State v. Taylor

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
v. ) I.D. Nos. 1605012921A
)
)
DIAMONTE TAYLOR, )
)
Defendant. )

MEMORANDUM OPINION

Submitted: November 2, 2023
Decided: November 28, 2023

Upon Consideration of Defendant’s Motion to Suppress,
DENIED.

William H. Leonard, Esquire, John S. Taylor, Esquire, and Isaac A. Rank, Esquire
Deputy Attorneys General, Department of Justice, Wilmington, Delaware.
Attorneys for the State.

Benjamin S. Gifford, IV, Esquire, The Law Office of Benjamin S. Gifford, IV,
Wilmington, Delaware, and John A. Barber, Esquire, The Law Office of John A.
Barber, Wilmington, Delaware. Attorneys for Defendant.

MEDINILLA, J.
 I. INTRODUCTION

Defendant Diamonte Taylor was previously convicted of and sentenced to life

for first-degree murder and other gang-related crimes. On direct appeal, the

Delaware Supreme Court found that the search warrant used to obtain evidence from

his two smartphones was an unconstitutional general warrant, held that introduction

of that evidence was not harmless, reversed Taylor’s murder and related convictions,

and remanded the case for a new trial. In preparation for that new trial the State

obtained a second warrant to search and seize information from Taylor’s two phones.

Taylor is to be retried in the coming week. And he has now moved to suppress the

evidence gathered via that second warrant. Taylor has also moved to exclude

recordings of his communications from Department of Correction’s facilities that

were obtained via an Attorney General’s subpoena. The Court issued a ruling on

these requests several weeks ago. For the reasons stated below, Taylor’s Motion to

Suppress is DENIED.

II. FACTUAL AND PROCEDURAL BACKGROUND

Diamonte Taylor was arrested by the Wilmington Police Department and the

United States Marshals Service (“USMS”) on June 1, 2016, in relation to several

gang-related shootings in May of 2016.1 He was subsequently indicted for Murder

1
State’s Response to Defendant’s Motion to Suppress ¶ 1 (D.I. 163) (hereinafter, “State’s Resp.
to Def.’s Mot. to Suppress”).

2
in the First Degree, Gang Participation, Conspiracy in the First Degree, and multiple

other violent felonies alleged to have taken place between January 23, 2015, and

June 1, 2016.2

When Taylor was arrested, USMS found two smartphones on him.3 Law

enforcement applied for a warrant to search those two phones (“First Search

Warrant”).4 In his supporting affidavit, the applicant officer described the gang-

related shootings and the personal connections amongst the gang members.5 On

June 16, 2016, the First Search Warrant was approved by the Justice of the Peace

Court and granted permission to search for and seize:

any/all data stored by whatever means, or through normal course of
business of wireless services, and/or through the forensic
examination of said cellular telephone, to include but not limited to
registry entries, pictures, photographs, images, audio/visual
recordings, multi-media messages, web browsing activities,
electronic documents, location information, text messaging,
writings, user names, subscriber identifiers, buddy names, screen
names, calendar information, call logs, electronic mail, telephone
numbers, any similar information/data indicia of communication,
and any other information/data pertinent to this investigation within
said scope.6

Before his first trial, Taylor filed a motion to suppress all evidence from the

2
Defendant’s Motion to Suppress ¶ 1 (D.I. 162) (hereinafter, “Def.’s Mot. to Suppress”).
3
State’s Resp. to Def.’s Mot. to Suppress ¶ 1.
4
Taylor v. State, 260 A.3d 602, 609 (Del. 2021).
5
Id.
6
Id. (emphasis added).

3
two phones, arguing that the First Search Warrant was an unconstitutional general

warrant. 7 This Court denied the motion. 8 A jury convicted Taylor of Murder in the

First Degree, Gang Participation, Assault First Degree, two counts of Reckless

Endangering First Degree, two counts of Aggravated Menacing, and numerous

related firearm offenses. 9 He was sentenced to, inter alia, a mandatory life sentence

for the first-degree murder count.10

Taylor filed a direct appeal. 11 In September 2021, the Delaware Supreme

Court issued its decision reversing this Court’s judgment on the suppression issue,

vacating Taylor’s convictions, and remanding the matter for a new trial.12 The

Supreme Court held that the First Search Warrant was an unconstitutional general

warrant that lacked the requisite particularity and “allowed investigators to conduct

an unconstitutional rummaging through all of the contents of Taylor's smartphones

to find whatever they decided might be of interest to their investigation.”13

With the matter now set for retrial, the State, on January 4, 2022, applied for

and was granted a second search warrant (“Second Search Warrant”) allowing

7
D.I. 53.
8
D.I. 61.
9
D.I. 77.
10
D.I. 105.
11
Notice of Appeal filed on March 2, 2020 (D.I. 106).
12
Taylor, 260 A.3d at 619.
13
Id. at 615.

