Submitted: February 14, 2017
For Kent County
Cohee, Esquire, and Lindsay Taylor, Esquire, DEPARTMENT OF
JUSTICE, Dover, Delaware, for the State.
Gill, Esquire, LAW OFFICE OF EDWARD C. GILL P.A., and
Alexander Funk, Esquire, CURLEY, DODGE & FUNK, LLC,
Dover, Delaware, Attorneys for Defendant.
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.
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.
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
Mirandawarnings 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
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.
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.
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.
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.
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.
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.
warrant for collection of Mr. White's DNA was valid.
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. A judicial officer must only issue a
search warrant if the government has established probable
cause. 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.Additionally, probable cause requires a
nexus between the items sought by the police and the place in
which the police wish to search. A warrant involving
authorization for a DNA swab is evaluated pursuant to these
White must establish the illegality of this search and
seizure by a preponderance of the evidence. Furthermore, a
reviewing court must pay great deference to a
magistrate's decision that a warrant is supported by
probable cause. 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 ....'" 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
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.
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. Therefore, Mr. White argues that the
Court must suppress the evidence obtained as a result of the
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.
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.
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.
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.
Campbell, police obtained a search warrant for the
defendant's DNA. 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
court in Campbell acknowledged that there was no
evidence recited that the shell casings would contain DNA to
compare against the collected DNA. 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. 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
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." However, the Campbell decision,
without discussing persuasive authority rejecting this
approach, merely rejected it because it "goes too
far".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. 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
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. 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
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
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.
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. 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.
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
Miranda warnings given to Mr. White were not ambiguous
despite the detective's addition to the
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
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.
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.
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. The Washington Supreme
Court held that waiver of Miranda rights is not
knowing and voluntary when the police provide such an
ambiguous warning. Mr. White also relies on the United
States Supreme Court decision in California v.
Prysock 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.
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. Instead, the State argues that in order
to comply with Miranda, the police must
"reasonably 'conve[y] to [a suspect] his rights as
State relies principally on the United States Supreme Court
decisions in Duckworth v.
Eagan[] and Florida v.
Powell. 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. 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
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,  to assess a suspect's waiver of
his Miranda rights. 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
burden is on the state to show "by a preponderance of
the evidence that the suspect''s Miranda
rights have been waived."
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. 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, ...