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State v. Hamilton

Superior Court of Delaware

October 12, 2017

STATE OF DELAWARE,
v.
CORTEZ A. HAMILTON, SR, Defendant.

          Submitted: September 15, 2017

         Upon Defendant's Motions to Suppress. Denied in Part; Granted in Part.

          Stephen R. Welch, Esquire and Lindsay A. Taylor, Esquire of the Department of Justice, Dover, Delaware; attorneys for the State of Delaware.

          John R. Garey, Esquire, Dover, Delaware; attorney for the Defendant.

          OPINION

          HON. WILLIAM L. WITHAM, JR. RESIDENT JUDGE.

         This case presents the Court with several issues triggered by a number or search warrants issued in a murder investigation. The Court must decide whether to grant the Defendant's various Motions to Suppress. For the reasons set forth below, Defendant's motions are DENIED in part and GRANTED in part.

         FACTS[1]

         On January 10, 2015, Keisha Hamilton was reported missing by her sister, Janell Foster. Ms. Foster was concerned because she was unable to contact Keisha, or her husband, Cortez Hamilton ("Defendant"), after receiving "alarming messages" from Keisha the night before. Ms. Foster informed police that, according to Keisha, the Defendant was acting strangely. Keisha reportedly feared for her safety and requested that her sister contact police if anything happened to her. Ms. Foster was also concerned because Keisha failed to appear for her shift at work.

         Delaware State Police ("DSP"), pursuant to Ms. Foster's report, responded to the residence shared by Keisha and the Defendant (hereinafter, referred to as, the "Residence") because Keisha was reportedly last seen at the Residence the night before. DSP were accompanied by Ms. Foster and Keisha's son, Alvin West.[2] DSP knocked on the door and rang the doorbell multiple times, but no one responded. DSP also did not observe any cars at the Residence. Thereafter, Mr. West provided his house-key to DSP in order for police to search the Residence for Keisha. DSP were unable to locate Keisha. However, as DSP were searching for Keisha, police discovered large pools of blood, blood stains, blood spatter, and a large knife. DSP determined the blood was human through the use of a Blood Kit, but were unable to determine from whom the blood came.

         In addition to searching the Residence, DSP searched numerous surrounding shopping centers for any signs of Keisha. As a result, at approximately 4:35 P.M. on January 10, 2015, DSP discovered Keisha's Toyota Matrix parked behind a local business. According to DSP, the vehicle appeared to have been abandoned. DSP also observed a purse located on the floor of the front passenger compartment. DSP subsequently prepared a warrant in order to search the vehicle.

         At approximately 5:30 P.M. on January 10, 2015, DSP executed the first warrant to conduct a more thorough search of the Residence (hereinafter, referred to as, the "January 10, 2015 Residence Warrant").[3] The January 10, 2015 Residence Warrant was issued pursuant to the information provided by Ms. Foster, the blood evidence already discovered at the Residence, and information that Keisha had obtained Protection From Abuse Orders ("PFAs") against the Defendant in the past. DSP seized a clothing zipper, a black handle butcher knife, an empty plastic bottle, a white blanket, two bathroom containers, swabs containing suspected blood, five towels, an HP laptop, and two carpet samples.[4]

         Also, as DSP were unable to identify from whom the blood discovered at the Residence belonged to, police were concerned that Keisha's children may be in danger. In order to locate the children, DSP issued what is known as, an "AMBER Alert." DSP issued the alert, not only in Delaware, but in surrounding states as well. Indiana State Police ("ISP"), responding to the alert, discovered the children traveling with the Defendant in Indiana at approximately 6:38 P.M. on January 10, 2015. The Defendant was driving a red 2005 Chevrolet Suburban (the "Suburban"). Although the Defendant was stopped pursuant to the AMBER alert, the Defendant was held by ISP as a result of DSP's continued investigation.