4
search of the same two phones. 14 The Second Search Warrant, approved by a

Superior Court judge with knowledge of the Supreme Court’s ruling, authorized

seizure of:

data stored through normal course of business of wireless services,
and/or through the forensic examination of said cellular telephone,
to include registry entries, pictures, photographs, images,
audio/visual recordings, multi-media messages, web browsing
activities, electronic documents, location information, text
messaging, writings, user names, subscriber identifiers, buddy
names, screen names, calendar information, call logs, electronic
mail, telephone numbers, any similar information/data indicia of
communication, within the time frame of May 1, 2016 to June 1,
2016. 15

The affidavit to the Second Search Warrant explained that Taylor maintained public

social media accounts where he posted photographs depicting gang members

displaying gang signs via hand gestures. 16 Other photographs on those accounts

included Taylor holding or displaying firearms. 17 The affidavit concluded that

“the most convenient and popular mode of accessing and utilizing social media is a

personal cellular phone. . . . therefore, [] evidence of the ongoing gang feud and the

recent shootings where [Taylor] is a suspect would be located on his cellular

phones.” 18 Finally, there was a specific averment that the Second Search Warrant’s

14
Def.’s Mot. to Suppress ¶ 7.
15
Def.’s Mot. to Suppress, Ex. A.
16
Id. Ex. A ¶ 14.
17
Id.
18
Id.

5
affidavit did “not contain any evidence that was obtained after the initial June 10,

2016, warrant application or from evidence obtained from the download of the

cellular devices at issue.”19

Several months later, while investigating and preparing for the second trial,

the Department of Justice served a subpoena duces tecum on the Delaware

Department of Corrections (“DDOC”).20 This subpoena commanded the DDOC

provide:

[A]ll records regarding telephone and/or visiting room
conversations for [Taylor] including, but not limited to any and all
available approved phone number lists, GTL outgoing call log
entries and conversations; video calls; tablet text messages; in-
person meeting recordings; non-legal incoming and outgoing mail
for the time period of April 21, 2018 through the present to be
updated on a weekly basis until further notice.21

The State provided defense counsel with the materials obtained under this

subpoena.22

Taylor filed a Motion to Suppress the evidence obtained from his two phones

in its entirety as well as the evidence obtained from the DDOC via the later

subpoena.23 The State filed a written response.24 And the parties docketed post-

19
Id. Ex. A ¶ 25.
20
Def.’s Mot. to Suppress, Ex. B.
21
Id.
22
Def.’s Mot. to Suppress ¶ 10.
23
See Def.’s Mot. to Suppress.
24
See State’s Resp. to Def.’s Mot. to Suppress.

6
hearing supplements on June 30, 2023. 25

While the matter was pending decision, the Court asked the parties to address

the Delaware Supreme Court’s recent ruling in Thomas v. State.26 Both parties filed

written supplements. 27 The Court then heard oral arguments during a conference

conducted earlier this month.28 The next week, the Court notified parties of its

decision to deny the Motion to Suppress with a written explanation of that ruling to

follow.29 Taylor’s re-trial is scheduled to begin on December 4, 2023.30

III. PARTIES’ CONTENTIONS

Taylor argues four grounds for suppression of the evidence he seeks to

exclude.31 First, he contends that the Second Search Warrant is barred by the Law

of the Case Doctrine and the Mandate Rule. 32 In Taylor’s view, the plain language

of the Supreme Court’s decision striking the First Search Warrant requires

25
Defendant’s Post-Hearing Supplement (D.I. 167) (hereinafter, “Def.’s Post-Hearing Suppl.”);
State’s Response to Defendant’s Post-Hearing Supplement (D.I. 169) (hereinafter, “State’s Resp.
to Def.’s Post-Hearing Suppl.”).
26
Court’s Letter dated 10-25-2023 (D.I. 176) (hereinafter, “Ct.’s Letter dated 10-25-2023”).
27
Defendant’s Response to Court’s Letter dated 10-25-2023 (D.I. 177) (hereinafter, “Def.’s
Resp. to Ct.’s Letter dated 10-25-2023”); State’s Response to Court’s Letter dated 10-25-2023
(D.I. 178) (hereinafter, “State’s Resp. to Ct.’s Letter dated 10-25-2023”).
28
Status Conference dated 11-02-2023 (D.I. 180) (hereinafter, “Status Conference dated 11-02-
2023”).
29
Court’s Letter dated 11-09-2023 (D.I. 181) (hereinafter, “Ct.’s Letter dated 11-09-2023”).
30
Status Conference dated 11-02-2023.
31
See Def.’s Mot. to Suppress.
32
Def.’s Mot. to Suppress ¶¶ 12-19.

