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Lewis v. State

Supreme Court of Delaware

January 29, 2018

RICHARD LEWIS, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: November 15, 2017

         Superior Court of the State of Delaware Cr. I.D. No. 1510009348 (N)

          Before VALIHURA, SEITZ and TRAYNOR, Justices.

          ORDER

          KAREN L. VALIHURA, JUSTICE.

         This 29th day of January, 2018, upon consideration of the parties' briefs and the record on appeal, it appears to the Court that:

         (1) 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.[1] 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.

         (2) In 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 Lewis's vehicles.

         (3) On 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.

         (4) "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."[2]

         (5) 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.

         (6) An 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 Lewis.
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 bedroom.
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 particular year).
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 modus operandi.
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 vehicle."[3]
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.

         (7) 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, "[4] 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."[5] 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 period.

         (8) 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."[6] 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.

         (9) On July 27, 2015, the Superior Court authorized continued used of the tracking device for an additional thirty days.[7]

         (10) On 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 Superior ...


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