      IN THE SUPREME COURT OF THE STATE OF DELAWARE

JAMAR K. THOMPSON,                       §
                                         §     No. 489, 2017
       Defendant Below,                  §
       Appellant,                        §     Court Below: Superior Court
                                         §     of the State of Delaware
       v.                                §
                                         §     ID. No. 1209018130
STATE OF DELAWARE,                       §
                                         §
       Plaintiff Below,                  §
       Appellee.                         §


                            Submitted: May 9, 2018
                            Decided: July 24, 2018

Before VALIHURA, VAUGHN, and SEITZ, Justices.

Upon appeal from the Superior Court. AFFIRMED.

Tasha M. Stevens, Esquire, of the Office of Fuqua, Willard, Stevens & Schab, P.A.,
Georgetown, Delaware for Appellant.

Abby Adams, Esquire, of the Department of Justice, Georgetown, Delaware for
Appellee.
VAUGHN, Justice:

      In this appeal, Appellant Jamar K. Thompson challenges a Superior Court

finding that he violated his probation. He asserts three claims. He first contends

that his right to due process under Amendment XIV of the United States Constitution

was violated because he was provided with an untimely and incomplete disclosure

of the evidence against him, he was unavailable to testify, and a witness he intended

to call was not permitted to testify. He next contends that the Superior Court violated

his rights under Amendments IV and XIV of the United States Constitution and

Article I § 6 of the Delaware Constitution by refusing to consider his argument, made

at the hearing, that the evidence against him was the product of an unlawful search

and seizure and should be suppressed. Finally, he contends that the evidence against

him was insufficient to support a finding that he violated his probation. After

considering Thompson’s claims, we have concluded that the judgment of the

Superior Court should be affirmed.

                    FACTS AND PROCEDURAL HISTORY

      On July 4, 2017, at about 12:47 p.m., Officer DeMalto of the Governor’s Task

Force was driving an unmarked sport utility vehicle on Route 13 southbound in the

area of Seaford. He noticed a gold Acura RL hastily weaving through traffic ahead

of him. Traffic was heavy and the car was not signaling lane changes. The officer

followed the Acura as it turned onto Brickyard Road. The driver of the Acura then

                                          2
began following close behind a black sedan. Suddenly, the officer observed what

he termed an “explosion” in the front of the Acura. Smoke and fluid spewed from

under the hood. Believing the Acura had collided with the black sedan, the officer

followed it as it pulled into the parking lot of the Service Tire Truck Center at Route

13 and Brickyard Road.

         The officer pulled his vehicle behind the Acura, intending to check and make

sure no one in the Acura was injured and to investigate why the car was following

so closely behind the black sedan. He exited his vehicle and approached the Acura.

The driver, Appellant Thompson, was the only one in the vehicle. The vehicle

appeared to be “unstable, unsafe, and inoperable. There was a large amount of green

fluid on the windshield and leaking from the hood area. There was a noticeable

amount of smoke and steam coming from the hood area . . . .”1

         Thompson explained to the officer that something in the car had

malfunctioned, causing it to overheat and explode. For the safety of Thompson and

the officer, Thompson was asked to get out of the vehicle.

         As Thompson spoke to the officer outside the vehicle, he appeared to be

nervous. He was looking off into the distance and avoided eye contact. He walked

around the vehicle and tried to open the hood, stating that he needed to get to a

nearby residence.


1
    App. to Appellant’s Opening Br. at A42.
                                              3
      The officer asked Thompson for his driver’s license and returned to his patrol

vehicle to check Thompson’s history. He learned that Thompson was on probation,

and that he had an extensive criminal history with several drug and weapon offenses.

Due to Thompson’s nervous demeanor and his criminal history, the officer called a

Town of Blades police officer who he knew was nearby to assist him. The officer

also contacted a probation officer who was assigned to the Governor’s Task Force

to check on Thompson’s probation compliance.

