Submitted: July 11, 2014
Upon Defendant Christopher Wheeler's Motion to Suppress DENIED
Abigail Layton, Deputy Attorney General and David Holloway, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorneys for the State of Delaware.
Thomas A. Foley, Esquire, Wilmington, Delaware, Attorney for Defendant.
Eric M. Davis, Judge
Defendant Christopher Wheeler has filed a motion to suppress (as amended and modified, the "Motion") evidence collected from his home and office during a search executed pursuant to two warrants. Police searched Mr. Wheeler's home and office and seized multiple electronic devices and digital media. During the subsequent review of one of Mr. Wheeler's computers, police found files that purport to contain child pornography. For the reasons set forth below, the Motion is denied.
On October 22, 2013, the Wilmington Police Department, working in concert with the State of Delaware, sought and obtained two search warrants from this Court. The first search warrant ("Warrant 1") was for Mr. Wheeler's residence located in Wilmington, DE and a 2011 Chevrolet Equinox owned by Mr. Wheeler. The second search warrant ("Warrant 2") was for Mr. Wheeler's office at the Tower Hill School and for the same vehicle. Except as to location to be searched, Warrant 1 and Warrant 2 (collectively, the "Warrants") are virtually identical.
The Warrants are each supported by an affidavit of probable cause. The two affidavits of probable cause are substantially similar, except that the affidavit of probable cause supporting Warrant 2 is longer and contains slightly more facts than Warrant 1. The affiants for the Warrants are Detective Cecilia Ashe and Chief Investigator Robert J. Irwin. Detective Ashe is a detective with the Wilmington Police Department, having served in that capacity since September 11, 2006. Chief Investigator Irwin is with the Delaware Department of Justice and is currently assigned to the Child Predator Task Force. Investigator Robert Schreiber of the Delaware Department of Justice is mentioned throughout the Affidavits. Investigator Schreiber is an investigator who provided information to Detective Ashe and Chief Investigator Irwin for the Affidavits.
The Warrants sought to gather evidence for the crimes of Tampering with a Witness, 11 Del. C. § 1263(3), and Act of Intimidation of a Witness, 11 Del. C. § 3532. The "items to be searched and seized" under the Warrants included: (a) safes, boxes, bags, compartments, storage areas; (b) any computer or digital storage device (desktops, laptops, notebooks, PDAs or tower style systems); (c) any cellular phone; and (d) any digital or optical data storage device connected to, or capable of being connected to, any computer or digital storage device. The Warrants also sought to collect, for forensic examination, any and all data stored by whatever means on those computers, digital storage devices, cellular phones and optical data storage devices seized under the Warrants.
The Affidavits state that Mr. A spoke with authorities in Delaware on October 14, 2013. During that discussion, Mr. A (age 43) stated that he was molested by Mr. Wheeler approximately 30 years ago, when Mr. Wheeler lived at Mr. A's residence in Pennsylvania. In light of the recent Jerry Sandusky/Penn State scandal, Mr. A decided to tell his two adult brothers, Mr. B (age 48) and Mr. C, what had happened to Mr. A when he was 12-13 years old. Upon telling his two brothers, Mr. B also disclosed that he had been molested by Mr. Wheeler when Mr. B was 13-15 years old. Mr. C told his brothers that he was never physically or sexually abused by Mr. Wheeler, but that Mr. Wheeler has engaged in inappropriate sexual conversations with Mr. C when Mr. C was a teenager.
The Affidavits provide that in July 2013, Mr. A sent a letter to Mr. Wheeler, confronting Mr. Wheeler about what had happened, writing "I shudder at the notion that you, in your career, have chosen an environment that brings you into daily contact with other boys who are as old as I was when you molested me." Mr. A provided a copy of this letter to the authorities in Delaware. The letter also provides that Mr. A "wants nothing to do with Chris Wheeler ever and wants him to stay away from him and his family." The Affidavits do not contain a full transcription of the letter.
