IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
ID No. 1805001031
v.
In and For Kent County
CARL M. RONE,
Defendant.
OPINION AND ORDER

 

Submitted: September 7, 2018
Decided: September 17, 2018

Upon Defendant’s Motion to Suppress
GRANTED

David Hume, IV, Esquire (argued), and Caroline C. Brittingham, Esquire,
DEPARTMENT OF JUSTICE, Georgetown, Delaware, for the State.
Eugene J. Maurer, Jr., Esquire, Elise Kristin Wolpert, Esquire (argued), and

Chn`stina L. Ruggiero, Esquire, EUGENE J. MAURER, JR., P.A., Wilmington,
Delaware, for Defena'ant.

Prirnos, J

State v. Carl M. Rone
|D. No. 1805001031
September 17, 2018

This matter is before the Court on the motion to suppress of Defendant Carl
Rone (hereinafcer “Defendant”). Defendant challenges the validity of a warrantless
search of his cell site location information (hereinafter “CSLI”), which Delaware
State Police sought and acquired pursuant to Delaware’s wiretap statute, ll Del. C.
§ 2401 et seq. (hereinafter the “Wiretap Statute”). Defendant seeks suppression of
CSLI gained by the search of his cell phone records. The facts cited herein are as
found by the Court by a preponderance of the evidence following consideration of
the parties’ Written submissions and their arguments at the hearing on September 7,

2018.

I. FACTUAL BACKGROUND

Defendant worked for many years as a firearms examiner for the Delaware
State Police. Discrepancies between Defendant’s submitted time sheets, his physical
presence at the office, and other work documents were noted by one of his
coworkers, who reported these facts to law enforcement On January 31, 2018, the
Delaware State Police, who suspected Defendant of submitting false time sheets,
applied for an order from this Court to obtain the CSLI for a cell phone owned by
Defendant (hereinafter the “Phone”). The application sought disclosure of records
related to the use of the Phone, including historical call detail records with CSLI, for
the timeframe of January l, 2016, to January 18, 2018. To compel disclosure of cell
phone records under the Wiretap Statute, law enforcement had to demonstrate that
there was “reason to believe” that the records sought were “relevant to a legitimate

law-enforcement inquiry.”1 This Court signed that order the same day, and copies of

 

1 11 Del. C. § 2423(d)(1).

State v. Carl lVl. Rone
|D. No. 1805001031
September 17, 2018

the relevant data were turned over to the Delaware State Police by the Phone’s

service provider.

II. ARGUMENTS OF THE PARTIES

Defendant filed the instant motion to suppress on July 30, 2018, arguing that
the compelled disclosure of his CSLI constituted a search and that the search was
not made pursuant to warrant or a warrant exception, thus violating Defendant’s
rights under the Fourth and Fourteenth Amendments to the United States
Constitution and Article I, § 6 of the Delaware Constitution.

The State agrees that the compelled disclosure of the CSLI constituted a
Search but argues that the application, affidavit, and order (collectively the
“Application”), although not styled as a warrant, comport with the requirements for
a search warrant. Additionally, the State contends that the CSLI would have been
inevitably discovered, and in fact will be discovered a second time through a search

warrant obtained on August 20, 2018. 2

III. LEGAL STANDARD

The burden is on the State to justify a warrantless search or seizure.3 In a

suppression hearing, the Court sits as the finder of fact and evaluates the credibility

 

2 An application for a search warrant was filed on August 20, 2018 (aiter the current motion to

suppress was filed), and was granted by the same judicial officer Who had granted the initial
application under the Wiretap Statute.

