Submitted: June 13, 2019
Gregory R. Babowal, Esquire of the Department of Justice,
Dover, Delaware; attorney for the State of Delaware.
Alexander W. Funk, Esquire of Curley Dodge & Funk, LLC,
Dover, Delaware; attorney for Defendant.
Motion to Suppress Evidence (DNA Search Warrant) Denied.
WILLIAM L. WITHAM, JR. RESIDENT JUDGE.
the Court, is Defendant Eugene Riley (hereinafter
"Defendant") and his Motion to Suppress DNA
evidence pertaining to the seizure of his DNA after his
arrest. The DNA was collected via buccal swab pursuit to a
search warrant signed by Justice of the Peace Court #7
(hereinafter "JP Court").
considering Defendant's motion, the State's response
in opposition, oral argument, and the record, it appears to
the Court that:
May 13, 2018, Jameir Vann-Robinson (hereinafter
"Victim") was shot and killed following a verbal
altercation at 82 Mitscher Road in Dover, Delaware.
enforcement officers responded to the scene of the shooting
and located four (4) 9mm shell casings and six (6) .40 shell
casings along the sidewalk and roadway in close vicinity to
the scene at 106 Mitscher Road.
subsequent investigation revealed that two suspects,
Defendant and Ahmir Bailey (hereinafter "Defendant
Bailey") had allegedly shot the victim at or near 82
Mitscher Road. The investigation also led law enforcement to
discover one of the handguns used in the shooting, along with
magazines and ammunition matching the handguns, during the
execution of a.search warrant at Defendant's
May 14, 2018, Defendant and Defendant Bailey were arrested.
same day, Detective Stephen Boone (hereinafter "Det.
Boone"), Dover Police Department, applied for a Search
Warrant from JP Court #7 that sought to collect
Defendant's DNA and compare it to DNA recovered from
weapons and ammunition found at Defendant's residence.
The Affidavit stated, in pertinent part:
Affiant is requesting to secure a sample of [DNA] from
[Defendant] for an analysis/comparison with a sample
from the recovered .40 caliber M&P handgun, .40 caliber
magazine..., box of 9mm ammunition, 9mm magazine..., and any
other evidence seized relating to this incident that may
contain [Defendant's] DNA.
Defendant's DNA was analyzed and determined to match DNA
recovered from the weapons and ammunition found at
May 13, 2019, Defendant filed his suppression motion seeking
to suppress the seized DNA. The State's response, in
opposition, was filed on May 16, 2019. The Court heard oral
arguments on May 30, 2019 and reserved its decision because
of (1) a factual discrepancy regarding the method of DNA
collection and (2) the Court's granting both
parties time to submit additional briefing on the issue of
DNA collection being lawful pursuant to a valid search
incident to arrest that was raised by the State in its reply.
his motion, Defendant asserts the search warrant was invalid
as it did not establish probable cause because Det.
Boone's affidavit was conclusory and insufficient to
establish a proper foundation for obtaining his
State counters Defendant's argument by contending law
enforcement officers need not determine whether a known DNA
sample has been recovered from a crime scene before
establishing a logical nexus for a DNA search
warrant. Rather, the nexus required must be
demonstrated by a fair probability that the seized DNA can be
linked to the crime. Alternatively, the State asserts the DNA
seizure was permissible pursuant to a valid search incident
a motion to suppress challenging the validity of a search
warrant, a defendant bears the burden of establishing that
the challenged search or seizure was unlawful.
Section 2307 of Title 11 of the Delaware Code authorizes a
judicial officer to issue a warrant if the facts recited in
the complaint constitute probable cause for the
search. Unless there is a showing of a factual
basis for probable cause within the "four corners"
of the affidavit that was submitted to the judicial officer
in support of the warrant, the warrant will not be
issued. The judicial officer issuing the warrant
must make a practical, common-sense decision whether, given
all the circumstances set forth in the accompanying
affidavit, including the veracity and the basis of knowledge
of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be
found in a particular place. In other words, a logical
nexus must be established between the sought after items and
the place in which law enforcement wishes to
This Court grants great deference to the judicial
officer's determination of probable cause. In
determining whether probable cause exists to obtain a search
warrant, Delaware courts apply a "totality of the
circumstances" test. In so keeping, this Court will
review the judicial officer's determination for the
substantial basis for concluding that probable cause
Defendant argues that language found in Det. Boone's
affidavit supporting a search warrant to collect his DNA was
nothing more than a collection of conclusory statements that
are insufficient to establish the required heightened nexus
between his DNA and evidence of a crime. Defendant relies on
State v. Campbell and also cites to the recent
bench decision in State v. Risper in support of
his position. This Court finds, however, that this case is
light of Defendant's reliance on Campbell, the
Court feels a review of the case would be
helpful. In Campbell, law enforcement
obtained a search warrant for the defendant's
DNA. In that affidavit, the only information
regarding DNA was following statement:
[y]our affiant is aware that several casings from the firearm
that was fired were located at the scene and collected as
evidence, [and] [y]our affiant is aware that it is
possible to collect DNA evidence of the suspect(s) from
the casings. Your affiant is aware that DNA belonging to
[defendant] 8/3/1988 can be compared to any DNA found on the
The Campbell court expressed concern that the
affiant's statement was "not supported by the
detective's personal knowledge gained from work
experience or other investigations that may have occurred or
[was] even ...