State of Delaware v. Wheeler.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE )
)
) Case No. 1310019248
v. )
)
CHRISTOPHER WHEELER, )
)
Defendant. )

Submitted: July 11, 2014
Decided: September 18, 2014

Upon Defendant Christopher Wheeler’s Motion to Suppress
DENIED

Abigail Layton, Deputy Attorney General and David Holloway, Deputy Attorney General,
Department of Justice, Wilmington, Delaware, Attorneys for the State of Delaware.

Thomas A. Foley, Esquire, Wilmington, Delaware, Attorney for Defendant.

DAVIS, J.

Defendant Christopher Wheeler has filed a motion to suppress (as amended and modified,

the “Motion”) evidence collected from his home and office during a search executed pursuant to

two warrants. Police searched Mr. Wheeler’s home and office and seized multiple electronic

devices and digital media. During the subsequent review of one of Mr. Wheeler’s computers,

police found files that purport to contain child pornography. For the reasons set forth below, the

Motion is denied.

BACKGROUND

FACTUAL BACKGROUND

On October 22, 2013, the Wilmington Police Department, working in concert with the

State of Delaware, sought and obtained two search warrants from this Court. The first search

warrant (“Warrant 1”) was for Mr. Wheeler’s residence located in Wilmington, DE and a 2011
Chevrolet Equinox owned by Mr. Wheeler. The second search warrant (“Warrant 2”) was for Mr.

Wheeler’s office at the Tower Hill School and for the same vehicle. Except as to location to be

searched, Warrant 1 and Warrant 2 (collectively, the “Warrants”) are virtually identical.

The Warrants are each supported by an affidavit of probable cause. The two affidavits of

probable cause are substantially similar, except that the affidavit of probable cause supporting

Warrant 2 is longer and contains slightly more facts than Warrant 1. 1 The affiants for the

Warrants are Detective Cecilia Ashe and Chief Investigator Robert J. Irwin. Detective Ashe is a

detective with the Wilmington Police Department, having served in that capacity since September

11, 2006. Chief Investigator Irwin is with the Delaware Department of Justice and is currently

assigned to the Child Predator Task Force. 2 Investigator Robert Schreiber of the Delaware

Department of Justice is mentioned throughout the Affidavits. Investigator Schreiber is an

investigator who provided information to Detective Ashe and Chief Investigator Irwin for the

Affidavits.

The Warrants sought to gather evidence for the crimes of Tampering with a Witness, 11

Del. C. § 1263(3), and Act of Intimidation of a Witness, 11 Del. C. § 3532. The “items to be

searched and seized” under the Warrants included: (a) safes, boxes, bags, compartments, storage

areas; (b) any computer or digital storage device (desktops, laptops, notebooks, PDAs or tower

style systems); (c) any cellular phone; and (d) any digital or optical data storage device connected

1 The “History and Facts of the Complaint” section of Warrant 1’s affidavit of probable cause is approximately three
pages and contains twenty-five numbered paragraphs. The “History and Facts of the Complaint” section of Warrant
2’s affidavit of probable cause is approximately three and a half pages and contains twenty-eight numbered
paragraphs. For purposes of this decision, Warrant 1’s affidavit of probable cause will be referred to as “Affidavit 1,”
Warrant 2’s affidavit of probable cause will be referred to as “Affidavit 2,” and Affidavit 1 and Affidavit 2 will be
collectively referred to as the “Affidavits.”
2 The affidavits also list out Chief Investigator Irwin’s experience as a police officer from 1979 until his retirement in
2002. Furthermore, the affidavits provide the various schools and seminars that Chief Investigator Irwin attended
relating to sexual crimes committed against children and computer investigation. Chief Investigator Irwin is also a
Certified Forensic Computer Examiner.
2
to, or capable of being connected to, any computer or digital storage device. The Warrants also

sought to collect, for forensic examination, any and all data stored by whatever means on those

computers, digital storage devices, cellular phones and optical data storage devices seized under

the Warrants.

The Affidavits state that Mr. A spoke with authorities in Delaware on October 14, 2013. 3

During that discussion, Mr. A (age 43) stated that he was molested by Mr. Wheeler approximately

30 years ago, when Mr. Wheeler lived at Mr. A’s residence in Pennsylvania. In light of the recent

Jerry Sandusky/Penn State scandal, Mr. A decided to tell his two adult brothers, Mr. B (age 48)

and Mr. C, what had happened to Mr. A when he was 12-13 years old. Upon telling his two

brothers, Mr. B also disclosed that he had been molested by Mr. Wheeler when Mr. B was 13-15

years old. Mr. C told his brothers that he was never physically or sexually abused by Mr.

Wheeler, but that Mr. Wheeler has engaged in inappropriate sexual conversations with Mr. C when

Mr. C was a teenager.

The Affidavits provide that in July 2013, Mr. A sent a letter to Mr. Wheeler, confronting

Mr. Wheeler about what had happened, writing “I shudder at the notion that you, in your career,

have chosen an environment that brings you into daily contact with other boys who are as old as I

was when you molested me.” Mr. A provided a copy of this letter to the authorities in Delaware.