3 State v. Holmes, 2015 WL 5168374, at *3 (Del. Super. Sept. 3, 2015), aj”d 149 A.3d 227 (Del.
2016).

State v. Carl M. Rone
|D. No. 1805001031
September 17, 2018

of the witnesses4 The party with whom the burden rests must persuade the Court by

a preponderance of the evidence.5

IV. DISCUSSION

A. The Carpenter decision applies to this case.

Under well-settled Fourth Amendment jurisprudence, government searches
must generally be undertaken pursuant to warrants supported by probable cause or
under circumstances falling within a specific exception to the warrant requirement6
The Fourth Amendment to the United States Constitution mandates that “no
Wairants shall issue, but upon probable cause.” Similarly, the Delaware Code
permits a judicial officer to issue a warrant only if he or she finds “that the facts
recited in the complaint constitute probable cause for the search.”7

The United States Supreme Court recently held in Carpenter v. United States
that citizens have a legitimate expectation of privacy in the records of their physical
movements as captured through CSLI.8 In Carpenter, prosecutors applied for an
order under the Stored Communications Act (hereinafter the “SCA”) to acquire the
defendant’s cell phone records, including historical CSLI, for a seven-day period
and a 127-day period.”9 The Carpenter court found that the compelled disclosure of
the defendant’s CSLI constituted “a search within the meaning of the Fourth

 

4 State v. Hopkins, 2016 WL 6958697, at *2 (Del. Super. No_v. 28, 2016).

5 State v. Lambert, 2015 WL 3897810, at *3 (Del. Super. June 22, 2015),

6 Vernom`a School Dist. 4 7.] v. Acton, 515 U.S. 646, 652-653 (1995); Brigham Cily v. Stu`art, 547
U.S. 398, 403 (2006).

7 ii Del. C. § 2307(a).

8 138 S.Ct. 2206, 2217 (2018).

9Mmmm

State v. Carl M. Rone
|D. No. 1805001031
September 17, 2018

Amendment” that was conducted without a warrant and did not fall within a specific
exception to the warrant requirement.10

Here, the Court finds that the Carpenter ruling -- that law enforcement must
generally obtain a search warrant supported by probable cause before acquiring
CSLI from a wireless carrier -- is directly applicable to the case at hand. Indeed, the
State concedes the applicability of Carpenter, and in its response to the motion to
suppress states that “a search within the meaning of the Fourth Amendment
occurred.” The language of the Wiretap Statute and of the SCA is functionally
identical: Delaware’s statute requires a showing of “reason to believe” that the
records sought are “relevant to a legitimate law-enforcement inquiry,”ll while the
SCA requires “reasonable grounds to believe” that the records “are relevant and

material to an ongoing criminal investigation.”12

B. The order issued pursuant to the Application did not constitute a search

Warrant.

The State seeks to distinguish the facts of this case from those in Carpenter
by arguing that the Application comported with all the requirements for a search
warrant under the Delaware Code. In short, 11 Del. C. § 2306 requires that the
application or complaint for a search warrant be in writing, signed by the
complainant, and verified by oath or affirmation, and that it designate the objects of
the search, the reasons for the search, and the facts supporting the suspicion that the

items sought will be found there.

 

10 1d.at2220,2221.
11 ii Del. C. §2423(<1)(1).
12 18 U.s.C. § 2703(d).

State v. Carl M. Rone
|D. No. 1805001031
September 17, 2018

The Court agrees that the validity of a warrant should not turn on formalistic
considerations: a reviewing Court is to employ a “common sense” rather than a
“hypertechnical” approach to the relevant documents.13 Even so, the Court finds that
the text of 11 Del. C. § 2423 makes clear that orders issued pursuant to the Wiretap
Statute were not intended by the General Assembly to be search warrants.14 This fact
is relevant to the Court’s understanding of what the reviewing judge intended when
the Application was granted and an order compelling disclosure was issued.

