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State v. Johnson

Superior Court of Delaware

December 18, 2019

STATE OF DELAWARE,
v.
ANDRE JOHNSON, Defendant.

          Date Submitted: December 5, 2019

         On Defendant Andre Johnson's Motion to Suppress filed July 19, 2019 Denied in part. Granted in part.

         On Defendant Andre Johnson's Motion to Suppress filed July 22, 2019 Denied.

         On Defendant Andre Johnson's Motion to Suppress filed September 6, 2019 Granted.

          Annemarie H. Puit, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

          John S. Taylor, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

          Brian J. Chapman, Esquire, Law Office of Brian J. Chapman, Newark, Delaware, Attorney for Defendant Andre Johnson.

          MEMORANDUM OPINION

          Honorable Calvin L. Scott, Jr. Judge

         Introduction

         On October 8, 2018, Defendant was indicted and charged with Murder 1stDegree, Possession of a Firearm during the Commission of a Felony, and Possession of a Firearm by a Person Prohibited in regards to the shooting of Barry White on September 3, 2017.[1] Before the Court are three Motions to Suppress from Defendant Andre Johnson ("Defendant"). Therein, Defendant challenges two warrants for the search of his cellphone ("Cell Phone") and related data as having violated his right to be free from unreasonable searches guaranteed under the Fourth and Fourteenth Amendments to the U.S. Constitution and Article I, § 6 of the Delaware Constitution. The Court has reviewed and considered the parties' written submissions, as well as evidence provided and arguments made by the parties at the suppression hearing. For the following reasons, Defendant's Motion to Suppress filed on July 19, 2019 is DENIED IN PART and GRANTED IN PART, Defendant's Motion to Suppress filed on July 22, 2019 is DENIED, and Defendant's Motion to Suppress filed on September 6, 2019 is GRANTED.

         Findings of Fact

         On October 23, 2017, Defendant was arrested by the Wilmington Police Department ("WPD") on an active warrant for a domestic-related incident. The WPD seized Defendant's Cell Phone when they arrested Defendant. WPD officers conducted an interview with Defendant on October 23rd to obtain Defendant's side of the story for the alleged domestic-related incident, which occurred on October 20, 2017. Over the course of this interview, Defendant consented to the officers using his Cell Phone to find phone numbers for three individuals who could verify Defendant's alibi for October 20th and information related to those three phone numbers. Defendant also provided the officers with his Cell Phone's passcode.

         Three warrants were issued for searches of Defendant's Cell Phone and related data. Defendant challenges the latter two warrants in his motions to suppress.

         A. Warrant A

         The Justice of the Peace Court issued the first warrant ("Warrant A") on October 27, 2017. Warrant A authorized the search of Defendant's Cell Phone for evidence of a violation of 11 Del. C. § 602, Aggravated Assault, and 11 Del. C. § 1447, Possession of a Firearm during the Commission of a Felony. A WPD detective authored the affidavit of probable cause attached to the application for Warrant A.

         The following facts are set forth in the affidavit of probable cause underlying Warrant A.[2] An aggravated menacing occurred on October 20, 2017 in the 2400 block of North Tatnall Street in Wilmington, Delaware. A Wilmington Patrol Unit responded to this incident. The victim, Latasha Selby, told police that her child's father-Defendant-pointed a silver firearm at her. Ms. Selby informed officers that Defendant appeared to chamber a round before pointing the handgun at her and telling her to "get. .. back." Ms. Selby then fled from the area because she feared for her life. Defendant ran in the other direction. An eyewitness corroborated Ms. Selby's story. After the aforementioned incident, police issued an arrest warrant for Defendant's arrest; the WPD charged Defendant with Aggravated Assault and Possession of a Firearm during the Commission of a Felony. On October 23, 2017, WPD officers arrested Defendant pursuant to that arrest warrant. Defendant agreed to speak with the officers about the incident and consented to the officers using his Cell Phone to find phone numbers for three individuals. While searching through Defendant's Cell Phone, the officers observed "incriminating text message[s]" from Defendant.[3] The officers then stopped their search and applied for Warrant A.

