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State v. White

Superior Court of Delaware

May 8, 2017

ABDUL T. WHITE, Defendant.

          Submitted: February 14, 2017

         In and For Kent County

          Jason Cohee, Esquire, and Lindsay Taylor, Esquire, DEPARTMENT OF JUSTICE, Dover, Delaware, for the State.

          Edward Gill, Esquire, LAW OFFICE OF EDWARD C. GILL P.A., and Alexander Funk, Esquire, CURLEY, DODGE & FUNK, LLC, Dover, Delaware, Attorneys for Defendant.


          Clark, J.

         I. Introduction

         On August 8, 2015, John Harmon (hereinafter "Mr. Harmon") was fatally shot in the head in Milford, Delaware. After a police investigation, the Milford Police Department (hereinafter the "police") suspected that Defendant Abdul White (hereinafter "Mr. White") was involved. The police sought and obtained several warrants including a search warrant for his DNA. The Philadelphia police located Mr. White while he was in Pennsylvania and detained him on a Fugitive of Justice charge. After his apprehension, Delaware police interrogated him in Philadelphia regarding the murder. After Pennsylvania extradited Mr. White to Delaware, the police again interviewed him in Milford. During the course of that interview, Mr. White made incriminating statements. Following Mr. White's discussion with the police, the police arrested him and charged him with Murder in the First Degree and several other offenses.

         Mr. White has filed several motions to suppress. First, regarding an issue of first impression in Delaware, he argues that the Court must suppress any DNA evidence in the case because the search warrant affidavit did not represent that DNA was actually recovered from the scene. Accordingly, he argues that there is not the nexus required to justify the seizure of his DNA.

         Second, Mr. White argues that the Court must suppress incriminating statements made during his Milford police interview for several reasons. These include his argument that the Milford police detective provided invalid Miranda[1]warnings to him both in Philadelphia and in Milford. Also, Mr. White argues that a twelve minute delay in providing the warnings occurred after the start of an interrogation, rendering the warnings invalid. Mr. White also argues that he formerly invoked his rights in writing by signing a non-waiver form in Philadelphia while represented by counsel on a Fugitive of Justice charge. He argues that the non-waiver form invoked his rights for his subsequent interrogation in Milford. Lastly, he requests the Court to suppress his incriminating statements in Milford because the police violated his Sixth Amendment right to counsel because he was represented in Philadelphia before his extradition to Delaware.

         The State opposes Mr. White's motion arguing that the warrant for Mr. White's DNA contained a sufficient nexus to establish probable cause that seizing a sample of his DNA would provide evidence of his involvement. The State also maintains that the police provided Mr. White with valid Miranda warnings prior to the interrogations and that he knowingly and voluntarily waived his rights. Finally, the State argues that Mr. White's Sixth Amendment right to counsel had not yet attached to the Murder First Degree charge, and therefore, the police did not violate this constitutional right by questioning him in Milford without counsel. After considering the respective positions of the parties, Mr. White's motions to suppress (1) DNA evidence on the basis of a defective warrant, and (2) his statements pursuant to Miranda and the Sixth Amendment right to counsel are DENIED.

         II. Facts

         All facts stated herein that are relevant to the motion to suppress DNA evidence are recited in the probable cause affidavit. Separately, all facts relevant to the motions to suppress Mr. White's statements are those facts found by the Court after the January 5, 2017 suppression hearing, and through documents supplementing that record.

         On August 8, 2015, the police were notified of a home invasion in Milford. Three intruders wearing dark clothes and dirt bike style masks entered a home located at 515 Walnut Street in Milford. The intruders ordered nine people in the house to lay on the floor in the living room and then held them at gunpoint. Another person was duct taped and also held at gunpoint in the living room. While two of the intruders held these people, one of the three intruders kept Mr. Harmon in his bedroom. The intruder duct taped Mr. Harmon to his wheelchair and then fatally shot him in the head. After arriving at the scene, the Milford police located an intruder's dirt bike mask in Mr. Harmon's bedroom. After processing the mask, the police found a latent fingerprint belonging to the left middle finger of Mr. White. Thereafter, a magistrate at the Justice of the Peace issued a search warrant for Mr. White's DNA.