7
suppression of the evidence gathered through execution of the Second Search

Warrant. To Taylor, “[t]he Supreme Court’s mandate could not be clearer: [Taylor]

is to be retried barring all taint from the fruits of the first general search warrant.”33

Second, Taylor says that application of the Independent Source Doctrine is improper

and contrary to the search and seizure jurisprudence regarding electronic devices.34

Specifically, that “[w]ith the Second Warrant, the State seeks to wield the

independent source doctrine to eviscerate the heightened privacy protections that

blossomed in Riley and ultimately bloomed in Wheeler, Buckham, and Taylor.”35

Third, Taylor argues that the Second Search Warrant again fails the particularity

requirement.36 Taylor posits that simply removing the terms “any/all” from the

beginning of the search warrant is just an illusory change; the Second Search

Warrant has remained substantively the same. 37 Fourth, Taylor complains that the

subpoena served by the State on the DDOC was unreasonable and any evidence

obtained under it should be excluded.38

In response, the State first insists that the Second Search Warrant passes

33
Id. ¶ 19.
34
Id. ¶¶ 20-29.
35
Id. ¶ 23.
36
Id. ¶¶ 30-35.
37
Id. ¶¶ 33-34.
38
Def.’s Mot. to Suppress ¶¶ 36-46.

8
constitutional muster under the Independent Source Doctrine. 39 Second, that the

Second Search Warrant satisfies the particularity requirement and “within its four

corners, contains profound evidence of criminality.” 40 Third, that the Law of the

Case Doctrine and the Mandate Rule are inapplicable because the Supreme Court’s

earlier decision focused on the defective form of the First Search Warrant, and did

not prohibit a second warrant attempt. 41 Fourth, the State contends that the subpoena

to DDOC was proper, 42 and that the scope of the communications sought was

reasonable.43

IV. APPLICABLE LEGAL STANDARDS

A. Search Warrants

Eleven Del. C. § 2306 governs the issuance of search warrants and ensures

compliance with the United States and Delaware Constitutions. In relevant part,

Delaware search warrants must:

[D]esignate 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
39
State’s Resp. to Def.’s Mot. to Suppress ¶¶ 9-17.
40
Id. ¶¶ 18-20.
41
Id. ¶¶ 21-23.
42
Id. ¶¶ 24-35.
43
Id. ¶¶ 36-38.

9
 designated and shall recite the facts upon which such suspicion is
founded. 44

Our Supreme Court has instructed that a finding of probable cause “must be based

on the information that appears within the four corners of the application or

affidavit.”45 And that a judge may find probable cause “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.’”46 This Court’s Criminal Rule 41

requires that a motion to suppress “. . . state the grounds upon which it is made with

sufficient specificity to give the state reasonable notice of the issues and to enable

the court to determine what proceedings are appropriate to address them.”47

In recent years, our Supreme Court has recognized the constitutional

challenges unique to search warrants issued for electronic devices and has explained

“that a warrant—no matter its target—must both ‘describe the things to be searched

with sufficient particularity and be no broader than the probable cause on which it

44
11 Del. C. § 2306.
45
Anderson v. State, 249 A.3d 785, 795 (Del. 2021) (citing Valentine v. State, 207 A.3d 566,
570 (Del. 2019)).
46
Sisson v. State, 903 A.2d 288, 296 (Del. 2006) (citing Stones v. State, 676 A.2d 907 (Del.
1996)).
47
Super. Ct. Crim. R. 41(f) (The court shall receive evidence on any issue of fact necessary to
the decision of the motion, but the court shall not receive evidence on motions challenging the
manner of execution of a search warrant or the veracity of a sworn statement used to procure a
search warrant unless the motions are supported by affidavits, or their absence is satisfactorily
explained in the motion, and the allegedly false statement is necessary to the finding of probable
cause.)

10
is based.’”48 The Court has also cautioned that because of the volume of sensitive

information stored on a smartphone, searches should be as limited as possible to

avoid “exploratory rummaging” in a person’s other irrelevant information and

belongings.49

B. Attorney General Subpoenas

Twenty-nine Del. C. § 2504 sets forth the powers, duties and authority of the

Department of Justice including the power to “investigate matters involving the

public peace, safety and justice and to subpoena witnesses and evidence in

connection therewith.” 50

V. DISCUSSION

The Fourth Amendment to the United States Constitution guarantees:

[t]he 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.51

The Fourth Amendment functions “to safeguard the privacy and security of

individuals against arbitrary invasions by governmental officials.”52 The United

48
Buckham v. State, 185 A.3d 1, 18 (Del. 2018) (citing Wheeler v. State, 135 A.3d 282, 299
(Del. 2016)) (emphasis added).
49
Buckham, 185 A.3d at 18 (citing Wheeler, 135 A.3d at 298).
50
29 Del. C. § 2504(4).
51
U.S. CONST. amend. IV.
52
Camara v. Mun. Court of City & Cnty. of San Francisco, 387 U.S. 523, 528 (1967).

