State of Delaware v. Lambert.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR KENT COUNTY

STATE OF DELAWARE )
)
v. )
)
)
MICHAEL LAMBERT, )
1410004532 )
)
Defendant. )

Submitted: May 29, 2015
Decided: June 22, 2015

OPINION

UPON DEFENDANT’S MOTION TO SUPPRESS
DENIED

Lindsay Taylor, Esquire, Department of Justice, for the State.

Adam D. Windett, Esquire of Hopkins & Windett, LLC, Dover, Delaware,
attorneys for the Defendant.

CLARK, J.

I. INTRODUCTION

Before the Court is Michael Lambert’s (“Defendant’s”) Motion to Suppress all

evidence seized during the execution of a search warrant at his residence on October

7, 2014. The Defendant alleges the police search of the residence was premature.
Specifically, the Defendant contends that the police searched his residence before a

warrant was issued by a Justice of the Peace based upon certain time stamps on the

documents. Accordingly, the Defendant argues that evidence discovered pursuant to

that search should be excluded because it was obtained in violation of his rights under

the Fourth and Fourteenth Amendments to the United States Constitution and Article

I, Section 6 of the Constitution of the State of Delaware. A suppression hearing was

held on May 20, 2015 regarding these issues. In Defendant’s supplemental

submission after the hearing, the Defendant also contended that the application for

the warrant did not meet the requirements of 11 Del. C. § 2306, thereby making the

warrant statutorily insufficient. For the following reasons, the Defendant's motion is

DENIED.

II. FINDINGS OF FACT

On October 6, 2014, Detective Golace of the Anne Arundel County Police

Department (MD) contacted Sergeant Lance Skinner (“Sergeant Skinner”) of the

Delaware State Police in reference to a drug related shooting and robbery in

Maryland. Detective Golace advised Sergeant Skinner that during the previous day,

a drug dealer was robbed at gun point in that jurisdiction by an unknown black male

and white female. During the course of the robbery, the victim was shot. Detective

Golace informed Sergeant Skinner that the male suspect, while fleeing the scene of

the robbery, robbed a woman at gun point stealing her blue 2004 Volvo four door S80
with Maryland registration. The shooting victim did not know the gunman’s name

but believed he lived in Delaware and provided the police with the gunman’s

description and contact number, all of which were relayed by Detective Golace to

Sergeant Skinner.

Sergeant Skinner forwarded the telephone number to members of the Delaware

State Police who ran a DELJIS inquiry linking the number to a woman by the name

of Angelica Harris with a listed address of 1022 School Street, Houston, Delaware.

The investigation also revealed that the address was listed as a residence by the

Defendant.1 At that point, the Delaware State Police sent a photograph of the

Defendant to the officers in Maryland who confirmed the picture appeared to match

the description provided by both victims.2

The following day, on October 7, 2014 at approximately 7:30 a.m., Sergeant

Skinner drove past the address in question and observed a blue Volvo with Maryland

registration that matched the one reported stolen. While the vehicle’s plate was

partially obscured from the roadway, officer Skinner could observe the first three

characters of the registration, which matched the first three characters from the stolen

1
Sergeant Skinner testified that the Defendant’s criminal history was forwarded to him
and that he was also familiar with the Defendant– and what he described as a propensity for
violence– from his time as an undercover drug officer in Sussex County.
2
At that point a photograph lineup had not been performed because one of the victims
was still being hospitalized for the gunshot wound.

3
vehicle. At that point, Sergeant Skinner alerted relevant members of the Delaware

State Police, including Detective Sean O’Leary (“Detective O’Leary”) who

mobilized a Special Operations Response Team (“SORT”).3 Sergeant Skinner also

contacted Detective Jason Vernon (“Detective Vernon”) at Delaware State Police

Troop 3 and instructed him to submit a search warrant application and affidavit based

on the aforementioned information. In the meantime, Sergeant Skinner continued to

monitor the property as other surveillance units arrived and members of the SORT

team staged at the nearby Milford Police Department.