      Office DeMalto returned to Thompson and asked him questions about his

probation. Thompson told the officer he was compliant with his probation but he

could not remember on which day in the prior week he had reported. The officer

told Thompson that an officer with a K-9 would be arriving. Thompson then made

an odd statement that the K-9 would probably alert to the green fluid coming out of

his vehicle.

      Officer DeMalto asked Thompson if he would consent to a search and

Thompson declined. When the Blades officer arrived, Officer DeMalto asked him

to use his narcotic-certified dog to conduct a free-air sniff of the vehicle. The K-9

alerted at the driver’s door. The officer asked Thompson if there was “anything

illegal inside the vehicle that would cause such an alert such as firearms, narcotics,

or drug paraphernalia. . . . Thompson advised that it was his girlfriend’s car and that




                                          4
there wasn’t anything illegal in the car that belonged to him.” 2 The officer asked

Thompson to stand with the Blades officer, and he searched the Acura. As the search

began, Thompson told the officer that there was some marijuana in the center arm

rest. The officer located marijuana in the center arm rest, and also found a Smith &

Wesson 9 millimeter handgun concealed under the front passenger seat, within arm’s

reach of Thompson when he was in the driver’s seat. The gun was loaded with a

magazine containing fourteen 9 millimeter rounds. The officer asked Thompson if

his fingerprints would be on the gun, and Thompson said that they would. The

officer then searched Thompson. The officer found $755 in United States Currency.

The substance in the center arm rest field-tested positive for marijuana. The entire

encounter, up to the point where the officer located the firearm, took about 20

minutes.

          Officer DeMalto took Thompson back to the state police barracks for

processing. Thompson told the officer the cash did not belong to him. Fingerprints

were lifted from the gun, but the test results were inconclusive. The gun was

analyzed for DNA, but the result was not known at the time of the violation of

probation (“VOP”) hearing. Thompson declined to be interviewed.

          The Acura was registered to Sheneese Showell. Shortly after Thompson’s

arrest she called Officer DeMalto and informed him that the firearm found in the car


2
    Id. at A47.
                                         5
belonged to her and she would like to have it back. The officer told her it had been

admitted into evidence and would not be immediately available to her. The gun was,

in fact, registered to Ms. Showell.

      Thompson was charged with Possession of a Firearm by a Person Prohibited,

Possession of Ammunition by a Person Prohibited, Carrying a Concealed Deadly

Weapon, Possession of Marijuana, and Following Too Closely. On July 13, 2017

the State dismissed the charges, subject to further investigation and a potential

indictment at a later date. Because of the new charges, however, Thompson was

also added to a VOP calendar scheduled for July 14. At that hearing, the State

indicated that it would pursue the VOP despite dismissing the charges, and the VOP

hearing was rescheduled for September 8, 2017.

      On August 4, 2017 Thompson’s counsel filed a Request for Discovery under

Superior Court Criminal Rules 16 and 32.1. In early September, not having received

a response, defense counsel emailed a deputy attorney general about discovery. The

deputy responded that he had not received the request and forwarded a copy of the

police report to defense counsel the day before the scheduled hearing.

      The hearing proceeded on September 8. At the beginning of the hearing,

Thompson’s counsel objected to having received the police report only the day

before the hearing. She also raised an objection that the disclosure of evidence was

inadequate. She argued that she believed there was relevant evidence that was not

                                         6
included in the police report. The Superior Court judge dealt with her objections by

limiting the State’s presentation of evidence to only what was contained in the police

report that Thompson’s counsel had received. Thompson’s counsel also indicated

that she had a witness present, Ms. Showell, but that the State had recommended that

she obtain counsel to protect her against any criminal charges that may be brought

against her in connection with her ownership of the firearm.3 The judge indicated

that he would deal with that issue as it came up. The State then proceeded with

testimony from Officer DeMalto and Thompson’s probation officer.

         When the State rested, Thompson’s counsel raised the issue of calling Ms.