The letter also provides that Mr. A “wants nothing to do with Chris Wheeler ever and wants him to

stay away from him and his family.” The Affidavits do not contain a full transcription of the

3 The parties and this Court have referred to the victims and witnesses in this case by non-descript titles – e.g., Mr. A,
Mr. B, Mr. C and Mr. D – in any public proceeding. The use of these place holder names may lead to some confusion
in this decision, but this Court feels the use to be necessary. Pursuant to Administrative Directive of the President
Judge of the Superior Court of the State of Delaware, No. 2000-5, Policy on Public Access to Superior Court Judicial
Records and 11 Del. C. § 9401et seq, this Court has sealed documents containing the names of victims and witnesses
and made such documents available only after the documents have been reviewed and redacted. See Order dated May
28, 2014.
3
letter.

The Affidavits further state that Mr. B sent a similar letter to Mr. Wheeler. A copy of this

letter was provided to Delaware authorities. Mr. B did invite a response in his letter, asking

“[w]hat does justice look like for the abuses you perpetuated and the harms you caused? What

role (if any) should you play in determining appropriate resolution to and restitution for the abuses

you have caused.” Mr. Wheeler responded to Mr. B’s letter on July 23, 2013. Mr. Wheeler’s

letter was in type written form. In his letter, Mr. Wheeler said “I will not compound your pain by

attempting to deny or in any way deflect responsibility for my actions 35 years ago. I did those

things. I am the one responsible. I’ll wait to hear from you about further appropriate steps

towards resolution and restitution.” The Affidavits set out that the Delaware authorities were

provided with a copy of Mr. Wheeler’s July 23, 2013 letter and that Mr. B is in possession of the

original signed letter. The full contents of Mr. B’s letter and Mr. Wheeler’s July 23, 2013 letter

are not contained in the Warrants.

The Affidavits go on to provide that Mr. A told the Delaware authorities that Mr. C

confronted Mr. Wheeler in a face-to-face meeting in Wilmington. At that meeting, Mr. Wheeler

admitted to Mr. C that he had responded to Mr. B’s letter and that Mr. Wheeler had not responded

to Mr. A’s letter because “to do so would have been contrary to Mr. A’s wishes.”

Investigator Schreiber interviewed Mr. C regarding his meeting with Mr. Wheeler. Mr. C

stated that he communicated with Mr. Wheeler by telephone and e-mail. Mr. Wheeler used his

Tower Hill e-mail address to coordinate his meeting with Mr. C in Wilmington. Mr. C said that

he met with Mr. Wheeler at Mr. Wheeler’s home in Wilmington on July 25, 2013. During that

meeting, Mr. Wheeler acknowledged his inappropriate contact with Mr. B and Mr. A and appeared

4
apologetic for his actions. Mr. Wheeler stated that he was going to meet with his son, Mr. D, to

tell him about Mr. Wheeler’s abuse of Mr. A and Mr. B. Mr. C told Investigator Schreiber that

Mr. Wheeler conveyed to Mr. C that Mr. Wheeler had contemplated suicide.

According to the Affidavits, Investigator Schreiber interviewed the wife of Mr. A. Mr.

A’s wife related that in 2008, Mr. Wheeler and Mr. D were residing at the home of Mr. A’s parents.

Mr. D approached Mr. A’s wife and began talking to her of men having anal sex with men. Mr. D

also told her that he had run away from Mr. Wheeler multiple times and wanted to live with Mr.

A’s parents. Mr. A’s wife stated that Mr. A’s mother had similar discussions with Mr. D, but that

when Mr. A’s mother talked to Mr. Wheeler about this Mr. Wheeler advised her that Mr. D told

these stories because Mr. D came from a prostitute mother and had a difficult background.

Investigator Schreiber interviewed Mr. A’s parents. Mr. A’s mother provided that when Mr. D

and a girlfriend were visiting three years ago, Mr. D complained that Mr. Wheeler had abused him.

The Affidavits state that, on October 8, 2013, a local police department in North Carolina

responded to Mr. D’s residence. The October 8, 2013 incident report indicates that the

responding officers arrived to find Mr. Wheeler and Mr. D arguing in the driveway. Mr. D

appeared angry and upset. The officers noticed an odor of alcohol coming from Mr. D. Mr. D’s

residence had several broken doors and window blinds and there was a smashed bottle on the floor.

The police interviewed Mr. Wheeler who told police that Mr. D had been diagnosed with bipolar

and manic depression and that Mr. D was despondent over breaking up with his girlfriend. Mr. D

informed police that he had been drinking and wanted to sleep. Mr. D also provided that he was

despondent over the recent breakup and had sent a text message to Mr. Wheeler, and had stated in

the message that he was going to kill himself.

5
 The Affidavits then provide that Investigator Schreiber contacted the local police

department in North Carolina on October 22, 2013. The local police officer who responded on

October 8, 2013 told Investigator Schreiber that while investigating the incident, Mr. D told him

that Mr. Wheeler would penetrate his anus and that he never previously reported this to the

authorities because Mr. Wheeler would pay him off. Mr. D stated that this conduct had occurred

when Mr. D and Mr. Wheeler lived in Illinois.

