Submitted: November 15, 2017
Court of the State of Delaware Cr. I.D. No. 1510009348 (N)
VALIHURA, SEITZ and TRAYNOR, Justices.
L. VALIHURA, JUSTICE.
29th day of January, 2018, upon consideration of
the parties' briefs and the record on appeal, it appears
to the Court that:
Defendant Richard Lewis ("Lewis") appeals: (i) the
Superior Court's denial of his Amended Motion to Suppress
certain evidence obtained from a Global Positioning System
("GPS") device affixed to each of his vehicles, and
(ii) his convictions based in part on such
evidence. After a four-day trial that began on
November 29, 2016, the jury found Lewis guilty of all
charges: one count of Attempted Burglary Second Degree
(felony) under 11 Del. C. § 531; two counts of
Burglary Second Degree (felony) under 11 Del. C.
§ 825; two counts of Theft (felony) under 11 Del.
C. § 841; two counts of Criminal Mischief
(misdemeanor) under 11 Del. C. § 811; and one
count of Receiving Stolen Property (felony) under 11 Del.
C. § 851. The various charges related to attempted
burglary and burglary are alleged to have occurred on or
about June 7, 2015, and on or between June 15 and June 16,
2015. The felony count of Receiving Stolen Property is
alleged to have occurred on October 16, 2015. On February 17,
2016, the Superior Court granted the State's motion to
declare Lewis a habitual offender and sentenced him to an
aggregate term of twenty-six years.
the course of investigating several nighttime burglaries that
occurred in the same suburban Wilmington vicinity between
April 11, 2015, and June 16, 2015, the New Castle County
Police Department detective overseeing the case obtained
several warrants to affix GPS tracking devices to the suspect
appeal, Lewis argues that his rights under the Fourth and
Fourteenth Amendments of the United States Constitution, and
Article I, Section 6 of the Delaware Constitution, were
violated because: (i) the affidavits supporting these GPS
warrants did not establish probable cause; and (ii) the
Superior Court lacked jurisdiction to authorize GPS tracking
beyond Delaware's borders. Thus, he contends that the
Superior Court improperly admitted evidence derived from GPS
tracking both inside and outside the State of Delaware and
that his convictions should be overturned.
"We review a Superior Court judge's denial of a
motion to suppress after an evidentiary hearing for abuse of
discretion. Where it is alleged that the Superior Court erred
in formulating and applying the law to undisputed facts, we
exercise de novo review."
Contrary to Lewis's contentions, the requisite probable
cause existed to support the four warrants (dated June 25,
2015; July 27, 2015; August 10, 2015; and September 11, 2015)
that authorized police to track Lewis's white Lexus GS400
and, later, his Ford Explorer, in connection with attempted
burglary and burglary.
affidavit dated June 25, 2015 (the "June 25
Affidavit") provided probable cause for the warrant
issued on June 25, 2015 (the "June 25 Warrant").
Probable cause to issue this warrant for installation of a
GPS tracking device on Lewis's white 1999 Lexus GS400 was
based on, but not limited to, the following facts:
a. The owners of one Wilmington home undergoing renovation
reported a burglary on April 11, 2015. The suspect entered
through an unsecured rear door and stole $6, 000 in jewelry.
b. Another victim, who was home when the suspect attempted to
burglarize her Wilmington home on the evening of May 17,
2015, saw the suspect as he peered into the second-floor
bedroom from a ladder: he appeared to be a middle-aged black
man with a long face, no facial hair, of average weight and
height, and was wearing a dark-charcoal hooded sweatshirt
pulled tight to his face. This physical description fit
c. On June 7, 2015, another Wilmington resident reported a
burglary in which the suspect had pried open a window and
took a pillow case from the master bedroom and approximately
$2, 500 worth of jewelry (located in the master bedroom
closet) and an electronic device. In the following days,
neighbors reported seeing a white Lexus sedan with what they
believed to be a white Virginia license plate on the front.
