[46 Del. 583] David B. Coxe, Jr., Wilmington, for petitioner.
Januar D. Bove, Jr., Louis J. Finger, Wilmington, for respondent.
The arrest and seizure here under consideration were made pursuant to Vol. 48, Del.Laws, Chapt. 303, Sec. 64 which provides:
'5343-CC. Sec. 64. Search Without Warrant; Lawful When Incident to an Arrest. A search of a house or other place may be made without a warrant if:
'(a) The search is made incidental to a lawful arrest; and
'(b) The search is made contemporaneously with the arrest; and
'(c) The arrest is made on the premises searched; and
'(d) The premises are under the control of the person arrested; and
'(e) The search is made in order to find and seize either (1) the fruits of the crime, or (2) the means by which the crime was committed, or (3) weapons and other things to effect an escape from custody; and
'(f) The search without a warrant is necessary to prevent the escape or removal of the person or thing to be searched for.'
[46 Del. 585] Petitioner contends that subsections A and F were violated in and about the seizure of the evidence here sought to be suppressed and, moreover, that the entire proceeding was invalid because the real purpose underlying this affair was not the arrest of Merlonghi, which was a pretext, but rather a general 'fishing' expedition for evidence.
I find as a fact that, (a) this search was incidental to a lawful arrest, (b) made contemporaneously therewith, (c) the arrest was made on the premises searched, (d) it was admitted for the purpose of this proceeding that the premises were under the control of Merlonghi and (e) the search was made to find and seize 'the means by which the (alleged) crime was committed.'
Whether or not the conditions of subsection F were violated requires some further consideration of the facts, the statute and applicable federal law. The information upon which the warrant for ...