   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                 IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                      )
                                        )
                                        )
      v.                                )      Crim. ID. No. 1312012959
                                        )
                                        )
ISHMAEL N. KWALALON                     )


                           Submitted: July 16, 2015
                           Decided: August 3, 2015


                                   ORDER


Upon Defendant Ishmael Kwalalon’s “Motion for Permission to File Motion
                  to Suppress Evidence Out of Time,”
                              DENIED.

      This 3rd day of August, 2015, upon consideration of the Defendant’s

Motion for Permission to File Motion to Suppress Evidence Out of Time

(D.I. 44), the State’s response thereto (D.I. 46), the Defendant’s reply (D.I.

49) and the record in this matter, it appears to the Court that:

      (1)    Defendant Ishmael Kwalalon (“Kwalalon”) was arrested for

illegal possession of two firearms and drug paraphernalia that were found in

his bedroom on December 20, 2013.
       (2)    On August 22, 2014, Kwalalon, through counsel, filed a timely

motion to suppress evidence.1 His attorney filed written supplements to that

motion (D.I. 17, D.I. 21) and, on two separate dates, the Court heard

evidence and arguments from the parties. (D.I. 18, D.I. 20).

       (3)    The Court reserved decision at the close of the second hearing

on December 12, 2014. And on February 13, 2015, the Court issued a 16-

page written opinion and order denying Kwalalon’s suppression motion. 2

       (4)    On June 9, 2015, Kwalalon’s current counsel entered his

appearance. (D.I. 41). A new trial date of August 18, 2015, was set shortly

thereafter. (D.I. 43).

       (5)    On July 6, 2015, Kwalalon’s new counsel filed the instant

application which he captions a “Motion for Permission to File Motion to

Suppress Evidence Out of Time.”

       (6)    Given the procedural history of this matter and the arguments

made (and waived) by Kwalalon both now and during the prosecution of his

motion to suppress, however, this is actually a motion for reargument under



1
       Scheduling Order (July 21, 2014) at ¶ 3 (“Motions . . . to suppress must be filed
within twenty (20) days of the first case review.”). First Case Review occurred on
August 4, 2014. Id.
2
       State v. Kwalalon, 2015 WL 721255 (Del. Super. Ct. Feb. 13, 2015).


                                          -2-
this Court’s rules.3       This determination is particularly important here

because the Court has no jurisdiction now to consider a reargument motion. 4

       (7)    Kwalalon claims now that the Court should revisit suppression

because, in his view, “there are two meritorious issues . . . not raised in the

motion to suppress . . . that were, therefore, neither considered nor ruled

upon by” the Court. 5 The arguments Kwalaon now wants to make devolve

into a claim that the warrant issued to search his home was not supported by

probable cause. 6

       (8)    During the protracted suppression proceedings, the issue of

whether the warrant issued to search 2 South Sherman Drive was supported

by probable cause was addressed more than once. In Kwalalon’s written

suppression motion, it was tailored: he argued that probable cause did not

exist within the four corners of the warrant “for a person of reasonable

caution to believe that evidence of a crime was located within [Kwalalon’s]
3
       See Wilson v. State, 2006 WL 1291369, at *1 n.3 (Del. May 9, 2006) (explaining
that court should “consider the true substance of [a party’s] claim” to discern the proper
procedural mechanism applicable in a given instance).
4
        See, e.g., Zeneca, Inc. v. Monsanto Co., 1996 WL 104254, at *5 (Del. Ch. Mar. 7,
1996) (“In determining whether it has subject matter jurisdiction, this Court must
examine the pleadings to determine the true substance of the relief [a party] actually
seeks, and will not be bound by the form of relief as described [by the party.]”).
5
       Def.’s Mot. to File Out of Time at 2.
6
       See generally Def.’s Proposed Mot. to Suppress, Ex. A to Def.’s Mot. to File out
of Time.


                                           -3-
bedroom.”7     At the first session of the suppression hearing, Kwalalon

admitted that the warrant authorizing the search of 2 South Sherman Drive

was supported by probable cause:


              The Court: [. . .] It seems to me that your argument
         is not so much that this search warrant wasn’t supported by
         probable cause or even the breadth of the search warrant,
         but as to the execution of the warrant?

