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State v. Anderson

Superior Court of Delaware

November 5, 2018


          Submitted: September 23, 2018

         On Defendant's Motion to Suppress Evidence Seized from Defendant's Seven Cell Phones.

          Mark A. Denney, Jr., Esquire, and Annemarie Puit, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Eugene J. Maurer, Jr., Esquire, and Christina Ruggiero, Esquire, Eugene J. Maurer Jr., P.A, Wilmington, Delaware, Attorneys for Defendant.


          Richard R. Cooch, R.J.

         This 5th day of November, 2018, upon consideration of Defendant's Motion to Suppress Evidence Seized from Seven Cell Phones, it appears to the Court that:

         1. On October 27, 2017, police arrested Damon Anderson ("Defendant") in connection with an alleged drug dealing and racketeering enterprise in Wilmington. Prior to Defendant's arrest, a police investigation had identified Defendant as an alleged participant in the criminal racketeering conspiracy. During the investigation, police intercepted numerous cell phone communications of one Dwayne "Boop" White, who was also allegedly involved in the criminal conspiracy. On September 1, 2017, White allegedly coordinated a suspected drug transaction and was later seen leaving the alleged stash location with a large bag, accompanied by Defendant and another individual. A search of the stash location revealed crack cocaine paraphernalia and a small amount of cocaine. The grand jury indicted Defendant for Conspiracy to Commit Racketeering and related charges on October 16, 2017. Police obtained a warrant to search Defendant's home and car on October 27, 2017. Police located seven cell phones on/in Defendant's property. On January 18, 2018, police obtained a search warrant to search the contents of the seven cell phones.

         2. Defendant originally filed two motions to suppress under Superior Court Criminal Rule 41(f) in connection with this case. The motions sought to suppress evidence seized pursuant to the search warrants obtained by police during their investigation into Defendant's alleged criminal activities. The first motion sought to suppress evidence seized from Defendant's home and car. The second motion sought to suppress evidence seized from seven cell phones found on Defendant's property.

         3. On August 28, 2018, after oral argument, based on the "four corners" of the search warrant for the home and car, the Court orally denied that Motion to Suppress. The Court found (a) sufficient probable cause to support the warrant; and (b) that a logical nexus existed between Defendant's home, car, and the alleged criminal activity.[1] The Court, however, deferred decision on the motion to suppress evidence seized from the seven cell phones, and ordered supplemental briefing.

         4. Defendant challenges the search warrant that authorized the police to search seven cell phones seized from his property. The police cited various alleged criminal activities involving defendant that occurred from the second week of August 2017 until the phones' seizure on October 27, 2017.[2] The warrant authorized police to search:

Any and all store[d] data contained within the internal memory of the cellular phones, including but not limited to, incoming/outgoing calls, missed calls, contact history, images, photographs and SMS (text) messages.[3]

         5. Defendant contends the evidence seized from the seven cell phones was obtained "in violation of [his] rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, § 6 of the Delaware Constitution."[4] The parties agree that the Court's analysis is limited to the "four corners" of the search warrant to determine its validity.

         6. Defendant first argues that the search warrant affidavit failed to set forth specific facts sufficient to establish probable cause to search all seven cell phones.[5] Secondly, Defendant contends the warrant failed to meet the particularity requirement of the Fourth Amendment, which he contends rendered it a "general warrant" which thus authorized an unconstitutionally overbroad, unconstrained search that was illegal as a matter of law.[6] Specifically, Defendant argues the warrant (1) did not limit what type of data within the cell phone was to be searched; and (2) did not set forth a temporal limitation on the data to be searched. Such a warrant, Defendant asserts, gave police authority to "generally search all seven cell phones, granting broad permission to rummage through all digital contents."[7] Accordingly, Defendant argues that all evidence seized from the seven cell phones by the State should be suppressed.

         7. The State responds that "the specific nature of the defendant's case and criminal conduct articulated within the four corners of the search warrant" supports a finding of ample probable cause, a logical nexus, and permissible scope.[8] The State highlights key aspects of the warrant affidavit which articulate Defendant's alleged criminal conduct: Defendant had just been indicted by a grand jury for Racketeering; four past proven reliable informant tips had implicated Defendant in a drug dealing enterprise; Defendant had accompanied an alleged accomplice to an alleged drug stash location; and Defendant had met with another individual in an alleged drug transaction, that same individual having been found with 13, 000 bags of heroin just days later.[9] Cell phone communications between Defendant and Dwayne White were intercepted in a wiretap, which allowed police to observe the meetings at the alleged stash location and the alleged drug transaction.[10] As to the scope of the warrant, the State contends it was necessarily somewhat broad because of the expansive nature of criminal racketeering enterprises and "the continuous activity of a drug business and money laundering business."[11] The State argues that in this case, quite unlike the situation of a singular act, there are numerous articulated acts amounting to probable cause that an ongoing drug dealing enterprise existed, in which Defendant partook. Thus, the State contends, the warrant permits the search of communications data and pictures/video related to drug dealing, and is permissibly limited to the time period of the alleged acts set forth in the warrant affidavit.[12]

