       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE,                 :
                                   :        ID No. 1508010489
                v.                 :        In and For Kent County
                                   :
ABDUL T. WHITE,                    :
                                   :
             Defendant.            :


                              OPINION


                      Submitted: February 14, 2017
                         Decided: May 8, 2017


Jason Cohee, Esquire, and Lindsay Taylor, Esquire, DEPARTMENT OF
JUSTICE, Dover, Delaware, for the State.

Edward Gill, Esquire, LAW OFFICE OF EDWARD C. GILL P.A., and Alexander
Funk, Esquire, CURLEY, DODGE & FUNK, LLC, Dover, Delaware, Attorneys
for Defendant.




Clark, J.
                                        I. Introduction
         On August 8, 2015, John Harmon (hereinafter “Mr. Harmon”) was fatally
shot in the head in Milford, Delaware. After a police investigation, the Milford
Police Department (hereinafter the “police”) suspected that Defendant Abdul
White (hereinafter “Mr. White”) was involved. The police sought and obtained
several warrants including a search warrant for his DNA. The Philadelphia police
located Mr. White while he was in Pennsylvania and detained him on a Fugitive of
Justice charge.       After his apprehension, Delaware police interrogated him in
Philadelphia regarding the murder. After Pennsylvania extradited Mr. White to
Delaware, the police again interviewed him in Milford. During the course of that
interview, Mr. White made incriminating statements.              Following Mr. White’s
discussion with the police, the police arrested him and charged him with Murder in
the First Degree and several other offenses.
         Mr. White has filed several motions to suppress. First, regarding an issue of
first impression in Delaware, he argues that the Court must suppress any DNA
evidence in the case because the search warrant affidavit did not represent that
DNA was actually recovered from the scene. Accordingly, he argues that there is
not the nexus required to justify the seizure of his DNA.
         Second, Mr. White argues that the Court must suppress incriminating
statements made during his Milford police interview for several reasons. These
include his argument that the Milford police detective provided invalid Miranda 1
warnings to him both in Philadelphia and in Milford. Also, Mr. White argues that
a twelve minute delay in providing the warnings occurred after the start of an
interrogation, rendering the warnings invalid.            Mr. White also argues that he
formerly invoked his rights in writing by signing a non-waiver form in

1
    Miranda v. Arizona, 384 U.S. 486 (1966).

                                               2
Philadelphia while represented by counsel on a Fugitive of Justice charge. He
argues that the non-waiver form invoked his rights for his subsequent interrogation
in Milford. Lastly, he requests the Court to suppress his incriminating statements
in Milford because the police violated his Sixth Amendment right to counsel
because he was represented in Philadelphia before his extradition to Delaware.
      The State opposes Mr. White’s motion arguing that the warrant for Mr.
White’s DNA contained a sufficient nexus to establish probable cause that seizing
a sample of his DNA would provide evidence of his involvement. The State also
maintains that the police provided Mr. White with valid Miranda warnings prior to
the interrogations and that he knowingly and voluntarily waived his rights.
Finally, the State argues that Mr. White’s Sixth Amendment right to counsel had
not yet attached to the Murder First Degree charge, and therefore, the police did
not violate this constitutional right by questioning him in Milford without counsel.
After considering the respective positions of the parties, Mr. White’s motions to
suppress (1) DNA evidence on the basis of a defective warrant, and (2) his
statements pursuant to Miranda and the Sixth Amendment right to counsel are
DENIED.
                                     II. Facts
      All facts stated herein that are relevant to the motion to suppress DNA
evidence are recited in the probable cause affidavit. Separately, all facts relevant
to the motions to suppress Mr. White’s statements are those facts found by the
Court after the January 5, 2017 suppression hearing, and through documents
supplementing that record.
      On August 8, 2015, the police were notified of a home invasion in Milford.
Three intruders wearing dark clothes and dirt bike style masks entered a home
located at 515 Walnut Street in Milford. The intruders ordered nine people in the
house to lay on the floor in the living room and then held them at gunpoint.
                                         3
Another person was duct taped and also held at gunpoint in the living room. While
two of the intruders held these people, one of the three intruders kept Mr. Harmon
in his bedroom. The intruder duct taped Mr. Harmon to his wheelchair and then
fatally shot him in the head. After arriving at the scene, the Milford police located
an intruder’s dirt bike mask in Mr. Harmon’s bedroom. After processing the mask,
the police found a latent fingerprint belonging to the left middle finger of Mr.
White. Thereafter, a magistrate at the Justice of the Peace issued a search warrant
for Mr. White’s DNA.
      After securing the warrant, the police unsuccessfully attempted to locate Mr.
White. The Philadelphia police arrested him in Philadelphia, Pennsylvania on
September 23, 2015 on a Fugitive of Justice charge and later extradited him to
Delaware. During his detention in Pennsylvania, however, the Milford police read
Mr. White his Miranda rights and interviewed him. Later, at some point prior to
his extradition to Delaware, the Philadelphia Public Defender’s office had Mr.
White execute a written assertion of his Miranda rights, apparently in reference to
the Pennsylvania charge.
      Pennsylvania then extradited Mr. White to Delaware on December 2, 2015.
While the police held Mr. White at the police station in Milford, Delaware, the
same Milford detective spoke to him and asked if he wanted to continue a
conversation he had with another police officer regarding separate charges.
Without prompting, Mr. White then began talking about the home invasion and
murder. At that point, the police interrupted Mr. White to again inform him of his
Miranda rights. Mr. White then waived his rights and provided a six hour long
incriminating statement to the police regarding the home invasion and murder.
Following this interview, the police formerly charged Mr. White with various
charges including Murder First Degree.