11
States Supreme Court has made clear that search warrants are not mere formalities

but serve a critical function.53

Absent some grave emergency, the Fourth Amendment has
interposed a magistrate between the citizen and the police . . . . The
right of privacy was deemed too precious to entrust to the discretion
of those whose job is the detection of crime and the arrest of
criminals. Power is a heady thing; and history shows that the police
acting on their own cannot be trusted. And so the Constitution
requires a magistrate to pass on the desires of the police . . . . 54

The Fourth Amendment prohibits general warrants that allow “exploratory

rummaging in a person’s belongings,” and addresses this problem by requiring a

‘particular description’ of the things to be seized.55 In order for a search warrant to

be deemed constitutional, it must conform to this particularity requirement.56 And

“[t]he Fourth Amendment by its terms requires particularity in the warrant, not in

the supporting documents.”57

Article I § 6 of the Delaware State Constitution provides a similar

guarantee 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

53
McDonald v. United States, 335 U.S. 451, 455 (1948).
54
McDonald, 335 U.S. at 455–56.
55
Andresen v. Maryland, 427 U.S. 463, 480 (1976) (quoting Coolidge v. New Hampshire, 403
U.S. 443, 467 (1971)).
56
Groh v. Ramirez, 540 U.S. 551, 559 (2004) (citing Stanford v. Texas, 379 U.S. 476 (1965)).
57
Groh, 540 U.S. at 557 (citing Massachusetts v. Sheppard, 468 U.S. 981, 988 n.5 (1984)).

12
 issue without describing them as particularly as may be; nor then,
unless there be probable cause supported by oath or affirmation.58

A. Delaware law requires as much specificity as possible in search warrants
pertaining to electronic devices.

In Wheeler v. State, our Supreme Court considered, for the first time, “a

challenge to warrants seeking to seize and search computer-based and digital items

on the grounds that they are in the nature of a general warrant, unconstitutionally

overbroad, and lack sufficient particularity.” 59 Coming after the seminal decision in

Riley v. California, where the United States Supreme Court held that a warrant is

generally required before searching a cell phone “even when a cell phone is seized

incident to arrest,”60 Wheeler reiterated that to satisfy the particularity requirement,

warrants “must describe what investigating officers believe will be found on

electronic devices with as much specificity as possible under the circumstances.”61

The Court in Wheeler addressed the balance of interests between protecting a

citizen’s right to privacy and the police powers of the state.62 Importantly, for

58
DEL. CONST., art. I, § 6.
59
Wheeler v. State, 135 A.3d 282, 302 (Del. 2016).
60
Riley v. California, 573 U.S. 373, 401 (2014).
61
Wheeler, 135 A.3d at 304.
62
Id. at 305 (citations omitted) (“We hesitate to prescribe rigid rules and instead reiterate that
warrants must designate the things to be searched and seized as particularly as possible. Striking
the correct balance when protecting against generality and overbreadth requires vigilance on the
part of judicial officers who are on the front lines of preserving constitutional rights while assisting
government officials in the legitimate pursuit of prosecuting criminal activity. Where, as here, the
investigators had available to them a more precise description of the alleged criminal activity that
is the subject of the warrant, such information should be included in the instrument and the search
13
warrants executed on electronic devices in the post-Riley context, our Supreme Court

has noted that “[s]atisfying the particularity requirement is difficult in the electronic

search warrant context, given the commingling of relevant and irrelevant

information and the complexities of segregating responsive files ex ante.” 63 Our

Supreme Court revisited the particularity requirement in Buckham v. State, finding

that the search warrant there was unconstitutional as it had “expressly authorized

search of materials there was no probable cause to search . . . .” 64

B. In Taylor v. State, the First Search Warrant was found to be a general
warrant.

As our Supreme Court noted in Wheeler, because reviewing courts consider

both a search warrant’s validity and whether it was properly executed only after the

search is completed, courts must contend with the commingling of relevant and

irrelevant information while separating files before the search is even conducted. 65

In this case, our Supreme Court held that the First Search Warrant was a

general warrant because it allowed “investigators to search for ‘any and all data’

and seizure should be appropriately narrowed to the relevant time period so as to mitigate the
potential for unconstitutional exploratory rummaging.”)
63
Id. at 299–300.
64
Buckham v. State, 185 A.3d 1, 19 (Del. 2018).
65
See Adam M. Gershowitz, The Post-Riley Search Warrant: Search Protocols and Particularity
in Cell Phone Searches, 69 Vand. L. Rev. 585 (2016) (suggesting that judicial officers should pre-
emptively impose restrictions on cell phone search warrants at the time the warrants are issued.)

14
‘pertinent to the criminal investigation’ [and was] unlimited in scope.”66 The Court

further noted that when executing the First Search Warrant, “investigators

apparently extracted almost all data from Taylor’s smartphones from an eleven-year

time span, and then searched without restriction for evidence of criminal conduct.”67

This Court must now address whether the substance and form of the Second

Search Warrant has sufficiently overcome the constitutional defects of the First

Search Warrant. The Court finds that it does.

C. The Second Search Warrant is not a general warrant.

Through Wheeler, Buckham, Taylor, and most recently, Thomas v. State, our

Supreme Court has established that a warrant that allows an unbridled “‘top-to-

bottom search’ of ‘[a]ny and all store[d] data’” on such devices is constitutionally

infirm.68 In Thomas, our Supreme Court instructed that “if a court determines that a

warrant is general, it must suppress all evidence obtained pursuant to it.”69 But in

the instance of an overly broad warrant, the reviewing Court may narrow it down

“to strike out those portions of the warrant that are invalid for lack of probable cause,

maintaining the remainder of the warrant that satisfies the Fourth Amendment.”70

66
Taylor v. State, 260 A.3d 602, 616 (Del. 2021).
67
Id.
68
Thomas v. State, __ A.3d __, 2023 WL 6379829, at *10-13 (Del. Oct. 2, 2023).
69
Id. at *13.
70
Id. (quoting Taylor, 260 A.3d at 617).

