not, however, 

raise this argument in his motion to suppress, and instead raises it 

for the first time in this pretrial appeal. Because it was not raised 

before the trial court, it was not ruled on in the trial court’s order 

denying Ledbetter’s motion to suppress that is the subject of this 

appeal. We decline to decide this issue in the first instance. See 

Middleton v. State, 316 Ga. 808, 810 n.3 (890 SE2d 713) (2023) 

(declining to consider an argument that was “never raised in 

proceedings below” and was raised for the first time in a pretrial 

appeal of a motion to suppress). 
44

(b) February 2020 Search Warrant Related to Stinchcomb’s 

Murder26

The February 2020 search warrant sought subscriber 

information, call detail logs, cell tower locations, and other 

information for the phone number 504-402-6292 (the only nonemergency phone number mentioned in the warrant) from February 

1 through February 28, 2015, to search for evidence related to felony 

murder and attempt to sell marijuana. The warrant requested

information “within the custody and control of Verizon Wireless at 

26 The State argues that Ledbetter has not preserved for our review any 

of his challenges to the February 2020 search warrant because he did not raise 

them in a “written motion” in the trial court. See OCGA § 17-5-30 (b) (requiring 

motions to suppress illegally seized evidence to “be in writing and state facts 

showing that the search and seizure were unlawful”). However, Ledbetter did 

raise these challenges in writing. Although they were filed in what was titled 

a “post-hearing brief,” rather than an express amendment to his motion to 

suppress, the State raised no objection in the trial court to Ledbetter’s 

apparent use of this brief to amend his motion, and although the trial court did 

not expressly address each challenge in its order denying Ledbetter’s motion 

to suppress, it clearly ruled that the February 2020 warrant was supported by 

probable cause and thus (at least implicitly) addressed Ledbetter’s challenges 

to that warrant. See Cowart v. State, 294 Ga. 333, 338 (751 SE2d 399) (2013) 

(explaining that “[a] brief normally does not amend a motion for new trial to 

add new grounds,” but the trial court may “in its discretion” allow the motion 

to be amended “by treating an enumeration of error raised only in the brief as 

if it had been raised in the motion”). In any event, we need not decide this 

question definitively, because these challenges all fail for the reasons discussed 

below. 
45

180 Washington Valley Road, Bedminster, NJ 07291,” for the target 

phone number, which was described as a “Sprint wireless telephone 

number(s).” The warrant, signed by a Fulton County superior court

judge,27 said that an affidavit was “made before me by Investigator 

Bernice Higgins, an officer charged with the duty of enforcing the 

Criminal Laws.” The affidavit was completed under oath by 

Investigator Higgins and was based on information she received 

“from reports provided by the Atlanta Police Department.” 

In the affidavit, Investigator Higgins averred the following. 

Stinchcomb was shot in Atlanta on February 13, 2015. After 

Stinchcomb was shot, “law enforcement officers received 

information” that Ledbetter and Jayvias Lott were involved in a 

drug deal. Ledbetter explained that a man to whom he normally 

sells marijuana “connected him to a new buyer named ‘Scotty.’” 

Ledbetter further “explained that ‘Scotty’ and LEDBETTER began 

27 In the legal analysis that follows, we will refer to the judge who signed 

the warrant as a “magistrate,” both because much of our law uses that term 

when discussing the issuance of warrants, and to distinguish the judge who 

signed the warrant from the judge who denied Ledbetter’s motion to suppress.
46

exchanging phone calls” and eventually set up a meeting for the sale 

of marijuana. During this drug transaction, Stinchcomb attempted 

to rob the men, and Lott shot Stinchcomb. The next paragraph 

further explained: 

Over the course of the investigation, specifically 

when speaking with JOHN LEDBETTER, it was 

determined that LEDBETTER communicated with 

JAYVIAS LOTT, AKA “Scotty,” before and after the 

homicide via cellphone. Furthermore, it was through this 

communication that LEDBETTER and the two potential 

purchasers facilitated this attempted purchase of 

multiple pounds of marijuana.