                                         4
                                          III.      Discussion
         Following Mr. White’s arrest, his defense counsel filed several motions to
suppress evidence.         The first motion to suppress focuses on the DNA search
warrant, and the balance of Mr. White’s motions focus on the incriminating
statements he provided to the police. For the reasons set forth below, Mr. White’s
several motions to suppress evidence are denied.


               A. The warrant for collection of Mr. White’s DNA was valid.
         Mr. White challenges the issuance of the search warrant authorizing the
collection of his DNA by buccal swab.                   Since this motion involves a search
warrant, the burden is on Mr. White to prove that the collection of his DNA was
unlawful.2 A judicial officer must only issue a search warrant if the government
has established probable cause. 3 The affidavit must set forth enough facts to allow
the judicial officer to form a reasonable belief that a particular offense has been
committed and that seizable property would be found in a particular location. 4
Additionally, probable cause requires a nexus between the items sought by the
police and the place in which the police wish to search.5 A warrant involving
authorization for a DNA swab is evaluated pursuant to these same standards.
         Mr. White must establish the illegality of this search and seizure by a
preponderance of the evidence.6 Furthermore, a reviewing court must pay great


2
  See State v. Sisson, 883 A.2d 868, 875 (Del. Super. Ct. 2005) (stating that “[o]n a motion to
suppress challenging the validity of a search warrant, the defendant bears the burden of
establishing that the challenged search or seizure was unlawful”).
3
    Fink v. State, 817 A.2d 781, 786 (Del. 2003).
4
    Sisson v. State, 903 A.2d 288, 296 (Del. 2006).
5
    Hooks v. State, 416 A.2d 189, 203 (Del. 1980).
6
    Sission, 883 A.2d at 875.

                                                    5
deference to a magistrate’s decision that a warrant is supported by probable cause. 7
Notwithstanding this deference, the reviewing court’s “‘substantial basis’ review
requires [it] to determine whether ‘the warrant was invalid because the magistrate’s
probable-cause determination reflected an improper analysis of the totality of the
circumstances . . . .’”8 The Court is confined to a four-corners analysis. Namely,
the search warrant’s affidavit “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.”9
         Mr. White argues that the language found in the affidavit to support a
collection of his DNA included merely conclusory statements that are insufficient
to establish the required nexus between his DNA and other evidence of a crime.
Here, the relevant information contained in the affidavit does not include a
statement that the police recovered any DNA from the scene.              It does, however,
recite the affiant’s belief that Mr. White’s DNA would be located on various items
of evidence collected at the scene of the crime. He further recites that it has been
(1) the affiant’s experience that those involved in committing crimes leave their
DNA behind; and (2) when a person involved in committing a crime leaves items
of clothing worn or used to commit the crime at the scene, those items often
contain the suspect’s DNA. Mr. White argues that these conclusory statements are
insufficient to establish a nexus between Mr. White’s DNA and the evidence found
at the crime scene.



7
    State v. Holden, 60 A.3d 1110, 1114 (Del. 2013).
8
 LeGrande v. State, 947 A.2d 1103, 1108 (Del. 2008) (quoting United States v. Leon, 486 U.S.
897, 915 (1984)).
9
    Sisson 903 A.2d at 296.

                                                 6
           In support of his argument, Mr. White points to dicta in the Superior Court’s
decision in State v. Campbell to argue that conclusory statements that DNA may be
recovered from an item without adequate support for such statements is insufficient
to establish a proper foundation for a seizure of a suspect’s DNA.10 Therefore, Mr.
White argues that the Court must suppress the evidence obtained as a result of the
DNA sample.
           In response, the State argues that the statements in the affidavit establish a
sufficient nexus to support probable cause because the affiant stated that in his
experience people who commit crimes leave their DNA at the crime scene.
Furthermore, it argues that when items of clothing are left behind at the scene,
those items often contain DNA evidence. The State also relies upon State v.
Campbell by referencing its dicta that a warrant’s inclusion of a statement that
based on the affiant’s experience that it is likely that the intruders left DNA on
these items, establishes the required nexus. 11
           During the evidentiary hearing, defense counsel for Mr. White clarified this
argument acknowledging that the affidavit did include statements regarding the
affiant’s experience.        However, Mr. White argues that the affidavit is still
insufficient because it contains no information regarding why the affiant’s
experience justifies this conclusion.          According to Mr. White, there must be
further foundation to support the conclusion that based on the affiant’s experience,
training, or education, DNA is often left behind at the scene.
           The State counters that affidavit recited that he had 13 years of experience
investigating homicides, attempted homicides, and other serious assaults. The State
argues that this is an adequate basis for the affiant’s experience supporting the


10
     2015 WL 5968901 (Del. Super. Ct. Oct. 5, 2015).
11
     Id.

