                              SUPERIOR COURT
                                        OF THE

                           STATE OF DELAWARE
Jeffrey J Clark                                                  Kent County Courthouse
Judge                                                               38 The Green
                                                                  Dover, DE 19901
                                                                    302-735-2111
                                 June 15, 2017


Lindsay Taylor, DAG                                  Anthony Capone, Esq.
Department of Justice                                Office of the Public Defender
102 West Water Street                                45 The Green, Sykes Building
Dover, DE 19904                                      Dover, DE 19901

       RE: State v. Marquan Richardson
           ID No. 1609000214

                               Submitted: May 25, 2017
                                Decided: June 15, 2017

Counsel:
       This case involves a challenge of the warrantless seizure of two cellular phones
from a suspect in a home invasion. The State argues that it lawfully seized the
phones pursuant to the alleged consent of Defendant Marquan Richardson
(hereinafter “Mr. Richardson”), and also because exigent circumstances permitted the
police to seize the phones due to the impracticability of obtaining a warrant.
       For the reasons set forth herein, the State did not establish that either exception
to the warrant requirement applied under the circumstances of this case. The Court
acknowledges that the potentially perishable nature of cell phone data is a
circumstance to consider when evaluating a seizure under the exigent circumstances
exception. However, in this case, the State incorrectly argues that the time frame for
evaluating exigent circumstances should be compressed into a self-imposed urgency
created by the police agency’s choice to not seek a warrant for weeks before the day
of a scheduled probation visit. Accordingly, exigent circumstances do not excuse the
State’s failure to obtain a warrant to seize the phones in this case.
       In addition, on the evidentiary record presented, the State did not meet its
burden to show more likely than not that the Defendant consented to the seizure of
the phones at issue. The State presented no facts at the hearing touching on the
factors necessary to establish Mr. Richardson’s consent. Accordingly, Mr.
Richardson’s motion to suppress evidence seized from the two cell phones on August
8, 2016, is GRANTED. 1


                   FACTS AND ARGUMENTS OF THE PARTIES
       All facts cited herein are those found by the Court after a suppression hearing
held on May 25, 2017. On June 9, 2016, a home invasion occurred in Felton,
Delaware. Prior to the date of the offense, the Delaware State Police began an
investigation regarding a then anticipated crime.                 The police determined Mr.
Richardson was a suspect after an informant told them he or she overheard Mr.
Richardson on his phone discussing the home invasion both before and after it
occurred. The police corroborated the informant’s tip because it included details only
available to a person with first-hand knowledge of the crime. According to the
State’s only testifying witness, who was the chief investigating officer (hereinafter
the “detective”), the informant first began providing the police with information
regarding the planned crime on June 7, 2016.
       The police also obtained eye witness accounts of the home invasion informing
the police that three suspects entered the home during the crime on June 9, while one