The Affidavits conclude with broader statements regarding electronic evidence and

written communications. The affiants state that, “from training and experience,” computers will

retain information and documents and that this information can be retrieved through a computer

forensic process. Moreover, e-mails and other electronically stored communications can be

maintained on computer hard drives. The affiants claim that they have reason to believe that

cellular phones may contain evidence as it is normal for a person to keep information on the

cellular phones for purposes of reviewing text messages, reading and responding to e-mails or to

access the internet. Finally, the affiants contend that there is a need to search Mr. Wheeler’s home

and office to determine if there is any evidence of written communications with the victims.

After reviewing the Warrants and the Affidavits, a Superior Court judge (the “Issuing

Judge”) made a determination that there was probable cause to search and seize the property

described in the Warrants. The Warrants were then issued. The State executed the Warrants on

October 22, 2013. The State seized, in part, a Mac Powerbook G4, two Western Digital Elements

external hard drives, an iPad, two iMacs, a MacBook Pro, two iPhones, a Tungsten Palm, 26 CDs,

and 23 DVDs.

The State initiated a forensic process on the various electronic devices seized. During that

6
forensic process, Sergeant Kevin Perna of the Delaware State Police Department opened up a

parent directory and saw a series of video files labled “GERBYS II” and “hippodrome boys large.”

Because Sergeant Perna was not familiar with these videos, Sergeant Perna did not open the files.

Instead, Sergeant Perna consulted two colleagues. These colleagues informed Sergeant Perna

that these types of files are German and Russian originated videos of prepubescent boys engaging

in sex acts. On October 29, 2013, the State obtained an additional search warrant from the Kent

County Superior Court to search all previously seized devices for child pornography. The State

did not open the video files until after the State had obtained the search warrant. After viewing

the files, the State sought an indictment against Mr. Wheeler on charges of dealing in child

pornography.

PROCEDURAL HISTORY

On December 13, 2013, the Grand Jury returned an indictment against Mr. Wheeler.

Through the indictment, Mr. Wheeler was charged with twenty-five counts of Dealing in Child

Pornography in violation of 11 Del. C. § 1109(4). This Court entered a scheduling order on April

8, 2014, setting the trial date in this criminal action for October 7, 2014.

On March 4, 2014, Mr. Wheeler filed his initial Motion to Suppress. After a status

conference with the parties, the Court set May 1, 2014 as a deadline for Mr. Wheeler to file an

amended Motion to Suppress. The Court subsequently extended the May 1, 2014 deadline until

May 5, 2014. On May 5, 2014, Mr. Wheeler filed his Amended and Superseding Motion to

Suppress. 4 Mr. Wheeler also requested that the hearing on the Motion be an evidentiary hearing

with testimony from certain witnesses and a defense expert witness. On May 15, 2014, the State

4 As stated above, the Motion to Suppress and the Amended and Superseding Motion to Suppress will be collectively
referred to as the “Motion”.
7
filed its Response of the State to the Defendant’s Motion to Suppress (the “Response”). Mr.

Wheeler replied, through a letter memorandum of law, to the Response on May 22, 2014.

On May 23, 2014, the Court held a hearing on the Motion. At the hearing, the State

presented the testimony of Sergeant Perna. Mr. Wheeler had the opportunity to cross-examine

Sergeant Perna. Mr. Wheeler also presented testimony from his expert witness, Tami L. Loehrs.

During the hearing, the parties admitted seven exhibits into evidence. These exhibits are: (i)

Resume of Kevin Anthony Perna (State’s Ex. 1); (ii) EnCase Forensic Example 1 (State’s Ex. 2);

(iii) EnCase Forensic Example 2 with Keyword Search Terms (State’s Ex. 3); (iv) EnCase

Forensic Example 3 (State’s Ex. 4); (v) EnCase Forensic Example 4 with Search on File Name

(State’s Ex. 5); (vi) EnCase Forensic of Mr. Wheeler’s computer (State’s Ex. 6); and (vii)

Cirriculum Vitae of Tami L. Loehrs (Defense Ex. 1). The Court then continued the hearing to a

date to be determined in June or July. After the May 23, 2014 hearing, Mr. Wheeler filed a letter

memorandum of law which, according to Mr. Wheeler, addressed any and all remaining matters

relating to the Motion. In response, the State filed the State’s Memorandum in Opposition to an

Evidentiary Hearing.

The Court held a hearing on the Motion on July 11, 2014, and heard final arguments from

the parties on the Motion. At the conclusion of the hearing on July 11, 2014, the Court reserved

decision on the Motion.

In addition to the seven exhibits admitted into evidence at the May 23, 2014 hearing, the

Court has reviewed and considered the exhibits attached by the parties to the various papers filed

with the Court. These include: (i) Warrant 1; (ii) Warrant 2; (iii) Telephone Transcript of call

between Mr. C and Investigator Schreiber; (iv) Search Warrant dated October 29, 2013 issued by

8
the Superior Court of the State of Delaware in and for Kent County; (v) Affidavit of Tami L.

