State v. Blackwood

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, |

V.
1.D. 1809011229

GLENFORD BLACKWOOD,

Defendant.

Date Submitted: January 17, 2020
Date Decided: February 27, 2020

Upon Defendant Glenford Blackwood’s Motion to Suppress
Denied.

James K. McCloskey, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for State.

Joseph S. Grubb, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for State.

Joe Hurley, Esquire, Wilmington, Delaware, Attorney for Defendant.

SCOTT, J.
Before the Court is Defendant Glenford Blackwood’s (“Defendant”) Motion
to Suppress. Therein, Defendant challenges a search warrant authorizing the search
of his cell phone and related data. The Court has reviewed and considered the
parties’ written submissions, as well as evidence provided and arguments made by
the parties at the suppression hearings. For the following reasons, Defendant’s
Motion to Suppress is DENIED.

Findings of Fact

On June 17, 2018, two individuals were shot and killed at 1 Lloyd Street
sometime after 1:00 am (“Shooting”). The State has brought charges against
Defendant for his alleged role in these killings.

On June 22, 2018, the police searched Defendant’s home pursuant to a search
warrant. During the course of this search, police seized Defendant’s cell phone,
which was charging in the living room. After the police executed the search warrant
for Defendant’s home, Defendant accompanied the police to the station for

questioning. This questioning began around 7:00 am on June 22, 2018 and ended

around 6:30 pm on June 22, 2018.

Defendant verbally provided the police with his phone’s passcode around 8:36
am. Defendant wanted the police to verify his alibi for the night of June 17, 2018
and told the police that they could find the contact information for an alibi witness

in his cell phone. Defendant was unaware that the police were in the process of

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obtaining a search warrant for his cell phone when he verbally provided his passcode
to the officer. The police obtained a warrant (“Warrant”) to search Defendant’s
phone from the Justice of the Peace court around 12:51 pm on June 22, 2018.
Because the police were having trouble opening Defendant’s phone based on his
description of the pattem passcode, Defendant physically unlocked the cell phone
for the police around 2:20 pm. When Defendant unlocked the phone for the police,
Defendant was unaware that the police had obtained the Warrant.

On June 27, 2018, an officer returned to Defendant’s home and asked
Defendant to sign a consent form for the search of “all [of the] digital contents of”
Defendant’s cell phone. Defendant signed the consent form without objection. At
this time, Defendant also was unaware that the police had obtained the Warrant.

The Court held two suppression hearings for this motion. The first hearing,
on November 18, 2019, focused on the scope of Defendant’s consent to the search
of his cell phone. Defendant testified that he gave the police officers the passcode
to his cell phone because he wanted the police to verify his alibi for the night of the

shooting. Defendant testified that he understood “verifying his alibi” to mean

contacting potential alibi witnesses and checking to see it his phone was “pinging”

in Glen Mills, Pennsylvania. '

' Letter to Judge Scott from Deputy Attorneys General James K. McCloskey and
Joseph S. Grubb Attach 1, at 20:1-19, 22:18-21, Jan. 27, 2020 (Excerpt of
Defendant’s testimony from the November 18, 2019 suppression hearing).

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The second hearing, on January 17, 2020, focused on how the police obtained
the items of evidence that Defendant seeks to suppress. Detective Reid testified
about the different sources the police used to obtain information from Defendant’s
cell phone, First, Detective Reid testified that the police subpoenaed Google for
Defendant’s GPS location information and internet search history; in the subpoena
to Google, Detective Reid included Defendant's cell phone number and the cell
phone’s [MEI number. Defendant gave the police his cell phone number during the
June 22nd interview. The cell phone’s IMEI number was obtained from the search
of the cell phone pursuant to the Warrant; however, Detective Reid testified that the
police could have also obtained the IMEI number by subpoenaing records from
Defendant’s cell phone provider. Second, Detective Reid testified that the police
subpoenaed records from Metro PCS—Defendant’s cell phone provider. Detective
Reid testified that the police obtained Defendant’s cell phone provider by searching
Defendant’s cell phone number in their systems and by searching Defendant’s phone
pursuant to his consent and the Warrant. Finally, Detective Reid testified that he

