IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
I.D. NO. 16050()9135

v.
QUALEEL WESTCOTT,
Defendant.
Submitted: January l 3 , 2017
Decided: January 23, 2017
ORDER
Upon Defendant’s Motion to Suppress.

Gran ted.

Stephen R. Welch, Jr., Esquire of the Department of Justice, Dover, Delaware;
attorney for the State.

Edward C. Gill, Esquire of the LaW Offlce of Edward C. Gill, P.A., Georgetown,
Delaware; attorney for the Defendant.

WITHAM, R.J.

State v. Qualeel Westcott
I.D. No. 1605009135
January 23, 2017

Bef`ore the Court is a motion to suppress filed by Defendant Qualeel Westcott.
In his motion, Mr. Westcott seeks to suppress (l) statements made in an interview
With a Milford Police Department detective and (2) evidence collected from mobile
phones pursuant to a search warrant.

At the hearing on the motion, the State conceded the portion of` the motion that
sought suppression of the interview af`ter Mr. Westcott’ s ambiguous invocation of his
right to counsel.

The motion to suppress evidence collected from mobile phones pursuant to a
search Warrant is granted.

FACTS

Mr. Westcott stands charged With Attempted Murder in the First Degree,
Robbery in the First Degree, and various other counts arising out of a shooting that
occurred on May ll, 2016 in or around Milf`ord, Delaware.

Mr. Westcott Was taken into custody by Detective Sergeant Horsman of` the
Milf`ord Police Department on May l l, 2016.

Detective Horsman applied for and received a search Warrant on May 24, 2016,
to search “data and cellular logs” from mobile phones that the State believed
belonged to Mr. Westcott. The affidavit alleged that a shooting had occurred and that
Mr. Westcott had committed it. It also alleged that during a consent search of` an
apartment in Which Mr. Westcott Was staying, the police f`ound drugs and three
mobile phones. One of` the mobile phones Was a Samsung and Was located on the

floor in the living room beside a television stand along With ninety-one bags of heroin

State v. Qualeel Westcott
I.D. No. 1605009135
January 23, 2017

and a quantity of marijuana. Another Samsung mobile phone was found in the bed
where Westcott said he was sleeping. And an iPhone was found on the dining room
table. The tenant at the apartment “stated that the iPhone was not there before Bolden
and Westcott came to her apartment and she did not know who owned it.” Based on
his allegations, the detective sought to search “the three phones to look for physical
evidence or confession of the shooting or the illegal distribution of heroin contained
therein.”
THE PARTIES’ CONTENTIONS

Mr. Westcott contends that the search warrant affidavit was devoid of probable
cause because the detective failed to provide a logical nexus between the mobile
phones and the crime, and the warrant lacked sufficient particularity.

The State argues that the affidavit alleged facts that established a reasonable
basis to believe that evidence would be found on the phones.

STANDARD OF REVIEW

When evidence is collected according to a search warrant, the defendant bears
the burden of proving by a preponderance of the evidence that the search or seizure
violated his rights under the United States or Delaware Constitutions or Delaware
statutory law.l

DISCUSSION
The data collected from the search of the mobile phones must be suppressed

because (l) the affidavit does not allege Sufficient facts to establish probable cause

 

1 State v. Palmer, No. 151100742, 2016 WL 2604692, at *3 (Del. Super. May 3, 2016).

3

State v. Qualeel Westcott
I.D. No. 1605009135
January 23, 2017

for the search and (2) the warrant does not meet the constitutional requirement for
particularity.
Probable Cause

A search warrant, to be valid under the Constitutions of the United States and
of Delaware, may only be issued upon a showing of probable cause.2 “An affidavit
in support of a search warrant must, within the four[ ]corners of the affidavit, set forth
facts adequate for a judicial officer to form a reasonable belief that an offense has
been committed and the property to be seized will be found in a particular place.”3
“In making this decision, the judicial officer ‘may draw reasonable inferences from
the factual allegations in the affidavit.”’4 Courts reviewing whether a warrant was
supported by probable consider the totality of the circumstances5 “The determination
of whether the facts in the affidavit demonstrate ‘probable cause requires a logical
nexus between the items being sought and the place to be searched.”’6

Presumably, the statement in Mr. Westcott’ s motion to the effect that the police
believed the mobile phones to be his7 is sufficient to provide him standing to

challenge the searches. Regardless, the State has not challenged his assertion of

 

2 LeGrande v. State, 947 A.2d 1103, 1107 (Del. 2008).

3 Ia'. (quoting Sisson v. State, 903 A.2d 288, 296 (Del. 2006)).

4 Bradley v. State, 51 A.3d 423, 431 (Del. 2012) (quoting Sisson, 903 A.2d at 296).
5 LeGrande, 947 A.2d at 1107-08 (quoting Sisson, 903 A.2d at 296).

6 Starkey v. State, 74 A.3d 655 (Table), 2013 WL 4858988, at *3 (Del. Sept. 10, 2013)
(quoting Jones v. State, 28 A.3d 1046, 1057 (Del. 2011)).

7 Def.’s Mot. to Suppress 11 7.

State v. Qualeel Westcott
I.D. No. 1605009135
January 23, 2017

standing.

The State’s submission delineates the limited basis for probable cause that
exists in the affidavit. The affidavit effectively stated allegations sufficient for the
reviewing magistrate to find probable cause (1) that Mr. Westcott committed the
shooting, (2) that Mr. Westcott was involved in the distribution of heroin, and (3) that
the mobile phones at the apartment belonged to Mr. Westcott.

Missing in the State’s probable-cause analysis, however, is a logical nexus
between Mr. Westcott’s ownership of the phone and the existence of digital evidence
of the crimes on that phone.