         After securing the warrant, the police unsuccessfully attempted to locate Mr. White. The Philadelphia police arrested him in Philadelphia, Pennsylvania on September 23, 2015 on a Fugitive of Justice charge and later extradited him to Delaware. During his detention in Pennsylvania, however, the Milford police read Mr. White his Miranda rights and interviewed him. Later, at some point prior to his extradition to Delaware, the Philadelphia Public Defender's office had Mr. White execute a written assertion of his Miranda rights, apparently in reference to the Pennsylvania charge.

         Pennsylvania then extradited Mr. White to Delaware on December 2, 2015. While the police held Mr. White at the police station in Milford, Delaware, the same Milford detective spoke to him and asked if he wanted to continue a conversation he had with another police officer regarding separate charges. Without prompting, Mr. White then began talking about the home invasion and murder. At that point, the police interrupted Mr. White to again inform him of his Miranda rights. Mr. White then waived his rights and provided a six hour long incriminating statement to the police regarding the home invasion and murder. Following this interview, the police formerly charged Mr. White with various charges including Murder First Degree.

         III. Discussion

         Following Mr. White's arrest, his defense counsel filed several motions to suppress evidence. The first motion to suppress focuses on the DNA search warrant, and the balance of Mr. White's motions focus on the incriminating statements he provided to the police. For the reasons set forth below, Mr. White's several motions to suppress evidence are denied.

         A. The warrant for collection of Mr. White's DNA was valid.

         Mr. White challenges the issuance of the search warrant authorizing the collection of his DNA by buccal swab. Since this motion involves a search warrant, the burden is on Mr. White to prove that the collection of his DNA was unlawful.[2] A judicial officer must only issue a search warrant if the government has established probable cause.[3] The affidavit must set forth enough facts to allow the judicial officer to form a reasonable belief that a particular offense has been committed and that seizable property would be found in a particular location.[4]Additionally, probable cause requires a nexus between the items sought by the police and the place in which the police wish to search.[5] A warrant involving authorization for a DNA swab is evaluated pursuant to these same standards.

         Mr. White must establish the illegality of this search and seizure by a preponderance of the evidence.[6] Furthermore, a reviewing court must pay great deference to a magistrate's decision that a warrant is supported by probable cause.[7] Notwithstanding this deference, the reviewing court's '"substantial basis' review requires [it] to determine whether 'the warrant was invalid because the magistrate's probable-cause determination reflected an improper analysis of the totality of the circumstances ....'"[8] The Court is confined to a four-corners analysis. Namely, the search warrant's affidavit "must, within the four-corners of the affidavit, set forth facts adequate for a judicial officer to form a reasonable belief that an offense has been committed and the property to be seized will be found in a particular place."[9]

         Mr. White argues that the language found in the affidavit to support a collection of his DNA included merely conclusory statements that are insufficient to establish the required nexus between his DNA and other evidence of a crime. Here, the relevant information contained in the affidavit does not include a statement that the police recovered any DNA from the scene. It does, however, recite the affiant's belief that Mr. White's DNA would be located on various items of evidence collected at the scene of the crime. He further recites that it has been (1) the affiant's experience that those involved in committing crimes leave their DNA behind; and (2) when a person involved in committing a crime leaves items of clothing worn or used to commit the crime at the scene, those items often contain the suspect's DNA. Mr. White argues that these conclusory statements are insufficient to establish a nexus between Mr. White's DNA and the evidence found at the crime scene.

         In support of his argument, Mr. White points to dicta in the Superior Court's decision in State v. Campbell to argue that conclusory statements that DNA may be recovered from an item without adequate support for such statements is insufficient to establish a proper foundation for a seizure of a suspect's DNA.[10] Therefore, Mr. White argues that the Court must suppress the evidence obtained as a result of the DNA sample.

         In response, the State argues that the statements in the affidavit establish a sufficient nexus to support probable cause because the affiant stated that in his experience people who commit crimes leave their DNA at the crime scene. Furthermore, it argues that when items of clothing are left behind at the scene, those items often contain DNA evidence. The State also relies upon State v. Campbell by referencing its dicta that a warrant's inclusion of a statement that based on the affiant's experience that it is likely that the intruders left DNA on these items, establishes the required nexus.[11]

         During the evidentiary hearing, defense counsel for Mr. White clarified this argument acknowledging that the affidavit did include statements regarding the affiant's experience. However, Mr. White argues that the affidavit is still insufficient because it contains no information regarding why the affiant's experience justifies this conclusion. According to Mr. White, there must be further foundation to support the conclusion that based on the affiant's experience, training, or education, DNA is often left behind at the scene.