         On January 11, 2015, at approximately 2:45 A.M., ISP executed a warrant to search the Suburban seized from the Defendant. The warrant was based on information provided by Ms. Foster to DSP, the blood evidence discovered by DSP at the Residence, and the fact that Keisha's vehicle was found purportedly abandoned in a parking lot. ISP seized a bloody hammer, bloody clothing belonging to Keisha, clothing and shoes belonging to the Defendant - which were partially covered with mud and stained blood - and various personal items belonging to Keisha, including her wedding ring, a lock of her hair, her purse, and a cell phone.[5]

         On January 11, 2015, at approximately 12:00 P.M., DSP executed a warrant to search Keisha's Toyota Matrix. The warrant was based on the information provided by Ms. Foster, the blood evidence already discovered at the Residence, and information that Keisha had obtained PFAs against the Defendant in the past. DSP seized soil samples, DNA swabs, two rolls of duct tape, a Coach bag containing miscellaneous ID, and a gear shift knob.[6]

         On January 15, 2015, at approximately 3:00 P.M., DSP executed the second warrant to search the Residence (hereinafter, referred to as, the "January 15, 2015 Residence Warrant").[7] According to the affidavit of probable cause, the evidence discovered by ISP during their search of the Suburban indicated that Keisha may have been murdered. The evidence also indicated how Keisha's body may have been disposed of. Thus, DSP requested another opportunity to search the Residence. DSP seized molding from a hallway bathroom door, swabbing from a bathroom door, a fitted sheet from the master bedroom, lower trim of a dresser, drywall in the hallway, the fronts of three dresser drawers, and a box containing trash bags.[8] At the hearing on this matter, DSP testified that all of the items, except the trash bags, were seized because they appeared to have blood on them. The trash bags were seized, according to DSP, because trash bags are often used to dispose of a body.

         On February 13, 2015, at approximately 1:30 P.M., DSP executed a third warrant to search the Residence (hereinafter, referred to as, the "February 13, 2015 Warrant").[9] The February 13, 2015 Warrant also permitted DSP to search the Suburban, as it had been transported from Indiana. DSP were particularly interested in searching any GPS device located within the Suburban in order to determine where the vehicle had traveled prior to the Defendant's arrest. As Keisha had not been located, DSP thought the GPS might lead to discovery of Keisha's body. DSP seized a stereo system from the Suburban. DSP also removed additional carpet samples, carpet padding, and subflooring from the Residence in order to conduct a "blood volume examination."[10]

         THE PARTIES CONTENTIONS[11]

         First, the Defendant contests the initial warrantless search conducted by DSP, pursuant to Ms. Foster's missing person's report. The Defendant contends that it was unlawful for DSP to enter the Residence without a warrant. If the warrantless search was permissible, the Defendant alleges that the scope of the search by DSP was unnecessary to determine whether or not there were occupants in the Residence. The Defendant also contends that the warrantless testing of the blood discovered was improper. As the evidence discovered during the warrantless search of the Residence was relied upon to obtain subsequently executed warrants, the Defendant contends that evidence obtained based on the information must be suppressed as "poisonous fruit."

         The State contends that the warrantless search of the Residence was permissible pursuant to either: (1) Alvin West's consent; (2) the "community caretaker doctrine;" or (3) the "emergency doctrine." If any of the doctrines apply, the State contends that any evidence discovered in the Residence is admissible pursuant to the "plain view" doctrine. Thus, the subsequent warrants would be proper as well.

         Second, the Defendant contends that the January 10, 2015 Residence Warrant, executed by DSP, required DSP to submit a written inventory within ten days of the execution of the warrant. The written inventory was not submitted until March 19, 2015, well in excess of sixty days from the date of the warrant application. Thus, the Defendant seeks to suppress any and all evidence seized as a result of the search.

         The State contends that untimely "warrant returns" are immaterial to the validity of any search warrant. Furthermore, the Defendant has not alleged any prejudice as a result. Therefore, according to the State, the Defendant's arguments are without merit.

         Third, the Defendant contests the stop of the Suburban and the subsequent warrant executed by ISP. According to the Defendant, the "AMBER Alert" was not issued properly because there was no indication that Keisha's children had been abducted or were in any danger. The Defendant, therefore, argues that ISP did not have a basis to stop his vehicle. The Defendant also contends that the subsequent warrant to search the Suburban was unsupported by probable cause. In addition, the Defendant claims that the search of the Suburban exceeded the scope of the warrant. Thus, the Defendant seeks to suppress any and all evidence seized from the Suburban.