Loehrs dated April 10, 2014; (vi) Search Warrant dated October 25, 2013 issued by Justice of the

Peace Court 20, City of Wilmington, State of Delaware; (vii) Letter dated July 20, 2013 from Mr.

B to Mr. Wheeler; (viii) Letter dated July 23, 2013 from Mr. Wheeler to Mr. B; (ix) Telephone

Transcript of call among Mr. A, Investigator Schreiber and Special Investigator Lester Johnson;

and (x) Search Warrant dated December 18, 2012 issued by Justice of the Peace Court 2, New

Castle County, State of Delaware. The Court, in coming to its decision here, considered all

exhibits submitted by the parties (whether through the testimony of a witness or otherwise) and the

testimony provided at the May 23, 2014 hearing due to the various issues raised and arguments

made by the parties throughout the proceedings on the Motion.

THE PARTIES CONTENTIONS

MR. WHEELER

Mr. Wheeler makes two general arguments in support of suppression of the Warrants.

First, Mr. Wheeler contends that the Warrants fail to provide any factual basis to establish that Mr.

Wheeler committed the crimes of Tampering with a Witness and Act of Intimidation of a Witness.

Mr. Wheeler argues that the Affidavits present no facts or allegations that support the idea that Mr.

Wheeler ever intimidated or threatened a witness. Mr. Wheeler also claims that there is no

assertion as to what evidence, if any, relating to the alleged offenses would be found within the

items to be searched. As such, Mr. Wheeler claims that the Issuing Judge could not have found

probable cause that Mr. Wheeler committed the crimes of Tampering with a Witness and Act of

Intimidation of a Witness or that evidence of such wrongdoing would be found in the “items to be

searched for and seized.”

9
 Second, Mr. Wheeler, relying on Rivera v. State, 5 contends that the State recklessly

omitted several exculpatory facts from the Affidavits. Had those facts been included, Mr.

Wheeler urges, the judge would have been unable to find probable cause. According to Mr.

Wheeler, the Affidavits should have included the following exculpatory facts: (1) Mr. A, Mr. B

and Mr. C never mentioned to Mr. Wheeler that they were contemplating contacting law

enforcement officers; (2) an accurate and full account of Mr. Wheeler’s July 23, 2013 letter to Mr.

B; (3) an accurate and full account of Mr. C’s face-to-face meeting with Mr. Wheeler; and (4) Mr.

A’s remarks to the State that Mr. A’s parents had questions regarding the credibility of Mr. D.

THE STATE

In opposition, the State argues that, under the totality of the circumstances, the Affidavits

set forth probable cause to establish that a search of Mr. Wheeler’s residence and office would

reveal evidence pertinent to the crimes of Tampering with a Witness and Act of Intimidation of a

Witness. The State contends that the Wilmington Police Department received information

supporting a pattern of behavior by Mr. Wheeler under which he would sexually abuse minor boys

and then pay them off or offer to do so, and that the Affidavits articulated with specificity, facts

relating to this pattern of behavior. As to Mr. Wheeler’s second argument, the State claims that

Mr. Wheeler has not demonstrated, by a preponderance of the evidence, that any omitted

information was material, or that the information was omitted from the Warrants in reckless

disregard of the truth.

APPLICABLE LEGAL STANDARDS

On a motion to suppress challenging the validity of a search warrant, the defendant has the

burden of establishing that a search or seizure violated his rights under the United States

5 Rivera v. State, 7 A.3d 961, 968 (Del. 2010).
10
Constitution, the Delaware Constitution, or the Delaware Code. 6 The defendant must show he is

entitled to relief by a preponderance of the evidence. 7

Under the Delaware and the United States Constitutions, “a search warrant may be issued

only upon a showing of probable cause.” 8 Delaware constitutional requirements for search

warrants are codified in Title 11, Sections 2306 and 2307 of the Delaware Code. Pursuant to

Section 2306, the application for a search warrant must “state that the complainant suspects that

such persons or things are concealed in the house, place, conveyance or person designated [in the

search warrant application] and shall recite the facts upon which suspicion is founded.” 9 Under

Section 2307, a warrant may issue only upon a judicial determination of probable cause. 10

Delaware courts engage in a four-corners test to make a probable cause determination. 11