The evidence we expect to obtain from the cell phone 

dump includes but not limited to: corroborate JOHN 

LEDBETTER’S version of events, and to identify other 

dates and times JOHN LEDBETTER would have been in 

communication with other involved parties.

(i) Similar to his complaint about the February 2016 search 

warrant related to Miller’s shooting, Ledbetter argues that this 

search warrant was not supported by probable cause because it 

failed to connect the target phone number to the alleged crimes or 

Ledbetter. Thus, we again consider whether, “given all the 

circumstances set forth in the affidavit,” the magistrate had a 

“substantial basis” for concluding that there was a fair probability 
47

that evidence of the murder would be found in the records of this 

phone number. Perez, 316 Ga. at 440.

Information in the affidavit and application provided the 

magistrate a substantial basis for concluding that Ledbetter’s phone 

contained evidence of the charged crimes. According to the affidavit,

Ledbetter said that he and Lott “began exchanging phone calls” and 

eventually set up a drug transaction. At this meeting, Stinchcomb 

attempted to rob the men, and Lott shot Stinchcomb in the head. 

This information supports the common-sense inference that 

evidence related to the attempted drug sale and shooting could be 

located on Ledbetter’s phone. See Eggerson, 999 F3d at 1127. 

Although the February 2020 warrant does not expressly state 

that the target number was Ledbetter’s phone number, there was 

sufficient information in the affidavit to allow the magistrate to infer 

that the number belonged to Ledbetter. Specifically, the application 

first listed the target phone number (the only non-emergency phone 

number mentioned). Then the affidavit said that Ledbetter 

“explained that [Lott] and LEDBETTER began exchanging phone 
48

calls” and set up the meeting where the shooting then took place, 

showing that law enforcement was interested in Ledbetter’s phone 

use and had an opportunity to learn Ledbetter’s phone number when 

talking to Ledbetter about his phone calls. The next paragraph then 

referenced this information provided by Ledbetter in summarizing 

what law enforcement learned from speaking with Ledbetter (that 

Ledbetter talked to Lott “before and after the homicide via 

cellphone” and set up the drug deal) before explaining what law 

enforcement “expected[ed] to obtain from the cell phone dump.” The 

anticipated information was information one would expect to find on 

Ledbetter’s phone, including information that could “corroborate 

JOHN LEDBETTER’S version of the evidence” and “identify other 

dates and times JOHN LEDBETTER would have been in 

communication with other involved parties.” 

That the affidavit explained that Ledbetter described to law 

enforcement his cell phone use around the time of the shooting and 

then said that law enforcement expected that “the cell phone dump” 

requested would corroborate Ledbetter’s story and reveal 
49

Ledbetter’s additional contacts further supports the reasonable 

inference that the target number belonged to Ledbetter. See Taylor, 

303 Ga. at 61 (“[W]hen the attachment says that evidence of the 

alleged crimes may be found at “said location,” which was 

particularly described as 1751 Bergen Court, and describes Taylor’s 

house as the crime scene, we think that the magistrate could have 

reasonably inferred the “crime scene” was 1751 Bergen Court.”); 

Hunter, 86 F3d at 681.

Thus, in light of all of the information provided to the 

magistrate, and again keeping in mind the substantial deference we 

owe to the magistrate’s determination, we conclude that “the 

magistrate, making a practical and common-sense decision, was 

entitled to infer that there was a ‘fair probability’” that the target 

phone number belonged to Ledbetter and that evidence of the 

alleged murder would be found in the number’s phone records. 

Taylor, 303 Ga. at 61. 

(ii) Ledbetter next argues that the warrant and affidavit failed 

to establish probable cause because the target number is identified 
50

as a “Sprint Wireless Telephone Number” but the records to be 

searched are alleged to be “located within the control of Verizon 

Wireless.” However, this mismatch of cell phone providers is an 

example of a “technical irregularity,” and “[n]o search warrant shall 

be quashed or evidence suppressed because of a technical 

irregularity not affecting the substantial rights of the accused.” 