15
 This Court now examines the four corners of the Second Search Warrant. The

Second Search Warrant not only removed the any/all language that afflicted the First

Search Warrant—it also imposed an additional temporal restriction on the data

searched and seized to include only information from May 1, 2016 to June 1, 2016.

The removal of the “any and all language” is not necessarily a cure-all—“the fact

that the warrant does not use the language ‘any and all’ puts form over substance.”71

This Court now finds that these changes, taken together, did impose a meaningful

restriction on the data the State searched and seized from Taylor’s mobile devices.

The recent decision in Thomas v. State guides the Court’s particularity review.

In Thomas, our Supreme Court held that this Court had appropriately redacted

evidence from the issued search warrant to eliminate the sections that were lacking

probable cause. 72 If needed, the same could be done here.73

71
State v. Freeman, 2023 WL 2854771, at *6 (Del. Super. Ct. Apr. 9, 2023). Nor has the
phrase “‘any and all’ [ ] somehow become a banned phrase in Delaware search warrants.” State v.
Chaffier, 2023 WL 1872284, at *4 (Del. Super. Ct. Jan. 17, 2023). “As with most questions of
word usage, context is key. The phrase ‘any and all’—depending on what it is describing—is not
only permissible, but sometimes necessary in a warrant.” Id.
72
Thomas, 2023 WL 6379829, at *14.
73
After both sides were given the opportunity, post-Thomas, to articulate any alternative
overbreadth argument and any corresponding remedial excisions, Taylor and the State confirmed
no such analysis was appropriate here. See Def.’s Post-Hearing Suppl.; State’s Resp. to Def.’s
Post-Hearing Suppl. In other words, each party was content to stand or fall on their position that
the Second Search Warrant was an impermissible general warrant or wholly appropriate as-is. Id.
Those positions notwithstanding, during the proceedings on this motion, the Court has
expressed its concern that there may be a discrete overbreadth fault with the Second Search
Warrant. As explained in this section and the next, there undoubtedly was probable cause
adequately expressed for the specific information and materials to be seized from the phone’s data
that fell within the warrant’s defined time span. But the Court finds that there was overbreadth—
16
 At the outset, the Second Search Warrant describes the two cellular devices

as the specific place to be searched. Just as did the Thomas search warrant, the

Second Search Warrant here does not authorize officers to search “any and all data”

on Taylor’s phones. And unlike the First Search Warrant, the Second Search

Warrant does not contain the troubling “including but not limited to” language.

Rather it contains the term “to include” before setting forth what specific evidentiary

items were sought from the devices:

registry entries, pictures, photographs, images, audio/visual
recordings, multi-media messages, web browsing activities,
electronic documents, location information, text messaging,
writings, usernames, subscriber identifiers, buddy names, screen
names, calendar information, call logs, electronic mail, telephone
numbers, any simi1ar information/data indicia of communication[].

Next, the Second Search Warrant, as in Thomas, has a temporal limitation that

authorized officers to search for the identified evidentiary items dated from May 1,

i.e., lack of sufficient particularity—in a discrete form of data that might be seized but for which
that probable cause did not extend or that was not sufficiently explained and defined. Specifically,
the data that would fall in the nebulous category of “electronic documents” would seem to trigger
the redaction remedy called for by Thomas. See 2023 WL 6379829, at *15 (when a search warrant
is overbroad “the proper remedy [i]s for the trial court to limit the Search Warrant only to that
which was supported by probable cause”). The State has yet to satisfactorily describe what text-
containing data would fall into that description— “electronic documents”—but not the others
itemized. That so, it cannot be said that this inclusion allowed some “authorized unconstitutional
exploratory rummaging” of the entirety of the phones. Id. at *14. So, the Court finds limiting the
Second Search Warrant to exclude any information or material that was gathered only as
“electronic documents” outside the scope of “multi-media messages . . . text messaging ...
writings. . .electronic mail . . . [or] any similar information/data indicia of communication” or the
other non-communication categories properly set forth in the warrant is appropriate. Id. at *12-13.
The Court will, therefore, address any specific objection Taylor raises on a specific evidentiary
item he contends falls within this exclusion.

17
2016, and June 1, 2016. As the Court in Thomas noted, the First Search Warrant in

this case (as well as those in Wheeler and Buckham) had no such temporal

limitation.74 Unlike in Thomas, however, Taylor’s phones were not known

instruments of his alleged crimes—his phones had been found on his person in a

search incident to Taylor’s arrest. As our high court again reminded, it does “not

prescribe rigid rules for the drafting of search warrants.”75

In Buckham v. State, the Court held that the statement “criminals often

communicate through cellular phones” was of little value for establishing probable

cause to search a seized device. 76 But here, the State had more than just the general

observation that communication aiding crimes happens via cell phone—there are

social media postings deduced to be coming from Taylor. And the Second Search

Warrant’s supporting affidavit lays out that Taylor’s use of social media and

numerous postings referencing the recent crimes, along with his numerous posts

referencing the ongoing gang feud, make it reasonable to conclude that he had used

his phone(s) to communicate, plan, memorialize, or otherwise facilitate the

communication about gang-related crimes among his cohorts. With that, the search

warrant satisfies the particularity requirement.