Showell as a witness. Counsel indicated to the Court that she had planned on calling

Ms. Showell, who was present, as a witness, but that prior to the hearing the State

advised Ms. Showell that she would need an attorney because of possible charges

which might arise from her testimony. The judge then asked Thompson’s counsel

to proffer what her testimony would be. Thompson’s counsel then proffered, in

summary, that she would testify that she owned the gun, that the marijuana in the

car was hers, and that the car was hers. She further proffered that Thompson had

asked to borrow her car that morning to pick up his daughter. The judge then stated

that he would accept that proffer as evidence. Thompson’s counsel then indicated




3
    What these charges might be does not seem to be explained in the record.
                                                 7
that she would have called Thompson as a witness, but that he chose to exercise his

Fifth Amendment right not to testify.

       During closing arguments, Thompson’s counsel attempted to argue that the

new charges (except the traffic charge of following too closely) were the product of

an unlawful search and seizure and that the evidence supporting the new charges

should be suppressed. The judge responded that he would not consider such an

argument on the grounds that suppression does not apply in VOP hearings.

       At the conclusion of the hearing, the judge found that Thompson had violated

his probation based on the evidence of the new charges.

       On November 13, 2017, Thompson was indicted on the new charges. The

current status of the new criminal case, however, is not included in the record of this

proceeding.

                               STANDARD OF REVIEW

       Our standard of review for constitutional challenges is de novo.4 To the extent

we review the sufficiency of the evidence, it is for an abuse of discretion.5 Our

review of a Superior Court judge’s revocation of a defendant’s probation is for an

abuse of discretion.6




4
  Jenkins v. State, 2004 WL 2743556, at *2 (Del. 2004).
5
  Id.
6
  Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006).
                                               8
                                        DISCUSSION

                                                I.

       Thompson first contends that his right to due process under Amendment XIV

of the United States Constitution was violated because he was provided with an

untimely and incomplete disclosure of the evidence against him, he was unavailable

to testify, and a witness he intended to call was not permitted to testify. This Court

has previously recognized that a VOP hearing must satisfy requirements of due

process.7 Those requirements are set forth in Superior Court Criminal Rule 32.1.8

They include: (a) written notice of the alleged violation; (b) disclosure of the

evidence against the person; (c) an opportunity to appear and to present evidence on

the person’s own behalf; (d) the opportunity to question adverse witnesses; and (e)

notice of the person’s right to retain counsel.9

       Thompson argues that the State failed to comply with the requirement that he

be given disclosure of the evidence against him because the disclosure was untimely

and incomplete. He contends that the disclosure was untimely because Officer

DeMalto’s police report was provided only a day before the hearing, giving him

inadequate time to prepare a defense.                He contends that the disclosure was

incomplete because there was evidence that was not disclosed. He contends that the


7
  Jenkins v. State, 8 A.3d 1147, 1153 (Del. 2010).
8
  Id.
9
  Super. Ct. Crim. R. 32.1(a).
                                                9
undisclosed evidence includes a police report prepared by the Town of Blades police

officer, notes made by Officer DeMalto, SUSCOM recordings, any recording or

record of the attempt to interview Thompson, and a copy of the search warrant.10 He

contends the inadequacy of the disclosure deprived him of the opportunity to

effectively question adverse witnesses.

       Although Thompson’s counsel did file a request for discovery, Rule 32.1 does

not require that the defendant request disclosure of the evidence to be used against

him at the VOP hearing. Disclosure of the evidence under Rule 32.1 is an affirmative

obligation of the State to be performed without any need for a request from the

defendant. In this case, the docket shows that the hearing date of September 8, 2017

was set on July 26. The best practice on the part of the State would have been to

send the police report to defense counsel promptly. Where, however, like here, the

disclosure is made only a short time before the hearing, the defendant’s remedy is to

request a continuance of the VOP hearing. Although Thompson objected to the

timeliness of disclosure at the hearing, he did not request a continuance.11 Moreover,

