A video recording, with no discernable audio, of a confidential informant purchasing suspected methamphetamine from appellant David Lee Gilmore does not contain testimonial statements that would be barred by the Confrontation Clause of the Sixth Amendment to the United States Constitution, the Supreme Court ruled today.

In July 2018, law enforcement officers with the Rome Metro Task Force suspected that Gilmore was a drug dealer and arranged for a confidential informant, also known as a CI, to conduct a controlled buy of methamphetamine from him. The officers attached a video camera to the CI’s key ring, gave him a $20 bill, and sent him to Gilmore’s house to purchase the drugs. The video recording from the CI shows Gilmore handing the CI a small bag of suspected methamphetamine and then Gilmore holding a $20 bill. Because the audio quality was so poor, the Supreme Court—like the other courts that reviewed the case—presumed that no audible statements could be heard on the video recording.

Gilmore was charged nine months later with one count each of selling, possession, and possession with intent to distribute methamphetamine. The day before Gilmore’s indictment, the CI, who was in jail, died by suicide.

Prior to Gilmore’s trial, the State, represented by the Floyd County District Attorney’s Office, filed two motions to admit the video recording as evidence.

Gilmore’s attorneys opposed the motions, contending that the CI’s movements and actions captured in the video were testimonial statements and that admitting the video into evidence would deny Gilmore his right to cross-examine the CI as provided by the Confrontation Clause of the Sixth Amendment to the United States Constitution. The trial court denied the State’s motion to admit the video, ruling in favor of Gilmore. The State appealed, and the Court of Appeals affirmed the denial of the State’s motions to admit the video. The Supreme Court granted the State’s petition for certiorari to review the Court of Appeal’s decision.

Georgia’s Rules of Evidence, which the Court looked to in deciding whether the CI’s conduct was a statement, provides that nonverbal conduct is a statement if it is intended as an assertion. In today’s unanimous opinion, the Supreme Court noted that previous cases before it and other courts have deemed nonverbal communication, such as an eyewitness pointing to a suspect in a lineup, as statements.

“On the other hand, this Court and others have concluded that nonverbal conduct does not constitute a statement when it is not intended to be an assertion,” Justice Sarah Hawkins Warren writes in today’s opinion. “Here, Gilmore contends that the CI’s nonverbal conduct in
the video recording constituted a statement because the CI intended to ‘prove [that] Gilmore sold drugs.’ But we are not convinced.”

Unlike a witness pointing to a suspect in a police lineup or a person nodding her head in response to a specific question—examples of nonverbal conduct intended to constitute assertions—the Court concluded that, under the circumstances presented in this case, a person
handing money to another person and taking possession of a physical object in return was not intended to be an assertion.

“We simply cannot conclude on this record—as Gilmore implicitly asks us to—that the CI intended to assert through his conduct something along the lines of ‘You are a drug dealer’ or ‘We are entering into a sale of illegal drugs’ when he handed a $20 bill to Gilmore and received
drugs in exchange,” the opinion states.

And because the CI’s nonverbal conduct in the video did not constitute a statement— even by implication—it could not constitute a testimonial statement barred by the Confrontation Clause, the Court determined.