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Everett v. State

Supreme Court of Delaware

May 29, 2018

TERRANCE E. EVERETT, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: March 21, 2018

          Court Below: Superior Court of the State of Delaware Cr. I.D. No. 1511002499 (N)

         Upon appeal from the Superior Court. AFFIRMED.

          Nicole M. Walker, Esquire, Office of the Public Defender, Wilmington, Delaware, for Appellant.

          Martin B. O'Connor, Esquire, Department of Justice, Wilmington, Delaware, for Appellee.

          Before VALIHURA, VAUGHN, and TRAYNOR, Justices.

          VALIHURA, JUSTICE:

         When a person voluntarily accepts a "friend" request on Facebook from an undercover police officer, and then exposes incriminating evidence, does the Fourth Amendment protect against this mistaken trust? We conclude that it does not.

         Here, the defendant-appellant, Terrance Everett ("Everett"), accepted the friend request from a detective who was using a fictitious profile. The detective then used information gained from such monitoring to obtain a search warrant for Everett's house, where officers discovered evidence that prosecutors subsequently used to convict him.

         In the proceedings below, Everett moved for a so-called reverse-Franks hearing, named for the United States Supreme Court opinion in Franks v. Delaware.[1] He asked the trial court to determine whether the detective knowingly and intentionally, or with reckless disregard for the truth, omitted information from the affidavit-namely, information concerning the detective's covert Facebook monitoring-that was material to the magistrate's finding of probable cause. Everett argued that, if he made this showing by a preponderance of the evidence at such a hearing, then the evidence obtained via this warrant should be suppressed. The Superior Court denied Everett's motion from the bench on February 16, 2017. Everett appeals that decision and now seeks reversal of his conviction.

         For the reasons set forth below, we AFFIRM the Superior Court's denial of Everett's motion.

         A. Factual Background

         At some point during 2012 or 2013, Detective Bradley Landis of the New Castle County Police Department began monitoring Everett's Facebook page using a fake profile, including a fake name and pictures. Detective Landis regularly monitored Everett's page between one to three times per week for at least two years. During this monitoring, Detective Landis used the fake profile to send Everett a "friend request." Everett accepted the "friend request." Based on the record before us, it is unclear what information from Everett's Facebook page was available to Detective Landis before "friending" Everett and what information was available only after the two became "friends."[2]

         On November 4, 2015, Detective Landis saw a photo on Everett's Facebook page that was posted at 5:00 AM that morning. The photo ("Photo") showed a nightstand with several items on top of it: a handgun, a Mercedes car key, a large amount of cash, a pay stub, two cell phones, and a framed photograph of Everett wearing a black T-shirt and a red necklace. Although Everett was not in the Photo, the caption read: "Just getting in for the night, how I sleep every night."[3]

         On that same day, November 4, 2015, Detective Landis applied for a warrant to search Everett's house. In the application, Detective Landis swore that he:

• observed Everett's Facebook page and the Photo "while browsing Facebook";
• knew the Facebook page was Everett's because Everett posted daily self-filmed videos and photographs at various locations, and he was familiar with Everett from previous contacts and criminal investigations;
• personally saw Everett operate a tan Mercedes on multiple occasions;
• was aware that Everett was a person prohibited from possessing deadly weapons, including firearms, due to numerous violent felony convictions;
• was aware that Everett was currently on federal probation for conspiracy to possess with intent to distribute more than 500 grams of cocaine and cocaine base, and that Everett would be on federal probation until January 2020;
• was aware that Everett was currently being supervised by the Delaware Probation and Parole Sex Crimes unit;
• contacted Everett's probation officer to verify Everett's address and then drove past Everett's residence and observed a tan Mercedes parked out front;
• observed distinguishing features on the handgun upon closer examination of the Photo and, after additional investigation on the Smith & Wesson website, determined that the firearm in the Photo was in fact a Smith & Wesson.

         The search warrant, which was both authorized and executed on November 5, 2015, allowed police to conduct a daytime search of Everett's residence to collect DNA samples and/or a deadly weapon. During the search of Everett's home, police recovered a loaded nine-millimeter Smith & Wesson handgun; the handgun's original box with a serial number matching the Smith & Wesson handgun; clothing, including the black T-shirt and the red necklace that Everett was wearing in the Photo and other Facebook photos; and Everett's pay stubs.