on appeal Thompson has not made a showing of any steps defense counsel could

have or would have taken to improve the defense if a more timely disclosure had



10
  SUSCOM is the Sussex County branch of the Delaware State Police Communications Section.
11
  At oral argument, counsel for Thompson stated that she thought requesting a continuance would
be futile. Where, however, counsel can articulate why a continuance is appropriate, what can be
accomplished by a continuance, and how denial of a continuance will prejudice the defendant,
counsel should not hesitate to present those facts and circumstances to the judge.
                                              10
been made. He has not made a showing that the disclosure the day before the hearing

actually caused him any prejudice. Therefore, we are unpersuaded by his argument

that the VOP should be reversed because of untimeliness of disclosure of the

evidence against him.

       Turning to Thompson’s argument that the disclosure of evidence was

incomplete, we read Rule 32.1 as requiring disclosure of the evidence the State plans

to present at the hearing. When Thompson objected to the disclosure as being

insufficient, the trial court expressly limited the State to presentation of only that

evidence which had been disclosed. This action by the judge remedied Thompson’s

objection about the alleged inadequacy of disclosure.12

       Thompson also argues that he was unavailable to testify. This argument is

based on the fact that he exercised his Fifth Amendment privilege not to testify

because of the potential future prosecution of the new charges. We have previously

ruled, however, that where new charges form the basis for a VOP, the State is not

obligated to pursue the new criminal charges before it proceeds with the VOP.13 The

“unavailability” of which Thompson speaks is simply a natural consequence of his

election to exercise his Fifth Amendment rights in the VOP proceeding.




12
   The Superior Court’s discovery rule, Criminal Rule 16, does not apply to VOP hearings.
Although the defendant is entitled to disclosure of the evidence to be used against him, he is not
entitled to discovery in a VOP proceeding.
13
   Diaz v. State, 2014 WL 1017480, at *2 (Del. 2014).
                                               11
          Thompson also argues that he was not permitted to present his witness’

testimony. This stems from Sheneese Showell’s apparent exercise of her Fifth

Amendment rights. However, the trial court accepted a proffer of her testimony

from defense counsel and accepted that proffer as evidence. As a result of the trial

court’s acceptance of the proffer as evidence, Thompson suffered no prejudice from

the fact that Showell did not testify.

                                                II.

          Thompson’s second claim is that the Superior Court violated his rights under

Amendments IV and XIV of the United States Constitution and Article I § 6 of the

Delaware Constitution by refusing to consider his argument, made at the hearing,

that the evidence against him was the product of an unlawful search and seizure and

should be suppressed.

          In support of his argument that the exclusionary rule applies to VOP

proceedings, he relies upon two Delaware cases, both captioned Jenkins v. State, and

both involving the same defendant. In the first case, Jenkins was cited for a VOP

based upon new charges in 2005.14 He filed motions to suppress evidence in both

the VOP proceeding and the criminal proceeding involving the new charges. He

failed to appear for his hearing on the VOP, and the Superior Court judge issued a

bench warrant for Jenkins’ arrest and denied the suppression motion for “failure to


14
     Jenkins v. State, 2006 WL 1911096, at *1 (Del. 2006).
                                                12
prosecute.”15     Jenkins was subsequently arrested and the VOP hearing was

rescheduled.     At that hearing, the motion to suppress was not renewed, and,

following testimony from the police officer who arrested Jenkins on the new

charges, Jenkins’ counsel conceded that a violation of probation had been

established. Subsequently, the motion to suppress in the criminal proceeding on the

new charges was granted, and the new criminal charges were dismissed. Jenkins

appealed his VOP adjudication, arguing that “the Superior Court’s finding that he

violated his probation must be reversed because that finding was based on evidence

that was later suppressed in the new criminal proceeding.”16 This Court affirmed

the VOP determination, finding that Jenkins waived renewing the motion to suppress

in the VOP proceeding.17

        The second Jenkins decision, in 2010, also involved a VOP.18 This second

VOP proceeding was also based on new charges. Jenkins filed a motion to suppress

in the criminal proceeding involving the new charges. He did not, however, file a

motion to suppress in the VOP proceeding. The motion to suppress in the new

criminal case was granted and the charges were dismissed. Jenkins was found to

have violated his probation, however, and appealed that finding to this Court.




