Taylor v. State ( 2021 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DIAMONTE TAYLOR, §
§ No. 91, 2020
Defendant Below, §
Appellant, § Court Below: Superior Court
§ of the State of Delaware
v. §
§ Cr. ID No. 1605012921A (N)
STATE OF DELAWARE, §
§
Plaintiff Below, §
Appellee. §
Submitted: June 16, 2021
Decided: September 8, 2021
Before SEITZ, Chief Justice; VALIHURA, VAUGHN, TRAYNOR, and
MONTGOMERY-REEVES, Justices, constituting this Court en Banc.
Upon appeal from the Superior Court of the State of Delaware: REVERSED and
REMANDED.
Benjamin S. Gifford IV, Esquire, Law Office of Benjamin S. Gifford IV,
Wilmington, Delaware, for Defendant Below, Appellant Diamonte Taylor.
Elizabeth R. McFarlan, Esquire, Delaware Department of Justice, Wilmington,
Delaware, for Plaintiff Below, Appellee State of Delaware.
SEITZ, Chief Justice, for the majority:
A Superior Court jury convicted Diamonte Taylor for gang-related murder
and violent felonies. On direct appeal, Taylor claims that the Superior Court should
have suppressed evidence from his smartphones collected under an unconstitutional
search warrant. Unlimited in time and scope, the general warrant to search Taylor’s
smartphones violated Taylor’s rights under the Fourth Amendment to the United
States Constitution, Article I, Section 6 of the Delaware Constitution, and the
particularity requirement under Delaware statutory law. The evidence should have
been suppressed and the error was not harmless. We reverse his convictions and
remand to the Superior Court for a new trial without the taint of the improperly
seized evidence.
I.
According to the record on appeal, Taylor was a member of the Wilmington
street gang “Shoot to Kill” or “STK.”1 On January 23, 2015, someone murdered an
STK affiliate, prompting a feud between STK and a rival Wilmington gang known
as “Only My Brothers” or “OMB.”2 Multiple witnesses identified Taylor, who goes
by the nickname “Nice” or “D-Nice,” and other STK members as participants in a
series of violent crimes that occurred throughout New Castle County in May 2016.
1
App to Opening Br. at A0544; A0561; A1054; A1199-1200.
2
Id. at A0544.
2
Kevon Harris-Dickerson is an admitted STK gang member. He was arrested and
pled guilty to several charges related to the May 2016 crime spree. 3 Harris-
Dickerson testified that Taylor and Zaahir Smith were members of STK and
participated in the May 2016 violence.4 We summarize the trial testimony about
each incident below as they relate to Taylor’s charges.
A.
On May 5, 2016, Jonathan Rivera and Gerard McDonald drove to visit Ninti
Johnson at her apartment in Newark. Johnson was running an errand when they
arrived. Johnson’s brother, Smith, who McDonald knew by his nickname “Hotep,”
was at the apartment with Taylor.5 Smith asked Rivera and McDonald to take him
and Taylor to a nearby gas station while they waited for Johnson. On the way back
from the gas station, Smith told Rivera to park behind the apartment complex. Smith
then pointed a gun at Rivera and McDonald and demanded that they “run
everything.”6 Rivera and McDonald understood this to mean that they were being
robbed. They handed over Rivera’s laptop, gold watch, black leather wallet, and
iPhone 5.7 After Smith and Taylor left Rivera’s car, Rivera and McDonald called
the police to report the robbery.
3
Id. at A1195-97.
4
Id. at A1195; A1199-1200.
5
Smith is also known as “Hotep,” “Rango,” “Grimey Savage,” and “Grimey STK.” Id. at A0564;
A0661; A1197.
6
Id. at A0640-41.
7
Id. at A0641; A0650.
3
Investigators searched Johnson’s apartment and found a .38 revolver, a box of
Remington .38 ammunition, credit cards in Jonathan Rivera’s name, and a debit card
in Zaahir Smith’s name.8 Smith’s fingerprints matched fingerprints lifted from the
ammunition box.9 Fingerprints recovered from the rear passenger side of Rivera’s
car matched Taylor’s fingerprints. 10 McDonald identified Smith and Taylor in
separate photo line-ups. McDonald recognized Taylor from the number “302”
tattooed around his eye.11 Rivera did not make an identification from the photo line-
ups but identified Smith in a photo posted to Facebook. 12 An inmate who later
shared a cell with Smith testified that Smith admitted to robbing two men who were
visiting his sister with a .38 revolver.13
B.
On May 16, 2016, Shango Miller, an affiliate of OMB, was shot outside his
grandmother’s house on Lombard Street in Wilmington.14 Miller had been playing
with his infant cousin and aunt who were just inside the screen door. As Miller’s
cousin and aunt began making their way toward the interior of the house, his aunt
heard Miller exclaim, “Grandmom, I got shot.”15 The forensic nurse examiner who
8
Id. at A0663.