According to Detective Vernon, a search warrant application and an affidavit

were completed and faxed to the Justice of the Peace Court No. 2 sometime between

10 a.m. and 10:10 a.m. At the suppression hearing, Detective Vernon explained his

warrant application practice, as a matter of course, and testified that he followed this

process in the instant case. He testified that his practice, in relevant order, included

(1) typing the affidavit and application, and the probable cause affidavit, and then (2)

faxing it to Justice of the Peace Court No. 2. Thereafter, by video phone he (3)

swears to the warrant, and then the Judge (4) approves the warrant and returns it to

Detective Vernon by fax, who (5) then signs the application , and then refaxes it to

3
One of SORT’s duties is to execute high risk search warrants, which, officers testified
appeared necessary given the circumstances of the investigation and the criminal history of the
suspected Defendant.

4
the Judge.

Shortly after Detective Vernon’s original fax and before he appeared by video

before the Judge, a male occupant exited the residence. Surveillance teams then

observed the man reenter the building before exiting a second time with a black bag.

The Police then took the individual into custody. The apprehended individual

informed the officers that the Defendant was inside the residence. By that time, an

armored SORT van had pulled into the driveway. A loudspeaker was used to order

the remaining occupants out of the residence. A short time later, the Defendant and

an adult and minor female exited through the front door and were detained by the

police.4

At that point, the initial search warrant had yet to issue. Detective Vernon

then drafted a second warrant application and affidavit seeking to search the

residence for additional items based upon the new information supplied by the

occupant with the black bag. According to his testimony, the second warrant

4
Members of SORT team, prior to the issuance of the warrant, then performed a
precautionary sweep of the residence to secure the scene and ensure no other occupants remained
in the residence. Detective O’Leary testified that the residence was not searched at that time.
The SORT team found no other occupants inside the residence and exited. Once outside, an
officer positioned himself at the threshold of the front entrance to ensure no one entered the
residence. Detectives O’Leary and Daddio testified that an unknown, but noticeable amount of
time passed while they stood at the front entrance waiting for the approval of the search warrant.
The Defendant’s motion to suppress did not challenge this initial precautionary sweep of the
residence and the warrants in question do not rely on any information or evidence obtained
during it. Therefore, the Court need not address this matter.

5
application and affidavit were faxed to the Justice of the Peace Court shortly after

10:20 a.m. At that point, the officers remained in place, awaiting permission to

search the residence pending the results of the search warrant applications. The

Judge at Justice of Peace Court No. 2 next reviewed both warrant applications and

Detective Vernon appeared via video conference to swear to them. Thereafter,

Detective Vernon testified that the Judge said both warrants were approved and the

officers were free to execute the search. Detective Vernon then immediately

contacted officers at the scene by phone and the search of the residence began. The

search occurred at either 10:39 or 10:40a.m. It uncovered a loaded firearm and the

keys to the stolen Volvo parked to the rear of the residence. At some point very

shortly after the search commenced, Detective Vernon then signed the application

and faxed the now complete application package back to the Justice of the Peace

Court No. 2.

The warrants at issue in this case have a variety of different time stamps.5 The

only consistent time stamp, found at the bottom of each page of both warrants, has fax

markings of 10:50a.m. The first warrant has time stamps from a fax machine across

5
As discussed in greater detail below, at the suppression hearing, the Defendant argued
that the only logical interpretation of the time stamps proves that the officers testimony involving
the chronological events leading up to the search cannot be true (i.e., the officers searched the
residence before the warrant issued).

6
the top of the pages with times of 10:08a.m., 10:09a.m., 10:24a.m. and 10:31a.m.

The warrant also has an official Court time stamp on the first two pages of

10:46a.m. The second warrant was clocked in at Justice of the Peace Court No. 2 at

10:45a.m. No testimony was provided indicating at what point in the

application/issuance process Justice of the Peace Court No. 2 personnel clocked in

the warrants and applications. There was also no testimony authenticating the

accuracy of the various fax reference times on the documents..