OCGA § 17-5-31. See also Dent v. State, 303 Ga. 110, 117 (810 SE2d 

527) (2018) (“Mere typographical or clerical errors do not ordinarily 

provide a basis to suppress evidence.”). 

Here, the phone number sought to be searched was clearly 

provided, and whether it was a number serviced by Sprint or Verizon 

did not affect Ledbetter’s rights. See Carson v. State, 314 Ga. App. 

515, 516 (724 SE2d 821) (2012) (concluding that the affidavit’s 

identification of “another individual as the suspected shooter in a 

paragraph summarizing the officer’s findings” did not “destroy the 

integrity of the affidavit or the validity of the warrant” where Carson 

was correctly identified as the suspected shooter in the remainder of 

the six-page affidavit). Thus, Ledbetter’s argument fails.
51

(iii) Ledbetter further argues that the affidavit is faulty 

because the “entire substance” of the affidavit is hearsay. However, 

hearsay may be used in affidavits in support of search warrants. See 

OCGA § 24-1-2 (c) (5) (explaining that generally “[t]he rules of 

evidence, except those with respect to privileges” do not apply in 

“[p]roceedings for the issuance of . . . search warrants”). It is the 

duty of the magistrate in determining if the warrant is supported by 

probable cause to consider “the veracity and basis of knowledge of 

persons supplying hearsay information.” Britton, 316 Ga. at 286 

(citation and punctuation omitted). See also Lewis v. State, 255 Ga. 

101, 105 (335 SE2d 560) (1985) (“The rule in Georgia has been that 

an affidavit supporting a search warrant may be based on hearsay 

information as long as there is a substantial basis for crediting the 

hearsay.”). Magistrates may generally presume that “local law 

enforcement officials participating in common investigation are 

reliable informants and their information may be relied on to 

establish probable cause for the issuance of search warrants.” 

Pollard v. State, 236 Ga. 587, 589 (224 SE2d 420) (1976). See also 
52

Britton, 316 Ga. at 294 (“[W]hen Detective Jackson’s Affidavit 

includes information obtained from another officer working on the 

investigation, the magistrate was entitled to consider such hearsay 

evidence.”).

In this case, the affiant explained that she received the 

information in the affidavit “from reports provided by the Atlanta 

Police Department.” Ledbetter offers no compelling reason for the 

magistrate to doubt the reliability of the officer who completed the 

affidavit or the police reports on which she relied, and his argument 

fails.28

(iv) Finally, Ledbetter argues that the affidavit does not 

establish that the affiant, identified as “Investigator Bernice 

Higgins, an officer charged with the duty of enforcing the Criminal 

Laws,” satisfies OCGA § 17-5-20 (a), which says:

28 Ledbetter also argues in passing that because the affidavit does not 

indicate the dates of the reports relied on by the affiant, there is a risk of 

“staleness.” However, Ledbetter offers no reason to believe that the phone 

records sought would no longer contain evidence related to the charged crimes. 

See Rawls v. State, 310 Ga. 209, 222 (850 SE2d 90) (2020) (“Staleness as [it] 

relates to probable cause is measured by the probability that the thing to be 

seized is located at the place to be searched.”) (citation and punctuation 

omitted). 
53

A search warrant may be issued only upon the application 

of an officer of this state or its political subdivisions 

charged with the duty of enforcing the criminal laws or a 

currently certified peace officer engaged in the course of 

official duty, whether said officer is employed by a law 

enforcement unit of:

(1) The state or a political subdivision of the state; or

(2) A university, college, or school.

