Submitted: May 25, 2017
Lindsay Taylor, DAG Department of Justice
Anthony Capone, Esq. Office of the Public Defender
Jeffrey J Clark Judge
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.
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.
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
AND ARGUMENTS OF THE PARTIES
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.
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.
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.
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.
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.
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.
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.
suppression hearing, the Court sits as the finder of fact and
evaluates the credibility of the witnesses. The burden is on
the State to justify a warrantless search or
seizure. In addition, the party with whom the
burden rests must persuade the Court by a preponderance of
an established principle that "warrantless searches
'are pre se
unreasonable.'" This general rule is of course subject
to a few well-established exceptions. For the purposes of this
motion, the relevant exceptions are exigent
circumstances and consent. The State bears the burden of
establishing the existence of exigent
circumstances and that the police conducted the seizure
pursuant to consent.
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
was insufficient evidence presented at the hearing for the
Court to findconsent for ...