D. Evidence gathered via the Second Search Warrant is admissible under

74
Id. at *15 (citations omitted).
75
Id.
76
Buckham v. State, 185 A.3d 1, 17 (Del. 2018).

18
 the Independent Source Doctrine.

Taylor contends the Second Search Warrant serves “to wield the independent

source doctrine to eviscerate the heightened privacy protections that blossomed in

Riley and ultimately bloomed in Wheeler, Buckham, and Taylor.” 77 Our Supreme

Court has held that “taint may be purged and the evidence may be admissible through

one of the doctrinal exceptions to the exclusionary rule [including] the independent

source doctrine . . . .” 78 As our Supreme Court has explained:

[t]wo closely-related exceptions to the exclusionary rule flow from
the premise that, although the government ought not profit from its
own misconduct, it also should not be made worse off than it would
have been had the misconduct not occurred . . . [] where the
challenged evidence has an independent source, exclusion would
put the police in a worse position than they would have been absent
any error or violation. 79

The State insists that the Second Search Warrant is proper and the evidence

seized under its authority admissible relying on Murray v. United States, where the

United States Supreme Court—echoing its ruling in Nix v. Williams—observed that:

[T]he interest of society in deterring unlawful police conduct and
the public interest in having juries receive all probative evidence of
a crime are properly balanced by putting the police in the same, not
a worse position, that they would have been in if no police error or
misconduct had occurred . . . . When the challenged evidence has an
independent source, exclusion of such evidence would put the police
in a worse position than they would have been in absent any error or

77
Def.’s Mot. to Suppress ¶ 23.
78
Lopez-Vazquez v. State, 956 A.2d 1280, 1292 (Del. 2008) (citations omitted).
79
Norman v. State, 976 A.2d 843, 859 (Del. 2009) (citations omitted).

19
 violation.80

As the Third Circuit has since explained, when applying the Independent

Source Doctrine, “the issue is whether the police would have applied for a warrant

without the material tainted by a warrantless search.”81 Here, Taylor suggests that a

Second Search Warrant remains tainted by the First Search Warrant and that this

independently supports the suppression of the entirety of the contents of the phone.

Not so.

No doubt, the police applied for a search warrant in the first instant—it was

simply the form of that warrant that was deficient. The State has since obtained a

valid warrant that depends in no way on information gathered in what one would

analogize as a first “warrantless” search. Under the Independent Search Doctrine,

“officers who unlawfully enter an area protected by the Fourth Amendment and learn

of facts x and y but then later learn of facts x and y independently and lawfully, can

have admitted into evidence their knowledge concerning facts x and y.” 82

Taylor posits that the Colorado Supreme Court’s decision in People v.

Thompson would prohibit application of the independent source doctrine here. 83 In

80
Murray v. United States, 487 U.S. 533, 537 (1988) (quoting Nix v. Williams, 467 U.S. 431,
443 (1984)).
81
United States v. Price, 558 F.3d 270, 282 (3d Cir. 2009).
82
United States v. Herrold, 962 F.2d 1131, 1140 (3d Cir. 1992).
83
Def.’s Mot. to Suppress ¶¶ 25-26 (citing People v. Thompson, 500 P.3d 1075 (Colo. 2021)).

20
Thompson the Colorado high court rightly held admissibility of evidence under a

deficient warrant would not derive “simply by procuring a new warrant and

‘obtaining’ the evidence a second time (notwithstanding the fact that they had the

evidence in their possession the entire time), without showing that the later seizure

was genuinely independent of the earlier, tainted one.” 84 In affirming the trial

court’s suppression order, the Thompson court did not hold that the independent

source doctrine might not apply in such a circumstance.85 Rather, it found the

“minimal argument of [prosecution] counsel did not satisfy the People’s burden of

establishing the applicability of the independent source doctrine.” 86

Generally, the Independent Source Doctrine requires a determination of

whether, “if, without regard to information obtained during the original entry, the

police would have applied for the search warrant,” as well as whether “there was

probable cause for the warrant to be issued.” 87

So first, has the State demonstrated that had the police not been privy to the

contents of Taylor’s cell phones—through execution of First Search Warrant—they

would have otherwise applied for a search warrant in the first instance? Of course,

in circumstances like this, that answer is known. They did, in fact, apply for a

84
Thompson, 500 P.3d at 1080.
85
Id. at 1080-81.
86
Id. at 1080.
87
United States v. Price, 558 F.3d 270, 280 (3d Cir. 2009) (quoting Herrold, 962 F.2d at 1140).

21
warrant authorizing search of phones seized from Taylor’s person when he was

arrested for these crimes.