knew to subpoena records from Google because Defendant’s cell phone was an
Android, which usually requires a Google account to function. Detective Reid
testified that the officers found Defendant’s Google account information during their

search of Defendant’s cell phone and also by searching Defendant’s name on

Spokeo.
Parties’ Assertions

On July 15, 2019, Defendant filed a motion to suppress all items of evidence
the police obtained pursuant to the Warrant. Defendant argues that the Warrant fails
to satisfy the particularity requirement because it authorizes the seizure of “any and
all information that may identify suspects or co-conspirators.” Defendant argues
that the Warrant is akin to a “general warrant” and that the Warrant authorizes a
search which is broader than the probable cause upon which the Warrant was based.
Finally, Defendant contends that there was no logical nexus between the facts
gathered in the investigation and the items which were sought to be seized.

In response, the State argues that the issuing magistrate could reasonably
conclude from the four comers of the Warrant that the police sought GPS and
communication data to determine Defendant’s location around the time of the
homicide. The State acknowledges that the Warrant did not limit the search with
particularity and recommends this Court excise the evidence that is outside the scope
of probable cause and only admit the location and communication evidence from
June 17, 2018. The State further argues that all evidence obtained from Defendant’s
phone should be admissible due to Defendant’s lawful consent to the search of the
entire contents of his phone. Finally, the State notifies this Court that if this Court

finds the search of Defendant’s phone invalid, then the police will obtain
Defendant’s location and search history through an independent search warrant for
Defendant’s Google data.

In a later submission, Defendant identified the specific items of evidence
which Defendant seeks to have suppressed. Defendant asks this Court to suppress:
1) Defendant’s cell site location information from June 16 to June 17, 2018; 2)
Defendant’s internet search history from June 17 to June 22, 2018; and 3) a
photograph of Defendant holding a firearm from August 2017.7

Standard of Review

On a motion to suppress evidence collected pursuant to a warrant, the
defendant bears the burden of proving that the search violated his rights under the
U.S. Constitution, the Delaware Constitution, or Delaware statutory law.? The
defendant must prove his rights were violated by a preponderance of the evidence.*

Discussion
A. Sufficiency of the Warrant
Under the Fourth Amendment to the U.S. Constitution, citizens have the right

to be free from unreasonable searches and seizures.” A warrant supported by

2 Def.'s Addendum Mem. Supp. Suppression 2, Nov. 25, 2019.

3 State v. Preston, 2016 WL 5903002, at *2 (Del. Super. Sept. 27, 2016)
(describing the different standards of review this Court uses when evaluating
evidence collected in a warrantless search and evidence collected pursuant to a

warrant).
4 State v. Lewis, 2013 WL 2297031, at *2 (Del. Super. May 20, 2013).

> U.S. CONST. amend. IV.
6
probable cause and issued by a neutral magistrate is typically required before the
police may search an individual’s person or property. A warrantless search is per se
unreasonable unless one of the exceptions to the warrant requirement applies.®

A finding of probable cause must be based on the information that appears
within the four corners of the warrant application or the underlying affidavit.’
Probable cause exists when, considering the totality of the circumstances, “there is
a fair probability that contraband or evidence of a crime will be found in a particular
place.”® The Court may draw reasonable inferences from the factual allegations in
the application or affidavit.? When reviewing the validity of a search warrant, this
Court gives “great deference” to the issuing magistrate’s determination that probable
cause supported the warrant.'°

I. The Particularity Requirement
Defendant argues that the Warrant fails to satisfy the particularity

requirement. In order to satisfy the particularity requirement, a warrant must

6 Katz v. United States, 389 U.S. 347, 356-57 (1967).

7 Valentine v. State, 207 A.3d 566, 570 (Del. 2019). There must be a substantial
basis in the affidavit to support a finding of probable cause. Buckham v. State, 185
A.3d 1, 16 (Del. 2018).

8 Sisson v. State, 903 A.2d 288, 296 (Del. 2006).

9 Ted.

10 State v. Reese, 2019 WL 1277390, at *3 (Del. Super. Mar. 18, 2019).

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describe what the officers believe will be found on a cell phone with as much
specificity as is possible under the circumstances. '!