Within the four-corners of the search warrant affidavit, the document must present sufficient facts

for a judge or magistrate to form a reasonable belief that an offense has been committed and the

property to be seized will be found in a particular place. 12

6 State v. Holton, I.D. No. 1101000487, 2011 WL 4638781, at * 2 (Del. Super. Sept. 22, 2011); State v. Cannon, I.D.
No. 0701003821, 2007 WL 1849022, at *2 (Del. Super. June 27 2007); see also Sisson v. State, 903 A.2d 288, 296
(Del. 2006).
7 Id.
8 U.S. Const. Amend. IV; Del. Const. art. I, § 6; Sisson, 903 A.2d at 296.
9 11 Del. C. § 2306 (2001) (“The application or complaint for a search warrant shall be in writing, signed by the
complainant and verified by oath or affirmation. It shall designate the house, place, conveyance or person to be
searched and the owner or occupant thereof (if any), and shall describe the things or persons sought as particularly as
may be, and shall substantially allege the cause for which the search is made or the offense committed by or in relation
to the persons or things searched for, and shall state that the complainant suspects that such persons or things are
concealed in the house, place, conveyance or person designated and shall recite the facts upon which such suspicion is
founded.”).
10 11 Del. C. § 2307 (2001) (“If the judge, justice of the peace or other magistrate finds that the facts recited in the
complaint constitute probable cause for the search, that person may direct a warrant to any proper officer or to any
other person by name for service. The warrant shall designate the house, place, conveyance or person to be searched,
and shall describe the things or persons sought as particularly as possible, and may be returnable before any judge,
justice of the peace or magistrate before whom it shall also direct to be brought the person or thing searched for if
found, and the person in whose custody or possession such person or thing is found, to be dealt with according to
law.”).
11 Sisson, 903 A.2d at 296.
12 Id. (citing 11 Del. C. §2306; Dorsey v. State, 761 A.2d 807, 811 (Del. 2000)).
11
 When determining whether probable cause to obtain a search warrant exists, the Court will

apply a totality of the circumstances test. 13 This analysis allows a judge or magistrate to draw

reasonable inferences from the factual allegations within the affidavit. 14 As such, probable cause

may exist under the totality of the circumstances where “there is a fair probability that contraband

or evidence of a crime will be found in a particular place.” 15

While the four-corners test “restricts the scope of a reviewing courts inquiry,” the Court is

still permitted to use common sense in its analysis. 16 This allows the Court to avoid a

hypertechnical approach when reviewing a search warrant. 17 Moreover, the Court must give great

deference to the judge or magistrate who initially finds probable cause to issue a search warrant. 18

But, the Court must still determine whether the information provides the judge or magistrate with a

substantial basis to find probable cause. 19

In Franks v. Delaware, the United States Supreme Court held that a search warrant may be

invalidated if a defendant proves that the affiant “knowingly and intentionally, or with reckless

disregard for the truth,” included in the affidavit false or misleading statements which were

necessary to establish probable cause. 20 The Delaware Supreme Court has extended the Franks

holding to omissions of material information by an affiant when seeking a search warrant. 21 In

this extension, a defendant must establish, by a preponderance of the evidence, that the police

knowingly and intentionally, or with reckless disregard for the truth, omitted material information

13 Id. (citing Fink v. State, 817 A.2d 781, 787 (Del. 2003)). See also Gardner v. State, 567 A.2d 404 (Del. 1989).
14 Id.
15 Id. (citing Stones v. State, 1996 WL 145775, at *2 (Del.1996) (Order) (quoting Illinois v. Gates, 462 U.S. 213, 238,
103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
16 See Holton, 2011 WL 4638781, at *3.
17 Id.
18 Sisson, 903 A.2d at 296.
19 Holton, 2011 WL 4638781, at *3.
20 Franks v. Delaware, 38 U.S. 154, 155-56 (1978).
21 Rivera, 7 A.3d at 969.
12
from the warrant. 22 Omissions are made with reckless disregard of the truth when an affiant

recklessly omits facts than any reasonable person would know that a judge would want to have in

making a probable cause determination. 23 To determine whether an omission is material to a

finding of probable cause, the reviewing court must reconstruct the affidavit to include the newly

added information to determine whether the “corrected” affidavit still gives rise to probable

cause. 24 If the reviewing court determines in the first instance that the omitted information was

not material, then that court does not have to determine whether the omissions were made with

reckless disregard. 25

ANALYSIS

A. MR. WHEELER HAS FAILED TO MEET HIS BURDEN THAT THE WARRANTS WERE NOT
VALID

The Issuing Judge in issuing the Warrants properly determined that there was probable

cause that Mr. Wheeler committed the crimes of Act of Intimidation or Tampering with a Witness.

Moreover, the Warrants demonstrated the necessary probable cause that evidence to be seized

relating to the crimes would be found in the places to be searched.

The relevant crimes here are Act of Intimidation of a Witness and Tampering with a

Witness. A person is guilty of the Act of Intimidating a Witness when that person knowingly and

with malice attempts to prevent another person who has been the victim of a crime, or a witness to

a crime, from:

(1) Making any report of such crime or victimization to any peace officer, law-enforcement
officer, prosecuting agency, probation officer, parole officer, correctional officer or
judicial officer

22 Id. at 968-69.
23 Id. at 969.
24 Id.
25 Id.
13
 (2) Causing a complaint, indictment, information, probation or parole violation to be sought or
prosecuted, or from assisting in the prosecution thereof; or

(3) Arresting, causing or seeking the arrest of any person in connection with such crime or
victimization. 26