Although the affidavit clearly identifies Investigator Higgins as “an 

officer charged with the duty of enforcing the Criminal Law,” 

Ledbetter argues that the warrant was required to identify her as 

an “officer of this state.” However, there was no reason for the 

magistrate to believe that Investigator Higgins, who swore out this 

affidavit “before” this magistrate in this state about a shooting that 

happened in this state, was not an officer of this state. Ledbetter’s 

“hypertechnical argument” in this regard fails. See Perez, 316 Ga. 

at 440 (“The test for probable cause is not a hypertechnical one to be 

employed by legal technicians, but is based on the factual and 

practical considerations of everyday life.”) (citation and punctation 

omitted). 
54

Because none of Ledbetter’s challenges to the February 2016 

or February 2020 search warrants have merit, we affirm the trial 

court’s denial of his motion to suppress.

Case No. S23A0900 and Case No. S23X0901 affirmed. All the 

Justices concur, except Boggs, C.J., Peterson, P.J., and LaGrua, J., 

who concur specially in Divisions (2) (a) (i) and (2) (b) (i).
55

BETHEL, Justice, concurring.

Because I believe it represents a faithful application of the law, 

I join the majority opinion in full. I write separately to note my 

agreement with the concerns raised in Presiding Justice Peterson’s 

special concurrence regarding the confused state of our decisional 

law brought on by our decision in Gary v. State, 262 Ga. 573 (422 

SE2d 426) (1992). Like the Presiding Justice, I recognize Gary’s

imperiled and untenable position in our law. While the majority 

opinion demonstrates that we need not overrule Gary to decide the 

case at hand, the “mess” the Presiding Justice describes is due to be 

cleaned up.

I am authorized to state that Justice Warren, Justice 

McMillian, and Justice Pinson join in this concurrence.
56

 PETERSON, Presiding Justice, concurring specially.

Over 30 years ago, this Court invented a new version of the 

exclusionary rule — a version that excluded more evidence than the 

federal version. See Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992) 

(holding that OCGA § 17-5-30 created a Georgia statutory 

exclusionary rule that did not contain the good faith exception to the 

federal exclusionary rule recognized in United States v. Leon, 468 

U.S. 897 (104 SCt 3405, 82 LE2d 677) (1984)). Several years ago, we 

emphatically determined that Gary was wrongly decided. See 

Mobley v. State, 307 Ga. 59, 72-75 (4) (a) (834 SE2d 785) (2019). But 

we could not overrule Gary’s holding prohibiting Georgia courts from 

applying Leon, however, because Mobley did not involve a claim to 

which Leon could apply. See id. at 76 (4) (a) n.21.

Now, after more than three decades of Georgia courts excluding 

evidence due only to our misbegotten invention in Gary, such a case 

squarely presents itself. But instead of finishing the job we started 

in Mobley (and have taken further in other contexts since then), the 

majority chooses to leave Gary’s holding — now admittedly wrong 
57

and based on reasoning no longer followed in any other respect —

binding on all Georgia courts. I cannot and do not agree with that 

decision, and so I do not join Divisions (2) (a) (i) and (2) (b) (i). But 

because I would overrule whatever vestiges of Gary still remain and 

apply Leon’s good faith exception, I concur in the judgment of those 

divisions. I join the remainder of the decision of the Court in full.

The officers who searched the defendant’s phone did so in good 

faith reliance on the search warrant. Under federal law, this renders 

the exclusionary rule inapplicable even if the warrant was not 

supported by probable cause. See Leon, 468 U.S. at 919-920 (III) (B). 

But we held over 30 years ago that OCGA § 17-5-30 requires 

exclusion of all evidence seized with a warrant unsupported by 

probable cause, regardless of whether a federal good faith exception 

might have applied. See Gary, 262 Ga. at 574-575. Subsection (a) of 

that statute provides as follows:

A defendant aggrieved by an unlawful search and 

seizure may move the court for the return of property, the 

possession of which is not otherwise unlawful, and to 

suppress as evidence anything so obtained on the grounds 

that:
58

(1) The search and seizure without a warrant was 

illegal; or

(2) The search and seizure with a warrant was 

illegal because the warrant is insufficient on its face, 

there was not probable cause for the issuance of the 

warrant, or the warrant was illegally executed.