III. STANDARD OF REVIEW

On a motion to suppress evidence seized during a warrantless search or seizure,

the State generally bears the burden of establishing that the challenged search or

seizure comported with the rights guaranteed by the United States Constitution, the

Delaware Constitution, and Delaware statutory law.6 If, however, a search or seizure

is done pursuant to a warrant, on a motion to suppress challenging its validity, the

burden shifts to the Defendant because “[a] search or seizure pursuant to a duly

issued warrant is presumptively valid because a determination of the reasonableness

6
State v. Chandler, 2015 WL 1731508, at *3 (Del. Super. Apr. 2, 2015) (citing Hunter v.
State, 783 A.2d 558, 560 (Del. 2001) (noting “[d]espite some arguable earlier confusion in the
Delaware case law over which party bears the burden of proof on a motion to suppress evidence
seized during a warrantless search, the rule in Delaware should now be clear. The State bears the
burden of proof.”).

7
of the intended action is made prior to its inception by a neutral Magistrate."7 The

party with whom the burden rests must persuade the Court by a preponderance of

the evidence.8

An individual is protected from unreasonable searches and seizures by the

Constitutions of the United States and the State of Delaware. The Fourth Amendment

to the United States Constitution provide that:

The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.9

Similarly, the Constitution of the State of Delaware provides that:

The people shall be secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures; and no warrant
to search any place, or to seize any person or thing, shall issue without
describing them as particularly as may be; nor then, unless there be
probable cause supported by oath or affirmation.10

Additionally, the Delaware General Assembly has codified specific statutory

provisions outlining the process for both the application for and issuance of search

7
State v. Prouse, 382 A.2d 1359, 1362 (Del. 1978) aff'd, 440 U.S. 648, 99 S. Ct. 1391,
59 L. Ed. 2d 660 (1979).
8
State v. Sisson, 883 A.2d 868, 875 (Del. Super. 2005) aff'd, 903 A.2d 288 (Del. 2006).
9
U.S. Const. Amend IV.
10
Del. Const. Art. 1, § 6 (1897).

8
warrants. With regard to search warrant applications, 11 Del. C. § 2306 requires that:

The application or complaint for a search warrant shall be in writing,
signed by the complainant and verified by his 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.11

IV. DISCUSSION

A. Sufficiency of the Warrants

As far as the Defendant’s constitutional claims are concerned, the Court finds

no violation. First, the Defendant does not challenge the warrants in terms of

probable cause or itemization of the place or persons to be searched. Furthermore,

the Court is persuaded by the sworn testimony of the officers that the 10:39a.m.

search occurred after the warrants were issued and properly supported by “oath or

affirmation.”

The various time stamps on the warrant are inconclusive as to the stage in the

process that they record. Some are clearly before the execution of the search at issue.

11
11 Del. C. § 2306.

9
Some are after. Nevertheless, ignoring the precise transmittal times, it is

uncontroverted that there was a lapse of time between the initial precautionary sweep

of the residence and the later search. Sergeant Skinner, on site, testified that he

remained in constant contact with Detective Vernon. Detective Vernon testified that

he faxed the warrants and applications to the Court, the Judge reviewed them, and

Detective Vernon appeared before the Judge via video conference where Detective

Vernon swore to the contents of the warrants. After the Judge signed and approved

the warrants, he informed Detective Vernon that the warrants were “good to go.”

Detective Vernon then immediately called Sergeant Skinner, telling him he was

approved to execute the search.

The Court finds the testimony of the two officers persuasive and that it

establishes that the warrants were supported by oath or affirmation, and issued prior

to the search. At that juncture, the warrants were in full Federal and State

constitutional compliance. However, that does not end the Court’s inquiry. As

indicated above, the General Assembly has enacted additional statuary safeguards.

Detective Vernon’s stated general practice and action in the case at hand do

not comply with section 2306's requirement that the application be “signed by the

complainant.” Although the statute does not expressly provide where in the process

the application must be signed, an application for an action naturally must precede the

10
approval of such action. In this case, after Detective Vernon affirmed the warrants

and the Judge signed them, the Justice of the Peace faxed the warrants back to

Detective Vernon. According to the testimony of Detective Vernon he then signed

the application and faxed it to the Justice of the Peace. Since the testimony of the

officers established that the search occurred in the middle of the exchange, the Court

finds that the search was executed before the search warrant application was

completed. Accordingly, the Court must decide whether a constitutionally sufficient

warrant technically failing to comply with a statutory search warrant application

requirement mandates a suppression of the items seized pursuant to that warrant.

