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State v. Foreman

Superior Court of Delaware, Kent

August 29, 2019

LEWIS FOREMAN 1901014406; TYRA R. MIFFLIN; and KEYARRA J. JOHNSON 190614411 Defendants.

          Submitted: August 27, 2019

         Defendants' Motion to Suppress Granted.

          Gregory R. Babowal, Esquire of the Department of Justice, Dover, Delaware; attorney for the State.

          Anthony Capone, Esquire of the Office of the Public Defender, Dover, Delaware; attorney for Defendant Foreman.

          Thomas D. Donovan, Esquire of the Office of Conflict Counsel, Dover, Delaware; attorney for Defendant Mifflin.

          Adam D. Windett, Esquire of Hopkins & Windett, LLC, Dover, Delaware; attorney for Defendant Johnson.


          Hon William L. Witham, Jr., Resident Judge


         Before the Court is the Motion to Suppress filed by the Defendant Lewis Foreman, joined by defendants Tyra R. Mifflin and Keyarra J. Johnson, and the State's Response in opposition. Defendants seek suppression of all evidence obtained following a search of the house where Mr. Foreman was a frequent overnight guest by Delaware State Police. As the facts stand presently, it should appear to the Court that:


         1. On January 24, 2019, Dover Police Department Dispatch received a call from a manager of Target reporting that an unknown black male suspect had exposed himself to a customer in a parking lot and fled in a gold Jaguar.[1] Dover Police believed that this incident was connected to a January 19, 2019 indecent exposure investigation in which they had previously identified Lewis Foreman as a suspect.[2] Mr. Foreman was known to reside at 79 Stevenson Drive in Dower, Delaware.[3] In response to the call from Target on January 24, Master Corporal Turner (hereinafter "Cpl. Turner") and Patrolman Weir (hereinafter Ptl. Weir) started looking for Mr. Foreman in the area of Stevenson Drive.[4]

         2. Ptl. Weir observed a gold Jaguar near Stevenson Drive and attempted to conduct an investigatory stop of the car.[5] Shortly thereafter, the driver, who police believed to be Mr. Foreman, abandoned the vehicle and fled into the area of Stevenson Drive.[6] The officers pursued Mr. Foreman.[7] The officers lost sight of Mr. Foreman around the rear of 79 Stevenson Drive and did not see him enter the residence.[8] They did, however, see a hat outside the residence and believed that it belonged to Mr. Foreman.[9]

         3. Officers believed that the suspect entered the residence.[10] Multiple officers arrived at the residence at that time and formed a perimeter around 79 Stevenson Drive.[11] The officers attempted to contact the residents from the outside, but nobody responded to their efforts.[12] One of the officers, Corporal Musemici (hereinafter "Cpl. Musemici") went to the neighborhood's housing office and reviewed security footage of the neighborhood, which showed Mr. Foreman entering 79 Stevenson Drive.[13] Thereafter, the Dover Police Special Operations Response Team (hereinafter "SORT") entered the residence to arrest Mr. Terry, who barricaded himself in the attic with his girlfriend but surrendered to police after approximately half an hour.[14] Police did not have a warrant to enter the residence.[15]

         4. While inside the residence, Dover Police located marijuana, currency, and drug paraphernalia.[16] Police then sought and received a warrant to search the residence for drug dealing.[17] During the execution of the warrant, police seized marijuana, drug paraphernalia and United States currency.[18]


         5. Mr. Foreman contends that the warrantless entry of the residence where he was a frequent overnight guest was unlawful because it violated his rights under the Fourth Amendment of the Constitution of the United States and Article I, Section VI of the Constitution of the State of Delaware.[19] Mr. Foreman argues that warrantless entry in this case was not justified by any exception to the warrant requirement, including the hot pursuit exception.[20] Accordingly, Mr. Foreman argues that the subsequent search warrant did not establish probable cause to search the residence because it was based on information that was obtained as a result of an illegal entry into the residence.[21]