              [Defense Counsel]: That is correct, Your Honor. I
         think the scope of the search itself was overly broad as it
         relates to Ishmael Kwalalon. I am not arguing that there
         was not probable cause to search the house and areas of the
         house that George Shaheen had control over. I believe it
         was clear that there was probable cause outlined in the
         warrant, in the affidavit attached to the warrant, that he
         was distributing drugs from that house.
             My argument is simply that there was not probable
         cause to believe that Mr. Kwalalon was engaged in any
         criminal activity. 8

And during the continuation of the suppression hearing, Kwalalon began his

closing suppression argument thusly:

              [Defense Counsel]: Your Honor, I think that the facts
          in this case as it relates to the motion are not in dispute.
          The investigation revealed that George Shaheen was
          dealing drugs out of the house, that’s clear. I think there
          was probable cause to search for items related to his
          distribution of drugs within that residence.9
7
      Def.’s Mot. to Suppress at 6 (emphasis added).
8
      Suppression Hr’g. Tr. (Oct. 10, 2014), at 8-9.
9
      Suppression Hr’g. Tr. (Dec. 12, 2014), at 32.


                                          -4-
Having been unsuccessful in the first instance, Kwalalon jettisons these

earlier arguments and tries now to procure suppression by claiming that the

search warrant issued for 2 South Sherman Drive was not – because of its

contents’ staleness or illegality – supported by probable cause. 10 Without

doubt, Kwalalon’s is a motion for reargument.

       (9)     Superior Court Civil Rule 59(e) (made applicable to criminal

cases pursuant to Superior Court Criminal Rule 57(d))11 permits the Court to

reconsider its findings of fact, conclusions of law, or judgments. 12 But any

request for such reconsideration must be timely. 13                Here, a motion for

reargument had to be served and filed within five days of the Court’s




10
       See generally Def.’s Proposed Mot. to Suppress, Ex. A to Def.’s Mot. to File Out
of Time.
11
        Super. Ct. Crim. R. 57(d) (“In all cases not provided for by rule or administrative
order, the court shall regulate its practice in accordance with the applicable Superior
Court civil rule or in any lawful manner not inconsistent with these rules or the rules of
the Supreme Court.”); Super. Ct. Civ. R. 59(e) (providing a vehicle for motions for
reargument of the Court’s decisions).
12
       Bd. of Managers of the Delaware Criminal Justice Info. Sys. v. Gannett Co., 2003
WL 1579170, at *1 (Del. Super. Ct. Jan. 17, 2003), aff’d in part, 840 A.2d 1232 (Del.
2003).
13
       Samuel v. State, 2010 WL 3245109, at *1 (Del. Aug. 17, 2010) (“A timely-filed
motion for reargument is ‘the proper device for seeking reconsideration’ of a trial court’s
findings of fact and conclusions of law.”) (quoting Hessler, Inc. v. Farrell, 260 A.2d 701,
702 (Del. 1969)).


                                           -5-
February 13th opinion and order denying suppression.14 Kwalalon thus had

until Monday, February 23, 2015, to serve and file a motion for

reargument. 15 Kwalalon’s present motion was filed July 9, 2015, and was,

therefore, untimely. 16       Under settled Delaware law, the Court has no

authority to extend the time in which to move for reargument. 17                     And

because Kwalalon’s reargument motion is untimely, the Court has no

jurisdiction to consider it.18

         (10) Even when timely, it is well-settled that a motion for

reargument is not a device for rehashing arguments already presented or for

raising new arguments. 19 Yet, that is precisely what Kwalalon attempts




14
         Haskins v. State, 2008 WL 644200 (Del. March 11, 2008).
15
         See Super. Ct. Crim. R. 45(a) (excluding Saturdays, Sundays, and legal holidays).
16
         See Colon v. State, 2008 WL 5533892 (Del. Nov. 13, 2008) (motion to reargue
filed six days after the filing of the motion sought to be reargued was untimely).
17
         Id. (citing Super. Ct. Civ. R. 6(b)); Fisher v. Biggs, 284 A.2d 117, 118 (Del.
1971).
18
     Boyer v. State, 2007 WL 452300 (Del. Feb. 13, 2007) (citing Preform Building
Components, Inc. v. Edwards, 280 A.2d 697, 698 (Del. 1971)).
19
        State v. Abel, 2011 WL 5925284, at *1 (Del. Super. Ct. Nov. 28, 2011) (“It is well
settled that a motion for reargument is not an opportunity for a party to revisit arguments
already decided by the Court or to present new arguments not previously raised.”)
(emphasis added); Cummings v. Jimmy’s Grille, Inc., 2000 WL 1211167, at *2 (Del.
Super. Ct. Aug. 9, 2000) (“A Motion for Reargument is not a device for raising new
arguments or stringing out the length of time for making an argument.”).