1
    After the police seized the phones, they obtained a warrant to search their contents. Mr.
Richardson alleges that the order required the police to execute the warrant within ten days, but the
search allegedly took place after ten days. The Court scheduled a second suppression hearing to
address only that issue. Since the phones were impermissibly seized at the outset, the remaining
issue is moot and need not be addressed further.
                                                 2
stayed with a vehicle. The witnesses stated that the person with the vehicle left the
scene during the crime. That person later circled back to pick up the three remaining
suspects. Based on these accounts, the police believed that one of the three suspects,
during the commission of the crime, communicated with the driver by cell phone.
      The police, having developed Mr. Richardson as a suspect in June, contacted
his probation officer requesting Mr. Richardson’s probation meeting schedule. On
July 18, the detective informed the probation officer of the investigation and
informed her that he planned to seize Mr. Richardson’s phone during one of his
upcoming meetings. The evidence of record established that Mr. Richardson was on
Level III probation, with the requirement that he report once a week. The evidence of
record also established that he was compliant with probation. Notwithstanding the at
least three intervening weeks, the police did not obtain a warrant to seize his phone.
      At the start of the workday on August 8, 2016, the detective emailed the
probation officer to verify Mr. Richardson’s report time that day. At approximately
1:00 pm on August 8, 2016, she called the detective to inform him that Mr.
Richardson had reported as scheduled. The detective then asked the probation officer
to keep Mr. Richardson in the office while he drove from Dover to the New Castle
County office.
       By the time the detective arrived at the probation office, the officer had
delayed Mr. Richardson for approximately two hours. Upon his arrival, the detective
introduced himself to Mr. Richardson and informed him that he was a suspect in the
home invasion. He also told Mr. Richardson that his phone would either exonerate
him or incriminate him. In the presence of his probation officer, Mr. Richardson
handed the detective his phone. The detective then left.
      Shortly after he left with the first phone, the probation officer called the
detective to let him know a second phone rang on Mr. Richardson’s person. The
detective then returned to the probation office. Back at the probation office, Mr.
Richardson told the detective that the second phone did not belong to him; he claimed
                                           3
it belonged to his family. Nevertheless, Mr. Richardson provided its passcode to the
detective. At that point, he determined that Mr. Richardson had used the phone as
well. The detective then decided to seize the second phone. Mr. Richardson now
stands charged with three counts of Robbery in the First Degree, Home Invasion and
other accompanying charges.
         Mr. Richardson seeks to suppress evidence found on the two phones. He
argues that this warrantless seizure was invalid, and therefore, the Court must
suppress the evidence obtained from that seizure. In response to Mr. Richardson’s
motion, the State primarily argues that exigent circumstances justified this
warrantless seizure. According to the State, had the detective not obtained the phones
while he was at the probation office, it would have been easy and expected for Mr.
Richardson to destroy evidence contained on the phones. Although not raised in the
State’s written response, the detective’s testimony at the hearing referenced alleged
consent to the seizure of the first phone. The State then supplemented its argument
by alleging that the warrantless seizure was also justified based on consent.


                                             STANDARDS
         In a suppression hearing, the Court sits as the finder of fact and evaluates the
credibility of the witnesses. 2 The burden is on the State to justify a warrantless search
or seizure.3 In addition, the party with whom the burden rests must persuade the
Court by a preponderance of the evidence.4




2
    State v. Hopkins, 2016 WL 6958697, at *2 (Del. Super. Ct. Nov. 28, 2016).
3
    State v. Holmes, 2015 WL 5168374, at *3 (Del. Super. Ct. Sept. 3, 2015) (citation omitted).
4
 State v. Lambert, 2015 WL 3897810, at *2 (Del. Super. June 22, 2015) aff’d 149 A.3d 227 (Del.
2016).
                                                   4
          It is an established principle that “warrantless searches ‘are pre se
unreasonable.’”5 This general rule is of course subject to a few well-established
exceptions.6 For the purposes of this motion, the relevant exceptions are exigent
circumstances7 and consent.8 The State bears the burden of establishing the existence
of exigent circumstances9 and that the police conducted the seizure pursuant to
consent.10


                                            DISCUSSION
          The police seized two of Mr. Richardson’s phones without a warrant. While
the State argues that the detective seized both phones pursuant to Mr. Richardson’s
consent, the seizure of the first phone was the only seizure arguably made with his
consent. Nevertheless, the Court finds that the State failed to meet its burden of
establishing that Mr. Richardson consented to the seizure of even the first phone.
Furthermore, as to both phones, the police had adequate time to obtain a warrant prior
to the scheduled probation meeting. Accordingly, the inconvenience cited by the
State does not create the exigent circumstances necessary to circumvent the warrant
requirement.
     There was insufficient evidence presented at the hearing for the Court to find
                         consent for seizure of the first phone.
          Since chronologically consent is implicated first and involves only the seizure
of the first phone, the Court will address it first. In order for consent to justify a


