             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE



STATE OF DELAWARE                            )
                                             )
       v.                                    )       I.D. No. 1710001043
                                             )
VERNON MONTGOMERY,                           )
                                             )
       Defendant.                            )

                     ORDER DENYING DEFENDANT’S MOTION TO
                       SUPPRESS POST MIRANDA STATEMENT

       Upon consideration of Defendant’s Motion to Suppress Post Miranda Statement by

Defendant (D.I. 38) filed by Defendant Vernon Montgomery; The State’s Response to the

Motion to Suppress (the “Opposition”); the hearing held on the Motion and Response (the

“Hearing”) on August 10, 2018; and the entire record of this criminal proceeding:

       1.      On October 2, 2017, Wilmington Police Department (“WPD”) received a 911 call

about a robbery at a WSFS Bank (the “Bank”) located at 211 North Union Street, Wilmington,

Delaware. The 911 caller described the robbery suspect as a tall black male displaying a firearm

and wearing a neon color construction vest and mask. The Bank provided WPD with real time

tracking information from a GPS location device inside a bag of the stolen money. WPD

dispatch relayed this information to responding officers.

       2.      The tracker stopped in the 1000 Block of West 4th Street. WPD stopped all

vehicles on West 4th Street between N. Van Buren Street and N. Jackson Street. WPD officers

then got out of their cars and began checking the stopped vehicles looking for a possible suspect.

       3.       WPD Corporal Johnny Whitehead noticed a Chrysler 200 sitting stationary with

a black male in the driver’s seat and avoiding eye contact with the officers. Corporal Whitehead

detained Mr. Montgomery. Then Corporal Whitehead searched a backpack on the passenger
floor. The backpack contained US currency and a black handgun. An officer transported Mr.

Montgomery to a WPD station and Mr. Montgomery was placed in an interview room.

       4.       The Court had the opportunity to review the video of Mr. Montomery’s time in

the interview room. At first Mr. Montgomery was alone in the room. Detective Harvist

Smallwood joined Mr. Montgomery. Before Detective Smallwood could say anything, Mr.

Montgomery began speaking. Detective Smallwood told Mr. Montgomery to not say anything

until Detective Smallwood was able to get Mr. Montgomery’s personal information. Mr.

Montgomery again interrupted Detective Smallwood and talked about the incident. Mr.

Montgomery said that the officer “needs to hear this” and that “this was out of desperation.”

Detective Smallwood again stopped Mr. Montgomery from talking and told Mr. Montgomery to

“hold on” so that Detective Smallwood could get Mr. Montgomery’s information.

       5.      During the interview, Mr. Montgomery stated that someone threatened his family

because Mr. Montgomery owed that person—a drug supplier—money. Eventually, Detective

Smallwood was able to read Mr. Montgomery his Miranda warning, but only after being

interrupted several times by Mr. Montgomery. After being advised of his rights, Mr.

Montgomery stated that he did not wish to speak with Detective Smallwood about the bank

robbery.

       6.       As Detective Smallwood exited the room, Mr. Montgomery asked to speak with

Detective Smallwood “man-to-man.” Detective Smallwood told Mr. Montgomery that Mr.

Montgomery had just refused to speak with him. Mr. Montgomery stated that he did not want to

talk about “that”—referring to the bank robbery. Detective Smallwood said that he would be

back in a few minutes and left the interview room.




                                                2
           7.       Nearly three minutes later, Detective Smallwood returned to the room. He

acknowledged that Mr. Montgomery asked for a lawyer and said what they are going to talk

about will have nothing to do with what happened at the bank. On the video, Mr. Montgomery

then interrupts Detective Smallwood. Detective Smallwood stopped Mr. Montgomery from

speaking and asked Mr. Montgomery to provide the contact information for his family members

that were threatened by the drug supplier. Mr. Montgomery gives Detective Smallwood

information about his family. Detective Smallwood states “so somebody obviously is” and Mr.

Montgomery once again cuts off Detective Smallwood. Mr. Montgomery said that he bought

drugs and got desperate when the supplier called asking for his money.

           8.       Officers applied for and obtained a warrant for the Chrysler. Officers found a

black hooded sweatshirt, a camouflage backpack, a Hi-Vis safety vest, a Styrofoam cup

containing blue rubber gloves, a ski mask, a blue backpack containing work gloves, a 9mm

pistol, and $7,385 cash.

           9.       Mr. Montgomery filed several motion to suppress evidence including a motion to

suppress the statements made during the interview. The Court held a hearing on several of the

motions (the “Hearing”) on August 10, 2018. At the Hearing, the Court ruled that Mr.

Montgomery made the pre-Miranda statements voluntarily and that police did not illicit the

statements. The Court reserved the issue whether the post-Miranda statements were made in

violation of Miranda.

           10.      Miranda warnings are required only where (1) questioning of a suspect rises to

the level of interrogation and (2) the interrogation occurs while the suspect is either in ‘custody’

or in a custodial setting.”1 Interrogation under Miranda need not amount to actual questioning,



1
    McAllister v. State, 807 A.2d 1119, 1125-26 (Del. 2002).

                                                           3
but may be the functional equivalent of questioning.”2 The functional equivalent of questioning

includes ‘any words or actions on the part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably likely to elicit an incriminating

response from the suspect.’”3 “[A]n officer cannot be held responsible for an unforeseeable

statement by the suspect. An interrogation only encompasses actions or words by the officer that

he or she should have known would elicit an incriminating response.”4 “The police need not

shield their ears from defendant’s truly spontaneous utterances.”5

        11.      Here, the post-Miranda statements were not solicited in violation of Miranda.

Before Detective Smallwood left the room, Mr. Montgomery told him that his family had been

threatened by his supplier. Detective Smallwood then read Mr. Montgomery his Miranda rights.

At that point, Mr. Montgomery attempted to talk with Detective Smallwood again “man-to-

man.”

        12.      When Detective Smallwood returned to the room, he said that he did not want to

talk about the bank robbery. In fact, Detective Smallwood tried to limit Mr. Montgomery’s

conversation solely to the contact information for his family members that were threatened by

the supplier. Mr. Montgomery interrupted Detective Smallwood and again made incriminating

statements. Detective Smallwood acted reasonably and did not try to illicit incriminating

evidence. Detective Smallwood did what we would expect our officers to do. Detective

Smallwood learned that people were threatened and attempted to get their contact information so

that the police could warn the family members. Moreover, Detective Smallwood cautioned Mr.




2
  Tolson v. State, 900 A.2d 639, 643 (Del. 2006).
3
  Id.
4
  Id.
5
  State v. Chao, 1989 WL 89691, at *6 (Del. Super. 1989).

                                                        4
Montgomery not to talk about the bank robbery. These directed and targeted questions do not

violate Miranda.

       13.      Although the Court has determined that the post-Miranda questions did not

violate Miranda, the Court has not determined on the admissibility of the evidence under a Rule

403 analysis. The Court is concerned that statements regarding matters not connected to the

bank robbery could be prejudicial in a way that substantially outweighs the probative value of

the statement. The Court requests that the parties review the video statement prior to trial and

work together to redact those statements that have little to no probative value.

IT IS SO ORDERED.

Dated: September 5, 2018
Wilmington, Delaware

                                              /s/ Eric M. Davis
                                              Eric M. Davis, Judge

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