         6. Mr. Foreman asserts that the pursuit was no longer "hot" because police entered the residence long after they lost sight of him.[22] Mr. Foreman further points out that misdemeanor pursuits are inherently less exigent than felony pursuits and, therefore, require a higher burden of demonstrating exigency. Mr. Foreman also states that no exigent circumstances existed in this case to justify the entry.[23]

         7. The State claims that police had the right to decide how to handle a "barricaded suspect."[24] The State asserts that "barricaded suspect" situations are unique and should be handled differently than other circumstances.[25] Thus, the State argues that police should be allowed a greater degree of flexibility when such factor is present.[26] The State cites to cases where the courts handled "barricaded suspect" situations differently in other contexts.[27] The State cites to State v. Patton, where Miranda was not needed during discussions between police and barricaded suspects.[28] The State also cites to State v. Lambert, claiming that the court in that case acknowledged that SORT was allowed to do protective sweeps inside a residence prior to issuance of search warrant.[29]

         The State further argues that the hot pursuit exception to a warrant requirement also applies in this case because police actions were justified to prevent a suspect's escape.[30]


         8. On a motion to suppress evidence seized during a warrantless search or seizure, the State bears the burden of establishing that the challenged search or seizure comported with the rights guaranteed by the United States Constitution, the Delaware Constitution, and Delaware statutory law.[31] The burden of proof on a motion to suppress is proof by a preponderance of evidence.[32]


         A. Protective SOR T Sweeps

         9. The State argues that SORT should have made the determination on how to proceed under these circumstances.[33] Thus, the issue is whether SORT'S discretionary decision alone should make a warrantless entry proper.

         10. The Fourth Amendment, made applicable to the states by the Fourteenth Amendment, prohibits police from making a warrantless, nonconsensual entry into a person's home for purposes of search or seizure, unless the State can establish that the exigent circumstances make the warrantless entry imperative.[34] The State argues that the warrantless entry was justified in this case because SORT authorized the entry.[35]

         11.The State in this case relies on State v. Lambert[36] In Lambert, a SORT unit ordered defendant out of his residence, and defendant complied.[37] Shortly thereafter, police searched the residence in reliance on a warrant.[38] Defendant in Lambert challenged the validity of the warrant, and the court agreed that the search was executed before the search warrant application was completed.[39] The court stated, however, that because the procedure that would have led to a valid search of the residence was well underway, officers' conduct fell within the inevitable discovery exception to the search warrant requirement.[40] The SORT unit also conducted a protective sweep of the residence prior to the search.[41] However, defendant did not challenge the sweep, and the court did not address the issue of whether the warrantless sweep was valid under the circumstances.[42]

         12. Nothing in Lambert supports the proposition that the SORT sweep is proper without consideration of other circumstances. Protective sweeps by SORT may be justified without a warrant under the "emergency doctrine."[43] In this case, SORT engaged in the warrantless search of the residence, not a protective sweep. The State presents no facts to support a proposition that the team acted in a response to an emergency. There was no evidence of threats, shots fired or any other evidence of an emergency situation. Furthermore, as opposed to Lambert where the warrant was applied for, police in this case made no steps to secure a warrant prior to the search.

         13. In this case, it is commendable that law enforcement handled the situation in such a manner that ensured the safety of everyone involved. This is especially important given the fact that multiple people were present in the residence. However, the determination of whether law enforcement can enter a residence without a warrant is governed by law, and no law exists that authorizes such an entry based solely on the presence and decision of a SORT unit.

         B. Hot Pursuit.

         14. Regarding the warrantless entry, the Court must determine whether there were exigent circumstances present, even if police entered a residence in hot pursuit of the Defendant. After an analysis of the exigent circumstances factors, the Court concludes that there were no exigent circumstances present that justified the warrantless entry into the residence.

         15. In Delaware, a search of a residence without a warrant is legal in some circumstances, including if the search is made for a person whom law enforcement were in hot pursuit of, provided the pursuer has probable cause to ...

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