5
  Cooke v. State, 977 A.2d 803, 854 (Del. 2009) (citing Katz v. United States, 389 U.S. 347, 357
(1967)).
6
    Id.
7
    E.g. Illinois v. McArthur, 531 U.S. 326, 331 (2001).
8
    E.g. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).
9
    Seward v. State, 723 A.2d 365, 371 (Del. 1999).
10
     Scott v. State, 672 A.2d 550, 552 (Del. 1996).
                                                      5
warrantless seizure, that consent must be voluntarily given. 11 In determining whether
the consent was valid, based on a totality of the circumstances, a court must consider
factors “including (1) knowledge of the constitutional right to refuse consent; (2) age,
intelligence, education, and language ability; (3) the degree to which the individual
cooperates; and (4) the length of detention and the nature of questioning, including
the use of physical punishment or other coercive police behaviors.” 12
          Here, the Court finds that the State did not meet its burden of establishing that
Mr. Richardson voluntarily consented to the seizure of the first phone. The State’s
sole evidence regarding consent came from the detective’s testimony. He testified
that when he informed Mr. Richardson that his phone would either exonerate him or
incriminate him, Mr. Richardson handed it to him.                    The State offers no other
testimony or evidence regarding consent.
          Despite the detective’s testimony that Mr. Richardson consented to the
seizures, the Court must evaluate the alleged consent in light of its factual context.
Most notably here, is the fact that the detective asked the probation officer to keep
Mr. Richardson at the office until he could drive to New Castle County to seize his
phone. Namely, Mr. Richardson was “kept” at probation for approximately two
hours, which is longer than the typical probation appointment.
          Moreover, the State did not provide any evidence regarding whether Mr.
Richardson knew of his right to refuse the seizure, or testimony touching on any of
the above-mentioned factors necessary for the Court to evaluate the validity of his
consent.13 The State’s burden includes showing that the consent was “not the result



11
     Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973).
12
     Cooke v. State, 977 A.2d 803, 855 (Del. 2009).
13
   See State v. Hopkins, 2016 WL 6958697, at *2 (Del. Super. Ct. Nov. 23, 2016) (recognizing that
a court cannot find valid consent if the record is “devoid of any evidence of the factors necessary to
evaluate the effectiveness or validity of the consent”).
                                                      6
of duress or coercion, express or implied.” 14 Given the totality of the circumstances
surrounding the alleged consent, namely the probation officer keeping Mr.
Richardson at his appointment for two hours, coupled with the lack of evidence
regarding any of the factors needed to evaluate consent, the Court finds that the State
has not met its burden of establishing that Mr. Richardson voluntarily consented to
the seizure. Accordingly, the State cannot properly rely on this exception to the
warrant requirement.


     The police had adequate time to obtain a warrant in advance of the scheduled
       probation appointment. Inconvenience, or the possible need to obtain an
      updated second warrant, does not rise to the level of exigent circumstances
                         authorizing a warrantless seizure.
          Exigent circumstances are the State’s principal argument for seizure of both
phones.        The State’s only witness testified that he intended to obtain Mr.
Richardson’s phone while he was at a probation appointment. He first planned to do
so in July, weeks before he went to the New Castle County probation office. The
detective testified that because of the length of a typical probation meeting, he did not
believe that he had time to first obtain a warrant. His testimony established that it
would have taken him an hour to draft a probable cause affidavit (though he offered
no explanation for why it could not have been prepared in the intervening weeks
before the meeting), and then additional time for a court to sign the warrant. In this
regard, he testified that waiting for court approval could take anywhere from ten
minutes to an hour or more. Accordingly, he did not believe he had sufficient time to
first obtain a warrant. The detective also testified that a suspect can easily and
quickly destroy evidence contained in a cellular phone, making such a seizure urgent.
From this testimony, the State argued that exigent circumstances existed.