Statutory provisions are neither synonymous with the protections afforded

under the U.S. and Delaware Constitutions, nor are they, in their own right, trivial.

As the Delaware Supreme Court explained in Mason v. State, police officers' actions

must be consistent with (1) Federal Constitutional provisions, (2) State Constitutional

provisions, and (3) state statutes enacted for the purposes of establishing search

warrant requirements. 12 Even if the law enforcement activity in this case comported

with the Federal and State Constitutions, it still must satisfy Delaware statutes in

order to be reasonable.13

12
Mason, 534 A.2d 242, 254 (Del. 1987).
13
Mason, Id. at 254-55.

11
 In Mason v. State, as in the case at hand, there was no question that the police

had probable cause to search the residence. Mason involved a nighttime warrant

execution with additional statutory requirements fixed by 11 Del. C. § 2308. While

the statute at issue in this case, 11 Del. C. § 2306, sets requirements for application

for the warrant, the governing principle remains the same. That is, the statutory

provisions governing search warrants adopted by the Delaware General Assembly

grant citizens additional protections up and above those provided in the U.S. and

Delaware Constitutions. When police conduct does not conform to clear and

unambiguous statutory mandates, “evidence seized by virtue of the authority set forth

in the illegal search warrant must be suppressed.”14 To find otherwise “would be

tantamount to a judicial repeal of a specific Delaware statute” that sets the standards

by which applications for warrants are governed.15

Here, 11 Del. C. § 2306's requirement that the application for the warrant be

“signed by the complainant” was unquestionably not met prior to the issuance of the

warrant. An application, in natural order, must precede the granting of an application.

The police agency’s practice clearly does not meet the requirement of the statute.

Accordingly, as held in Mason, the search in this instance was executed without a

14
Id.
15
Id. at 255.

12
valid warrant.16

B. Good Faith Exception

In Dorsey v. State, a divided Delaware Supreme Court held that Delaware

Constitutional law does not provide for a good faith exception to the exclusionary

rule.17 The State argues that the majority opinion was only applicable to the issues

specifically before it (i.e., the good faith exception’s applicability to the probable

cause requirement of the Delaware Constitution).

The argument is not entirely without merit.18 Indeed, as this Court has

16
The Superior Court has examined this specific issue before and held differently. In
State v. Fleming, 1994 WL 233938, at *3 (Del. Super. May 11, 1994) like the case at bar, the
only alleged deficiency was that the search warrant was executed before the application was
“signed by the complainant.” The Court did not invalidate the search reasoning that “the purpose
of the exclusionary rule would not be furthered by excluding the evidence seized in reliance upon
the warrant. The evidence reveals no police misconduct to deter.” The Fleming decision,
however, provides no Delaware authority and the majority of the cases cited in support from
outside jurisdictions are distinguishable in either fact or law from both Fleming and in the instant
case. As initially noted in Fleming, “Delaware case law addressing the issue of technically
defective warrants is scarce.” That remains true today. The lack of case law, if anything,
suggests to the Court that police are aware of, and routinely abide by, the statutory mandates of
Section 2306 - including the requirement that the application be “signed by the complainant.”
For these reasons, this Court does not follow Fleming as it is in contradiction to the holding in
Mason.
17
Dorsey v. State, 761 A.2d 807, 819-21 (Del. 2000); See United States v. Leon, 468
U.S. 897, 913 (1984), (explaining that the federal exclusionary rule was a judicially created
remedy aimed at deterring unlawful police conduct, but modifying the rule to include an
exception for good faith reliance by the police on a search warrant which is later held to be
invalid for lack of probable cause).
18
Dorsey, 761 A.2d at 820 (quoting Del. Const. art. I, § 6) (holding that [t]he issue on
appeal relates to very specific language in the Delaware Constitution: ‘no warrant to search any
place ... shall issue ... unless there be probable cause supported by oath or affirmation.’ In this