15
   Id.
16
   Id. at *2.
17
   Id.
18
   Jenkins v. State, 8 A.3d 1147 (Del. 2010).
                                                13
       In summarizing the first VOP proceeding, this Court observed that it had

affirmed the earlier VOP determination, “holding that Jenkins had waived his right

to present a motion to suppress in the 2005 VOP hearing.”19

       Jenkins argued in the 2010 case that the Superior Court should have

considered his motion to suppress at the VOP hearing. This Court rejected that

contention, noting that Jenkins never filed a motion to suppress in the VOP

proceeding, noting that “it would have been improper for the sentencing judge to

decide the search warrant’s validity in the VOP hearing where that issue had not

been properly raised.”20

       These cases, Thompson argues, establish that a motion to suppress may be

filed and considered in a VOP proceeding. However, in both of these cases, the

suppression issue was disposed of on procedural grounds. In addition, in the 2010

Jenkins case, the Court noted in a footnote that “[t]his Court has not yet addressed

whether the exclusionary rule should apply to violation of probation hearings [and]

‘[W]e do not reach the State’s argument that the exclusionary rule does not apply to

probation revocation proceedings.’”21 In those cases, this Court did not consider the

substantive question of whether the exclusionary rule applies to VOP proceedings.




19
    Id. at 1150.
20
    Id. at 1155–56.
21
   Id. at 1155 n.41 (quoting Fuller v. State, 844 A.2d 290, 293 (Del. 2004)).
                                                14
       In Pennsylvania Board of Probation and Parole v. Scott, the United States

Supreme Court held that the exclusionary rule does not apply to parole revocation

proceedings.22 The Court reasoned that “[a]pplication of the exclusionary rule

would both hinder the functioning of state parole systems and alter the traditionally

flexible, administrative nature of parole revocation proceedings,” and “would

provide only minimal deterrence benefits.”23 In Gagnon v. Scarpelli, the Supreme

Court stated that it perceived no “difference relevant to the guarantee of due process

between the revocation of parole and the revocation of probation. . . .”24

       In Bruton v. State, a parole violation case, this Court recognized that in Scott

the United States Supreme Court “has declined to extend the exclusionary rule to

proceedings other than criminal trials.”25

       In addition, nine United States Circuit Courts of Appeal have held that the

exclusionary rule does not apply in probation revocation proceedings.26 In one of

those cases, the Third Circuit Court of Appeals explained the rationale of not




22
   524 U.S. 357, 364 (1998).
23
   Id.
24
   411 U.S. 778, 782 (1973).
25
   2001 WL 760842, at *1 (Del. 2001).
26
   See, e.g., United States v. Armstrong, 187 F.3d 392, 393 (4th Cir. 1999); United States v. Finney,
897 F.2d 1047, 1048 (10th Cir. 1990); United States v. Bazzano, 712 F.2d 826, 830–34 (3rd Cir.
1983); United States v. Frederickson, 581 F.2d 711, 713 (8th Cir. 1978); United States v. Winsett,
518 F.2d 51, 53–55 (9th Cir. 1975); United States v. Farmer, 512 F.2d 160, 162–163 (6th Cir.
1975); United States v. Brown, 488 F.2d 94, 95 (5th Cir. 1973); United States v. Hill, 447 F.2d
817, 819 (7th Cir. 1971); United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1163 (2d
Cir. 1970).
                                                15
extending the exclusionary rule to probation revocation proceedings, in part, as

follows:

         Application of the exclusionary rule to probation revocation
         proceedings would interfere significantly with the state’s ability to
         ensure that conditions of probation were being met. As a result, the
         state’s ability to protect society from additional antisocial acts
         committed by probationers, and ultimately its ability to achieve the
         remedial purposes of the probation system, would be impaired.27

         No federal authority has been brought to our attention, and we aware of none,

which has held that the exclusionary rule applies to probation revocation

proceedings under the Federal Constitution. We have no reason not to follow what

appears to be the entirety of the federal weight of authority, and hold that the

exclusionary rule does not apply to probation revocation proceedings under

Amendments IV and XIV of the Federal Constitution.