                                                7
belief that there would be DNA left at the crime scene. The State also maintains
that the expectation of finding Mr. White’s DNA on the dirt bike mask left behind
at the crime scene was augmented when the police found a latent finger print on
the mask which belonged to Mr. White. Accordingly, the State then advocates the
Campbell decision’s reasoning that an affidavit for DNA seizure would be
sufficient if it relied on an affiant’s training, experience, and education. 12
           Both parties represented during the evidentiary hearing that the only
Delaware case discussing this issue is State v. Campbell. While instructive and
persuasive, Campbell’s relevant analysis is dicta. In that case, there was in fact no
DNA evidence recovered at that crime scene, making this Court’s review of the
case at hand a matter of first impression in Delaware.
           In Campbell, police obtained a search warrant for the defendant’s DNA. 13
The only DNA specific information contained in that warrant included
                 [y]our affiant is aware that several casings from the
                 firearm that was fired were located at the scene and
                 collected as evidence, [and] [y]our affiant is aware that it
                 is possible to collect DNA evidence of the suspect(s)
                 from the casings. Your affiant is aware that DNA
                 belonging to Keith Campbell 8/3/1988 can be compared
                 to any DNA found on the casings.14

           The court in Campbell acknowledged that there was no evidence recited that
the shell casings would contain DNA to compare against the collected DNA. 15 The
affiant merely stated that he was aware that it would be possible to recover DNA



12
     Id.
13
     Id. at 1.
14
     Id. at 4.
15
     Id.

                                              8
from a shell casing without providing support for this conclusion. 16 Notably, the
court in Campbell was concerned by the fact that the statement that DNA could be
collected from shell casings was “not supported by the detective’s personal
knowledge gained from work experience or other investigations that may have
occurred or [was] even based on specific training or education.” 17
           In further discussing the issue, the court in Campbell acknowledged that
many jurisdictions have held that without “law enforcement recovery of a
comparison sample of DNA, a DNA swab search warrant is unsupported by
probable cause.”18 However, the Campbell decision, without discussing persuasive
authority rejecting this approach, merely rejected it because it “goes too far”.19
The court based its reasoning on practical concerns.                  Namely, it wrote that
determining whether DNA is present on an object can be difficult and time
consuming, and requiring a comparison with DNA found at the crime scene is too
burdensome on law enforcement.20 Relevant to the case at hand, the court in
Campbell further discussed that “[a]t a minimum, the assertions made in the
affidavit must be supported by training, education, or experience that would
16
     Id.
17
     Id.
18
   Id. See Hindman v. United States, 2015 WL 4390009, at *2 (N.D. Ala. July 15, 2015)
(holding that in order to establish probable cause for DNA, “the government must possess a
testable DNA sample sufficiently linked to the subject crime, which might then be compared to
the suspect’s sample to attempt to establish a ‘match’”); United States v. Robinson, 2011 WL
7563020, at *5 (D. Minn. Dec. 2, 2011) report and recommendation adopted, 2012 WL 948670
(D. Minn. Mar. 20, 2012) (recommending that probable cause has not been established for the
defendant’s DNA because the government has not shown that DNA evidence on the firearm
exists to compare against defendant’s DNA); United States v. Pakala, 329 F.Supp.2d 178, 181
(D. Mass. 2004) (holding that the defendant cannot be subjected to a buccal swab until the
government has determined whether the firearm contains a sufficient DNA profile in which to
compare it to); State v. Turnbull, 61 V.I. 46, 54-55 (V.I. Super. Ct. 2014) (holding that absent a
DNA sample to compare defendant’s to, a search warrant lacks probable cause).
19
     Campbell, 2015 WL 5968901, at *5.
20
     Id. at 5.

                                                9
reasonably justify and explain the detective’s conclusion that DNA could
reasonably be recovered from the particular object.” 21
           This Court does not accept the approach that a finding of probable cause
should be automatically rejected on nexus grounds if the police do not recite in the
affidavit that they have recovered a DNA sample from the crime scene to compare
with a DNA sample sought from a suspect. After examining a string of authority
in other jurisdictions not finding such a litmus test, this Court agrees with the dicta
in the Campbell discussion. 22 What is required for a showing of such a nexus is
that there is a fair probability that the seized sample of DNA can be linked to a
crime. Due to the nature of DNA recovery and analysis, requiring a known sample
to compare Mr. White’s DNA at the time of the issuance of a warrant would be too
burdensome of a requirement.             Moreover, such a bright line rule would not
comport with the standard Delaware courts employ when reviewing a search
warrant. These include reviewing warrants for sufficiency based on the totality of
the circumstances and common sense. Accordingly, the fact that the police had not
yet developed a comparison DNA sample found at the crime scene at the time of


21
     Id.
22
   See e.g., United States v. Hudson, 2014 WL 4348241, at * 3 (D. Minn. Sept. 2, 2014) (holding
that the totality of circumstances justified the issuance of a warrant for defendant’s DNA because
“[t]here was probable cause to believe that Defendant’s DNA would provide evidence of a
crime” after the warrant set forth that Defendant was arrested for drug use “and firearms had
been inferentially connected to Defendant through observation of him arriving at and leaving
from the location from which the firearms were recovered along with heroin”); Mincey v. State,
774 S.E.2d 752, 754 (Ga. Ct. App. 2015) (holding that a sample of DNA found at the scene was
not required to issue a search warrant when information in the warrant made it possible that the
police would find DNA evidence); State v. Sharp, 2014 WL 3558020, at *3 (Minn. Ct. App.
Sept. 24, 2014) (holding that the totality of the circumstances established a fair probability that
the police would find defendant’s DNA on the firearm; the fact that it was possible that the
evidence did not exist did not diminish this); Wilson v. State, 752 A.2d 1250, 1264–65 (Md. Ct.
Spec. App. 2000) (holding that the warrant for the defendant’s blood sample was supported by
probable cause based on eyewitnesses describing the defendant and his apparel in detail linking
him to the kidnapping).