         8. When determining the sufficiency of a search warrant, the Court is limited in its analysis to the information provided "within the four-corners of the affidavit[.]"[13] Thus, "sufficient facts must appear on the face of the affidavit so that an appellate court can verify the factual basis for the [magistrate's] determination regarding the existence of probable cause."[14] The Court must also consider the information in the affidavit under a totality of the circumstances.[15] "[R]easoanble inferences [may be drawn] from the factual allegations in the affidavit."[16] Defendant bears the burden of establishing that the warrant was unlawful.[17]

         9. First, the Court finds the issuance of the search warrant was proper because it was supported by probable cause. The affidavit provided a detailed account of the investigation thus far, which implicated Defendant at almost every turn. To highlight key points of the warrant affidavit below:

2. [Investigators] conducted an investigation regarding a group of individuals involved in conspiring to commit numerous crimes ... includ[ing] drug dealing[.] [One] [t]arget of the investigation [was] Dwayne WHITE .... [D]uring the second week of August 2017 [investigators] began intercepting wire communications of Dwayne "Boop" White on two (2) of his cellular phones[.] ...
3. White was found to be utilizing a secondary apartment, north of Wilmington, as a stash location for his drugs. White would routinely respond to this location or be at this location prior to conducting a drug transaction. On 01 SEP 17 White coordinated a suspected drug transaction with another subject while he was at the apartment. Surveillance was established at the apartment and White was observed leaving the apartment with a large bag. [White] was accompanied by Damon ANDERSON and another subject. They responded to the city of Wilmington and met several subjects, one of which was William Wisher. Wisher was arrested a few days later and a search warrant executed at this residence. He was found to be in possession of 13, 000 bags of heroin.
4. [F]or several years this detective and other members of the FBI [Safe Streets Violent Crimes Task Force] SSTF have been contacted by numerous (more than 4) past proven and reliable informants who have advised that White and ANDERSON work in conjunction with each other and other members of a drug dealing organization to distribute illegal drugs in the city of Wilmington, DE.
6. ... as part of the investigation it was learned that White and other members of his organization routinely gamble at casinos as a means to launder their drug proceeds and pass them off as gambling winnings. On 26AUG17, White contacted Damon ANDERSON via cellphone ... At the time ANDERSON was in Las Vegas, Nevada. White directed ANDERSON to place a large wager on a sporting event for him.
7. ... on October 16, 2017 Damon ANDERSON was indicted by a New Castle County Grand Jury and a Rule 9 warrant was issued for his arrest for charges to include a violation of Title 11, Section 1503, Delaware Code, in that Conspiracy to Criminal Racketeering, warrant ID #171006710. []
10. ... on 270CT17 a search warrant was conducted at [Anderson's residence] and of ANDERSON'S vehicle parked out front. Located in ANDERSON'S property were seven (7) cellular phones, to include the phone used to contact WHITE[.][18]

         10. Here, police sufficiently documented the investigation into the criminal enterprise in which Defendant allegedly engaged. Defendant was seen with Dwayne White at White's stash location, and later with William Wisher a few days before Wisher was arrested and 13, 000 bags of heroin were seized from Wisher's house. Further, White contacted Defendant via a cell phone which was later seized by police. White allegedly asked Defendant to engage in conduct which a court may reasonably infer-when viewed in a totality of the circumstances-was intended to launder money for the criminal organization. Lastly, and importantly, a grand jury had indicted Defendant just prior to the search warrant's issuance. This was stated in the search warrant application. "Racketeering" by its definition, is an ongoing enterprise.[19]

         11. Despite the documentation of alleged criminal activity, Defendant maintains that it is still insufficient to establish probable cause to search the seven cell phones. Defendant relies on the recent Delaware Supreme Court ruling in Buckham v. State.[20] In Buckham, the Court dealt with a warrant to search a single cellular phone. Investigators in Buckham supported their affidavit of probable cause to search the one cell phone simply by asserting that "criminals often communicate through cellular phones."[21] The Court noted: "who doesn't [use a cell phone] in this day and age?" and the Court struck down the warrant on the grounds that "warrant was both vague about the information sought... and expressly authorized the search of materials there was no probable cause to search[.]"[22] Defendant contends the current investigator's identical assertion that "criminals communicate with cell phones" similarly condemns the warrant as the Supreme Court did in Buckham.

         12. Defendant's case is, however, distinguishable. The amount of cell phones seized in the instant matter is a key distinguishing factor. A high percentage of people do use cell phones, but the magistrate reasonably determined, in light of the totality of the circumstances, the discovery of seven cell phones in this particular case suggested criminal activity. The rhetorical question asked by the Court in Buckham has less applicability to this situation when seven cell phones were found in Defendant's possession. Accordingly, this Court ...

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