14
     Id. (citing Liu v. State, 628 A.2d 1376. 1382 (Del. 1993)).
                                                     7
           The exigent circumstances exception to the warrant requirement permits police
“to seize an item without a warrant if they have a good faith belief that the item
contains evidence that could be destroyed by the time a warrant is available.”15 In
determining whether exigent circumstances existed to justify a warrantless seizure,
the Court must examine certain factors to determine whether the police actions were
reasonable. 16 These factors are
           (1) the degree of urgency involved and amount of time necessary to
           obtain a warrant; (2) the reasonable belief that contraband is about to
           be removed; . . . (3) information indicating the possessors of
           contraband are aware that the police are on their trail; and (4) the
           ready destructibility of the contraband . . . .17
Also relevant to the Court’s reasonableness determination is whether the police had
probable cause to believe evidence was on Mr. Richardson’s phones, whether the
detective “made reasonable efforts to reconcile . . . law enforcement needs with the
demands of personal privacy,” and the length of time the person remained without his
or her property.18
           In furtherance of the State’s exigency argument, the State relies solely on
Williams v. State19 and State v. Seward.20                Both cases include an evaluation of
relevant facts and found there to be exigent circumstances. Both are distinguishable
on their facts from the case at hand.
           First, in Williams, the Delaware Supreme Court held that exigent circumstances
existed because the police unexpectedly observed an entire drug transaction instead



15
     Floudiotis v. State, 726 A.2D 1196, 1209 (Del. 1999).
16
     State v. Seward, 2007 WL 1784188, at *4 (Del. Super. Ct. July 3, 2007).
17
     Id.
18
     Illinois v. McArthur, 531 U.S. 326, 331–33 (2001).
19
     331 A.2d 380 (Del. 1975).
20
     2007 WL 1784188 (Del. Super. Ct. July 3, 2007).
                                                   8
of an initial meeting as the police previously believed.21 The police knew that the
transaction would last only minutes, and if they did not act immediately, the
participants would then leave the scene. 22 To avoid this, the police entered the motel
room where the transaction was occurring, “for the purpose of securing the persons
and contents of the room until a search warrant could be obtained . . . .” 23 The Court
found that exigent circumstances justified this warrantless seizure. 24
           Second, in Seward, the Delaware Superior Court determined that exigent
circumstances existed after the police attempted to conduct a controlled buy. 25
During the course of this controlled buy, the suspect’s brother conducted counter
surveillance on the informant.26 After doing so, the suspect called the informant and
asked him to meet at the suspect’s nearby house to discuss the transaction, which was
abnormal. 27      As a result, the police believed that the suspect was aware of the
investigation or would be aware in a matter of minutes and that he would destroy
narcotics evidence.28          The Court found that the police permissibly entered the
suspect’s house without a warrant based on these exigent circumstances.29
           In both Williams and Seward, the police were in the process of conducting fast
paced investigations. While in the course of the surveillance in both of those cases,
the circumstances changed unexpectedly. The factual circumstances of both cases
indicated that had the police not acted immediately, it was reasonable for the police to
believe that the suspects would have destroyed evidence.
21
     331 A.2d at 383.
22
     Id.
23
     Id.
24
     Id.
25
     2007 WL 1784188, at *5.
26
     Id.
27
     Id.
28
     Id.
29
     Id.
                                               9
      Here, the Court finds that the State has not established, by a preponderance of
the evidence, that exigent circumstances existed. The Court does not find that there
was a sufficient degree of urgency in this case.       The police had identified Mr.
Richardson as a possible person involved in the crime in June. By July, the police
identified him as a leading suspect in this home invasion, which prompted them to
first contact his probation officer on July 18. Despite having Mr. Richardson’s
probation related information by July 18 at the latest, there is no indication on the
record that the police took any additional action to further their investigation.
Instead, they waited until August to seize the phones at the probation office during a
scheduled appointment. While the Court recognizes that the probation officer did not
contact the detective again until August 8, the detective did not provide any testimony
explaining why the seizure had to occur at Mr. Richardson’s probation office. The
State also failed to offer any evidence explaining why the detective could not have
obtained and executed a warrant at any point in June or July despite the fact that the
police had identified the reason to search his phone by that point.
      Moreover, the State did not provide evidence that the police were unaware of
Mr. Richardson’s location making it imperative that the seizure occur while he was at
probation. As the police identified Mr. Richardson in June and suspected his
involvement even before he allegedly committed the crime, the Court does not find
that there was a degree of urgency to obtain the phones that day. The police, by
August 8, had already waited at least three weeks.
      Furthermore, the detective testified that he was aware of Mr. Richardson’s
probation appointment on August 8 prior to the day of the appointment. There was
no evidence that Mr. Richardson had a history of violating his probation, making it
reasonable to believe that Mr. Richardson would appear that day. The Court finds it
unreasonable to not have prepared the documents and secured the warrant that day or
a couple of days before the appointment. Had the detective done so, the warrant
would have been in hand when the detective appeared at the probation office. Even
                                      10
under the compressed timeline argued by the State, there was sufficient time to draft
the documents prior to that morning and obtain a signed warrant.
       Attempting to satisfy the remaining factors of exigent circumstances, the State
further argues that there was a reasonable belief that evidence was about to be
destroyed because Mr. Richardson now knew he was a suspect.                          A person’s
knowledge that he or she is a suspect in a police investigation is a major factor in
determining whether exigent circumstances existed. 30 However, there is no evidence
of record presented that would even warrant an inference by the Court that Mr.
Richardson was aware that he was identified as a suspect in the home invasion prior
to the detective appearing at his probation appointment. The State merely argues that
after the detective appeared at the probation office, Mr. Richardson was aware that he
was under police investigation and was likely to destroy potential evidence on the
phones. In the context of exigent circumstances, whether the suspect was aware of a
police investigation is determined prior to the warrantless search or seizure.31
       Accordingly, the Court finds, based on the totality of the circumstances, that
the State did not satisfy its burden of establishing exigent circumstances. The Court
does not find a sufficient degree of urgency given that the police were aware of the
extent of Mr. Richardson’s involvement for a significant period before August 8th.
Moreover, even examining the urgency of the circumstances under the artificially
compressed time frame on August 8, this Court does not believe that it was
reasonable for the Detective to forgo preparation of a warrant.                 He could have


