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State v. Richardson

Superior Court of Delaware, Kent

June 15, 2017

Marquan Richardson

          Submitted: May 25, 2017

          Lindsay Taylor, DAG Department of Justice

          Anthony Capone, Esq. Office of the Public Defender

          Jeffrey J Clark Judge


         This case involves a challenge of the warrantless seizure of two cellular phones from a suspect in a home invasion. The State argues that it lawfully seized the phones pursuant to the alleged consent of Defendant Marquan Richardson (hereinafter "Mr. Richardson"), and also because exigent circumstances permitted the police to seize the phones due to the impracticability of obtaining a warrant.

         For the reasons set forth herein, the State did not establish that either exception to the warrant requirement applied under the circumstances of this case. The Court acknowledges that the potentially perishable nature of cell phone data is a circumstance to consider when evaluating a seizure under the exigent circumstances exception. However, in this case, the State incorrectly argues that the time frame for evaluating exigent circumstances should be compressed into a self-imposed urgency created by the police agency's choice to not seek a warrant for weeks before the day of a scheduled probation visit. Accordingly, exigent circumstances do not excuse the State's failure to obtain a warrant to seize the phones in this case.

         In addition, on the evidentiary record presented, the State did not meet its burden to show more likely than not that the Defendant consented to the seizure of the phones at issue. The State presented no facts at the hearing touching on the factors necessary to establish Mr. Richardson's consent. Accordingly, Mr. Richardson's motion to suppress evidence seized from the two cell phones on August 8, 2016, is GRANTED.[1]


         All facts cited herein are those found by the Court after a suppression hearing held on May 25, 2017. On June 9, 2016, a home invasion occurred in Felton, Delaware. Prior to the date of the offense, the Delaware State Police began an investigation regarding a then anticipated crime. The police determined Mr. Richardson was a suspect after an informant told them he or she overheard Mr. Richardson on his phone discussing the home invasion both before and after it occurred. The police corroborated the informant's tip because it included details only available to a person with first-hand knowledge of the crime. According to the State's only testifying witness, who was the chief investigating officer (hereinafter the "detective"), the informant first began providing the police with information regarding the planned crime on June 7, 2016.

         The police also obtained eye witness accounts of the home invasion informing the police that three suspects entered the home during the crime on June 9, while one stayed with a vehicle. The witnesses stated that the person with the vehicle left the scene during the crime. That person later circled back to pick up the three remaining suspects. Based on these accounts, the police believed that one of the three suspects, during the commission of the crime, communicated with the driver by cell phone.

         The police, having developed Mr. Richardson as a suspect in June, contacted his probation officer requesting Mr. Richardson's probation meeting schedule. On July 18, the detective informed the probation officer of the investigation and informed her that he planned to seize Mr. Richardson's phone during one of his upcoming meetings. The evidence of record established that Mr. Richardson was on Level III probation, with the requirement that he report once a week. The evidence of record also established that he was compliant with probation. Notwithstanding the at least three intervening weeks, the police did not obtain a warrant to seize his phone.

         At the start of the workday on August 8, 2016, the detective emailed the probation officer to verify Mr. Richardson's report time that day. At approximately 1:00 pm on August 8, 2016, she called the detective to inform him that Mr. Richardson had reported as scheduled. The detective then asked the probation officer to keep Mr. Richardson in the office while he drove from Dover to the New Castle County office.

         By the time the detective arrived at the probation office, the officer had delayed Mr. Richardson for approximately two hours. Upon his arrival, the detective introduced himself to Mr. Richardson and informed him that he was a suspect in the home invasion. He also told Mr. Richardson that his phone would either exonerate him or incriminate him. In the presence of his probation officer, Mr. Richardson handed the detective his phone. The detective then left.

         Shortly after he left with the first phone, the probation officer called the detective to let him know a second phone rang on Mr. Richardson's person. The detective then returned to the probation office. Back at the probation office, Mr. Richardson told the detective that the second phone did not belong to him; he claimed it belonged to his family. Nevertheless, Mr. Richardson provided its passcode to the detective. At that point, he determined that Mr. Richardson had used the phone as well. The detective then decided to seize the second phone. Mr. Richardson now stands charged with three counts of Robbery in the First Degree, Home Invasion and other accompanying charges.

         Mr. Richardson seeks to suppress evidence found on the two phones. He argues that this warrantless seizure was invalid, and therefore, the Court must suppress the evidence obtained from that seizure. In response to Mr. Richardson's motion, the State primarily argues that exigent circumstances justified this warrantless seizure. According to the State, had the detective not obtained the phones while he was at the probation office, it would have been easy and expected for Mr. Richardson to destroy evidence contained on the phones. Although not raised in the State's written response, the detective's testimony at the hearing referenced alleged consent to the seizure of the first phone. The State then supplemented its argument by alleging that the warrantless seizure was also justified based on consent.


         In a suppression hearing, the Court sits as the finder of fact and evaluates the credibility of the witnesses.[2] The burden is on the State to justify a warrantless search or seizure.[3] In addition, the party with whom the burden rests must persuade the Court by a preponderance of the evidence.[4]

         It is an established principle that "warrantless searches 'are pre se unreasonable.'"[5] This general rule is of course subject to a few well-established exceptions.[6] For the purposes of this motion, the relevant exceptions are exigent circumstances[7] and consent.[8] The State bears the burden of establishing the existence of exigent circumstances[9] and that the police conducted the seizure pursuant to consent.[10]


         The police seized two of Mr. Richardson's phones without a warrant. While the State argues that the detective seized both phones pursuant to Mr. Richardson's consent, the seizure of the first phone was the only seizure arguably made with his consent. Nevertheless, the Court finds that the State failed to meet its burden of establishing that Mr. Richardson consented to the seizure of even the first phone. Furthermore, as to both phones, the police had adequate time to obtain a warrant prior to the scheduled probation meeting. Accordingly, the inconvenience cited by the State does not create the exigent circumstances necessary to circumvent the warrant requirement.

         There was insufficient evidence presented at the hearing for the Court to findconsent for ...

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