         The affidavit underlying Warrant A requests permission for WPD officers to examine photographs, images, audio and visual recordings, text messages, web browsing activities, electronic documents, location information, call logs, telephone numbers and "any other information/data pertinent to this investigation within said scope, which represent evidence of Aggravated menacing and related offense(s)."[4] The search authorized by Warrant A was temporally limited to October 22, 2017 through October 26, 2017.[5]

         B. Warrant B

         The Justice of the Peace Court issued the second warrant ("Warrant B") on December 28, 2017. Warrant B authorized the search of Defendant's Cell Phone for evidence of a violation of 11 Del. C. § 636, Murder 1st Degree, and related offenses. Warrant B requests permission for police to look at "any/all data stored by whatever means, or through normal course of business of an unknown wireless service, and/or through the forensic examination of said cellular telephone" including, but not limited to: photographs, images, audio and visual recordings, text messages, web browsing activities, electronic documents, location information, call logs, telephone numbers and "any other information/data pertinent to this investigation within said scope between the time frame of May 1st, 2017 to October 23rd, 2017."[6]

         A WPD detective authored the affidavit of probable cause accompanying the application for Warrant B. The following facts are set forth in the affidavit of probable cause underlying Warrant B.[7] On September 3, 2017, the WPD was summoned to the Unit Block of West 26th Street in Wilmington, Delaware, in response to a shooting. The victim of this shooting, Barry White, was found suffering from multiple gunshot wounds; Mr. White was later pronounced dead in the Christiana Hospital Emergency Room. At the crime scene, police located seven spent 9mm caliber shell casings. These shell casings were later entered into the Nationally Integrated Ballistic Identification Network ("NIBIN") and searched against other spent shell casings. The search resulted in ballistic matches for three other shooting incidents: (1) an Assault 1st Degree, which occurred on May 6, 2017 in the 100 Block of 14th Street; (2) a shots fired complaint, which occurred on May 30, 2017 in the 100 Block of West 27th Street; and (3) a Reckless Endangering 1stDegree, which occurred on June 20, 2017 in the 2200 Block of North West Street. On October 23, 2017, Defendant was arrested. When the WPD arrested Defendant, he had a black Smith and Wesson 9mm semi-automatic handgun in his possession. The handgun was test fired by the WPD's Forensic Services Unit. The spent shell casings from this test fire were entered into the NIBIN and searched against other casings in the system. The search resulted in ballistic matches for the shooting incidents on May 6, May 30, and June 20, 2017 and the killing of Barry White.

         The WPD detective who authored the underlying affidavit stated that through his "training, knowledge, and experience" he knows that persons involved in criminal activities use mobile devices to facilitate criminal acts and communicate with co-conspirators. The WPD detective also stated that mobile devices process and store an abundance of data that can be retrieved in a logical fashion. Finally, the WPD detective stated that a search of Defendant's Cell Phone was necessary to: i) determine if Defendant possessed the handgun during any of the four shooting incidents; ii) determine Defendant's motive for the shootings; iii) determine if any of the shootings were planned; and iv) identify any co-conspirators that may exist.[8]

         C. Warrant C

         A judge of the Superior Court issued the third warrant ("Warrant C") on January 8, 2018. Warrant C authorized the search of Defendant's Cell Phone for evidence of a violation of 11 Del. C. § 636, Murder 1st Degree. Warrant C permitted police to search and seize any information related to Defendant's Cell Phone, including but not limited to: subscriber information, billing information, call detail records with corresponding cell site tower locations, latitude and longitude information for the related cell towers, and any and all electronic communications. The search authorized by Warrant C was temporally limited to May 1, 2017 through October 23, 2017.