13
previously noted, “[t]he language of the majority opinion in Dorsey can reasonably

be read as not extending the scope of the exclusionary rule beyond the constitutional

violation then before it.”19 However, in this case, the State’s position, does not

adequately account for the Delaware Supreme Court’s decision in Mason v. State.20

As mentioned above, in Mason, the Court emphasized that protection from

unreasonable search and seizures come from three independent sources.21 The Court

explained that the Leon good faith exception will always be applicable in terms of

“the exclusionary rule's application to violations of the Fourth Amendment of the

United States Constitution.” 22 However, in the case at hand, as in Mason, “the Court

is confronted with not only violations of the Fourth Amendment but also with

violations of Article I, Section 6 of the Delaware Constitution, and violations of

specific Delaware statutes.”23 The Mason Court clearly and unequivocally held that,

case, the absence of probable cause is not at issue. Instead, the real dispute between the majority
and the minority turns on whether the Delaware Constitution provides a remedy when items are
seized pursuant to a search warrant that was issued without probable cause.).
19
State v. Upshur, 2011 WL 1465527, at *9 (Del. Super. Apr. 13, 2011) (finding that
“[t]he Dorsey court had no reason to consider whether the exclusionary rule applied to violations
of the knock and announce rule, and it is readily apparent from the above language that it did not
intend to hold that it does.”).
20
534 A.2d 242 (Del. 1987).
21
Id. at 254.
22
Id. (citing Leon, 468 U.S. at 914).
23
Id.

14
in such instances, “police officers' actions must be consistent with all three. Even if

the law enforcement activity in this case was found to comport with the federal

Constitution under [the good faith exception], it would still have to be found to

satisfy the Delaware Constitution and statutes in order to be reasonable.”24 Because

there the Court declined to extend the good faith exception to statutory violations, the

police’s failure to comply with the requirements of section 2308 rendered the search

unlawful and therefore, exclusion of the evidence was the appropriate remedy.25

Although the gravity of protections found in the nighttime search warrant

provision of 2308 are arguably greater than those found in the application

requirement provision, the broad holding in the Mason decision cannot be

distinguished to provide a good faith exception to 11 Del. C. §2306's signature

requirement, to any greater degree than it would apply to a violation of 11 Del. C.

§2308. Accordingly, although the police conduct in this case clearly fits within the

definition of being taken in good faith, Mason’s holding provides no basis to ignore

the statutory requirement that all warrant applications be “signed by the complainant

and verified by his oath or affirmation.” 26

24
Id. at 254-55
25
Id.
26
11 Del. C. § 2306.

15
C. Inevitable Discovery Doctrine

The Delaware Supreme Court has recognized exceptions to the warrant

requirements where “official misconduct should not fatally taint evidence ...”27

Rather, “taint may be purged and the evidence may be admissible through one of the

doctrinal exceptions to the exclusionary rule, such as the independent source

doctrine, the inevitable discovery doctrine, the exigent circumstances doctrine, and

the attenuation doctrine.”28

Delaware “has long accepted and consistently applied the inevitable discovery

exception to the exclusionary rule.”29 This exception provides that evidence, obtained

in the course of illegal police conduct, will not be suppressed if the prosecution can

prove that the incriminating evidence would have been discovered through legitimate

means in the absence of official misconduct. 30

In Cook v. State, the Delaware Supreme Court explained the doctrine by

noting:

27
Id. at 873.
28
Lopez-Vazquez v. State, 956 A.2d 1280, 1292 (Del. 2008) (internal citations omitted).
29
State v. Parks, 95 A.3d 42, 51 (Del. Super. 2014) (citing Cook v. State, 374 A.2d 264,
267–68 (Del. 1977); Martin v. State, 433 A.2d 1025 (Del. 1981); Rew v. State, 1993 WL 61705
(Del. Feb. 25, 1993); Hardin v. State, 844 A.2d 982 (Del. 2004); Thomas v. State, 8 A.3d 1195
(Del. 2010); Roy v. State, 62 A.3d 1183 (Del.2012)).
30
Id. (quoting Cook, 374 A.2d at 267–68.