The Warrant satisfies the particularity requirement. The Warrant limited the
scope of the search to certain digital contents of Defendant’s cell phone that might
have been “used or intended to be used for Murder in the 1 Degree.”'? The Warrant
authorized a search for: call logs, SMS messages, MMS messages, social media
communications, any/all communication applications, images, GPS locations
including WiFi access, and any/all information that may identify suspects or co-
conspirators. Further, the Warrant was temporally limited to October 26, 2015
through June 22, 2018.)

In addition, the Warrant described the items to be seized “with as much
specificity as was possible under the circumstances.”'* Although the Warrant
contains a catch-all provision—‘“digital contents of any and all attached storage
devices [] to include but not limited to”—the focus of the search remains on
information used or intended to be used for First Degree Murder.'> Further, the
second catch-all provision—‘all information that may identify suspects or co-

conspirators”—is itself limited to evidence of other suspects or co-conspirators,

| Wheeler v, State, 135 A.3d 282, 304 (Del. 2016).

'2 State’s Resp. Def.’s Mot. Suppress Ex. C, Sept. 19, 2019.
13 State’s Resp. Def.’s Mot. Suppress Ex. C, Sept. 19, 2019.
4 Wheeler, 135 A.3d at 304.

'5 State’s Resp. Def.’s Mot. Suppress Ex. C, Sept. 19, 2019.

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The police were looking for evidence connected to First Degree Murder. One
of the elements of First Degree Murder is that the perpetrator carried out the offense
“intentionally.”!© The items which the police requested to seize—GPS location
information, images, information that might identify suspects or co-conspirators,
and certain communications—could all reasonably contain inculpatory or
exculpatory evidence of Defendant’s intent. The time frame was limited to the
period of time between when Defendant first encountered one of the witnesses in
this case to the date when police apprehended Defendant. Based on the
circumstances before the officers, the Court finds that the Warrant described the
items to be seized with particularity.'’

2. The Breadth of the Warrant

In Buckham v. State, the Delaware Supreme Court found a search warrant for
a cell phone invalid because the warrant’s scope was broader than the probable cause
upon which it was based.'® The Supreme Court reiterated its concern from Wheeler
v. State that warrants issued to search electronic devices “call for particular

sensitivity given the enormous potential for privacy violations that unconstrained

16 11 Del. C. § 636(a)(1).
'7 This finding is based on the information that was known to the officers at the

time the Warrant was issued and that was included in the application for the
Warrant. This finding is limited to the specific facts of the instant case.
'8 Buckham, 185 A.3d at 18.

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searches of cell phones pose.”!? Although the Supreme Court declined to decide
whether the warrant was akin to a general warrant, it found that the warrant failed
the particularity requirement and that it was too broad.”

In the instant case, the Warrant was too broad for the probable cause upon
which it was based.

a. Call Logs, SMS Messages, and MMS Messages

The Warrant authorized seizing call logs, SMS messages, and MMS messages
from October 26, 2015 to June 22, 2018. The affidavit accompanying the warrant
application (“Underlying Affidavit”) does not provide probable cause to seize that
type of information for three years. The Affidavit states that there were two
electronic communication devices in the car where Victim #1 was shot.2! The
Affidavit further states that criminals “often use telephone and cellular phones to
communicate with victims, witnesses, and co-conspirators before, during, and after
the commission of crimes.”** This generalized statement does not create sufficient
probable cause to believe that evidence of the offense would be on Defendant’s cell

phone.”? Even if this generalized statement created probable cause to seize

19 TZ. (internal quotation marks omitted),

20 7d. at 18-19.

21 State’s Resp. Def.’s Mot. Suppress Ex. C, § 8, Sept. 19, 2019.

22 State’s Resp. Def.’s Mot. Suppress Ex. C, § 37, Sept. 19, 2019.

23 See Buckham, 185 A.3d at 17 (finding the generalized statement that criminals
communicate through cell phones was “particularly unpersuasive” and the
statement that the defendant’s girlfriend called the victim before she spoke to

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Defendant’s call logs, SMS messages, and MMS messages, it does not justify doing
so for three years. Instead, any probable cause that was established in the Underlying
Affidavit would be limited to a shorter time period that is temporally closer to the
charged offense.”

b. Images

The Warrant authorized seizing images taken between October 26, 2015 and
June 6, 2018. The Underlying Affidavit does not provide probable cause to seize
the images on Defendant’s phone. The only information in the Underlying Affidavit
connecting images on Defendant’s phone to the Shooting is a generalized statement
that cell phones can “capture photographs and videos” and perpetrators will “often”
take photographs and videos before and after an incident like the Shooting.’ Just
like the generalized statements in Buckham, this general assertion does not provide

a substantial basis to support a probable cause finding.”°

police did not provide a basis to suspect that defendant's cell phone contained
evidence of the offense).