         The State contends that the "AMBER alert" was properly issued. Therefore, according to the State, ISP had a basis to stop the Defendant. The State also contends that the subsequent warrant to search the Suburban was supported by probable cause. Finally, the State alleges that the warrant was properly executed. Therefore, according to the State, the Defendant's arguments are without merit.

         Fourth, the Defendant contests the search of Keisha's Toyota Matrix. According to the Defendant, the warrant to search the vehicle was unsupported by probable cause. The Defendant does not believe the warrant demonstrates how the vehicle contained evidence of a crime. Furthermore, the Defendant alleges that DSP exceeded the scope of the authorized search. Thus, the Defendant seeks to suppress any and all evidence seized from the Toyota Matrix.

         The State contends that the Defendant lacks standing to challenge the search of the Toyota Matrix because the vehicle was "abandoned." If the merits of the Defendant's arguments are considered, the State alleges that the search warrant was adequately supported by probable cause. Furthermore, the State argues that the search of the vehicle did not exceed the scope of the warrant. The seizure of evidence by police was either explicitly permissible pursuant to the search warrant or the "plain view" doctrine. Therefore, according to the State, the Defendant's arguments are without merit.

         Fifth, the Defendant contests the January 15, 2015 Residence Warrant. The Defendant alleges that items requested in the January 15, 2015 Residence Warrant could have been readily ascertained and requested in the January 10, 2015 Residence Warrant. Furthermore, the Defendant contends that items seized pursuant to the January 15, 2015 Residence Warrant exceeded the scope of the permissible search. Finally, the Defendant asserts that the warrant returns were submitted late. Thus, the Defendant seeks to suppress any and all evidence discovered during the execution of the January 15, 2015 Residence Warrant.

         The State, in response, contends that a late warrant return does not invalidate a valid search warrant. And, the Defendant has not alleged any prejudice as a result of the late return. Furthermore, the State contends that the Defendant has failed to indicate which items were taken in violation of the January 15, 2015 Residence Warrant. Therefore, according to the State, the Defendant's arguments are without merit.

         Sixth, the Defendant contests the February 13, 2015 Warrant. According to the Defendant, the warrant returns were submitted late. Thus, the Defendant seeks to suppress evidence obtained as a result of the search.

         The State, again, contends that a late warrant return does not invalidate a valid search warrant. And, the Defendant has not alleged any prejudice as a result of the late return. Therefore, according to the State, the Defendant's arguments are without merit.

         STANDARD OF REVIEW

         When evidence is collected according to a search warrant, the defendant bears the burden of proving by a preponderance of the evidence that the search or seizure violated his rights under the United States or Delaware Constitutions or Delaware statutory law.[12]

         If, on the other hand, a defendant moves to suppress evidence collected in a warrantless search, the State bears the burden of proving by a preponderance of the evidence "that the challenged police conduct comported with the rights guaranteed [to the defendant] by the United States Constitution, the Delaware Constitution and Delaware statutory law."[13]

         DISCUSSION

         The Defendant, seeking to suppress evidence seized by Indiana and Delaware police, filed three motions to suppress in this matter. Although the Court determined that all three motions were untimely, the Court granted the Defendant's Motions to File Out of Time because the State agreed that it was necessary to hear the motions on their merits.

         The Court's decision to accept the Defendant's Motions to Suppress, however, does not relieve the Defendant of complying with the Court's rules of procedure. Of particular importance to this matter is Superior Court Criminal Rule 41 (f). The Court previously addressed the application of Rule 41(f) in State v. Dunson.[14]

         Dunson provides in part:

A movant seeking suppression of evidence has an obligation to present both a specific statement of facts and a statement of legal authority so as to persuade the Court to grant its motion.[15] Neglect of this obligation will lead the Court to determine that a hearing or further consideration of the motion is unnecessary.[16] The Court invites practitioners to consider motions to suppress as analogous to a pleading or an oral objection to the admissibility of evidence made during the course of trial - i.e., requiring a high degree of specificity.[17] "General and conclusory allegations are not sufficient to trigger a hearing."[18] Motions that lack sufficient factual allegations and statement of law force the Court into the role of counsel, making the parties' best arguments for them, and raising issues they themselves did not raise. This is inappropriate in our adversarial system.[19]