16
 [t]he majority of the cases employing the inevitable discovery exception
involve instances in which the illegal police conduct occurred while an
investigation was already in progress and resulted in the discovery of
evidence that would have eventually been obtained through routine
police investigatory procedure. The illegalities in such cases, therefore,
had the effect of simply accelerating the discovery. In general, where the
prosecution can show that the standard prevailing investigatory
procedure of the law enforcement agency involved would have led to the
discovery of the questioned evidence, the exception will be applied to
prevent its suppression.31

In Cook, during a precautionary frisk for weapons, police officers found money. The

Defendant moved to suppress the evidence on the ground that the search was not

supported by reasonable suspicion or probable cause. The Court held that even if the

seizure of the money was beyond the scope of a reasonable precautionary search for

weapons and therefore unlawful, the money would have been discovered during the

course of an inventory search of the Defendant– which is a “standard prevailing

investigatory procedure”–subsequent to his arrest.32 As such, the Court determined,

that the seizure of the money was lawful.33

More directly applicable to the search at hand is Martin v. State, where during

the course of a multi-week, multi-state homicide investigation, police uncovered a

31
Cook, 374 A.2d at 268 (quoting Comment, The Inevitable Discovery Exception to the
Constitutional Exclusionary Rules, 74 Col. L.Rev. 88, 91 (1974)).
32
Id., 374 A.2d at 267–68.
33
Id.

17
gun hidden in a toilet during a warrantless search of the Defendant’s hotel room.

During a suppression hearing, the Court noted the unlawful nature of the hotel search

but applied the inevitable discovery doctrine. In applying the doctrine, it noted that

“the police undertook a ‘saturation investigation,’ that is ‘one in which the police

might be expected as a matter of course to make an unusually thorough investigation

utilizing more available avenues or techniques than they ordinarily might.’”34

Accordingly, absent the unlawful search, the Court was persuaded the gun would

have been uncovered eventually; therefore, exclusion was unwarranted. 35

Like in Martin and Cook, in the present case, an investigation that would have

led to a valid search of the residence was well underway. All the facts supporting the

warrant application had already been compiled and submitted to the Justice of the

Peace. An unquestionably stolen vehicle was parked immediately to the rear of the

residence, and the Defendant does not controvert that his residence was legally

secured pursuant to exigent circumstances. At that point, discovery of the evidence

at issue was inevitable. There was a saturation investigation of the home at issue

under way.

34
Martin, 433 A.2d at1032 (quoting LaCount and Girese, The “Inevitable Discovery”
Rule: An Evolving Exception to the Constitutional Exclusionary Rule, 40 Alb.L.Rev. 483, 495
(1976)).
35
Id.

18
 This case is markedly different than the cases relied upon by the Defendant

where police conducted a search without even attempting to obtain a warrant, only

to later (1) acquire an after-the-fact warrant as means to justify the earlier search;36

or (2) argue that if they had in fact applied for a warrant before conducting the search,

they would have been granted one.37 Here, there was not one, but two pending

search warrants. While the search warrants were pending, police officers had already

secured the residence pursuant to a protective sweep. The Defendant and all other

occupants of the residence were already legally in police custody. Finally, officers

remained outside the entrance of the residence to ensure that it remained vacant,

secure, and untouched until they received word that the warrants issued.

The circumstances surrounding the 10:39 a.m. search involved appropriate law

enforcement conduct by the officers on the ground. The Court is persuaded that had

“standard prevailing investigatory procedure” continued, it would have inevitably led

to the discovery of the evidence. At most, the violation hastened the seizure by a

handful of minutes.38 Accordingly, the Court finds that the inevitable discovery

exception is applicable and under the circumstances of this case, suppression is

36
United States v. Satterfield, 743 F.2d 827 (11th Cir. 1984).
37
United States v. Griffin, 502 F.2d 959 (6th Cir. 1974).
38
Cook, 374 A.2d at 264 (holding evidence admissible when a constitutional violation
“had the effect of simply accelerating the discovery.”).

19
unwarranted.

V. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Suppress is DENIED.

_/s/ Jeffrey J Clark
Judge

20