24 The Underlying Affidavit referred to the time period “before, during, and after
the commission” of the offense. The only indication that Defendant might have
communicated with Victim #1 before the incident comes from the fact that two
electronic devices were found close to Victim #1’s body. Thus, the time period
“before the commission of the offense” should—based on the facts in the
Underlying Affidavit—be limited to the time period immediately before the
shooting.

25 State’s Resp. Def.’s Mot. Suppress Ex. C, §] 36, Sept. 19, 2019.

26 See Buckham, 185 A.3d at 17 (“Even with the deference we owe to a
magistrate’s probable cause finding, these sorts of generalized suspicions do not
provide a substantial basis to support a probable cause finding.”).

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Cc. Social Media Communications, Communication Applications,
and GPS Location Information

The Warrant authorized seizing social media communications, any and all
communication applications, and GPS location information from October 26, 2015
to June 22, 2018. The Underlying Affidavit provides probable cause to seize the
GPS location information. The Underlying Affidavit also provides probable cause
to seize the social media communication and communication application
intormation. However, the Underlying Affidavit does not provide probable cause to
seize the GPS and communication application information for the three year period.
There is substantial information in the Underlying Affidavit to justify a
finding of probable cause for the GPS location information. The Underlying
Affidavit describes how a white SUV drove past | Lloyd Street a few times prior to
the Shooting. The Underlying Affidavit also states that Defendant drives a white
SUV and that the police found in Defendant’s home a piece of paper with the address
“1 Lloyd Street” handwritten on it. Finally, the Underlying Affidavit states that the
shotgun shell casings matched shotgun shells purchased by an individual matching

Defendant’s description, who had the same birthday as Defendant, and who drove a

white SUV. Based on these facts, there is a substantial basis to believe that
Defendant’s cell phone contained GPS location information that could connect

Defendant to the Shooting.

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There is also substantial information in the Underlying Affidavit to justify a
finding of probable cause for the social media communication and communication
application information. The Underlying Affidavit states that Defendant claimed:
i) he used the Craig’s List application on his phone to communicate with an
individual named Keith on the night of the Shooting; ii) he was with Keith on the
night of the Shooting; and iii) he returned to his home around 1:15 am on the night
of the Shooting. The Underlying Affidavit contained enough facts for the magistrate
to form a reasonable belief that Defendant’s social media communications and
communication application information would either support or refute Defendant’s
alibi.

However, the Underlying Affidavit did not contain enough facts to justify
obtaining the social media communication information, communication application
information, and GPS location information for a three-year period. At most, the
Affidavit provides a substantial basis to support a probable cause finding that
evidence connecting Defendant to the Shooting could be found in his
communication application and GPS information in the hours before and after the
Shooting.

B. Defendant’s Consent

The State argues that even if the Warrant is insufficient, Defendant still

consented to the search of his cell phone. Consent is a recognized exception to the

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warrant requirement.’’? The Fourth Amendment requires that an individual’s consent
not be coerced, explicitly or implicitly.”8 Consent is valid if there is no coercion; if
there is coercion—even subtle coercion—then there is no valid consent.”” The Court
analyzes the totality of the circumstances to determine if an individual’s consent was
voluntary or coerced.*° The State must prove, by preponderance of the evidence,
that Defendant’s consent was voluntarily given.?!
1. Voluntary Consent

Defendant verbally consented to the search of his cell phone on June 22, 2018
during his interview with police. During the interview, Defendant confirmed that it
was his Samsung Galaxy that police had seized during the search of his home.**
Defendant told the detectives that his cell phone contained the phone number for
Keith, an individual who could verify Defendant’s alibi? Without being asked for

it, Defendant told the detective the pattern passcode to his cell phone.** Defendant

27 Flonnory vy. State, 109 A.3d 1060, 1063 (Del. 2015).

28 Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973).