Our Supreme Court in Starkey upheld the search of a mobile phone where the
affidavit included a statement that “[P]ersons involved in criminal acts will utilize
Mobile Electronic Devices such as cellular telephones to further facilitate their
criminal acts and/or communicate with co-conspirators.”8 And the detective in that
case went on to state that “retrieval of the cellular data could reveal the identity [of
the] owner of the phone as well as provide a list of all calls made and received by that
cell phone.”9 The detective in that case also provided specific evidence that the
police hoped to find in support of their case, based on statements from other
witnesses.10 The Court held this logical nexus to be sufficient to establish probable

cause for the search.

 

8 Starkey, 2013 WL 4858988, at *3 (alteration in original).
9 Id.
10 Ia'.

State v. Qualeel Westcott
I.D. No. 1605009135
January 23, 2017

Here, however, Detective Sergeant Horsman did not expressly state any nexus
between Mr. Westcott’s ownership of the mobile phone and the existence of evidence
of the crimes (including a confession) on that mobile phone. Although the magistrate
may draw reasonable inferences from the factual allegations of the affidavit, the leap
required here is a long one. The mere fact that a defendant owns a mobile phone is
not, in and of itself, sufficient to warrant an inference that evidence of any crime he
or she commits may be found on that mobile phone. The affidavit did not provide
probable cause for a search.

T he Particularily Requirement

And even if there had been probable cause to support this search, the evidence
would still need to be suppressed. The warrant at issue was a general warrant that
failed to describe the data to be searched with particularity.

The Delaware Supreme Court has cautioned against the “substantial” risk that
“warrants for digital and electronic devices [may] take on the character of ‘general
warrants.”ll “This reality necessitates heightened vigilance, at the outset, on the part
of judicial officers to guard against unjustified invasions of privacy.”12

Our nation’s constitutional history and jurisprudence reflects a long-
standing hostility toward general warrants. General warrants, when
employed by the govemment, afford officials “blanket authority” to
indiscriminately search persons, houses, papers, and effects. The United
States Supreme Court has characterized the “specific evil” of the general

 

ll Wheeler v. State, 135 A.3d 282, 307 (De1. 2016).
12 Ia'.

State v. Qualeel Westcott
I.D. No. 1605009135
January 23, 2017

warrant abhorred by the colonists as “a general, exploratory rummaging

in a person’s belongings.” By contrast, a warrant that is simply overly

broad “‘describe[s] in both specific and general terms what is to be

seized,’ but it authorizes the seizure of items as to which there is no

probable cause.”13

“[W]arrants, in order to satisfy the particularity requirement, must describe
what investigating officers believe will be found on electronic devices with as much

”14 “[G]eneric classifications in a

specificity as possible under the circumstances
warrant are acceptable only when a more precise description is not possible.”15 “And
[w]here . . . the investigators had available to them a more precise description of the
alleged criminal activity that is the subject of the Warrant, such information should
be included in the instrument and the search and seizure should be appropriately
narrowed to the relevant time period so as to mitigate the potential for
unconstitutional exploratory rummaging.”16

A warrant’s description meets the particularity requirement if it “limit[s] the

officer’s search of the cell phones to certain types of data, media, and files that [are]

 

13 Id. at 296 (first citing Stanfora' v. Texas, 379 U.S. 476, 481 (1965); then quoting Coolidge
v. New Hampshire, 403 U.S. 443 , 467 (1971); and then quoting United States v. Nine-T wo Thousand
Four Hundrea' T wenty-T wo Dollars & Fifly-Seven Cents ($92,422.57), 307 F.3d 137, 149 (3d Cir.
2002)).

14 Id. at 304.
15 Id. at 305 (quoting United States v. Bright, 630 F.2d 804, 812 (5th Cir. 1980)).

16 ld. (citing Bright, 630 F.2d at 812; United States v. Ford, 184 F.3d 566, 576 (6th Cir.
1999)).

State v. Qualeel Westcott
I.D. No. 1605009135
January 23, 2017

‘pertinent to th[e] investigation ”’17 Such a description “effectively limit[s] the scope
of the warrants, and prevent[s] a boundless search of the cell phones.”18
Additionally, Delaware law requires that warrants “designate the house, place,
conveyance, or person to be searched and shall describe the things or persons sought
as particularly as possible.”19

Here, the search warrant authorizes a search of all “data and cellular logs.”
This description does not limit the scope of the officer’s search of the mobile phones
to relevant material and does not place any limitation on the types of “data, media,
and files” to be searched.

There is also no temporal limitation on the search, The police alleged that the
shooting occurred on May ll and the presence of heroin at the apartment provided
probable cause for its recent distribution. The police should have sought a more
limited search warrant permitting the search of suitably recent data from the phones.

Instead, the application sought a general search “of the three phones.” The
warrant thus provides broad permission to rummage through the entire digital lives
of the phones’ owners. Accordingly, it does not contain the level of particularity

required under the Constitution of the United States, the Delaware Constitution, or

Delaware statute.

 

17 Starkey, 2013 WL 4858988, at *4.
18 Id.
19 Ia'. at 296 (quoting ll Del. C. § 2307(a)).

8

State v. Qualeel Westcott
I.D. No. 1605009135
January 23, 2017

CONCLUSION
The affidavit in support of the warrant did not provide probable cause for a
search of the phones, and the warrants lacked the particularity required by our law.
The portion of the interview following Mr. Westcott’s request to speak to a judge is
suppressed as conceded by the State. Mr. Westcott’s motion to suppress evidence

collected from mobile phones pursuant to a search warrant is GRANTED.

IT IS SO ORDERED.

William L. Witham, Jr.
Resident Judge

 

WLW/dmh

oc: Prothonotary
Stephen R. Welch, Jr., Esquire
Edward C. Gill, Esquire