A person is guilty of Tampering with a Witness when that person “knowingly intimidates a witness

or victim under circumstances set forth in [11 Del. C. § 3532].” 27

This Court reviews the Issuing Judge’s probable cause determination with great deference,

considering it as a whole in a practical, commonsense manner, and not on the basis of a

hypertechnical analysis of its separate allegations. 28 This Court does so because “[a] grudging or

negative attitude by reviewing courts toward warrants is inconsistent with the Fourth

Amendment’s strong preference for searches conducted pursuant to a warrant….” 29 Therefore,

this Court’s duty is to simply ensure that the Issuing Judge had a substantial basis for concluding

that probable cause existed. Here, the Issuing Judge had a substantial basis for concluding that

under the totality of the circumstances there was a fair probability that a crime had been committed

and that Mr. Wheeler committed the crime.

The Affidavit contains numerous allegations that could support the crimes of Act of

Intimidation of a Witness and Tampering with a Witness. The Affidavits state that Mr. Wheeler

engaged in, or attempted to engage in, acts to prevent another person (victim or witness) from

reporting crimes. For example, Mr. Wheeler purportedly paid off Mr. D to keep him from

reporting sexual abuse by Mr. Wheeler to the police. 30 Mr. Wheeler sent a letter to Mr. B stating

26 11 Del. C. § 3532.
27 11 Del. C. § 1263(3).
28 Sisson, 903 A.2d at 296.
29 Smith v. State, 887 A.2d 470, 473 (Del. 2005)(quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)).
30 Affidavit 1 at ¶ 20; Affidavit 2 at ¶ 20 (as there are two ¶ 20s in Affidavit 2, this reference is to the second ¶ 20 on
14
that he would wait for Mr. B to provide “appropriate steps towards resolution and restitution.” 31

Moreover, Mr. Wheeler communicated with Mr. C by phone and e-mail and later met with Mr. C

regarding Mr. Wheeler’s abuse of Mr. A and Mr. B. 32 At that meeting, Mr. Wheeler allegedly

attempted to influence Mr. C regarding his inappropriate (and illegal) behavior by claiming he was

going to tell Mr. D of his conduct and was contemplating suicide over the situation. 33 This could

be seen as an attempt to prevent Mr. A or Mr. B, once they heard this from Mr. C, from reporting

any crime. Mr. Wheeler also worked to prevent other witnesses from reporting his conduct. For

example, Mr. Wheeler told Mr. A’s mother that Mr. D’s stories of men having anal sex with other

men should be discounted because Mr. D had a troubled past. 34 And, Mr. Wheeler told local

police authorities in North Carolina that Mr. D suffered from bipolar disorder and manic

depression which description most likely worked against Mr. D’s credibility with those police

authorities when he told them about Mr. Wheeler’s abuse of Mr. D. 35

Under the totality of the circumstances, taking all reasonable inferences to be drawn from

the facts alleged in the Affidavits, the information contained in the four-corners of the Affidavits

set forth probable cause that a crime had been committed and Mr. Wheeler had committed those

crimes. On this record, the Issuing Judge was presented with a substantial factual basis for

making that conclusion. As such, this Court will not disturb the decision of the Issuing Judge on

this issue.

This Court also finds that the Issuing Judge properly determined that there was a nexus

page 8).
31 Affidavit 1 at ¶ 12; Affidavit 2 at ¶ 13.
32 Affidavit 1 at ¶¶13,18; Affidavit 2 at ¶¶15, 20.
33 Affidavit 1 at ¶ 18; Affidavit at 2 at ¶ 20.
34 Affidavit 1 at ¶ 14; Affidavit 2 at ¶ 16.
35 Affidavit 1 at ¶ 19; Affidavit 2 at ¶ 19.
15
between the crimes purportedly committed and the evidence sought at Mr. Wheeler’s home and

office. The Affidavits provide that the basis of the Act of Intimidation of a Witness and

Tampering with a Witness arose out of communication between Mr. Wheeler and Mr. B, Mr. C

and Mr. D. These communications took place through text messages, cellular telephone calls,

e-mail and written correspondence.

The Affidavits set out that Mr. Wheeler communicated with Mr. C by way of cellular

phone and e-mail. Mr. Wheeler’s e-mails were from his work e-mail address. Mr. Wheeler also

provided type-written communication to Mr. B. The reasonable inference in today’s “high tech”

society is that Mr. Wheeler used a computer and not a typewriter to compose the written

communications. Finally, the Affidavits provide that Mr. Wheeler communicated with Mr. D by

text messages. The Warrants authorized the seizure and search of cellular phones, computers and

written correspondence. The Issuing Judge had a substantial basis for concluding that a fair

probability existed that Mr. Wheeler used his home or office computers, notebooks, cellular

phones and digital storage devices and that these devices could contain relevant information and

documents, and that information could be retrieved through a forensic process, to the asserted

crimes.

Mr. Wheeler also claims that the State exceeded the lawful scope of the Warrants. In this

argument, Mr. Wheeler contends that Sergeant Perna, while waiting for a keyword list search to

complete, conducted a cursory, and overly broad, search of subfolders of Mr. Wheeler. Mr.