29 Tq (For, no matter how subtly the coercion was applied, the resulting ‘consent’
would be no more than a pretext for the unjustified police intrusion against which
the Fourth Amendment is directed.”).

39 Jd. at 233.

3! Srate v. Rizzo, 634 A.2d 392, 395 (Del. Super. 1993); State v. Gonzalez, 1991
WL 68946, at *2 (Del. Super. Apr. 19, 1991).

32 State’s Resp. Def.’s Mot. Suppress Ex. B, at 30, Sept. 19, 2019 (Interview #1).
33 State’s Resp. Def.’s Mot. Suppress Ex. B, at 31, Sept. 19, 2019 (Interview #1).
34 State’s Resp. Def.’s Mot. Suppress Ex. B, at 33, Sept. 19, 2019 (Interview #1),

14
then submitted to a polygraph examination, which he had offered to take.*> Afler
the polygraph examination, Defendant physically unlocked his cell phone for the
officers because the police had been having trouble opening the phone based on
Defendant's description of his passcode.*°

Defendant also signed a consent-to-search form for his cell phone. On June
27, 2018, Detective Reid went to Defendant’s home and asked Defendant to sign the
consent-to-search form.2” Prior to signing the form, Defendant did not ask about the
return of his cell phone. Defendant signed the form without objection. The form
clearly stated that Defendant authorized the search of “all digital contents of the
Samsung Galaxy cell phone owned by Glenford Blackwood.”

Based on the totality of the circumstances, the Court finds that Defendant
voluntarily consented to the search of his cell phone. There is no evidence that the
police coerced Defendant to consent to the search of his cell phone on either June
22nd or June 27th. To the contrary, it appears that Defendant was willing to
cooperate with the police out of a desire to prove his innocence.

2. Scope of Consent

33 State’s Resp. Def.’s Mot. Suppress Ex. B, at 30, 34-35, 39, Sept. 19, 2019

(Interview #1).

36 State’s Resp. Def.’s Mot. Suppress Ex. B, at 1, Sept. 19, 2019 (Interview #2).
37 State’s Resp. Def.’s Mot. Suppress Ex. E, Sept. 19, 2019.

38 State’s Resp. Def.’s Mot. Suppress Ex. F, Sept. 19, 2019.

15
The scope of a consented-to search is governed by the language used in the
consent.*” The Court must determine what a typical, reasonable person would have
understood by the exchange between the officer and the suspect.” ‘Ihe Court must
determine the scope of cach of Defendant’s consents.

First, Defendant verbally consented to the search of his phone by the police
on June 22, 2018. Defendant told Detective Reid that the phone number for a
potential alibi witness, Kcith, could be found in his phone.”’ Defendant did not know
Keith’s number; Defendant wanted the police to find the number in his cell phone
so that they could verify his alibi? At multiple points during the June 22nd
interview, Defendant indicated to the police that he always carries his phone on his
person.’? From this statement, it was reasonable for the police to infer that Defendant
wanted the police to check the cell site location information connected to his phone.

Defendant confirmed this inference at the November 17, 2019 suppression hearing

39 State v. Ellis, 1991 WL 247729, at *2 (Del. Nov. 4, 1991) (quoting Ledda v.
State, 564 A.2d 1125, 1129 (Del. 1989)).
4 United States v. Tarburton, 610 F. Supp. 2d 268, 275 (D. Del. 2009).
4! State’s Resp. Def.’s Mot. Suppress Ex. B, at 27, 31, Sept. 19, 2019 (Interview
#1); State’s Resp. Def.’s Mot. Suppress Ex. B, at 1, Sept. 19, 2019 (Interview #2).
42 State’s Resp. Def.’s Mot. Suppress Ex. B, at 27, 31, Sept. 19, 2019 (Interview
#1); State’s Resp. Def.’s Mot. Suppress Ex. B, at 1-2, Sept. 19, 2019 (Interview
#2). Defendant also told police to contact someone named “Nicki” and a few other
people who could also verify his alibi. State’s Resp. Def.’s Mot. Suppress Ex. B,
at 7, 9, Sept. 19, 2019 (Interview #2).
3 State’s Resp. Def.’s Mot. Suppress Ex. B, at 16, 21, 25, 44, 46, Sept. 19, 2019
(Interview #2).