                                                10
the issuance of the warrant is not fatal to the probable cause determination,
provided there is a fair probability that such evidence exists.
      Here, the affiant included information that based on his experience
investigating homicides, DNA is often left behind at crime scenes and that when
perpetrators leave behind items they wore during the commission of the crime,
those items can contain DNA. The affiant also stated that he believed Mr. White’s
DNA would be found on the evidence collected at the scene.
      Moreover, in the affidavit, the affiant explained that a dirt bike mask was left
behind and that after processing that mask, the police found a finger print. The
police were able to match that finger print to Mr. White. In evaluating the facts
recited in the affidavit, under the totality of the circumstances and employing the
required deference to the issuing magistrate and a common sense review, there was
a fair probability that DNA from hair or other matter would be discovered on the
dirt bike mask. In fact, in this case the facts support the link to an even greater
degree because a dirt bike mask, under common and ordinary understanding, is a
tightfitting article of headgear that would be more likely to retain hair or other
DNA. This information, in total, was sufficient to allow the issuing magistrate to
reasonably believe that there was a fair probability that the police would find Mr.
White’s DNA on evidence found at the crime scene. Under the totality of the
circumstances, and employing the appropriate deferential review, the Court holds
that the warrant for Mr. White’s DNA established a sufficient nexus, and was
properly supported by probable cause.
      While the Court finds the warrant sufficient to justify the taking of Mr.
White’s DNA, the State raised two alternative justifications. During the evidentiary
hearing, the State argued that the independent source doctrine and a search incident




                                          11
to arrest justified the seizure of his DNA.23 The parties provided supplemental
briefing on the issue of DNA seizure incident to arrests. The State maintains that if
the Court were to find the search warrant to be invalid, the seizure of Mr. White’s
DNA would still be constitutional because the police performed the buccal swab
pursuant to a search incident to arrest.
          The parties aptly argued the issue of whether, under Delaware law both
statutory and Constitutional, a buccal swab taken close to the time of arrest,
incident to the arrest, would fall under such an exception. Since the warrant
lawfully provided for a swab of Mr. White, the Court will not further address either
the independent source or the search incident to arrest doctrine.


     B. The Miranda warnings given to Mr. White were not ambiguous despite
        the detective’s addition to the warnings.

          Mr. White’s second motion argues that he did not properly waive his
Miranda rights while questioned in Philadelphia by the Milford detective. He
further argues that after he was extradited to Delaware, police questioning in
Milford violated the requirements of Miranda because the same detective
misstated those rights in the exact same way. Therefore, Mr. White maintains that
he could not validly waive his Miranda rights because he did not understand those
rights.
          The State disagrees with Mr. White and argues that the Milford detective in
Pennsylvania properly Mirandized Mr. White and that he waived those rights. The



23
  The State initially argued that a sample it collected of Mr. White’s DNA pursuant to 29 Del. C.
§ 4713 constituted an independent source. However, after the evidentiary hearing, in its
supplemental briefing, the State withdrew its independent source argument. Therefore, the Court
declines to rule separately on the admissibility of a sample maintained in this data base, or the
admissibility of the results of any comparison that may involve that sample.

                                               12
State also argues that Mr. White was properly Mirandized once again in Milford
where he again waived those rights.
          After testimony at the suppression hearing, Mr. White filed supplemental
material arguing that the Miranda warnings given by the detective both at the
Milford police station and in Philadelphia included an inappropriate qualification
to when his right to counsel attached.             He also argues that this additional language
made the warning unclear and thus constitutionally deficient.
          In support of this argument, Mr. White relies on a Washington Supreme
Court decision, State v. Mayer, where that court determined that a Miranda
warning followed by an explanation of the timing of the right to counsel was
ambiguous because it made the timing of the availability for appointment of
counsel unclear. 24 The Washington Supreme Court held that waiver of Miranda
rights is not knowing and voluntary when the police provide such an ambiguous
warning.25 Mr. White also relies on the United States Supreme Court decision in
California v. Prysock.26 In Prysock, the Court acknowledged that if the right to
counsel is qualified as attaching only at some future point in the process, it is an
invalid Miranda warning.27


24
   State v. Mayer, 362 P.3d 745, 752 (Wash. 2015). The initial warning in this case was the
standard Miranda warning. Id. at 747. However, the defendant then asked the detective what
would happen if he wanted a lawyer but could not afford one. Id. The detective responded that
if he was “charged with a crime and arrested” the court would appoint him an attorney. Id. The
defendant asked another follow up question about how the appointment would work to which the
detective responded, “[y]ou’re not under arrest at this point . . . [.]” Id. The detective then stated
that if he were under arrest he would be taken to jail and then would go before a judge who
would inquire about whether he could afford an attorney. Id. at 747–48. After this explanation,
the defendant waived his Miranda rights and made an incriminating statement to the detective.
Id. at 748.
25
     Id. at 754.
26
     California v. Prysock, 453 U.S. 355 (1981).
27
     Id. at 360.

                                                   13
          The State counters that the detective informed Mr. White of all four of his
Miranda rights. He was informed that he had the right to remain silent, that
anything he said could be used against him in a court of law, that he had the right
to have counsel present, and that if he could not afford an attorney one would be
provided. The State further notes that the United States Supreme Court has never
required the Miranda warnings to be given in a specific manner. 28 Instead, the
State argues that in order to comply with Miranda, the police must “reasonably
‘conve[y] to [a suspect] his rights as required by Miranda.’”29
          The State relies principally on the United States Supreme Court decisions in
Duckworth v. Eagan30 and Florida v. Powell.31 In both cases, the United States
Supreme Court examined variations of Miranda warnings, and in both cases, held
the Miranda warnings were valid because the police informed the defendants of
the required rights. 32        The State also argues that the added statement by the
detective did not tie the right to counsel until a future point in time. Accordingly,
it argues that the Miranda warnings provided to Mr. White by the police were
sufficient.
          The Court finds that the same alleged insufficiency was included by the
Milford detective in the Miranda warnings in both the Philadelphia and Milford
interviews. Accordingly, a parallel analysis of their sufficiency is appropriate.