Next, was the probable cause articulated and extant for the Second Search

Warrant independent of the initial, unlawful one? 88 It was. An arrest warrant had

been issued for Taylor first-degree assault that stemmed for an alleged gang-related

shooting that had occurred on May 16, 2016. The police, incident to arrest for that

crime, gathered the two cell phones on Taylor’s person. Prior to searching those

phones, police had discovered public social media evidence of the ongoing gang

feud and that Taylor was actively posting photos and messages about that feud. In

the affidavit to the Second Search Warrant, officers noted that “gangs are using

social media to communicate within their own gang and with rival gang members.

Threats and challenges are communicated in quick succession with resulting

retaliatory criminal offenses happening soon thereafter.”89

The affidavit further described Taylor’s social media posts in detail:[]

Taylor’s personal social media accounts have displayed “numerous
photographs of [] Taylor holding or displaying firearms, photographs
of [] Taylor and other gang members displaying gang signs, and []
Taylor and other gang members posting messages boasting about the
STK gang, and also challenging rival gangs. Some of the social media
posts use hashtags like “#FTO” ([sic] the Opps [opposition]) and

88
See Thompson, 500 P.3d at 1080.
89
Def.’s Mot. to Suppress, Ex. A ¶ 23.

22
 “Dropping J’s” (a derogatory reference to Jordan Ellerbe being
murdered). The volume of these postings and their presence on []
Taylor’s personal social media accounts is evidence that he frequently
accessed and uploaded the content himself.90

The affidavit summarized that, “[b]y all accounts, it appears [] Taylor uses his

cell phone(s) as a tool to perpetuate the ongoing violent gang warfare that is playing

out over social media. Your affiant knows that the most convenient and popular

mode of accessing and utilizing social media is a personal cell phone…[and]

therefore believes that evidence of the ongoing gang feud and the recent shootings

where [] Taylor is a suspect would be located on his cellular phones.”91 And “as

highlighted in the attached exhibits, these individuals also use cellular phones to

search the internet to view, download, and post to social media, news articles about

crimes they have committed. . . .92 These public social media posts were available

independent of the First Search Warrant.

The Court recently addressed a circumstance similar to this in State v.

Carter. 93 In Carter, the defendant moved to suppress alleging that the first-issued

search warrant in his case was a general warrant because “it lacked specificity, the

time period for which the materials were requested was too expansive, and [] it failed

90
Id. Ex. A ¶ 14.
91
Id.
92
Id. Ex. A ¶ 23.
93
State v. Carter, 2022 WL 1561537 (Del. Super. Ct. May 17, 2022).

23
to establish probable cause that any evidence of the alleged criminal activity would

be found on the smartphone.”94 The officers subsequently obtained a second search

warrant in response, and this Court held that under the Independent Source Doctrine,

the second search warrant was proper and did not rely on the first search warrant.95

As the Court explained in Carter:

None of the evidence obtained by way of Warrant 1 was used by the
police in their application for Warrant 2. While this Court is
cognizant of [the defendant’s] frustrations that the State, in essence,
gets to fix its errors, suppression of all evidence retrieved from [the
defendant’s] iPhone(s) does nothing to further the purposes of the
exclusionary rule.96

The same conclusion is reached. The Independent Source Doctrine allows for

admission of the evidence obtained from Taylor’s two smartphones under the

Second Search Warrant.

94
Id. at *1.
95
Id. at *6.
96
Id.

24
 E. The Law of the Case Doctrine does not bar the Second Search Warrant.

Taylor maintains the Second Search Warrant and admission of any evidence

obtained by its execution is barred by the Law of the Case Doctrine and the Mandate

Rule. He construes the Supreme Court’s earlier ruling in his case to mean that “the

Court unequivocally held that total suppression was the only remedy.” 97 Not so.

When reversing and remanding for a new trial, the Supreme Court included

no blanket prohibition on a second search warrant. Consistent with the Supreme

Court’s remand instruction, a new trial has been afforded. Taylor’s contention that

he “is to be retried barring all taint from the fruits of the first general search

warrant”98 is being honored. As found above, there is no taint attached to the

evidence the State now seeks to admit—it was all obtained via execution of the valid

and constitutionally permissible Second Search Warrant. The State is correct here,

“[i]f [it] were to ask th[is] [ ] Court to admit the same content from the same cell

phone search warrant that [the] Supreme Court found unlawful, then the law of the

case doctrine would prevent its use.”99 But, put simply, the law of this case was that

the First Search Warrant was unconstitutionally deficient and therefore evidence

obtained thereunder had to be excluded. There was no ruling that the same evidence

97
Def.’s Mot. to Suppress ¶ 17.
98
Id. ¶ 19.
99
State’s Resp. to Def.’s Mot. to Suppress ¶ 21.

25
was forever forbidden from use no matter the circumstance of its discovery. And

there is nothing to be gained from exclusion of the evidence (whether it be the same

or not) that has now been collected (or re-collected) in a constitutionally appropriate

manner—i.e., under the authority granted by the Second Search Warrant. Neither

the Law of the Case Doctrine nor the Mandate Rule require suppression in this

instance.