Dunson, is also instructive as to Rule 41(f)'s requirement to sufficiently allege standing in a motion to suppress evidence. Dunson held:

To gain access to the law's exclusionary remedy for illegal searches or seizures, a defendant must have standing, which will be found if a defendant "has a legitimate expectation of privacy in the invaded place."[20] A defendant carries the burden of demonstrating standing to challenge the search and seizure.[21] Superior Court Criminal Rule 41(f) requires that a motion to suppress "set forth the standing of the movement."

         With Dunson and Rule 41(f) in mind, the Court will address the challenged searches and seizures in the order that they arose during the course of the police investigation.

         I. The Warrantless Search of the Residence

         a. Does the Defendant have Standing to challenge the search?

         The Defendant has sufficiently alleged standing to contest the search of the Residence. Although the Defendant failed to cite any legal precedent to support his allegations of standing, the Defendant provided a sufficient factual basis to convince the Court that standing exists. The Defendant states that "he had a reasonable expectation of privacy in his residence located at 113 East Cayhill Lane, Smyrna, DE I9977''[22] In Thomas v State, the Delaware Supreme Court held that:

a proponent of a motion to suppress has standing to contest the legality of a search and seizure only if he can assert either a property or a possessory interest in the areas searched on the property seized and if he can show a legitimate expectation of privacy in the areas searched.[23]

         As it is axiomatic that a person has a possessory interest in one's own home, and since the State does not contest the Defendant's expectation of privacy in the Residence, the Defendant has satisfied his burden to demonstrate standing to contest the search of the Residence.

         b. Does an exception to the warrant requirement apply?

         It is uncontested that Delaware State Police entered the Residence without a warrant on January 10, 2015. Generally, all warrantless entries into a private residence are invalid, save a few narrowly-defined exceptions.[24] These exceptions are to be narrowly construed.[25] The State, in its' response and at a hearing on this matter, contends that three exceptions are relevant in this instance: (1) the "consent doctrine;" (2) the "community caretaker doctrine;" and (3) the "emergency doctrine." The Court will address all three in order.

         (1) "Third-party" Consent

         First, the State contends that DSP were permitted to enter the Residence without a warrant pursuant to the "third-party" consent of Keisha's son, Alvin West. Mr. West testified, at a hearing on this matter, that he asked DSP to search the Residence in order to find his mother. Mr. West, thereafter, provided a key to DSP in order for police to conduct the search.

         It is well-established that consent to search may be obtained from a third party. Actual third party authority to consent is established by possession and equal or greater control, vis-a-vis the owner, of the area searched.[26] Specifically, one who possesses common authority over property may validly consent as against an absent, non-consenting person with whom the authority is shared.[27] Common authority, as explained in United States v. Matlock, rests on:

[m]utual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.[28]

         In the present case, the State urges the Court to find that Mr. West had common authority to consent to a search of the Residence because he maintained a bedroom at the Residence, he possessed a key to the Residence, and he was free to come and go as he pleased from the Residence. However, Mr. West's testimony also indicated that he was not currently living at the Residence at the time he requested DSP to conduct a search. Rather, he had been staying with Ms. Foster.[29]

         The Supreme Court addressed a similar, yet distinguishable, issue in Illinois v. Rodriguez[30] In Rodriguez, the defendant challenged his ex-girlfriend's authority to consent to a search of his apartment because she no longer lived with him.[31] The facts indicated that she moved out of the apartment a month prior to the search.[32]However, she still possessed a key to the apartment and kept some of her belongings there.[33] She also occasionally spent the night at the apartment, after she had already moved out.[34] Nevertheless, the Court determined that the ex-girlfriend did not have "joint access or control for most purposes" because she never went to the defendant's apartment unless he was there.[35] And, she never invited friends to the apartment.[36] Thus, the ex-girlfriend did not have the common authority to permit police to search the defendant's apartment.[37]