         We have not previously considered whether the exclusionary rule applies to

probation revocation proceedings under Article I § 6 of the Delaware Constitution.

In the Superior Court, Thompson did not separately argue that the Delaware

Constitution requires application of the exclusionary rule in probation revocation

proceedings. In his opening brief, Thompson does not undertake any analysis of

Delaware’s Constitution separate and apart from his general argument that the

exclusionary rule should apply. Our case law, however, establishes a framework to



27
     Bazzano, 712 F.2d at 834.
                                           16
be followed when one seeks to establish that the Delaware Constitution provides

greater rights than the Federal Constitution.28 Mere conclusory assertions that the

Delaware Constitution has been violated are not sufficient to present a question

whether such is the case.29 As we have previously said:

       A proper presentation of an alleged violation of the Delaware
       Constitution should include a discussion and analysis of one or more of
       the following non-exclusive criteria: ‘textual language, legislative
       history, preexisting state law, structural differences, matters of
       particular state interest or local concern, state traditions, and public
       attitudes.’30

       No such showing was made or attempted in Thompson’s opening brief.

Accordingly, Thompson’s argument that the exclusionary rule applies under

Delaware’s Constitution has been waived, and we do not here consider that

question.31

                                                III.

       Finally, Thompson contends that the evidence against him was insufficient to

support a finding that he violated his probation.




28
   Jones v. State, 745 A.2d 856, 863–865 (Del. 1999).
29
   Ortiz v. State, 869 A.2d 285, 291 n.4 (Del. 2005) (“In the future, conclusory assertions that the
Delaware Constitution has been violated will be considered to be waived on appeal.”).
30
   Wallace v. State, 956 A.2d 630, 637–638 (Del. 2008) (citations omitted).
31
   In its answering brief, the State correctly argued that Thompson had not adequately raised
whether his rights were violated under the Delaware Constitution in his opening brief.
Thompson expanded upon his argument concerning his rights under the Delaware Constitution in
his reply brief. Under Supreme Court Rule 14(c)(i), however, material that should have been
included in a full and fair opening brief should not be presented for the first time in a reply brief.
                                                 17
          Here the evidence included the officer’s observation of Thompson committing

a traffic violation by following too closely. The evidence also included Thompson’s

suspicious statement that the K-9 would probably alert to the green fluid, which can

reasonably be viewed as showing a consciousness of the marijuana in the center arm

rest. This consciousness was later confirmed by his admission that marijuana was

in the center arm rest. His statement that there was nothing illegal in the vehicle

“that belonged to him” also creates an inference that he was aware of the suspected

marijuana found by the officer in the vehicle. When asked, Thompson admitted that

his fingerprints would be found on the firearm, an admission which creates an

inference that he had held the firearm in his hand. Since he is a person prohibited,

possession of a firearm would be a violation of his probation.32 This evidence, taken

as a whole, is sufficient to support a finding that Thompson was in violation of his

probation. There was no abuse of discretion on the part of the trial judge by so

finding.

          The judgment of the Superior Court is AFFIRMED.




32
     Thompson is a person prohibited because of previous convictions.
                                                18
SEITZ, Justice, concurring:

          Although I believe there are constitutional issues that arise in a VOP hearing

that this Court might eventually address,33 those issues have not been adequately

raised in this appeal. Thus, I concur in the Panel’s decision to affirm the Superior

Court’s judgment in this case.




33
     See, e.g., State v. Mosley, 179 A.2d 350 (N.J. 2018).
                                                  19