         Police arrested Everett on November 17, 2015. A Grand Jury indicted him on December 21, 2015, for one count of Possession of a Firearm By a Person Prohibited in violation of 11 Del. C. § 1448, and one count of Possession of Ammunition By a Person Prohibited in violation of 11 Del. C. § 1448. According to the indictment, Everett was a "person prohibited" because he had previously been convicted of two felony counts of Reckless Endangering (first degree) and one felony count of Possession with Intent to Deliver a Controlled Substance.[4] A jury trial began on February 14, 2017, and the parties stipulated that Everett was a person prohibited.

         On the first day of trial, Detective Landis disclosed that he began monitoring Everett's Facebook page "approximately two years" before he saw the Photo. Further, Detective Landis testified that he monitored Everett's page by using a fake Facebook profile under a fake name and using photos that he found on the Internet, rather than his own personal photos. The day after learning the details of Detective Landis's monitoring of his Facebook page, Everett moved for a mistrial or, in the alternative, a reverse-Franks hearing.[5] The Superior Court denied the motion in a bench ruling on February 16, 2017.[6] In denying the motion, the trial judge found "that the omitted facts were not material for [the] purposes of issuance of a search warrant."[7]

         On February 16, 2017, the jury found Everett guilty of only one of the charges, Possession of a Firearm By a Person Prohibited, and the Superior Court ordered a presentence investigation. On February 22, 2017, Everett filed a Motion for a New Trial arguing that the two verdicts were legally inconsistent because he was found guilty on the possession charge but not the ammunition charge. The Superior Court denied the motion on May 18, 2017. The State filed a motion to declare Everett a habitual offender, and the Superior Court granted the motion on June 2, 2017. The court sentenced Everett to fifteen years of Level V imprisonment, followed by six months of Level II probation.

         B. Scope and Standard of Review

         This Court "review[s] a trial court's evidentiary rulings for abuse of discretion."[8]"Where the facts are not in dispute and only a constitutional claim of probable cause is at issue, this Court's review of the Superior Court's ruling is de novo."[9]

         C. Analysis

         Everett's claim is somewhat convoluted, but his central argument is that Detective Landis's monitoring of his Facebook page constituted an unlawful, warrantless "search" and, thus, any information seized pursuant to it must be suppressed as the fruit of the poisonous tree in violation of the Fourth Amendment of the United States Constitution and Article I, Section 6 of the Delaware Constitution. However, instead of launching a direct challenge under the search-and-seizure provisions of the United States and Delaware Constitutions, Everett asserts a so-called reverse-Franks claim[10] and, as such, argues that the Superior Court erred in denying him a hearing to determine whether Detective Landis knowingly and intentionally, or with reckless disregard for the truth, omitted information from his warrant affidavit that would have vitiated the magistrate's finding of probable cause-i.e., that the affidavit omitted material information. That is, Everett argues that, had the authorizing magistrate known about the "arbitrary ruse" that Detective Landis employed via Facebook, the magistrate would have denied the warrant application because the affidavit's facts about Everett's Facebook page were based on an unconstitutional search, and thus any evidence seized under such a warrant should be suppressed.

         Despite Everett's awkward framing, we consider his argument for what it is: a claim that Detective Landis's Facebook monitoring violated his constitutional rights and that, without that tainted information, the search warrant affidavit did not establish probable cause.

         We evaluate that argument under a two-step framework. First, we consider whether the Facebook monitoring violated the Fourth Amendment or Article I, Section 6 of the Delaware Constitution. If it did, then we "must 'excise the tainted evidence [from the warrant affidavit] and determine whether the remaining, untainted evidence would provide a neutral magistrate with probable cause to issue [the] warrant.'"[11] In this case, we need not go beyond the first step: Detective Landis's monitoring of Everett on Facebook did not run afoul of the Fourth Amendment or Article I, Section 6 of the Delaware Constitution.

         Everett focuses his arguments on attempting to refute the trial court's conclusion that it was "unable to find any basis in law in support of the proposition that the dissembling conduct of law enforcement would have altered the magistrate's issuance of the search warrant."[12] Everett argues that "the trial court reached its erroneous conclusion without considering either Everett's legitimate expectation of privacy in his Facebook posts or the extent of Landis' intrusion upon that legitimate expectation, "[13] which is essentially arguing that the trial court ignored a Fourth Amendment or Article I, Section 6 violation. Everett also argues that Detective Landis presented no evidence that the privacy settings of his Facebook page were "set to anything other than 'private.'" And, given that Detective Landis had "friended" Everett, Everett argues that it is reasonable to assume that his settings were "private" and, as such, the Photo itself was only viewable to his friends and, thus, he had a "legitimate expectation of privacy."[14] Finally, he asserts that, even assuming arguendo ...


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