F. The Attorney General’s subpoena was valid.

Taylor next argues that the subpoena served on the DDOC was unreasonable

and, therefore, the materials produced must be excluded from use at his retrial.100

As noted, 29 Del. C. § 2504 sets forth the powers, duties and authority of the

Department of Justice including the power to “investigate matters involving the

public peace, safety and justice and to subpoena witnesses and evidence in

connection therewith.” 101

Delaware has adopted the United States Supreme Court’s test first articulated

in Procunier v. Martinez to assess the reasonableness of a subpoena for prison

communications. 102

The Martinez standard requires Delaware courts to determine
whether “(1) the contested actions furthered an important or

100
Def.’s Mot. to Suppress ¶¶ 36-46.
101
29 Del. C. § 2504(4).
102
Whitehurst v. State, 83 A.3d 362, 367 (Del. 2013) (citing Procunier v. Martinez, 416 U.S.
396, 423 (1974), rev’d on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989).

26
 substantial government interest . . . , and (2) the contested actions
were no greater than necessary for the protection of that interest.”103

Furthermore,

probable cause is not required for the State to record prisoners’
phone calls or to subpoena the recordings. This is because
“prisoners who are notified by prison officials that their
communications will be monitored have no expectation of privacy
in the mail they send or the telephone calls they make” under the
Fourth Amendment. 104

For such a subpoena to be found reasonable it must “specify the materials to

be produced with reasonable particularity” and “require the production only of

materials relevant to the investigation.”105 Finally, “the materials must not cover an

unreasonable amount of time.”106

The State maintains that its subpoena for prison communications was

appropriate because it stated with particularity the materials it was requesting, that

those materials were relevant to its ongoing investigation, and that the timeframe for

which prison communication materials was reasonable in this circumstance. 107 The

Court agrees.

103
Id. (quoting Martinez, 416 U.S. at 423).
104
Id. (quoting Johnson v. State, 2012 WL 3893524, at *1 (Del. Sept. 7, 2012)).
105
Johnson v. State, 983 A.2d 904, 921 (Del. 2009).
106
Id.
107
State’s Resp. to Def.’s Mot. to Suppress ¶¶ 34, 36-37.

27
 In Shannon Johnson v. State, the Supreme Court found sufficient particularity

where the subpoena sought “…copies for all incoming and outgoing mail for inmate

[] Johnson. . . from 11-15-2006.”108 Here, the subpoena does more.

First, it states with particularity the materials to be produced, namely, phone

number lists, outgoing call log entries and conversations, video calls, tablet text

messages, in-person meeting recordings, and non-legal incoming and out-going

material as it related to all records regarding telephone and/or visiting room

conversations for Taylor.109

Second, the State provides several reasons why the materials requested are

relevant to its case and ongoing investigative needs. In January 2020, Taylor was

ordered to have No Contact with OMB or STK gang members, his co-defendants,

and the victims or their residences.110 The State argues that “Taylor was convicted

of chasing down and menacing at gunpoint two OMB-adjacent witnesses, victims []

and [], and shooting another victim [], who did not appear for trial. Taylor’s co-

defendant [] was pending trial following Taylor’s guilty verdict, and Taylor’s co-

defendant [] faced a series of threats following his testimony that led to his

108
Johnson, at 921.
109
State’s Resp. to Def.’s Mot. to Suppress ¶ 30.
110
State’s Resp. to Def.’s Mot. to Suppress ¶32.

28
relocation. . . for his safety.111 Additionally, the State presented information that

Taylor was convicted of Assault in a Detention Facility during the pendency of his

case, and that he has been using other inmate PINs for phone calls. 112 This behavior

is consistent with inmate efforts to engage in ongoing criminal behavior while

detained. Accordingly, the State has articulated a credible risk of witness

intimidation and threats. And investigation of potential witness tampering

constitutes a substantial government interest.113

Third, the materials sought covered the period between April 21, 2018, to the

present. As we approach Taylor’s retrial, the credible risk of witness intimidation

articulated by the State justified its request of DDOC. Taking these factors into

consideration, there is nothing to indicate that the State’s subpoena was greater in

scope than necessary to further its legitimate investigative efforts 114 and duties to

prevent Taylor from engaging in criminal activity, as well as to protect the witnesses

from tampering, threats, or intimidation.

111
Id. at ¶ 34.
112
State’s Resp. to Def.’s Mot. to Suppress ¶34.
113
Waters v. State, 242 A.3d 778, 784 (Del. 2020) (quoting Whitehurst, 83 A.3d at 367).
114
Whitehurst, 83 A.3d at 368.

29
 VI. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Suppress is DENIED.115

IT IS SO ORDERED.

/s/ Vivian L. Medinilla
Vivian L. Medinilla
Judge

cc: Prothonotary

115
Albeit, without prejudice for Taylor to seek exclusion of any individual evidentiary item he
contends was seized from his phones outside the limitation on the Second Search Warrant the
Court described in n.75, supra.

30