OCGA § 17-5-30 (a). And subsection (b) provides in relevant part 

that “[i]f the motion is granted the property shall be restored, unless 

otherwise subject to lawful detention, and it shall not be admissible 

in evidence against the movant in any trial.”

In Gary, this Court interpreted OCGA § 17-5-30 as an 

“unequivocal expression of [the Legislature’s] desire that evidence 

seized by means of a warrant that is not supported by probable cause 

be suppressed.” Gary, 262 Ga. at 575. This interpretation rejected 

the possibility of exceptions to the exclusionary rule and, in doing 

so, rejected the good faith exception, which would otherwise permit 

the introduction of evidence that officers obtained by acting in 

reasonable reliance on a warrant issued by a neutral and detached 

magistrate but that ultimately lacked probable cause. See id. at 574.
59

This reasoning, of course, did not turn on anything specific to 

warrants lacking probable cause. The structure of the statute 

applies the statute’s provisions equally to each of the four 

enumerated ways in which a search and seizure may have been 

unlawful: (1) it was done illegally without a warrant, (2) it was done 

illegally with a warrant because the warrant was insufficient on its 

face, (3) it was done illegally with a warrant because the warrant 

was unsupported by probable cause, and (4) it was done illegally 

with a warrant because the warrant was illegally executed. See 

OCGA § 17-5-30 (a). Under Gary’s reasoning, if any of these four 

enumerated bases of unlawfulness is present, the evidence must be 

excluded.

Twenty-seven years later, we repudiated Gary’s interpretation 

of the statute. In Mobley, we “disavow[ed] the unsound reasoning of 

Gary,” limited its application only to the Leon good faith exception 

at issue there, and concluded that OCGA § 17-5-30 meant “what it 

most naturally and reasonably is understood in context to mean —

it establishes a procedure for applying the exclusionary rule but does 
60

not itself require the suppression of any evidence.” 307 Ga. at 75 (4) 

(a). But we could not reach the question of overruling the Leon

holding, because the facts of Mobley would not warrant application 

of Leon, and so we concluded that overruling that holding was “a 

question that [would] have to await a case involving the reliance of 

an officer in good faith on the validity of a search warrant.” Id. at 76 

(4) (a) n.21.

Though much of Mobley on this point may have been dicta, we 

have since applied its rationale as a holding to admit evidence more 

times than we have ever applied Gary to suppress evidence. See 

Outlaw v. State, 311 Ga. 396, 400 (2) (b) n.4 (858 SE2d 63) (2021) 

(applying Mobley to hold that Gary did not foreclose the application 

of two other kinds of good faith exception when evidence was 

illegally seized without a warrant and to affirm the trial court’s 

denial of a motion to suppress evidence); Lofton v. State, 310 Ga. 

770, 782-784 (2) nn.17-18 (854 SE2d 690) (2021) (same), disapproved 

in part on other grounds by Outlaw, 311 Ga. at 401 (2) (b) n.5; 

Swinson v. State, 311 Ga. 48, 54-55 (2) (a) (855 SE2d 629) (2021) 
61

(applying Lofton to affirm the trial court’s denial of a motion to 

suppress evidence), disapproved in part on other grounds by Outlaw, 

311 Ga. at 401 (2) (b) n.5; Gialenios v. State, 310 Ga. 869, 876-877 

(2) (855 SE2d 559) (2021) (same), disapproved in part on other 

grounds by Outlaw, 311 Ga. at 401 (2) (b) n.5.

We also noted in Mobley that even before Mobley’s repudiation 

of Gary’s reasoning, both this Court and the Court of Appeals had 

regularly applied other exceptions to the exclusionary rule without 

any consideration of Gary or OCGA § 17-5-30. See Mobley, 307 Ga. 

at 74 (4) (a) (citing Teal v. State, 282 Ga. 319, 325 (2) (647 SE2d 15) 

(2007) (inevitable discovery exception); Taylor v. State, 274 Ga. 269, 

274-275 (3) (553 SE2d 598) (2001) (inevitable discovery exception), 

disapproved in part on other grounds by State v. Chulpayev, 296 Ga. 