28
     Duckworth v. Eagan, 492 U.S. 195, 202–03 (1989).
29
     Id. at 203 (quoting Prysock, 453 U.S. at 361).
30
     429 U.S. 195 (1989).
31
     559 U.S. 50 (2010).
32
     Duckworth, 429 U.S. at 203; Powell 559 U.S. at 62.

                                                  14
Delaware has adopted a two-part test, established in Moran v. Burbine,33 to assess a
suspect’s waiver of his Miranda rights.34 The two-part test states
           [f]irst the relinquishment of the right must have been voluntary in the
           sense that it was the product of a free and deliberate choice rather than
           intimidation, coercion, or deception. Second, the waiver must have
           been made with a full awareness of both the nature of the right being
           abandoned and the consequences of the decision to abandon it. Only
           if the ‘totality of the circumstances surrounding the interrogation’
           reveal both an uncoerced choice and the requisite level of
           comprehension may a court properly conclude that the Miranda rights
           have been waived.35

The burden is on the state to show “by a preponderance of the evidence that the
suspect’s Miranda rights have been waived.”36
           At the outset, Mr. White advanced a cursory argument that Mr. White’s
statement was involuntary because the detective informed him that his cooperation
would be helpful for him. Such a statement does not make Mr. White’s waiver
involuntary because it was not sufficient to overbear Mr. White’s will and rational
thinking process.37 Based on the totality of the circumstances, this one vague
statement by the detective did not make Mr. White’s waiver involuntary. After
reviewing the videotaped statement, the detective’s behavior did not evidence an
attempt to be intimidating or coercive. Furthermore, Mr. White did not react to
this statement in any noticeable way that evidences that he felt intimidated or
coerced. Therefore, Mr. White’s waiver was voluntary.


33
     475 U.S. 412 (1986).
34
     Hubbard v. State, 16 A.3d 912, 917 (Del. 2011).
35
     Id. (quoting Moran, 475 U.S. at 421).
36
     Id.
37
  See Alston v. State, 554 A.2d 304, 307 (Del. 1989) (stating that “[p]romises or inducements . . .
do not make a statement involuntary, unless so extravagant, or so impressionable as to overbear
the person’s will and rational thinking process”).

                                                15
           While the Court finds Mr. White’s waiver to be voluntary, his argument
primarily focuses on the second prong of the two-part test for a valid waiver. Mr.
White argues that additional language the police included in the Miranda warning
made his rights unclear, and therefore, he argues that he did not fully understand
his rights.        In order to knowingly waive Miranda rights, the suspect “must
comprehend the ‘plain meaning of his basic Miranda rights.’”38 In making this
determination, a court is to look to the totality of the circumstances, “including ‘the
behavior of the interrogators, the conduct of the defendant, his age, his intellect, his
experience, and all other pertinent factors.’” 39
           The detective informed Mr. White that
           you have the right to remain silent. Anything you say can and will be
           used against you in a court of law. You have the right to consult with
           an attorney and have an attorney present during questioning. If you
           cannot afford an attorney, one will be provided to you for questioning
           at no cost. If at any time you wish to answer any questions you can
           stop and request an attorney, okay? Um do you understand these
           rights? (emphasis added).

           Here, the Court finds that the Miranda warnings were sufficient, as the
police informed Mr. White of his four Miranda rights. The Delaware Supreme
Court, in citing the United States Supreme Court, has held that the Miranda
warnings “do[] not have to be stated exactly as it is written in the Miranda
opinion.”40        However, law enforcement officials must convey the complete
substance of Miranda’s safeguard to a suspect.”41 Here, the detective clearly
informed Mr. White of the four Miranda rights.

38
  Hubbard, 16 A.3d at 917 (quoting Bennett v. State, 922 A.2d 1236, 2010 WL 987025, at *3
(Del. Mar. 18, 2010) (Table)).
39
     Id. (quoting Whalen v. State, 434 A.2d 1346, 1351 (Del. 1981)).
40
     Id. at 918.
41
     Id.

                                                 16
          The Court recognizes that the detective included additional language when
he said “[i]f at any time you wish to answer any questions you can stop and request
an attorney, okay?” This added language, while not particularly helpful, does not
render the balance of the statement of rights confusing. While other jurisdictions
have determined additional language can make the Miranda warnings unclear and
therefore invalid, 42 this additional statement did not make the warnings unclear.
          The Court disagrees with Mr. White’s argument that the circumstances here
are similar to the Meyer case in Washington where a detective’s clarification made
the warning ambiguous. Instead, the additional language provided by the Milford
detective is similar to the Miranda warning given in Florida v. Powell where the
detective stated
          [y]ou have the right to remain silent. If you give up the right to
          remain silent, anything you say can be used against you in court. You
          have the right to talk to a lawyer before answering any of our
          questions. If you cannot afford to hire a lawyer, one will be appointed
          for you without cost and before any questioning. You have the right
          to use any of these rights at any time you want during this interview.43

In Powell, the Court determined the Miranda warnings were valid because the
police officers “did not ‘entirely omi[t]’ any information Miranda required them to
impart.”44        Similarly here, the officer did not omit any information Miranda
required.
          Furthermore, while Miranda warnings that tie the right to counsel to a point
in the future are invalid,45 the warning at issue here did not create a condition