         A WPD detective authored the affidavit of probable cause accompanying the application for Warrant C. The following facts are set forth in the affidavit underlying Warrant C.[9] On September 3, 2017, Barry White was shot and killed on the Unit Block of West 26th Street in Wilmington, Delaware. At the crime scene, police located seven spent 9mm caliber shell casings. These shell casings were later entered into the NIBIN and searched against other spent shell casings. The search resulted in ballistic matches for three other shooting incidents: (1) an Assault 1stDegree, which occurred on May 6, 2017 in the 100 Block of 14th Street; (2) a shots fired complaint, which occurred on May 30, 2017 in the 100 Block of West 27thStreet; and (3) a Reckless Endangering 1st Degree, which occurred on June 20, 2017 in the 2200 Block of North West Street. On October 23, 2017, Defendant was arrested. When the WPD arrested Defendant, he had a black Smith and Wesson 9mm semi-automatic handgun in his possession. The shell casings from this handgun were ballistic matches for the shooting incidents on May 6, May 30, and June 20, 2017 and the killing of Barry White. Defendant also possessed a LG cellphone when police took him into custody. After a forensic extraction of the Cell Phone, the police determined the device's number was [(***)***]_ 1230 and that it was in use during all three shooting incidents and the killing of Barry White.

         The WPD detective stated that a subpoena was submitted to Metro PCS for subscriber, billing, and equipment information for the purpose of identifying the Cell Phone. The subpoena also requested preservation of all existing records related to the Cell Phone from May 1, 2017 to October 23, 2017, including: subscriber information, call detail records, cell phone tower signal records, and text message content. The detective provided two reasons for why police wanted Warrant C: i) to determine the location of Defendant's Cell Phone on May 6, May 30, June 20, September 3, October 20, and October 23, 2017; and ii) to determine the subscriber information of the phones contacted by Defendant's Cell Phone from May 1, 2017 to October 23, 2017. Finally, the detective stated that through his "training, knowledge, and experience" he knows that persons involved in criminal activities use cellphones to communicate with co-conspirators. The affidavit also stated that cellular-service providers store lots of data, including cell site location information that can be GPS enabled, which can aid law enforcement in identifying the locations of the person using the cellphone.[10]

         D. The Independent Warrant

         A judge of the Superior Court issued the final warrant ("Independent Warrant") on October 9, 2019. The Independent Warrant authorized the search of Defendant's Cell Phone for evidence of a violation of 11 Del. C. § 636, Murder 1stDegree. The Independent Warrant permitted police to search and seize any information related to Defendant's Cell Phone, including but not limited to: subscriber information, billing information, call detail records with corresponding cell site tower locations, latitude and longitude information for the related cell towers, and text messages sent from and received by Defendant's Cell Phone. The search authorized by the Independent Warrant was temporally limited to September 3, 2017 at 0401 hours UTC through September 4, 2017 at 0359 hours UTC.

         A WPD officer authored the affidavit of probable cause accompanying the application for the Independent Warrant. The following facts are set forth in the affidavit underlying the Independent Warrant. On September 3, 2017, Barry White was shot and killed on the Unit Block of West 26th Street in Wilmington, Delaware. At the crime scene, police located seven spent 9mm caliber shell casings. These shell casings were entered into the NIBIN and searched against other spent shell casings. The search resulted in ballistic matches for three other shooting incidents: (1) an Assault 1st Degree, which occurred on May 6, 2017 in the 100 Block of 14thStreet; (2) a shots fired complaint, which occurred on May 30, 2017 in the 100 Block of West 27th Street; and (3) a Reckless Endangering 1st Degree, which occurred on June 20, 2017 in the 2200 Block of North West Street. On October 23, 2017, Defendant was arrested. When the WPD arrested Defendant, he had a black Smith and Wesson 9mm semi-automatic handgun in his possession. The shell casings from this handgun were ballistic matches for the shooting incidents on May 6, May 30, and June 20, 2017 and the killing of Barry White. Defendant also had his Cell Phone in his possession when he was arrested by the WPD. On December 13, 2017, a subpoena was submitted to Metro PCS for certain information from Defendant's Cell Phone. Metro PCS responded to the December 13th subpoena on January 24, 2018. Based on Metro PCS's responses to the subpoena, the WPD officer confirmed in the affidavit underlying the Independent Warrant that Defendant's Cell Phone was in use between May 1, 2017 and October 23, 2017.

         The WPD officer provided two reasons for why the WPD needed the Independent Warrant: to determine i) the location of Defendant's Cell Phone on September 3, 2017; and ii) the subscriber information of the phones contacted by Defendant's Cell Phone during the relevant time period. The WPD officer stated that the Independent Warrant would allow the WPD to identify persons and places relevant to the shooting of Mr. White and the other shooting incidents. Finally, the WPD officer stated that through his "training and experience" he knows that persons involved in criminal activities use cellphones to communicate with co-conspirators.