30
   See Seward v. State, 723 A.2d 365, 371 (Del. 1999) (determining that exigent circumstances
existed because the defendant did knew that he was under investigation making the police’s belief
that he would destroy evidence reasonable).
31
   See id (stating that in the three days leading up to the defendant’s arrest, the police observed
defendant’s behavior and that behavior was indicative of him knowing he was under investigation);
State v. Seward, 2007 WL 1784188, at *5 (Del. Super. Ct. July 3, 2007) (explaining that due to the
police observing defendant’s brother conduct counter surveillance before a controlled buy, the
defendant was aware, or would become aware shortly thereafter, of the police investigation which
in part justified the later warrantless search).
                                                11
reasonably drafted the affidavit of probable cause and other warrant materials prior to
that morning. In that event, he need only have sought approval of the warrant prior to
the morning of the scheduled probation meeting.           While it seems clear and
uncontested that the police had probable cause to seize the phones, the detective’s
actions did not evidence an attempt to reconcile Mr. Richardson’s privacy interests
with law enforcement needs. The fact that a person can easily delete evidence on a
cell phone is insufficient alone to establish exigent circumstances.     Accordingly,
exigent circumstances do not justify this warrantless seizure.
                                     CONCLUSION
      As the State failed to establish both voluntary consent and the presence of
exigent circumstances, the Court finds that the warrantless seizures violated Mr.
Richardson’s Federal and State constitutional rights.      Accordingly, any evidence
obtained from the two phones is suppressed. As the Court finds that the initial
warrantless seizures violated Mr. Richardson’s rights, the Court will not consider
whether the subsequently obtained warrant to search the phones was valid. That issue
is now moot. Mr. Richardson’s motion to suppress is hereby GRANTED.
   IT IS SO ORDERED


                                                    /s/Jeffrey J Clark
                                                        Judge




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