42
   See State v. Mayer, 362 P.3d 745, 752 (Wash. 2015) (holding that a defendant’s waiver was
invalid because the Miranda warning was unclear); State v. Crisler, 438 N.W.2d 670, 672 (Minn.
1989) (cautioning that “a cryptic or paraphrased warning that deviates from the standard” can be
held to be inadequate).
43
     Florida v. Powell, 559 U.S. 50, 54 (2010).
44
     Id. at 62.
45
     California v. Prysock, 453 U.S. 355, 360 (1981).
                                                  17
precedent for the right to counsel. In Duckworth v. Eagan, the Court upheld a
Miranda warning that stated, in relevant part,
          [y]ou have a right to talk to a lawyer for advice before we ask you any
          questions, and to have him with you during questioning. You have
          this right to the advice and presence of a lawyer even if you cannot
          afford to hire one. We have no way of giving you a lawyer, but one
          will be appointed for you, if you wish, if and when you go to court. If
          you wish to answer questions now without a lawyer present, you have
          the right to stop answering questions at any time. You also have the
          right to stop answering at any time until you’ve talked to a lawyer. 46

Despite the “if and when you got to court” statement, the Court determined that the
defendant’s right to counsel was not tied to a future point in time. 47 Instead, the
Court determined that the warnings reasonably conveyed his rights because the
warning “touched all of the bases required by Miranda.”48 Here too, the warning
the detective provided to Mr. White touched all the bases required by Miranda and
as such reasonably conveyed to him his rights. The right to an attorney was not
conditioned on him answering questions first. It merely informs Mr. White that he
did not lose his right to an attorney if he began answering questions without the
presence of an attorney.
          Accordingly, Mr. White’s argument that he was unable to understand the
plain meaning of his Miranda rights is without merit. Furthermore, after having
received a proper Miranda warning, Mr. White, when asked if he understood his
rights, stated that he did. The detective then asked Mr. White, “with these rights in
mind, do you wish to speak to me now” to which Mr. White responded
affirmatively. Additionally, Mr. White, at the time of the interview, was 31 years
old and has had experience with the criminal justice system. Based on the fact that

46
     Ducksworth v. Eagan, 492 U.S. 195, 198 (1989).
47
     Id. at 203–04.
48
     Id. at 203.

                                               18
the police provided a proper Miranda warning and based on Mr. White’s age and
experience with the justice system, the Court finds that he knowingly waived his
Miranda rights. As the Court finds Mr. White’s waiver, under the totality of the
circumstances, to be both knowing and voluntary, the Court will not suppress the
statements he provided to the police.

      C. During the Milford interrogation, the twelve minute delay in re-
         Mirandizing Mr. White did not violate his rights.

          Mr. White also seeks suppression of his six hour interview in Milford
because there was a twelve minute delay before the police read him his Miranda
rights. Accordingly, the State must establish by a preponderance of the evidence
that this “statement was not the product of custodial interrogation conducted in the
absence of Miranda warnings.”49 However, both the United States Supreme Court
and the Delaware Supreme Court have held that the Miranda warnings are only
required “when police interrogate a suspect in a custodial setting.” 50                     The
Delaware Supreme Court has adopted the approach taken by the United States
Supreme Court in determining when an interrogation has occurred by defining
interrogation to include actual questioning and its functional equivalent. 51 The
functional equivalent “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.’” 52



49
     United States v. Cordero, 31 F.Supp.3d 641, 648–49 (D. Del. 2014).
50
  E.g., Rhode Island v. Innis, 446 U.S. 291, 300 (1980); Tolson v. State, 900 A.2d 639, 643 (Del.
2006).
51
     Tolson, 900 A.2d at 643.
52
     Id. at 643–44.

                                                19
In this regard, “[a]n interrogation only encompasses actions or words by the officer
that he or she should have known would elicit an incriminating response.” 53
          Here, the issue is whether, in the twelve minutes before the detective read
Mr. White his Miranda warnings, the interaction amounted to an interrogation or
its functional equivalent, making it unlawful for the police to not provide the
Miranda warnings at the outset. The police officer began the interview by stating
          you spoke to a, uh, a sergeant from Delaware State Police it seems a
          day or two after you and I talked. And it was about a totally different
          case. So he’s here now and um, he’s wondering if you guys can
          continue your conversation. It has nothing to do with, with our case,
          but obviously it could probably help go a long way with the
          prosecutor. 54

Asking a yes or no question regarding whether the suspect wants to continue
talking to a different police officer about an unrelated case is not something that an
officer should have known would elicit an incriminating response. The detective
merely asked whether Mr. White wished to talk to a different officer about a
different crime. This interaction did not amount to an interrogation.
          After the Court’s review of the video and the transcript of this statement, it
finds that Mr. White’s statements relevant to the murder investigation during the
beginning twelve minutes were not in response to police questioning or its
functional equivalent.       Promptly upon Mr. White’s unsolicited shift of the
conversation, the detective re-Mirandized him. Consequently, the police did not
violate Mr. White’s rights.




53
     Id. at 644.
54
     Court Ex. 2 at 1.

                                            20
      D. The non-waiver form provided by defense counsel did not invalidate
         Mr. White’s waiver of the Miranda rights administered during the
         questioning in Milford.