While the Application met many of the warrant requirements set forth in the
Delaware Code, the critical inquiry in this case is whether the document purporting
to be a warrant in this case fulfills the essential requirement demanded of all
warrants, that it was issued upon probable cause,15 On its face, the Application does
not appear to satisfy that requirement: the Wiretap Statute does not require a showing
or a finding of probable cause, and the order granting the Application did not note a
finding of probable cause,16 While the State argues that the information included in
the Application would have been sufficient to support a finding of probable cause,
no such finding was made. The order signed by the reviewing judge in this case reads

only that there were “reasonable grounds” to believe that the cell phone records,

 

13 Jensen v. State, 482 A.2d 105, 111 (Del. 1984).

14 Orders requiring disclosure under § 2423(d) are not search warrants because the wiretap statute
identifies “a search warrant from a court of competent jurisdiction” and “a court order requiring
the disclosure under subsection (d) of this section” as separate justifications for compelling a
service provider to disclose cell phone records. 11 Del. C. §§ 2423(c)(2)b., 2423(c)(2)c.

15 “Probable cause” has been described by the United States Supreme Court as a “fair probability
that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462
U.S. 213, 214 (1983).

16 The Wiretap Statute requires only a showing of a reason to believe that the evidence to be found
is “relevant to a legitimate law-enforcement inquiry,” not that the evidence sought constitutes
evidence of a crime. 11 Del. C. § 2423(d)(1). In interpreting the similarly worded SCA, the
Carpenter Court described the required showing of “reasonable grounds” of relevance to an
ongoing investigation as falling “well short of the probable cause required for a warrant,” and “a
‘gigantic’ departure from the probable cause rule.” Carpem‘er, 138 S.Ct. at 2221.

6

State v. Carl M. Rone
|D. No. 1805001031
September 17, 2018

including CSLI, were “relevant to an ongoing criminal investigation.” Nothing in
the Application states or suggests that there was a fair probability that the CSLI
would contain evidence of Defendant’s alleged falsification of business records.

The State has attempted to argue the applicability of the Delaware Supreme
Court’s decision in Hope v. State, which the State cites for the proposition that “there
is no requirement that a nighttime search warrant . . . contain a specific finding by
the magistrate that probable cause exists to issue the nighttime warrant.”17 By
analogy, the State contends that there is no requirement that a search warrant contain
a specific finding of probable cause that evidence of a crime will be found in the
particular place to be searched. The analogy is inapt. While “probable cause to
search” and “probable cause to issue a nighttime warrant” are linguistically similar,
the two requirements are born from separate sources of legal authority and follow
different rules.

The requirement that a search warrant be issued upon a finding of probable
cause arises from the Fourth Amendment to the United States Constitution; Article
1, Section 6 of the Delaware Constitution; and 11 Del. C. § 2307. In contrast, the
requirement for a finding of “probable cause to issue a nighttime warrant” stems
from 11 Del. C. § 2308, and is a separate requirement in addition to the “probable
cause to search” requirement that all warrants must satisfy. 11 Del. C. § 2308
provides additional protections to the people of Delaware by permitting nighttime
searches only under certain circumstances, specifically, only when “the judge,
justice of the peace or magistrate is satisfied that it is necessary in order to prevent
the escape or removal of the person or thing to be searched for.” The Hope court

correctly noted that 11 Del. C. § 2308 does not require a nighttime warrant “to list

 

11 570 A.2d 1185, 1188 (Dei. i990).

State v. Carl l\/I. Rone
|D. No. 1805001031
September 17, 2018

exigent circumstances or contain a specific finding by the magistrate that probable
cause exists to issue the nighttime warrant.” 570 A.2d at 1188. The language used
in 11 Del. C. § 2307 does, however, require a finding of probable cause to search,
permitting the issuance of search warrants only if the magistrate “finds that the facts
recited in the complaint constitute probable cause for the search.”18

The Court is aware of decisions in other jurisdictions that have held that
formal findings of probable cause, or of certain facts supporting probable cause, are
not essential for a warrant to be validly issued. In those cases, however, the lack of
a formal finding was considered trivial because the issuance of the warrant implied
a finding of probable cause,19 or gave rise to a presumption that the reviewing judge
concluded that there was probable cause.” The logic of those decisions does not
apply to a case where the reviewing judge did not receive a document purporting to
be a search Warrant application, and did not issue a document purporting to be a
search warrant.