         Parties' Contentions

         A. Defense Motion #1 - July 19, 2019

         Defendant filed his first Motion to Suppress ("First Motion") on July 19, 2019. Defendant asks this Court to suppress all evidence gathered by the police after the execution of Warrant C. Defendant argues that Warrant C did not have a reasonable temporal restriction because Warrant C authorized a search for information created during a five-month period but Mr. White was killed on September 3, 2017. Defendant further argues that Warrant C was overly broad because it permitted police to search his Cell Phone for call detail records, direct communications, and text messages. Defendant contends Warrant C does not establish a logical nexus between the alleged offense and his Cell Phone.[11]

         B. Defense Motion #2 - July 22, 2019

         Defendant filed his second Motion to Suppress ("Second Motion") on July 22, 2019. Defendant asks this Court to suppress all evidence gathered by the police after the execution of Warrant C. Defendant argues that the police exceeded the scope of Warrant A and used evidence obtained outside the scope of Warrant A in the affidavit of probable cause underlying Warrant C.

         Warrant A limited the search of Defendant's Cell Phone to a five-day period: October 22, 2017 through October 26, 2017. Defendant alleges that the police exceeded the scope of Warrant A by downloading "information as far back as May of 2017."[12] Defendant alleges that Paragraph #6 from the affidavit underlying Warrant C includes information outside the scope of Warrant A:

Your affiant can truly state that a search warrant was applied for and was granted for the mentioned LG cellular phone, model LGMS63. The mentioned phone was turned over to Detective William Ball to be forensically downloaded. Detective Ball conducted a forensic extraction of the cellular device, which was provided to me. The device's cellular number was determined to be [***.***]_1230 and was in use during the time frames of all of the mentioned incidents that were ballistic matches to the firearm that Johnson was found in possession of on 10/23/2017.[13]

         Defendant urges the Court to strike the "illegally" obtained information from the affidavit underlying Warrant C and review the sufficiency of the affidavit with only the remaining information.[14]

         C. Defense Motion #3 - September 6, 2019

         Defendant filed his third Motion to Suppress ("Third Motion") on September 6, 2019. Defendant asks this Court to suppress all evidence gathered by the police after the execution of Warrant B. Defendant argues that the affidavit underlying Warrant B fails to establish a nexus between the alleged offenses and Defendant's Cell Phone because the language used in the affidavit underlying Warrant B was vague and general. Defendant contends that nothing in the affidavit establishes that he possessed that Cell Phone on September 3, 2017.[15] Further, Defendant argues that Warrant B was overbroad and insufficiently particularized. Defendant contends that Warrant B authorized a "fishing expedition" because of the vague and generalized language used in the affidavit and the overbroad nature of the request.[16]

         D. State's Response

         On October 1, 2019, the State responded to Defendant's motions to suppress. The State argues that the affidavits underlying Warrants B and C contain sufficient probable cause to establish a nexus between the alleged crime-the murder of Barry White-and Defendant's Cell Phone.[17] The State further argues that Warrants B and C satisfy the Delaware Supreme Court's desire for temporal limitations on search warrants for cellphone data.[18] Although the State posits that it would be appropriate for this Court to exclude evidence that was outside the scope of probable cause, the State also argues that all such evidence is admissible because Defendant consented to the search of his Cell Phone.[19] Finally, the State informs the Court that, should the Court find Warrant C invalid, the State will use the information it obtained via the December 13th subpoena of Defendant's call detail records to support another warrant for Defendant's location information. The State contends that because it can permissibly obtain the same evidence that this Court would exclude anyways, then all of the evidence that the State obtained from Warrant C should be admissible pursuant to the "independent source doctrine."[20]

         E. The Independent Warrant

         The State offered the Independent Warrant into evidence at the suppression hearing on November 12, 2019.[21] Defendant was given leave to make additional arguments regarding the Independent Warrant. Defendant made no additional ...


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