          After the suppression hearing, Mr. White filed a motion to expand the
suppression record and presented the Court, inter alia, with a non-waiver form that
he signed in Philadelphia on October 16, 2015. The Court has accepted and
considered Mr. White’s additional documentary submissions as part of the
suppression record.        The non-waiver form stated that he does not wish to be
questioned without counsel present, he wishes to remain silent, and that he will not
waive these rights without the presence of an attorney. Based on this non-waiver
form signed after the Philadelphia interview with the Milford detective, Mr. White
argues that he did not waive his Miranda rights in Milford.
          In response, the State argues that neither it nor the police were aware of this
form. Therefore, according to the State, given Mr. White’s valid waiver during the
interrogation, the non-waiver form does not provide a ground to suppress his
statement.
          Mr. White then filed a response to the State’s reply in which he argued that
there was no evidence that the State did not have knowledge of this form. He
further argued that the public defender that instructed Mr. White to sign this form
would have made the existence of it known to the Delaware authorities, and failing
to do so would have amounted to ineffective assistance of counsel.
          The Delaware Supreme Court has confronted the effect of a non-waiver
form in Alston v. State.55 There, the defendant, while detained at Gander Hill,
signed a similar form. 56 In Alston, the defendant retained a copy of the form, the


55
     554 A.2d 304 (Del. 1989).
56
     Id. at 306.

                                            21
public defender retained a copy, and a third copy was placed in the defendant’s file
at the public defender’s office located in Gander Hill for the Warden’s review. 57
The defendant was later transported to the Wilmington police department where he
was re-Mirandized.58 However, during the course of this police interview, the
defendant waived his Miranda rights and confessed.59             Defendant’s counsel
attempted to suppress this confession on the basis of the non-waiver form. 60 In
deciding the Alston case, the Court stated that while a suspect can invoke his right
to counsel in a variety of ways, invocation of this right must be conveyed to
someone who would seek to question him. 61 The Court determined that signing a
non-waiver form was not a valid invocation of his rights because there was no
evidence that any state actor questioning him had knowledge of the form’s
existence. 62 Not only were the police officers unaware of the form’s existence, but
the defendant did not inform them that he had signed anything that invoked his
rights.63 The Court accordingly refused to impute knowledge of this form to the
police officers based solely on the fact that it was accessible to other state agents
through his file at the public defender’s office in Gander Hill. 64
           The Alston case controls here, particularly since the case at hand is even
clearer than Alston.       The State represents that it was unaware of this form.
Moreover, Mr. White provided no evidence that the police or the State were aware


57
     Id.
58
     Id. at 307.
59
     Id.
60
     Id.
61
     Id. at 309–10.
62
     Id. at 310.
63
     Id.
64
     Id.

                                           22
of the existence of this non-waiver form prior to the Milford interrogation.65 After
the suppression hearing, Mr. White’s counsel obtained a copy of this form through
the public defender’s office in Philadelphia. As Mr. White executed the form in
Philadelphia and a Pennsylvania public defender signed it, it is not reasonable to
impute knowledge to the Milford police officers without evidence that the State of
Delaware or any of its agents actually had knowledge of this form. 66
        Finally, Mr. White did not inform the detective that he had executed a non-
waiver form or that he invoked his rights to anyone that would seek to question
him. Instead, when the police questioned him in Milford, he was re-Mirandized

65
   Mr. White, during the evidentiary hearing, raised a concern regarding a potential Brady
violation for the State’s alleged failure to produce this form. During the evidentiary hearing, Mr.
White had the opportunity to create a record regarding his Brady violation claim. However, he
failed to do so. During the evidentiary hearing, he merely stated that he did not have paperwork
regarding the extradition. Mr. White renewed the issue of a Brady violation in a response to the
State’s reply to his motion to expand the suppression record. In his response, he merely alleges
that “the State has not provided any information, including police reports or notes, regarding this
information which clearly should have been provided to the defense as Brady material . . .”
When making a Brady violation claim, the defendant is required to show that: “(1) evidence
exists that is favorable to the accused, because it is either exculpatory or impeaching; (2) that
evidence is suppressed by the State; and (3) its suppression prejudices the defendant.” Liu v.
State, 103 A.3d 515, 2014 WL 5460431, at *1 (Del. Oct. 27, 2014) (Table). Mr. White has
failed to establish that the State suppressed this form or that he was prejudiced because his
counsel ultimately obtained it for him. Accordingly, his Brady violation allegation is
unsupported.       A Brady violation claim, however, can be raised at any time during the
proceedings. Super. Ct. Crim. R. 16(d). Accordingly, Mr. White would not be barred from
revisiting this issue if he can file a motion that satisfies the three required elements. In any
event, at Mr. White’s request to supplement the suppression record, the Court has considered the
document for purposes of this motion, making the alleged prejudice unclear.
66
   Other jurisdictions have also addressed the issue of a defendant invoking his rights in one
jurisdiction and then being transported and interrogated in another jurisdiction. Those cases have
held that it is a valid invocation of rights only when the second jurisdiction had actual knowledge
of the invocation. Compare People v. Young, 558 N.E.2d 1287, 1292 (Ill. App. Ct. 1990)
(holding that when the defendant invoked his rights for the present and future in Wisconsin, this
invocation was insufficient to invoke his rights after he was extradited to Illinois because there
was no evidence that the Illinois authorities had knowledge of this invocation) with People v.
Bates, 478 N.E.2d 1106, 1107 (Ill. App. Ct. 1985) (holding that defendant’s invocation of his
rights in Iowa was a sufficient invocation of his rights in Illinois because the police file in Illinois
contained a note that defendant had refused to talk to the police in Iowa).

                                                  23
and agreed to waive his rights, and to talk to police. As the form in Alston was not
a valid invocation of the defendant’s rights, here too, the non-waiver form was not
a valid invocation of Mr. White’s rights. Despite Mr. White’s argument that it is
incomprehensible for an attorney to have a client sign such a form and then not
inform authorities of its existence, such a scenario has previously occurred in
Delaware and the Delaware Supreme Court has declined to impute an invocation
of these rights.67 The Court cannot properly assume that a public defender in
Pennsylvania provided Delaware authorities with a copy of this form or even
informed them of its existence.