Wheeler argues that this cursory search was a search beyond the scope of the Warrants. The facts

do not support Mr. Wheeler’s argument.

The Court heard testimony from Sergeant Perna at the May 23, 2014 hearing. Mr.

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Wheeler had an opportunity to question Sergeant Perna. Sergeant Perna is a credible witness.

Sergeant Perna understood that he was to examine digital evidence and to look for any files created

in or saved as word documents, e-mails, text messages, .pdf formatted documents or other related

file formats. Sergeant Perna specifically testified that he was not looking for images or videos.

Sergeant Perna, using EnCase forensic software, initiated a keyword search and while

waiting for that search to conclude began a search of those folders on the hard drive of Mr.

Wheelers’ computer that might contain word documents, e-mails, .pdf formatted documents.

Sergeant Perna said this was his ordinary practice as keyword searches are not perfect and

eventually there would be a need to do a manual search of certain file folders and subfiles that

could contain the types of documents authorized to be obtained under the Warrants. Although

available, Sergeant Perna did not employ these filters or restrictions when he did his search.

Sergeant Perna testified that when a person using EnCase forensic software clicks on a file folder

the software not only opens the file but also any subfiles connected with the file folder. Sergeant

Perna also stated that EnCase forensic software contains filters and alike that can limit the scope of

a search.

Sergeant Perna selected the “desktop” file folder to open it. When Sergeant Perna opened

the desktop file, all subfiles opened as well. The subfiles contained a large number of items

entitled “GERBYS II” and “hippodrome boys large.” 36 Because Sergeant Perna was not familiar

with these videos, Sergeant Perna did not open the files. Instead, Sergeant Perna consulted two

colleagues. These colleagues informed Sergeant Perna that these types of files are German and

Russian originated videos of prepubescent boys engaging in sex acts. At this point, the State

36 Exhibit 6 from the May 23, 2014 hearing.
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obtained a third search warrant, this one from the Kent County Superior Court, 37 and thereafter

opened the items entitled “GERBYS II” and “hippodrome boys large.” After viewing the files,

the State sought and obtained an indictment against Mr. Wheeler on twenty-five counts of Dealing

in Child Pornography in violation of 11 Del. C. § 1109(4).

Based on the evidence presented, the Court holds that Sergeant Perna’s search was not

overly broad. The Court agrees with the State that the evidence here shows that the “GERBYS II”

and “hippodrome boys large” items were located where a person with the type of training and

experience possessed by Sergeant Perna might expect to find word documents or .pdf formatted

documents. The Court notes that if Sergeant Perna were looking in the first instance for child

pornography, as claimed by Mr. Wheeler, then Sergeant Perna could have easily clicked on the

“movies” file folder, the “Wheeler – Mass 2005.iMovieProject” or even the “downloads” file

folder. 38 Sergeant Perna did not. Instead, Sergeant Perna started with a file, “desktop,” that

Sergeant Perna testified was the type of file, in his experience, could contain documents within the

scope of an authorized search. It is true that Sergeant Perna did not employ any filters that would

have restricted his search. Moreover, Ms. Loehrs testified that she would have done the search

differently. However, Mr. Wheeler did not produce any evidence that Sergeant Perna’s search

approach (even absent the use of filters), and subsequent opening of the “desktop” file folder,

violated any recognizable search protocol or alike.

37 The State obtained the third warrant from the Kent County Superior Court because the search of Mr. Wheelers’
computer took place in the offices of the Delaware State Police High Technology Crimes Unit. These offices are
located in Kent County in Dover, DE.
38 In the June 11, 2014 letter memorandum of law submitted to this Court, Mr. Wheeler conceded that there is nothing
“per se unlawful” in the State obtaining a search warrant for one crime even if the State is really searching for evidence
of another crime. As such, this Court has not addressed any argument that the Warrants would be invalid on this
argument. Although, the Court notes that the factual record here does not demonstrate, by a preponderance of the
evidence , that the State used the crimes of Tampering with a Witness and Act of Intimidating a Witness as a pretext to
search for child pornography.
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 The Warrants validly placed Sergeant Perna in a position to examine the “desktop” file.

The “desktop” file contained documents entitled “GERBYS II” and “hippodrome boys large.”

Having developed a reasonable suspicion, Sergeant Perna did not open these files, asked for

assistance and then obtained a search warrant to open the files. Under these circumstances, this

Court concludes that the search by the State did not exceed the scope of the Warrants.

B. MR. WHEELER HAS NOT DEMONSTRATED THAT THE AFFIANTS RECKLESSLY OR
INTENTIONALLY OMITTED MATERIAL INFORMATION FROM THE AFFIDAVIT

Mr. Wheeler argues that the State was not forthcoming with all pertinent information when

the State applied for the Warrants. Mr. Wheeler contends that the Warrants were “designed” to

steer the Issuing Judge to believe that Mr. Wheeler had committed the crimes when in fact Mr.

