Submitted: May 29, 2015
Lindsay Taylor, Esquire, Department of Justice, for the State.
Adam D. Windett, Esquire of Hopkins & Windett, LLC, Dover, Delaware, attorneys for the Defendant.
Before the Court is Michael Lambert's ("Defendant's") Motion to Suppress all evidence seized during the execution of a search warrant at his residence on October 7, 2014. The Defendant alleges the police search of the residence was premature. Specifically, the Defendant contends that the police searched his residence before a warrant was issued by a Justice of the Peace based upon certain time stamps on the documents. Accordingly, the Defendant argues that evidence discovered pursuant to that search should be excluded because it was obtained in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 6 of the Constitution of the State of Delaware. A suppression hearing was held on May 20, 2015 regarding these issues. In Defendant's supplemental submission after the hearing, the Defendant also contended that the application for the warrant did not meet the requirements of 11 Del. C. § 2306, thereby making the warrant statutorily insufficient. For the following reasons, the Defendant's motion is DENIED.
II. FINDINGS OF FACT
On October 6, 2014, Detective Golace of the Anne Arundel County Police Department (MD) contacted Sergeant Lance Skinner ("Sergeant Skinner") of the Delaware State Police in reference to a drug related shooting and robbery in Maryland. Detective Golace advised Sergeant Skinner that during the previous day, a drug dealer was robbed at gun point in that jurisdiction by an unknown black male and white female. During the course of the robbery, the victim was shot. Detective Golace informed Sergeant Skinner that the male suspect, while fleeing the scene of the robbery, robbed a woman at gun point stealing her blue 2004 Volvo four door S80 with Maryland registration. The shooting victim did not know the gunman's name but believed he lived in Delaware and provided the police with the gunman's description and contact number, all of which were relayed by Detective Golace to Sergeant Skinner.
Sergeant Skinner forwarded the telephone number to members of the Delaware State Police who ran a DELJIS inquiry linking the number to a woman by the name of Angelica Harris with a listed address of 1022 School Street, Houston, Delaware. The investigation also revealed that the address was listed as a residence by the Defendant. At that point, the Delaware State Police sent a photograph of the Defendant to the officers in Maryland who confirmed the picture appeared to match the description provided by both victims.
The following day, on October 7, 2014 at approximately 7:30 a.m., Sergeant Skinner drove past the address in question and observed a blue Volvo with Maryland registration that matched the one reported stolen. While the vehicle's plate was partially obscured from the roadway, officer Skinner could observe the first three characters of the registration, which matched the first three characters from the stolen vehicle. At that point, Sergeant Skinner alerted relevant members of the Delaware State Police, including Detective Sean O'Leary ("Detective O'Leary") who mobilized a Special Operations Response Team ("SORT"). Sergeant Skinner also contacted Detective Jason Vernon ("Detective Vernon") at Delaware State Police Troop 3 and instructed him to submit a search warrant application and affidavit based on the aforementioned information. In the meantime, Sergeant Skinner continued to monitor the property as other surveillance units arrived and members of the SORT team staged at the nearby Milford Police Department.
According to Detective Vernon, a search warrant application and an affidavit were completed and faxed to the Justice of the Peace Court No. 2 sometime between 10 a.m. and 10:10 a.m. At the suppression hearing, Detective Vernon explained his warrant application practice, as a matter of course, and testified that he followed this process in the instant case. He testified that his practice, in relevant order, included (1) typing the affidavit and application, and the probable cause affidavit, and then (2) faxing it to Justice of the Peace Court No. 2. Thereafter, by video phone he (3) swears to the warrant, and then the Judge (4) approves the warrant and returns it to Detective Vernon by fax, who (5) then signs the application, and then refaxes it to the Judge.
Shortly after Detective Vernon's original fax and before he appeared by video before the Judge, a male occupant exited the residence. Surveillance teams then observed the man reenter the building before exiting a second time with a black bag. The Police then took the individual into custody. The apprehended individual informed the officers that the Defendant was inside the residence. By that time, an armored SORT van had pulled into the driveway. A loudspeaker was used to order the remaining occupants out of the residence. A short time later, the Defendant and an adult and minor female exited through the front door and were detained by the police.
At that point, the initial search warrant had yet to issue. Detective Vernon then drafted a second warrant application and affidavit seeking to search the residence for additional items based upon the new information supplied by the occupant with the black bag. According to his testimony, the second warrant application and affidavit were faxed to the Justice of the Peace Court shortly after 10:20 a.m. At that point, the officers remained in place, awaiting permission to search the residence pending the results of the search warrant applications. The Judge at Justice of Peace Court No. 2 next reviewed both warrant applications and Detective Vernon appeared via video conference to swear to them. Thereafter, Detective Vernon testified that the Judge said both warrants were approved and the officers were free to execute the search. Detective Vernon then immediately contacted officers at the scene by phone and the search of the residence began. The search occurred at either 10:39 or 10:40a.m. It uncovered a loaded firearm and the keys to the stolen Volvo parked to the rear of the residence. At some point very shortly after the search commenced, Detective Vernon then signed the application and faxed the now complete application package back to the Justice of the Peace Court No. 2.
The warrants at issue in this case have a variety of different time stamps. The only consistent time stamp, found at the bottom of each page of both warrants, has fax markings of 10:50a.m. The first warrant has time stamps from a fax machine across the top of the pages with times of 10:08a.m., 10:09a.m., 10:24a.m. and 10:31a.m. The warrant also has an official Court time stamp on the first two pages of 10:46a.m. The second warrant was clocked in at Justice of the Peace Court No. 2 at 10:45a.m. No testimony was provided indicating at what point in the application/issuance process Justice of the Peace Court No. 2 ...