          E. The police did not violate Mr. White’s Sixth Amendment right to
                                         counsel.


         Mr. White’s final argument is that the police violated his Sixth Amendment
right to counsel.           Mr. White was arrested in Philadelphia as a fugitive on
September 23, 2015.            He argues that his Sixth Amendment right to counsel
attached to his Fugitive of Justice charge when he was arraigned in Pennsylvania
on that charge and Pennsylvania provided him with a public defender. Mr. White
argues that because he was appointed counsel for that charge pursuant to his Sixth
Amendment right, the police violated his constitutional right when they
interrogated him in Milford regarding the homicide. He asks this Court to follow
an overturned United States Supreme Court decision, Michigan v. Jackson, which
held that a defendant could not waive his rights regarding subsequent prosecutions
without counsel present, once counsel had been appointed. 68 When raising this
argument, Mr. White candidly disclosed that the United States Supreme Court

67
     Alston, 554 A.2d at 306–307, 310.
68
     475 U.S. 625 (1986).

                                             24
overruled Jackson in Montejo v. Louisiana which held that a review of a Sixth
Amendment waiver must be made on a case-by-case basis.69 Nevertheless, Mr.
White argues that this Court should follow Michigan v. Jackson.
          The State argues that Mr. White’s argument is flawed because the Sixth
Amendment right to counsel is offense specific and is triggered at the earliest, at
the time of arrest for the charge. Therefore, Mr. White did not have any Sixth
Amendment right to counsel, at that point, regarding the non-existent murder
charge. Furthermore, the State argues that Delaware courts should follow the
approach of Montejo v. Louisiana instead of Michigan v. Jackson.
          After reviewing both parties’ contentions, this Court finds it unnecessary to
reach a conclusion as to whether Delaware courts should follow the Montejo or
Jackson approach when reviewing a waiver of a suspect’s Sixth Amendment right
to counsel. In Montejo and Jackson the suspects all made incriminating statements
after their Sixth Amendment right to counsel had attached for the crime in which
they made those incriminating statements. Here, Mr. White made an incriminating
statement regarding a crime where his Sixth Amendment right had not yet
attached.
          The Sixth Amendment right to counsel entitles a defendant to a lawyer “at or
after the time that adversary judicial proceedings have been initiated against
him.”70 Accordingly, this right is triggered when the police formally charge a
suspect, a preliminary hearing is conducted, the government indicts the person, or
there is an arraignment. 71 Therefore, because Mr. White was arraigned on the
Fugitive of Justice charge, it is clear that he had a Sixth Amendment right to
counsel on that specific charge.            However, at the time of his statement, the
69
     556 U.S. 778, 797 (2009).
70
     Deputy v. State, 500 A.2d 581, 589 (Del. 1985).
71
     Id. at 590.

                                                 25
homicide was still under investigation. The police had not formally charged Mr.
White, he had not been arraigned, there was no preliminary hearing, nor was he
indicted.72      Accordingly, his Sixth Amendment right to counsel had not yet
attached to the subsequent charge.
          Mr. White’s right to counsel under the Sixth Amendment for the Fugitive of
Justice charge did not create a right to counsel under the Sixth Amendment on the
murder charge because a suspect’s right to counsel pursuant to the Sixth
Amendment is offense specific.73 A suspect cannot invoke the Sixth Amendment
“for all future prosecutions, for it does not attach until a prosecution is
commenced.”74 When Mr. White made the incriminating statement regarding the
homicide, it was at a time when his Sixth Amendment right to counsel had not yet
attached for the Murder First Degree charge. Furthermore, when a suspect makes
an incriminating statement regarding a separate crime after the Sixth Amendment
right to counsel has attached for a different crime, such a statement is admissible at
trial.75 Accordingly, the incriminating statement is admissible.




72
    While the Delaware Supreme Court has not addressed whether a warrant for arrest is an
adversary judicial proceeding that entitles a defendant to the Sixth Amendment right to counsel,
this Court finds persuasive the Delaware Superior Court’s decision in State v. Cabrera. 2000
WL 33113956 (Del. Super. Ct. Dec. 19, 2000). There, the court found that issuance and
execution of an arrest precedes the start of the adversary judicial proceeding that triggers the
Sixth Amendment right to counsel. Id. at 17. The court reached this conclusion after examining
United States Supreme Court decisions which find, in dicta, that an arrest warrant does not
trigger Sixth Amendment rights. Id. at 16 –17.
73
  McNeil v. Wisconsin, 501 U.S. 171, 174 (1991); Jackson v. State, 643 A.2d 1360, 1372 (Del.
1994) (quoting McNeil, 501 U.S. at 174).
74
     McNeil, 501 U.S. at 174.
75
     Jackson v. State, 643 A.2d at 1372.

                                              26
                                  IV.    Conclusion
      For the reasons set forth above, the search warrant for Mr. White’s DNA
was valid. Furthermore, the police provided Mr. White with proper Miranda
warnings, both in Philadelphia and again in Milford, which he knowingly and
voluntarily waived on both occasions. Furthermore, the non-waiver form was not
a valid invocation of his rights, since there is no evidence that it was known to the
State or its actors. Moreover, Mr. White did not have a Sixth Amendment right to
counsel when he made incriminating statements regarding the murder, and
therefore, the police did not violate this right when they questioned him.
Accordingly, Mr. White’s motions are DENIED.




                                         27
