ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS POST
M. Davis, Judge
consideration of Defendant's Motion to Suppress Post
Miranda Statement by Defendant (D.I. 38) filed by Defendant
Vernon Montgomery; The State's Response to the Motion to
Suppress (the "Opposition"); the hearing held on
the Motion and Response (the "Hearing") on August
10, 2018; and the entire record of this criminal proceeding:
October 2, 2017, Wilmington Police Department
("WPD") received a 911 call about a robbery at a
WSFS Bank (the "Bank") located at 211 North Union
Street, Wilmington, Delaware. The 911 caller described the
robbery suspect as a tall black male displaying a firearm and
wearing a neon color construction vest and mask. The Bank
provided WPD with real time tracking information from a GPS
location device inside a bag of the stolen money. WPD
dispatch relayed this information to responding officers.
tracker stopped in the 1000 Block of West 4th
Street. WPD stopped all vehicles on West 4th
Street between N. Van Buren Street and N. Jackson Street. WPD
officers then got out of their cars and began checking the
stopped vehicles looking for a possible suspect.
Corporal Johnny Whitehead noticed a Chrysler 200 sitting
stationary with a black male in the driver's seat and
avoiding eye contact with the officers. Corporal Whitehead
detained Mr. Montgomery. Then Corporal Whitehead searched a
backpack on the passenger floor. The backpack contained U.S.
currency and a black handgun. An officer transported Mr.
Montgomery to a WPD station and Mr. Montgomery was placed in
an interview room.
Court had the opportunity to review the video of Mr.
Montomery's time in the interview room. At first Mr.
Montgomery was alone in the room. Detective Harvist Smallwood
joined Mr. Montgomery. Before Detective Smallwood could say
anything, Mr. Montgomery began speaking. Detective Smallwood
told Mr. Montgomery to not say anything until Detective
Smallwood was able to get Mr. Montgomery's personal
information. Mr. Montgomery again interrupted Detective
Smallwood and talked about the incident. Mr. Montgomery said
that the officer "needs to hear this" and that
"this was out of desperation." Detective Smallwood
again stopped Mr. Montgomery from talking and told Mr.
Montgomery to "hold on" so that Detective Smallwood
could get Mr. Montgomery's information.
During the interview, Mr. Montgomery stated that someone
threatened his family because Mr. Montgomery owed that
person-a drug supplier-money. Eventually, Detective Smallwood
was able to read Mr. Montgomery his Miranda warning,
but only after being interrupted several times by Mr.
Montgomery. After being advised of his rights, Mr. Montgomery
stated that he did not wish to speak with Detective Smallwood
about the bank robbery.
Detective Smallwood exited the room, Mr. Montgomery asked to
speak with Detective Smallwood "man-to-man."
Detective Smallwood told Mr. Montgomery that Mr. Montgomery
had just refused to speak with him. Mr. Montgomery stated
that he did not want to talk about "that"-referring
to the bank robbery. Detective Smallwood said that he would
be back in a few minutes and left the interview room.
Nearly three minutes later, Detective Smallwood returned to
the room. He acknowledged that Mr. Montgomery asked for a
lawyer and said what they are going to talk about will have
nothing to do with what happened at the bank. On the video,
Mr. Montgomery then interrupts Detective Smallwood. Detective
Smallwood stopped Mr. Montgomery from speaking and asked Mr.
Montgomery to provide the contact information for his family
members that were threatened by the drug supplier. Mr.
Montgomery gives Detective Smallwood information about his
family. Detective Smallwood states "so somebody
obviously is" and Mr. Montgomery once again cuts off
Detective Smallwood. Mr. Montgomery said that he bought drugs
and got desperate when the supplier called asking for his
Officers applied for and obtained a warrant for the Chrysler.
Officers found a black hooded sweatshirt, a camouflage
backpack, a Hi-Vis safety vest, a Styrofoam cup containing
blue rubber gloves, a ski mask, a blue backpack containing
work gloves, a 9mm pistol, and $7, 385 cash.
Montgomery filed several motion to suppress evidence
including a motion to suppress the statements made during the
interview. The Court held a hearing on several of the motions
(the "Hearing") on August 10, 2018. At the Hearing,
the Court ruled that Mr. Montgomery made the
pre-Miranda statements voluntarily and that police
did not illicit the statements. The Court reserved the issue
whether the post-Miranda statements were made in
violation of Miranda.
Miranda warnings are required only where (1)
questioning of a suspect rises to the level of interrogation
and (2) the interrogation occurs while the suspect is either
in 'custody' or in a custodial
setting." Interrogation under Miranda need
not amount to actual questioning, but may be the functional
equivalent of questioning." The functional equivalent of
questioning includes 'any words or actions on the part of
the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the
suspect.'" "[A]n officer cannot be held
responsible for an unforeseeable statement by the suspect. An
interrogation only encompasses actions or words by the
officer that he or she should have known would elicit an
incriminating response." "The police need not shield
their ears from defendant's truly spontaneous
Here, the post-Miranda statements were not solicited
in violation of Miranda. Before Detective Smallwood
left the room, Mr. Montgomery told him that his family had
been threatened by his supplier. Detective Smallwood then
read Mr. Montgomery his Miranda rights. At that
point, Mr. Montgomery attempted to talk with Detective
Smallwood again "man-toman."
When Detective Smallwood returned to the room, he said that
he did not want to talk about the bank robbery. In fact,
Detective Smallwood tried to limit Mr. Montgomery's
conversation solely to the contact information for his family
members that were threatened by the supplier. Mr. Montgomery
interrupted Detective Smallwood and again made incriminating
statements. Detective Smallwood acted reasonably and did not
try to illicit incriminating evidence. Detective Smallwood
did what we would expect our officers to do. Detective
Smallwood learned that people were threatened and attempted
to get their contact information so that the police could