         The Court concedes that the facts in this case are similar to Rodriguez. For instance, like Rodriguez, Mr. West indicated that, despite leaving some his belongings at the Residence, he was no longer living there at the time he consented to the search by DSP. Instead, he was living with Ms. Foster. Nonetheless, this case is distinguishable from Rodriguez because the facts indicate that Mr. West was free to come and go from the Residence as he pleased. He also strongly denied that his access to the home had been restricted since moving in with Ms. Foster. This is in stark contrast to Rodriguez, where the ex-girlfriend did not stay at the apartment when the defendant was not at home. It is also significant that Mr. West still maintained a bedroom at the Residence, because it conveys some expectation that he had a right to be there.[38] In sum, since the facts indicate that Mr. West's access to the Residence and his bedroom was not restricted by either Keisha or the Defendant, the Court must hold that Mr. West had the "actual authority" to consent to DSP's search.

         The Court's analysis on this issue, however, is not complete. The Court must also determine whether Mr. West's status as a minor had any effect on his ability to consent to a search of the Residence. The question is a matter of first impression within the State. After a thorough survey of the surrounding jurisdictions, the Court declines to adopt a bright-line rule on this issue because the Court recognizes, as the court in State v. Tomlinson recognized, that "there are some situations where a child could reasonably possess the authority to consent to a search, or to consent to police entry of a parent's home."[39]

         Tomlinson held that courts must look at the "totality of the circumstances" to determine whether a child possesses such authority, including factors such as the "child's age, intelligence, and maturity, and the scope of the search or seizure to which the child consents."[40] Tomlinson also suggested that the court should consider "the extent to which the child has been left in charge, and the extent to which the parent has disclosed his or her criminality to the child."[41] However, according to Tomlinson, "age, intelligence, and maturity of the child are more important because, as a child gets older and more mature, the child will generally be entrusted with greater responsibility."[42] Finally, Tomlinson held that the scope of consent is important because "there are parts of the family's home where the parents have an increased privacy interest."[43]

         The court in United States v. Peden, also declined to adopt a per se rule regarding minors.[44] As in Tomlinson, the Court in Peden recognized that "as a child advances in age she acquires greater discretion to admit visitors on her own authority."[45] In addition, the court acknowledged that minors could consent to a search if the "search[] was made at the request of the child or when a child is the victim or a witness to a crime."[46]

         In the present case, given Mr. West's age and the surrounding circumstances, it was reasonable for Mr. West to consent to DSP's entry into and subsequent search of the Residence. As in Tomlinson, Mr. West was a teenager when he permitted DSP to enter the Residence.[47] The Tomlinson court determined that a fifteen-year-old was old enough to permit police entry into a parent's home because, "[a] high school-aged child will likely have at least some authority to allow limited entry into the home."[48]Although Mr. West was technically fourteen at the time he consented to the search, the Court still finds that Tomlinson controls because Mr. West was almost fifteen when he consented to the search. And, there is no indication that as a fourteen-year-old, Mr. West's authority was more limited than the fifteen-year-old minor's authority in Tomlinson. Additionally, there was no evidence presented that Mr. West lacked the intelligence or maturity such that DSP's reliance on the consent would have been called into question.

         Next, although Mr. West's consent to DSP's entry into the Residence exceeded that of the police entry in Tomlinson, [49] the Court is convinced that the surrounding circumstances permitted a more extensive entry and search by DSP. Mr. West's mother was missing, and Mr. West feared for her safety. It was reasonable, therefore, for him to permit DSP's entry into and search of common areas of the Residence in order to locate her.[50] The Court's conclusion is bolstered by the court's acknowledgment in Peden that a minor-child has the authority to consent to a search of a parent's home if the child requests the search.[51]

         In sum, Mr. West had actual third-party authority to permit DSP's entry into the Residence to search for Keisha. Although Mr. West's authority was not unlimited, under the circumstances, it was reasonable for a fourteen-year-old to request that police search the common areas of his mother's home in order to locate her.