764, 783 (3) (b) (770 SE2d 808) (2015); Stephens v. State, 346 Ga. 

App. 686, 691-693 (2) (816 SE2d 748) (2018) (independent source 

exception); Pinkney v. State, 332 Ga. App. 727, 731 (2) (774 SE2d 

770) (2015) (independent source exception); Ansley v. State, 325 Ga. 

App. 226, 231 (1) (b) (750 SE2d 484) (2013) (independent source 
62

exception); Schweitzer v. State, 319 Ga. App. 837, 840 (738 SE2d 

669) (2013) (inevitable discovery exception); Williams v. State, 308 

Ga. App. 464, 468 (2) (708 SE2d 32) (2011) (inevitable discovery 

exception); Cunningham v. State, 284 Ga. App. 739, 742 (644 SE2d 

878) (2007) (inevitable discovery exception)).

In other words, the current state of Georgia law is that the 

statutory text “[a] defendant aggrieved by an unlawful search and 

seizure may move the court . . . to suppress as evidence anything so 

obtained” and “[i]f the motion is granted the . . . [evidence] shall not 

be admissible in evidence against the movant in any trial” somehow 

singles out the Leon good faith exception to the exclusionary rule —

alone among all the other exceptions — as uniquely inapplicable in 

Georgia courts. There is no rational way to read those words to mean 

something so strange.

And unless we take the one final step that Mobley could not, 

that bizarre result will remain binding on all other Georgia courts. 

Whatever force stare decisis might have had before we started 

disassembling Gary, it has vanishingly little now. And while I have 
63

often urged this Court to adhere to prior holdings as a matter of that 

doctrine, the time for that on this issue has come and gone.29

In short: (1) there is no support in the text of OCGA § 17-5-30 

for the idea that the statute permits some exceptions to the 

exclusionary rule but excludes others; (2) the current state of the 

law is a mess of our own making, and we should clean it up; and (3) 

until we do, trial courts will be compelled to exclude evidence that 

federal law would admit, and the Court of Appeals will be compelled 

to affirm that exclusion. And in the face of all of this, the majority 

29 The fact that whether the trial court erred in denying the motion to 

suppress can be resolved without addressing the Gary issue does not hinder us 

from taking that final step here. Indeed, we did the same thing in Woodard v. 

State, 296 Ga. 803 (771 SE2d 362) (2015), where the case could “be resolved 

without reaching [the] issue” of whether Heard v. State, 261 Ga. 262 (402 SE2d 

438) (1991) was “good law[.]” Woodard, 296 Ga. at 815 (1) (Benham, J., 

concurring specially). Today’s majority overlooks the fact that the Woodard

majority had options: (1) it could attempt to resolve the ineffective assistance 

of counsel claim on the “very close” question of whether the defendant was 

prejudiced by any deficient performance, id. at 810 (3) (b) & n.5; (2) it “could 

endeavor to distinguish [that] case from Heard[,]” id. at 814 (3) (b); or (3) it 

could “reconsider and overrule Heard[,]” id. at 811 (3) (b). And yet the Woodard

majority held that “[t]he better course [was] simply to overrule Heard [then], 

before it [became] any more entrenched” and overruled Heard. Id. at 814 (3) 

(b). The use of “the better course” itself implies the existence of multiple 

courses the Court could have taken. Further, similar to the special concurrence 

in Woodard, the majority makes no attempt to justify keeping in place the mess 

that we created in Gary. 
64

offers no explanation whatsoever for its decision to require all other 

Georgia courts to continue applying Gary. I would overrule whatever 

traces remain of Gary and affirm the trial court’s denial of his 

motion to suppress under the Leon good faith exception to the 

exclusionary rule.

I am authorized to state that Chief Justice Boggs and Justice 

LaGrua join in this concurrence.