The Affidavits further state that Mr. B sent a similar letter to Mr. Wheeler. A copy of this letter was provided to Delaware authorities. Mr. B did invite a response in his letter, asking "[w]hat does justice look like for the abuses you perpetuated and the harms you caused? What role (if any) should you play in determining appropriate resolution to and restitution for the abuses you have caused." Mr. Wheeler responded to Mr. B's letter on July 23, 2013. Mr. Wheeler's letter was in type written form. In his letter, Mr. Wheeler said "I will not compound your pain by attempting to deny or in any way deflect responsibility for my actions 35 years ago. I did those things. I am the one responsible. I'll wait to hear from you about further appropriate steps towards resolution and restitution." The Affidavits set out that the Delaware authorities were provided with a copy of Mr. Wheeler's July 23, 2013 letter and that Mr. B is in possession of the original signed letter. The full contents of Mr. B's letter and Mr. Wheeler's July 23, 2013 letter are not contained in the Warrants.
The Affidavits go on to provide that Mr. A told the Delaware authorities that Mr. C confronted Mr. Wheeler in a face-to-face meeting in Wilmington. At that meeting, Mr. Wheeler admitted to Mr. C that he had responded to Mr. B's letter and that Mr. Wheeler had not responded to Mr. A's letter because "to do so would have been contrary to Mr. A's wishes."
Investigator Schreiber interviewed Mr. C regarding his meeting with Mr. Wheeler. Mr. C stated that he communicated with Mr. Wheeler by telephone and e-mail. Mr. Wheeler used his Tower Hill e-mail address to coordinate his meeting with Mr. C in Wilmington. Mr. C said that he met with Mr. Wheeler at Mr. Wheeler's home in Wilmington on July 25, 2013. During that meeting, Mr. Wheeler acknowledged his inappropriate contact with Mr. B and Mr. A and appeared apologetic for his actions. Mr. Wheeler stated that he was going to meet with his son, Mr. D, to tell him about Mr. Wheeler's abuse of Mr. A and Mr. B. Mr. C told Investigator Schreiber that Mr. Wheeler conveyed to Mr. C that Mr. Wheeler had contemplated suicide.
According to the Affidavits, Investigator Schreiber interviewed the wife of Mr. A. Mr. A's wife related that in 2008, Mr. Wheeler and Mr. D were residing at the home of Mr. A's parents. Mr. D approached Mr. A's wife and began talking to her of men having anal sex with men. Mr. D also told her that he had run away from Mr. Wheeler multiple times and wanted to live with Mr. A's parents. Mr. A's wife stated that Mr. A's mother had similar discussions with Mr. D, but that when Mr. A's mother talked to Mr. Wheeler about this Mr. Wheeler advised her that Mr. D told these stories because Mr. D came from a prostitute mother and had a difficult background. Investigator Schreiber interviewed Mr. A's parents. Mr. A's mother provided that when Mr. D and a girlfriend were visiting three years ago, Mr. D complained that Mr. Wheeler had abused him.
The Affidavits state that, on October 8, 2013, a local police department in North Carolina responded to Mr. D's residence. The October 8, 2013 incident report indicates that the responding officers arrived to find Mr. Wheeler and Mr. D arguing in the driveway. Mr. D appeared angry and upset. The officers noticed an odor of alcohol coming from Mr. D. Mr. D's residence had several broken doors and window blinds and there was a smashed bottle on the floor. The police interviewed Mr. Wheeler who told police that Mr. D had been diagnosed with bipolar and manic depression and that Mr. D was despondent over breaking up with his girlfriend. Mr. D informed police that he had been drinking and wanted to sleep. Mr. D also provided that he was despondent over the recent breakup and had sent a text message to Mr. Wheeler, and had stated in the message that he was going to kill himself.
The Affidavits then provide that Investigator Schreiber contacted the local police department in North Carolina on October 22, 2013. The local police officer who responded on October 8, 2013 told Investigator Schreiber that while investigating the incident, Mr. D told him that Mr. Wheeler would penetrate his anus and that he never previously reported this to the authorities because Mr. Wheeler would pay him off. Mr. D stated that this conduct had occurred when Mr. D and Mr. Wheeler lived in Illinois.
The Affidavits conclude with broader statements regarding electronic evidence and written communications. The affiants state that, "from training and experience, " computers will retain information and documents and that this information can be retrieved through a computer forensic process. Moreover, e-mails and other electronically stored communications can be maintained on computer hard drives. The affiants claim that they have reason to believe that cellular phones may contain evidence as it is normal for a person to keep information on the cellular phones for purposes of reviewing text messages, reading and responding to e-mails or to access the internet. Finally, ...