         (2)The "Community Caretaker Doctrine"

         Second, the State contends that DSP were permitted to enter the Residence without a warrant pursuant to the "community caretaker doctrine."[52] The State's reliance on the doctrine, however, is misplaced. The doctrine has never been applied to a warrantless search of a home. Rather, it has been exclusively applied to the seizure of an individual outside the home.[53] Therefore, the State's contention is without merit and the "community caretaker doctrine" does not apply under these circumstances.[54]

         (3)The "Emergency Doctrine"

         Third, the State contends that DSP were permitted to enter the Residence without a warrant pursuant to the "emergency doctrine."

         In order to demonstrate the legality of a warrantless search under the emergency doctrine, the State must show, by a preponderance of the evidence that:

(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property. (2) The search must not be primarily motivated by intent to arrest and seize evidence. (3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.[55]

         A warrantless entry into and following search of a person's home does not violate the Fourth Amendment if this three-pronged test is satisfied.[56]

         The Court's decision on this issue is guided by People v. Bondi.[57] In Bondi, the Illinois court found that a missing person's report was sufficient to satisfy the emergency doctrine.[58] Applying the three elements of the doctrine, the court held:

(1) that the fact that [the victim] was reported missing gave the authorities reasonable grounds to believe that she may be in imminent danger of death or serious bodily harm, (2) that as such the primary intent of the search of the premises was to locate her and provide assistance to her, not to seize evidence against the defendant, and (3) that her residence and the property surrounding it were the most likely places to search for evidence of the whereabouts of a missing occupant.[59]

         In this case, as in Bondi, Keisha was reported missing. Ms. Foster informed police that she was concerned because she was unable to contact Keisha, or the Defendant, after receiving "alarming messages." Keisha reportedly feared for her safety and requested that Ms. Foster contact police if anything happened to her. Keisha also failed to appear for her shift at work.[60] Consequently, the first prong of the emergency doctrine is satisfied, as these facts indicate that Keisha was in danger and in need of assistance. The second prong of the doctrine is satisfied because the facts indicate that the primary intent of police was to locate Keisha and provide assistance to her, not to seize evidence against the Defendant. Finally, the third element of the emergency doctrine is satisfied because the Residence was the most likely place to search for evidence of the whereabouts of Keisha i.e. "a missing occupant."

         Assuming arrguendo that the first two prongs of the emergency doctrine were satisfied, the Defendant contends that the third prong was not satisfied because the search exceeded the scope of what was necessary to determine whether or not there were occupants in the Residence. Although the Defendant has not cited any legal authority, it is likely that the Defendant relies upon Guererri. According to Guererri, there must be a "reasonable nexus between the emergency and the area searched."[61] The search cannot be unlimited or random, such as, for example, peering into drawers, cupboards or wastepaper baskets."[62] Instead, the search must be confined to those areas in which the police might find potential victims or a person presenting "further danger."[63] For instance, in Guererri, it was permissible for police to search the basement of the Defendant's house to look for anyone who was injured, after police responded to a 911 call reporting gunshots and the Defendant's home appeared to have been struck by shotgun pellets.[64]

         In this case, as in Guererri, police searched the Residence, in order to locate a potential victim; i.e. Keisha. During the search of the Residence, police discovered large pools of blood, blood spatter and a knife in the second floor hallway and master bedroom. Like the basement in Guererri, it is reasonable for police to search these areas because Keisha could easily be located in either of them. Therefore, a sufficient nexus existed for the police to search the areas where the evidence was discovered.

         The Court's finding that the search was proper also disposes of the Defendant's challenge to the field test of two blood stains. The Defendant concedes that the police discovered the blood in "plain view, " but contests the field test of the blood. The Circuit Court in United States v. Buchanan, however, reiterated that "[t]he 'plain view' doctrine may also validate a warrantless search of an item, so long as the item could lawfully have been seized."[65] As the Defendant does not dispute that police could have seized the blood pursuant to the "plain view" doctrine, the field testing, or search, of the blood was also proper.

         In sum, the warrantless search by DSP of the Residence was permissible pursuant to either the third-party consent of Mr. West or the emergency doctrine. Any evidence seized in plain view, therefore, is admissible.

         II. January 10, 2015 Residence Warrant

         a. Does the Defendant have Standing to challenge the search?