The vehicle was occupied by a black male in the front
passenger seat and an unknown driver.
d. On June 16, 2016, officers responded to a Wilmington
burglary report. Victims reported that the suspect(s) had
entered through an unsecured second-floor master bedroom
window and stole $180, 081 in jewelry. The victims reported
that the suspects had removed a pillow case from the master
e. Two of the properties where burglaries had occurred were
within a half mile of each other, and a third was 1.7 miles
from one of the other two homes.
f. Surveillance footage from a business complex near the
location of the two burglaries showed that, on the night of
each burglary, the driver of a light-colored sedan exited the
vehicle, put on a hooded sweatshirt (either alone or with a
companion), headed on foot in the direction of the burglary
that occurred that evening, and returned over an hour later
running and carrying a bag that looked like a pillow case.
g. The investigating detective confirmed that the car was a
Lexus GS400 (though he could not initially identify the
h. After requesting information from law enforcement officers
in New Castle County and nearby counties, including in
Pennsylvania, the detective learned that a man named Richard
Lewis was arrested in 2003 for several nighttime burglaries
of high-end homes in the Philadelphia suburbs with a similar
i. A parolee named Richard Lewis was currently living in
Wilmington and had physical characteristics resembling the
above suspect's description. In 2007, he was convicted in
Pennsylvania of burglary, criminal trespass, and theft by
unlawful taking based on several burglaries with a similar
modus operandi. He was released on parole in 2013.
j. The affiant (the investigating detective) was aware that
Lewis was arrested by New Castle County police for committing
several burglaries that targeted affluent homes for jewelry
in 1993. Lewis would park near each victim's home, walk
to the residence on foot, enter through the second-floor
window, and wear gloves when committing the crime.
k. Lewis received three traffic citations in Delaware since
his 2013 release from prison (two in 2014 and one in 2015) --
all while driving a white 1999 Lexus GS400 with a particular
Maryland registration number.
l. On June 24, 2015, the affiant observed a white Lexus GS400
with the same Maryland registration number parked in front of
Lewis's Wilmington address.
m. In reviewing unsolved burglaries in northern New Castle
County that occurred since Lewis's release from prison in
2013, the affiant learned that, during a burglary in
Wilmington on August 17, 2014, the alleged suspect stole the
victim's purse, jewelry, and credit card. Surveillance
footage from where the stolen credit card was later used
showed a white Lexus sedan with a white front license plate,
"consistent with being a Lexus GS400 and having a
Maryland Registration plate on the front of the
n. The investigating detective identified three other
unsolved nighttime burglaries involving a similar modus
operandi that had occurred in the same vicinity
following Lewis's 2013 release from prison. All involved
stealing jewelry from the residences.
Although the affiant requested that the June 25 Warrant
"authorize members of the New Castle County Police to
monitor the data provided by the GPS unit both within and
outside the State of Delaware, " the order did not expressly
authorize monitoring outside the State of Delaware. Rather,
the Superior Court's warrant read: "The Mobile
Tracking Device is to be installed within the State of
Delaware." The authorization was for a 30-day period
beginning upon installation of the device, and the order
specified that the device be removed at the end of the
After GPS surveillance began, the detective gained additional
information from tracking Lewis inside the State of Delaware
that helped support probable cause to extend that warrant for
another thirty days. In addition to restating the facts from
the June 25 Affidavit, the following information was included
in the July 27, 2015 warrant application (the "July 27
Affidavit"), among other facts:
a. The GPS tracked Lewis's Lexus to an affluent community
near Wawaset and North Scott Streets in Wilmington, and the
vehicle made an "abrupt u-turn" at around 3:30 AM
-- an action that the detective considered to be "a
counter surveillance technique." The GPS tracked the Lexus to
that same location later that month, and the detective
observed a suspect wearing glasses, a black hooded
sweatshirt, carrying binoculars, and walking with the same
distinct limp that he had noticed of the suspect's gait
in previous surveillance. From less than ten yards away, the
detective identified the suspect as Lewis based on previous
surveillance. The next evening, the GPS again tracked the
vehicle to this same location, and the detective believed
that Lewis was conducting reconnaissance of the area in order
to commit future burglaries.
b. On multiple occasions, the Lexus drove to a storage center
in Stanton, Delaware, including on the same day the vehicle
returned to Delaware from the direction of a wealthy suburb
of Philadelphia, where local detectives reported to the New
Castle County Police that a burglary had occurred.
July 27, 2015, the Superior Court authorized continued used
of the tracking device for an additional thirty
August 10, 2015, the New Castle County police applied for a
third warrant for Lewis's Ford Explorer. The application
recites that, after the Lexus remained in one location for
several days, the affiant learned that on July 30, 2015,
Lewis purchased a brown 2003 Ford Explorer. With information
from the two previous warrants and this new information, the