         The State counters that affidavit recited that he had 13 years of experience investigating homicides, attempted homicides, and other serious assaults. The State argues that this is an adequate basis for the affiant's experience supporting the belief that there would be DNA left at the crime scene. The State also maintains that the expectation of finding Mr. White's DNA on the dirt bike mask left behind at the crime scene was augmented when the police found a latent finger print on the mask which belonged to Mr. White. Accordingly, the State then advocates the Campbell decision's reasoning that an affidavit for DNA seizure would be sufficient if it relied on an affiant's training, experience, and education.[12]

         Both parties represented during the evidentiary hearing that the only Delaware case discussing this issue is State v. Campbell. While instructive and persuasive, Campbell's relevant analysis is dicta. In that case, there was in fact no DNA evidence recovered at that crime scene, making this Court's review of the case at hand a matter of first impression in Delaware.

         In Campbell, police obtained a search warrant for the defendant's DNA.[13] The only DNA specific information contained in that warrant included

[y]our affiant is aware that several casings from the firearm that was fired were located at the scene and collected as evidence, [and] [y]our affiant is aware that it is possible to collect DNA evidence of the suspect(s) from the casings. Your affiant is aware that DNA belonging to Keith Campbell 8/3/1988 can be compared to any DNA found on the casings.[14]

         The court in Campbell acknowledged that there was no evidence recited that the shell casings would contain DNA to compare against the collected DNA.[15] The affiant merely stated that he was aware that it would be possible to recover DNA from a shell casing without providing support for this conclusion.[16] Notably, the court in Campbell was concerned by the fact that the statement that DNA could be collected from shell casings was "not supported by the detective's personal knowledge gained from work experience or other investigations that may have occurred or [was] even based on specific training or education."[17]

         In further discussing the issue, the court in Campbell acknowledged that many jurisdictions have held that without "law enforcement recovery of a comparison sample of DNA, a DNA swab search warrant is unsupported by probable cause."[18] However, the Campbell decision, without discussing persuasive authority rejecting this approach, merely rejected it because it "goes too far".[19]The court based its reasoning on practical concerns. Namely, it wrote that determining whether DNA is present on an object can be difficult and time consuming, and requiring a comparison with DNA found at the crime scene is too burdensome on law enforcement.[20] Relevant to the case at hand, the court in Campbell further discussed that "[a]t a minimum, the assertions made in the affidavit must be supported by training, education, or experience that would reasonably justify and explain the detective's conclusion that DNA could reasonably be recovered from the particular object."[21]

         This Court does not accept the approach that a finding of probable cause should be automatically rejected on nexus grounds if the police do not recite in the affidavit that they have recovered a DNA sample from the crime scene to compare with a DNA sample sought from a suspect. After examining a string of authority in other jurisdictions not finding such a litmus test, this Court agrees with the dicta in the Campbell discussion.[22] What is required for a showing of such a nexus is that there is a fair probability that the seized sample of DNA can be linked to a crime. Due to the nature of DNA recovery and analysis, requiring a known sample to compare Mr. White's DNA at the time of the issuance of a warrant would be too burdensome of a requirement. Moreover, such a bright line rule would not comport with the standard Delaware courts employ when reviewing a search warrant. These include reviewing warrants for sufficiency based on the totality of the circumstances and common sense. Accordingly, the fact that the police had not yet developed a comparison DNA sample found at the crime scene at the time of the issuance of the warrant is not fatal to the probable cause determination, provided there is a fair probability that such evidence exists.

         Here, the affiant included information that based on his experience investigating homicides, DNA is often left behind at crime scenes and that when perpetrators leave behind items they wore during the commission of the crime, those items can contain DNA. The affiant also stated that he believed Mr. White's DNA would be found on the evidence collected at the scene.

         Moreover, in the affidavit, the affiant explained that a dirt bike mask was left behind and that after processing that mask, the police found a finger print. The police were able to match that finger print to Mr. White. In evaluating the facts recited in the affidavit, under the totality of the circumstances and employing the required deference to the issuing magistrate and a common sense review, there was a fair probability that DNA from hair or other matter would be discovered on the dirt bike mask. In fact, in this case the facts support the link to an even greater degree because a dirt bike mask, under common and ordinary understanding, is a tightfitting article of headgear that would be more likely to retain hair or other DNA. This information, in total, was sufficient to allow the issuing magistrate to reasonably believe that there was a fair probability that the police would find Mr. White's DNA on evidence found at the crime scene. Under the totality of the circumstances, and employing the appropriate deferential review, the Court holds that the warrant for Mr. White's DNA established a sufficient nexus, and was properly supported by probable cause.