16
when Defendant testified that he wanted the police to see that his phone was
“pinging” in Glen Mills, Pennsylvania on the night of the Shooting.”* From the
exchange between Defendant and the officers, a reasonable person would understand
that Defendant consented to the police searching his phone for the numbers of
various potential alibi witnesses and also consented to the police checking the cell
site location information connected to Defendant’s cell phone. Therefore, the scope
of Defendant’s consent on June 22nd was limited to certain phone numbers, cell site
location information, and communication application information for the purpose of
verifying Defendant’s alibi.

Second, on June 27, 2018, Defendant signed a consent form allowing the
police to search “all [of the] digital contents of’ Defendant’s cell phone.** The scope
of Defendant’s second consent was much broader than his consent on June 22nd.
Although Defendant testified that he still thought the police would be searching his
cell phone only to verify his alibi, the language on the consent form is clear and
unmistakable. Defendant was provided with ample time to read the consent form

and there is no evidence that the police pressured Defendant to sign the form.

44T etter to Judge Scott from Deputy Attorneys General James K. McCloskey and
Joseph S. Grubb Attach 1, at 22:18-21, Jan. 27, 2020 (Excerpt of Defendant’s
testimony from the November 18, 2019 suppression hearing).
45 State’s Resp. Def.’s Mot. Suppress Ex. F, Sept. 19, 2019.

17
Therefore, Defendant’s consent on June 27th permitted the police to search all of the
digital contents of Defendant’s cell phone without a warrant.
3. Effect of Consent

All evidence does not need to be deemed “fruit of the poisonous tree” simply
because it would not have come to light but for the illegal actions of the police.
Instead, the Court should ask whether, even with the illegal action, the evidence “to
which instant objection is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary taint.”
To apply the fruit of the poisonous tree doctrine when a suspect has given consent
to search, there must “first be some causal connection between the unlawful search
or seizure and the consent to search.”””

The Court finds that there is no causal connection between the Warrant and
Defendant’s consent; Defendant’s consent was not obtained by an exploitation of
the deficiencies in the Warrant. As discussed above, there are some deficiencies
with the Warrant. However, Defendant twice consented to the search of his cell
phone without knowing that the police had obtained the Warrant. The police did not

use the Warrant as a tool to effectuate Defendant’s consent. Instead, the police asked

46 Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).
47 Murray v. State, 45 A.3d 670, 682 (Del. 2012); see also Lopez-Vazquez v. State,

956 A.2d 1280, 1293 (Del. 2008) (“Thus, even if there is an illegal search or
seizure, direct or derivative evidence, such as consent, may still be admissible if
the taint is sufficiently ‘purged.’”).

18
Defendant for permission to search his cell phone and Defendant consented.
Although Defendant’s consent on June 22nd was limited in scope, Defendant's
consent on June 27th unmistakably allowed for the search of the entire digital
contents of Defendant’s cell phone.

Defendant has asked this Court to suppress Defendant’s internet search
history from June 17 to June 22, 2018, his cell site location information from June
16 to June 17, 2018, and a photograph of Defendant. The police obtained this
information from the forensic extraction of Defendant’s cell phone pursuant to the
Warrant. However, separate and apart from the Warrant, Defendant’s voluntary
consent permitted the police to obtain all of this information. Because Defendant’s
consent was voluntary and not causally connected to the Warrant, the three
challenged items of evidence should not be suppressed.

C. Fruit of the Poisonous Tree

The rationale behind the Court’s power to exclude evidence that the police
have unlawfully obtained is to deter police from violating constitutional and
statutory protections.** The Court will not reward bad behavior by putting the State
in a better position than it would have been in if the police had not engaged in illegal

conduct.*? The corollary to this idea is that the State should not be put into a worse

48 Nix vy. Williams, 467 U.S. 431, 442-43 (1984).
49 Id at 443.
19
position “simply because of some earlier police error or misconduct.”°° Therefore,
over the years, courts have developed a number of exceptions to the exclusionary
rule. The independent source doctrine is the exception most applicable to the instant
case.