Wheeler’s conduct with respect to Mr. A, Mr. B, Mr. C and Mr. D was apologetic and open. Mr.

Wheeler supports his arguments by contending that if the State had provided full copies of Mr.

Wheeler’s July 23, 2013 letter, the transcript of Mr. C’s interview with Investigator Schreiber, and

that Mr. A’s parents had some questions regarding Mr. D’s credibility, then the Issuing Judge

could not have been left with the impression that Mr. Wheeler committed the crimes of Act of

Intimidation of a Witness and Tampering with a Witness. Under Mr. Wheeler’s contention, the

State acted recklessly or intentionally by crafting the Affidavits in a way to mislead the Issuing

Judge, and that the omitted parts of Mr. Wheeler’s July 23, 2013 letter and Mr. C’s recorded

interview were material enough that, if included, the Issuing Judge would not have approved and

issued the warrants.

If the State omitted facts that are material to a finding of probable cause and do so with

reckless or intentional disregard for the truth, the Warrants would have to be suppressed. 39 After

39 Sisson, 903 A.2d at 300.
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the various hearings, the testimony of Sergeant Perna and Ms. Loehrs and a review of all of the

exhibits submitted by the parties (including Mr. Wheeler’s July 23, 2013 letter and the full

transcript of Mr. C’s interview), this Court finds that Mr. Wheeler has not demonstrated by a

preponderance of the evidence that the State either intentionally or recklessly withheld material

information from the Issuing Judge. Moreover, this Court concludes that none of the “withheld”

information identified by Mr. Wheeler would have made a difference in the probable cause

analysis.

There has been no testimony, or other evidence, here that demonstrates that the State acted

recklessly or intentionally. With all fairness, the Court notes that Sergeant Perna and Ms. Loehrs

were not called to testify on this issue. Rather, Sergeant Perna testified about operating

procedures when engaging in a forensic retrieval of information and his actual work leading up to

the warrant issued on October 29, 2013 by the Kent County Superior Court. Mr. Wheeler called

Ms. Loehrs and had her testify, as an expert, on whether Sergeant Perna’s search of Mr. Wheeler’s

computer went beyond the scope of the search warrant.

Without any testimony on the propriety of the State’s actions in obtaining the Warrants,

Mr. Wheeler asks for an inference of intentional or reckless action because, he argues, clearly

critical information was omitted from the Affidavits. Omissions are made with reckless disregard

if an affiant withholds a fact that in his or her comprehension that “any reasonable person would

have known that this was the kind of thing the [issuing] judge would wish to know.” 40 Moreover,

a court may infer recklessness where the omitted information was “clearly critical” to the probable

cause determination. 41

40 Wilson v. Russo, 212 F.3d 781, 788 (3d Cir. 2000).
41 Sisson, 903 A.2d at 301 (relying on Rivera v. U.S., 928 F.2d 592, 604 (2d Cir. 1991).
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 On the record here, this Court finds that there is not sufficient evidence to independently

infer that the State acted with reckless disregard for the truth. Although the omitted parts of Mr.

Wheeler’s July 23, 2013 letter, the transcript of Mr. C’s interview and the fact that Mr. A’s parents

had some questions regarding Mr. D’s credibility may present some evidence tending to establish

the State acted recklessly, this Court finds that evidence fails to meet the necessary preponderance

of the evidence standard. Even Mr. Wheeler concedes that the Affidavits include parts of Mr.

Wheeler’s July 23, 2013 letter – the parts relating to acceptance of responsibility and the offer of

resolution and restitution – and parts of the transcript of Mr. C’s interview – the parts relating to

admission of acts, confession to Mr. D and being apologetic and suicidal. Moreover, the Affidavits

clearly provide that Mr. D was under the influence when he made the statements regarding Mr.

Wheeler’s conduct and purported payments of “hush money.” Certainly, the State omitted other

parts of these documents and left out Mr. A’s parents concerns as to Mr. D’s credibility, but this

Court cannot reasonably conclude that the omissions -- of contrition, acceptance of responsibility,

etc. -- were anything other than cumulative of what was already provided in the Affidavits.

The above analysis is relevant to the second part of the test – materiality of the omitted

facts. Even reconstructing the Warrants and including the omitted items, the Issuing Judge still

could have determined that there was a fair probability that a search of Mr. Wheeler’s office,

home, computers, cellular phone and digital storage devices would reveal additional evidence

relating to the crimes of Tampering with a Witness and Act of Intimidation of a Witness. This

Court notes that the omitted items may have made it less likely that probable cause existed, but

would not have entirely vitiated the Issuing Judge’s determinations regarding probable cause.

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 CONCLUSION

Based on the arguments above and applicable standards of review, this Court finds that Mr.

Wheeler has not carried his burden with respect to the validity of the Warrants. Therefore, the

Motion is hereby DENIED.

Dated: September 18, 2014
Wilmington, Delaware
/s/ Eric M. Davis
Eric M. Davis, Judge

cc: Prothonotary
Abigail R. Layton, Esquire, Deputy Attorney General
Thomas A. Foley, Esquire

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