                                            -6-
here.20 Thus, even if Kwalaon’s was a proper and timely motion under Rule

59(e), it would not warrant the relief he seeks.21

       (11) And, even if this Court is mistaken to consider Kwalalon’s

current application a motion for reargument, the circumstances here do not

warrant the relief of allowing an untimely second motion to suppress.

       (12) This Court is vested with authority to set the time for the filing

and hearing of pretrial motions.22 Under the scheduling order in this case,

Kwalalon timely filed a suppression motion.23 It was fully litigated through

written submissions, evidentiary hearings, and a written opinion. He now

seeks to retread the same ground – the validity of the search of his bedroom

under the warrant granted for 2 South Sherman Drive – more than 10 months

after the deadline for filing any suppression motion has passed and as the

matter’s sixth trial date looms. The reason for this? New defense counsel

has just been hired to engage a new suppression strategy.



20
        Def.’s Reply at 5 (Kwalalon “is asking to supplement the factual matters in the
record . . . and to make two arguments of law not previously made to, or considered by,
the Court.”).
21
       Abel, 2011 WL 5925284, at *1. See Benge v. State, 101 A.3d 973, 978 (Del.
2014) (reargument motion is directed to the sound discretion of this Court).
22
       State v. Ayers, 2014 WL 606562, at *2 (Del. Super. Ct. Jan. 24, 2014).
23
       Supra note 1 and accompanying text.


                                           -7-
       (13) “Absent exceptional circumstances, the Superior Court is not

required to consider an untimely motion to suppress.”24 And “a change in

representation alone does not rise to the level of exceptional circumstances

warranting the Court’s consideration of an untimely motion to suppress.”25

Particularly where that new representation merely seeks to engage a new

offensive on the same issue – the validity of the search of Kwalaon’s home

under the warrant issued therefor – using evidence and information available

to prior counsel. 26

       NOW, THEREFORE, IT IS HEREBY ORDERED that the

Defendant’s “Motion for Permission to File Motion to Suppress Evidence

Out of Time” is DENIED. If it is, as the Court finds it to be, truly an

untimely motion for reargument of the Court’s earlier suppression decision,

the Court has no jurisdiction to consider it 27 and it is improperly based. 28 If,


24
       Small v. State, 2015 WL 71631, at *3 (Del. Jan. 5, 2015); Pennewell v. State,
2003 WL 2008197, at *1 (Del. Jan. 28, 2003); Barnett v. State, 691 A.2d 614, 615 (Del.
1997), abrogated on other grounds by Lecates v. State, 987 A.2d 413 (Del. 2009).
25
        Ayers, 2014 WL 606562, at *2 (discussing cases and noting that “[e]xceptional
circumstances exist when there are circumstances that warrant the Court’s consideration
of the untimely motion, and those circumstances ‘outweigh the countervailing interest in
ensuring the timely and orderly processing of the Superior Court's criminal docket’”).
26
       Id. at *2-3.
27
       Brooks v. State, 2008 WL 5250269, at *1 (Del. Dec. 18, 2008) (“It is well-settled
that the Superior Court has no jurisdiction to consider an untimely motion for
reargument.”).


                                          -8-
on the other hand, it is an untimely motion to suppress, these are not

circumstances in which the Court would exercise its discretion to allow

such.29

                            SO ORDERED this 3rd day of August, 2015.



                            /s/ Paul R. Wallace_____________
                            PAUL R. WALLACE, JUDGE

Original to Prothonotary

cc:    Joseph W. Benson, Esquire
       Eric H. Zubrow, Esquire




28
        State v. Dunning, 2013 WL 5784426 (Del. Super. Ct. Oct. 4, 2013) (“Parties are
barred from raising new arguments in a motion for reargument. When a movant
advances a new argument that was not previously asserted, and the movant had a prior
opportunity to make that argument before the Court, that argument is inappropriate and
the Court will not consider its merits. Allowing otherwise would not promote efficient
use of judicial resources and would result in prejudice to the non-moving party.”)
(citations omitted).
29
       Carney v. State, 2007 WL 2254543, at *2 (Del. Aug. 7, 2007) (“The Superior
Court has broad discretion to ‘enforce its rules of procedure and pre-trial orders.’”)
(quoting Barnett, 691 A.2d at 616).


                                         -9-