         While the Court finds the warrant sufficient to justify the taking of Mr. White's DNA, the State raised two alternative justifications. During the evidentiary hearing, the State argued that the independent source doctrine and a search incident to arrest justified the seizure of his DNA.[23] The parties provided supplemental briefing on the issue of DNA seizure incident to arrests. The State maintains that if the Court were to find the search warrant to be invalid, the seizure of Mr. White's DNA would still be constitutional because the police performed the buccal swab pursuant to a search incident to arrest.

         The parties aptly argued the issue of whether, under Delaware law both statutory and Constitutional, a buccal swab taken close to the time of arrest, incident to the arrest, would fall under such an exception. Since the warrant lawfully provided for a swab of Mr. White, the Court will not further address either the independent source or the search incident to arrest doctrine.

         B. The Miranda warnings given to Mr. White were not ambiguous despite the detective's addition to the warnings.

         Mr. White's second motion argues that he did not properly waive his Miranda rights while questioned in Philadelphia by the Milford detective. He further argues that after he was extradited to Delaware, police questioning in Milford violated the requirements of Miranda because the same detective misstated those rights in the exact same way. Therefore, Mr. White maintains that he could not validly waive his Miranda rights because he did not understand those rights.

         The State disagrees with Mr. White and argues that the Milford detective in Pennsylvania properly Mirandized Mr. White and that he waived those rights. The State also argues that Mr. White was properly Mirandized once again in Milford where he again waived those rights.

         After testimony at the suppression hearing, Mr. White filed supplemental material arguing that the Miranda warnings given by the detective both at the Milford police station and in Philadelphia included an inappropriate qualification to when his right to counsel attached. He also argues that this additional language made the warning unclear and thus constitutionally deficient.

         In support of this argument, Mr. White relies on a Washington Supreme Court decision, State v. Mayer, where that court determined that a Miranda warning followed by an explanation of the timing of the right to counsel was ambiguous because it made the timing of the availability for appointment of counsel unclear.[24] The Washington Supreme Court held that waiver of Miranda rights is not knowing and voluntary when the police provide such an ambiguous warning.[25] Mr. White also relies on the United States Supreme Court decision in California v. Prysock[26] In Prysock, the Court acknowledged that if the right to counsel is qualified as attaching only at some future point in the process, it is an invalid Miranda warning.[27]

         The State counters that the detective informed Mr. White of all four of his Miranda rights. He was informed that he had the right to remain silent, that anything he said could be used against him in a court of law, that he had the right to have counsel present, and that if he could not afford an attorney one would be provided. The State further notes that the United States Supreme Court has never required the Miranda warnings to be given in a specific manner.[28] Instead, the State argues that in order to comply with Miranda, the police must "reasonably 'conve[y] to [a suspect] his rights as required hy Miranda.'"[[2]]

         The State relies principally on the United States Supreme Court decisions in Duckworth v. Eagan[[3]] and Florida v. Powell.[31] In both cases, the United States Supreme Court examined variations of Miranda warnings, and in both cases, held the Miranda warnings were valid because the police informed the defendants of the required rights.[32] The State also argues that the added statement by the detective did not tie the right to counsel until a future point in time. Accordingly, it argues that the Miranda warnings provided to Mr. White by the police were sufficient.

         The Court finds that the same alleged insufficiency was included by the Milford detective in the Miranda warnings in both the Philadelphia and Milford interviews. Accordingly, a parallel analysis of their sufficiency is appropriate. Delaware has adopted a two-part test, established in Moran v. Burbine, [33] to assess a suspect's waiver of his Miranda rights.[34] The two-part test states

[f]irst the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.[35]

         The burden is on the state to show "by a preponderance of the evidence that the suspect''s Miranda rights have been waived."[36]

         At the outset, Mr. White advanced a cursory argument that Mr. White's statement was involuntary because the detective informed him that his cooperation would be helpful for him. Such a statement does not make Mr. White's waiver involuntary because it was not sufficient to overbear Mr. White's will and rational thinking process.[37] Based on the totality of the circumstances, this one vague statement by the detective did not make Mr. White's waiver involuntary. After reviewing the videotaped statement, the detective's behavior did not evidence an attempt to be intimidating or coercive. Furthermore, ...

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