         As previously explained, the Defendant has satisfied his burden to demonstrate standing to contest the search of the Residence.[66]

         b. Does an untimely filed "warrant return" invalidate an otherwise validly executed warrant?

         The Defendant seeks to suppress evidence seized pursuant to the January 10, 2015 Residence Warrant because DSP failed to submit a timely inventory of the items seized during the execution of the warrant. The law is well-settled on this issue. In Derrickson v. State, this Court held that "merely filing the return late will not invalidate an otherwise legal search and seizure."[67] Therefore, the Defendant's contention is without merit.

         III. Indiana State Police's Seizure of the Defendant

         a. Does the Defendant have standing to challenge his seizure by Indiana State Police?

         Generally, a person seized by police has standing to contest his or her seizure.[68]Therefore, the Defendant does have standing to contest his seizure by ISP.

         b. Did Indiana State Police Unlawfully Seize the Defendant?

         The Defendant's challenge of his seizure by ISP is two-fold. First the Defendant contends that the AMBER Alert issued by DSP, and subsequently relied upon by ISP, was improperly issued. Second, assuming that the Alert was properly issued, the Defendant contends that an AMBER Alert constitutes an insufficient basis for the Defendant's seizure.

         The term "AMBER" means "America's Missing: Broadcast Emergency Response." An AMBER Alert is

a voluntary partnership between law-enforcement agencies, broadcasters, transportation agencies, and the wireless industry, to activate an urgent bulletin in the most serious child-abduction cases. The goal of an AMBER Alert is to instantly galvanize the entire community to assist in the search for and the safe recovery of the child.[69]

         In this case, the Defendant claims that DSP violated their own Media Alert Policy when they issued an AMBER Alert without credible information that his children were in danger. The Defendant claims that he was simply taking his children on a pre-planned trip to see family. Therefore, he claims the AMBER Alert should never have been issued. The Defendant's assertion is made without citation to any legal authority.

         DSP's Media Alert Policy, as submitted into evidence, provides that an AMBER Alert will be issued when a child is abducted.[70] The Media Alert Policy defines abducted child as: (1) "[a]ny child... whose whereabouts are unknown;" (2) "[w]hose domicile at the time he or she was reported missing was Delaware;" (3) "[w]hose age at the time he or she was first reported missing was 17 years of age or younger, including a newborn;" and (4) "[w]hose disappearance poses a credible threat as determined by law enforcement to the safety and health of the child."[71] The language emphasized by the Court is important in this instance. The police, not the Court, determines if a child's disappearance poses a credible threat to the child's safety and health. The Court, therefore declines to second guess DSP's determination in this case.

         Next, in regards to whether an AMBER Alert can provide a sufficient basis for police to conduct a traffic stop, the Court relies on United States v. Resa.[72]According to Resa, an AMBER Alert can serve to justify at least a brief investigatory traffic stop in the same manner as a be-on-the-lookout (BOLO) notice to law enforcement.[73] Whether a BOLO report provides a sufficient basis for an investigatory stop depends upon:

(1) the credibility and reliability of the informant; (2) the specificity of the information contained in the tip or report; (3) the extent to which the information in the tip or report can be verified by officers in the field; and (4) whether the tip or report concerns active or recent activity, or has instead gone stale.[74]

         Here, there is no indication that Ms. Foster was unreliable. She was merely concerned for her sister and expressed those concerns to DSP. Likewise, the AMBER Alert in this case was sufficiently specific. The alert described the missing children, as well as the Defendant, since DSP believed the children may be with him. ISP also indicated that they were given a description of the Suburban the Defendant was driving. ISP corroborated this information when they confirmed that the Suburban's license plate number matched the number provided by DSP. Furthermore, ISP confirmed the identity of the Defendant once he exited the Suburban. Finally, it is apparent that the information in the AMBER Alert had not gone stale because it was only issued earlier that day, and the children still had not been found. The Court concludes, therefore, that the information provided in the AMBER Alert was sufficiently reliable and specific to support a minimally intrusive Terry stop of the Suburban.

         IV. Indiana State Police's ...


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