Under the independent source doctrine, even if police engage in illegal
investigatory activity, evidence will be admissible if it is discovered through a source
independent of the illegality.*' According to the U.S. Supreme Court, “so long as a
later, lawful seizure is genuinely independent of an earlier, tainted one . . . there is
no reason why the independent source doctrine should not apply.”°? Defendant has
asked this Court to suppress his internet search history from June 17 to June 22,
2018, his cell site location information from June 16 to June 17, 2018, and a
photograph of Defendant. The Court finds that the police discovered all of this
evidence from an independent source.

The photograph of Defendant was obtained from the forensic extraction of
Defendant’s cell phone.*? The photograph also falls within the scope of the search
Defendant consented to on June 27th. Therefore, the NCCPD obtained the

photograph through an independent source: Defendant’s consent.

9 Id.

St Norman v. State, 976 A.2d 843, 859 (Del. 2009).

52 Murray v. United States, 487 U.S. 533, 542 (1988).
3 State Ex. 2, Jan. 17, 2020.

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During the second suppression hearing, Detective Reid clarified what
evidence the police obtained from Defendant’s phone and the manner in which the
police obtained this evidence. First, the NCCPD obtained internet search history
and cell site location information from Defendant’s cell phone by conducting a
forensic extraction of the phone pursuant to the Warrant. Detective Reid testified
that the NCCPD also obtained Defendant’s internet search history and cell site
location information from a subpoena sent to Google.*4 To obtain records from
Google for Defendant’s phone, the police provided Google with the Defendant’s cell
phone number and the IMEI number. The NCCPD obtained the cell phone number
and IMEI number from a source independent of the Warrant. Defendant told
Detective Reid his cell phone number during the June 22nd interview. Detective
Reid testified that the NCCPD obtained the IMEI number from the forensic
extraction of Defendant’s cell phone and also by subpoenaing Defendant’s cell
phone provider, Metro PCS.*> Defendant’s cell phone provider was obtained from

the forensic extraction of Defendant's cell phone and from the search of Defendant’s

54 State’s Resp. Def.’s Mot. Suppress Ex. G, Sept. 19, 2019 (Google Warrant).
Detective Reid testified that from his training, knowledge, and experience, Android
phones like Defendant’s often are tied to a Google account in order to function
properly. Detective Reid also testified that the NCCPD obtained Defendant's
Google account information both from the forensic extraction of Defendant’s cell
phone and from searching Defendant’s name on Spokeo. State Ex. 4, Jan. 17,

2020.
55 Def, Ex. 3, Jan. 17, 2020 (Metro PCS Warrant).

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cell phone pursuant to his consent; Detective Reid testified that the NCCPD can
obtain a cell phone’s provider information by putting the phone number into a search
engine that the NCCPD utilizes for such purposes or by sending out subpoenas to all
cell phone providers.

It is clear from Detective Reid’s testimony that the police used a source
independent from the Warrant to obtain Defendant’s internet search history from
June 17 to June 22, 2018 and Defendant’s cell site location information from June
16 to June 17, 2018. The Court will not exclude evidence that the NCCPD obtained
from an independent source simply because the evidence was also obtained from an
overly-broad warrant.°© Accordingly, the Court declines to suppress Defendant’s
internet search history from June 17 to June 22, 2018 and Defendant’s cell site
location information from June 16 to June 17, 2018.

Conclusion

Defendant moved to suppress three items of evidence: Defendant’s cell site
location information from June 16 to June 17, 2018; Defendant’s internet search
history from June 17, 2018 to June 20, 2018; and a photograph of Defendant. The

Court acknowledges that the photograph of Defendant falls outside of the reasonable

time period which would be supported by probable cause. However, Defendant

56 See Murray, 487 U.S. at 541 (“Invoking the exclusionary rule would put the
police (and society) not in the same position they would have occupied if no
violation occurred, but in a worse one.”).

22
consented to the search of “all digital contents” of his cell phone. Based on the scope
of this consent, the police were permitted to obtain the photograph. Finally, although
the Court finds that the Warrant authorized a search which was broader than the
probable cause upon which it was based, these insufficiencies in the Warrant were
cured by Defendant’s consent and by the independent sources available to the State.
Accordingly, Defendant’s Motion to Suppress is DENIED.

IT 1S SO ORDERED.

The Honorable Calvin L. Scott, Jr.

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