The Court therefore finds that the search of Defendant’s CSLI was
unsupported by warrant and, further, that the State has presented no facts or
argument demonstrating an exception to the warrant requirement Moreover, the
intrusion upon Defendant’s privacy is more egregious than what was found
intolerable in Carpenter. In Carpenter, the compelled disclosure of a “detailed and

comprehensive record of the [defendant’s] movements”21 for seven days constituted

 

18 11 Del. C. § 2307(a) (emphasis added).

19 Coleman Cly. Country Club v. State, 236 S.W.2d 558, 560 (Tex. Civ. App. 1951).
20 Chmscicki v. Hinrichs, 197 wis. 78, 221 N.w. 394, 396 (1928).

21 Carpenter, 138 S.Ct. at 2217.

State v. Carl M. Rone
|D. No. 1805001031
September 17, 2018

a search.22 Here, Defendant’s particular movements were subjected to “tireless and

absolute surveillance” 23 for a period of over two years.

C. The inevitable discovery doctrine is inapplicable, and whether evidence
obtained through the August 2018 search Warrant should be suppressed
is not before this Court.

The State further argues that the related doctrines of inevitable discovery and
independent source bar suppression of the evidence at issue. Pursuant to the
inevitable discovery doctrine, evidence that “would inevitably have been discovered
through independent, lawful means” is admissible.24 Under the independent source
doctrine, where the government engages in illegal investigatory activity but also
obtains the evidence independently through lawful means, the court will admit the
evidence. Id.

The State has failed to explain how the inevitable discovery doctrine applies
to this case, and the Court finds it inapplicable This is not a situation, as in Nix,
where, at the time that law enforcement engaged in illegal activity (the interrogation
of the defendant in violation of his Sixth Amendment rights leading to the disclosure
of the location of the victim’s body), law enforcement had begun a lawful search
that would have led to the discovery of the body; or as in Norman, where the
Delaware Supreme Court found that the defendant’s incriminating statements would

inevitably have been discovered in the course of a lawful investigation

 

22 Id. at 2217 n.3 (“we need not decide whether there is a limited period for which the Government
may obtain an individual's historical CSLI free from Fourth Amendment scrutiny, and if so, how
long that period might be. lt is sufficient for our purposes today to hold that accessing seven days
of CSLI constitutes a Fourth Amendment search.”).

23 Id. at 2218.

24 Norman v. State, 976 A.2d 843, 859 (Del. 2009) (citing Nix v. Williams, 467 U.S. 431, 444
(1984)).

State v. Carl M. Rone
|D. No. 1805001031
September 17, 2018

With regard to the independent source doctrine, the State argues that it could
seek the evidence in question through a lawful, independent source, and has actually
done so through the August 2018 warrant application. That search warrant,
however, is not before the Court. Through this motion, Defendant seeks to suppress
only evidence obtained through the Application, which was submitted in January
2018. Furthermore, it does not appear, based upon the State’s written submission
and its statements at oral argument, that the State has yet obtained information
pursuant to the August 2018 warrant. Finally, Defendant asserted through counsel
at oral argument that he has independent grounds upon which to challenge the
August 2018 warrant, and it would thus be inappropriate for the Court to consider
the validity of that warrant in deciding the instant motion. Therefore, the Court

cannot consider possible application of the independent source doctrine at this time.
V. CONCLUSION

WHEREFORE, for the foregoing reasons, Defendant’s motion to suppress

must be GRANTED.
7a 5 - /--
L

Noel Eason Piimos, Judge

IT IS SO ORDERED.

 

NEP/sz

Sent via email & U.S. Mail

oc: Prothonotary

cc: Eugene J. Maurer, Jr., Esquire
David Hume, IV, Esquire

10