9
Id. at A0669.
10
Id. at A0669-70.
11
Id. at A0651.
12
Id. at A0643.
13
Id. at A1193-94.
14
Id. at A0702-03; A0712-13; A1205.
15
Id. at A0712.
4
treated Miller at the hospital testified that Miller said, “I was outside smoking at my
grandmother’s house. These two kids walked by the house. They didn’t say
anything. They walked by the house again. I heard one shot. They were close,
about arm’s length. I ran inside to my grandmom’s house.”16 Miller told police he
knew the shooter by the name “D-Nice” and identified Taylor in a photo line-up.17
Investigators reviewed surveillance video from the area which showed two
people walking toward the 1000 block of Lombard Street where the shooting
occurred and then fleeing the area immediately after.18 One individual was wearing
a black and gray hat with an emblem on the bill and a hoodie with white strings and
a red stripe.19 Harris-Dickerson testified that Smith and Taylor were the two people
in the video.20 He explained that he recognized Smith because Smith often wore a
black and gray Armani Exchange hat that looked like the one the suspect was
wearing in the video.21 Police recovered a Herter’s 9mm shell casing from the steps
in front of the house where Miller was shot.22
16
Id. at A0730.
17
App. to Answering Br. at B6.
18
App. to Opening Br. at A0706; A0708.
19
Id. at A0706; A0711.
20
Id. at A1205.
21
Id. at A1204-05.
22
Id. at A0987; A0723.
5
C.
Two days later, on May 18, 2016, Temijiun Overby was shot during an
attempted robbery on Thatcher Street in Wilmington. Video surveillance showed
two people, later determined to be Smith and Harris-Dickerson, walking behind
Overby and his friends. 23 Smith approached the group while Harris-Dickerson
lingered about 20-30 feet behind.24 Smith shot Overby because Overby refused to
hand over his property.25
Latasha Pierce was Harris-Dickerson’s girlfriend at the time.26 She lived at
508 Shearman Street in Wilmington, and Harris-Dickerson was “there all the
time.” 27 Two months prior, on March 10, 2016, Harris-Dickerson accompanied
Pierce to Cabela’s Sporting Goods where she purchased a 9mm Canik pistol. 28
Pierce testified that on the night of the attempted robbery of Overby, Harris-
Dickerson was in possession of the 9mm Canik.29 She testified that she drove with
Harris-Dickerson and Smith to Northeast Market Street on the corner of Thatcher
Street and Northeast Boulevard.30 While she was inside shopping, Harris-Dickerson
23
Harris-Dickerson testified that he was able to identify Smith by the same black and gray Armani
Exchange hat. Id. at A1204.
24
Id. at A0700.
25
Id. at A1201.
26
Id. at A1066; A1197.
27
Id. at A1056.
28
Id. at A1054-57. Pierce pled guilty to Giving a Firearm to a Person Prohibited. Id. at 1056.
29
Id. at A1058.
30
Id. at A1057.
6
and Smith observed Overby and his friends exiting the store and decided they wanted
to rob them.31 Pierce testified that Smith asked Harris-Dickerson for the 9mm pistol
before they left the car to follow Overby and his friends.32 Harris-Dickerson testified
that Smith shot Overby with a 9mm pistol.33 Investigators recovered a Herter’s 9mm
shell casing from the scene of Overby’s shooting.34
D.
The next day, on May 19, 2016, high school freshman Brandon Wingo was
shot while walking home from school with a group of classmates. Wingo and a
friend were walking a few paces behind the larger group when Wingo noticed a
person wearing a black jacket walk toward them on Clifford Brown Walk. 35
Wingo’s classmates recalled thinking the jacket was odd because it was hot
outside. 36 Wingo told his classmate, “There goes the opp.” 37 After passing the
larger group, the person in the black jacket reached in his pocket, yelled something,
and pulled out a gun.38 The person fired three shots.39 Wingo’s classmates spread
out and ran. The friend walking with Wingo froze and screamed.40 Wingo also
31
Id. at A1058.
32
Id.
33
Id. at A1201.
34
Id. at A0698; A0958.
35
Id. at A0805.
36
Id. at A0784; A0796; A0801; A0805.
37
Id. at A0805. An “opp” is a member of an opposing gang. Id. at A0772.
38
Id. at A0784-85.
39
Id. at A0785; A0794-95.
40
Id. at A0805-06.
7
began to run, but he was struck in the head and buttocks.41 Wingo died from his
injuries.
Treasure Evans was walking to her grandmother’s house on Clifford Brown
Walk when the shooting occurred. Evans testified that Taylor drove by in a light
blue car minutes before the shooting.42 She recognized Taylor, who was sitting in
the front passenger seat wearing a black hoodie, because she and Taylor had attended
the same middle school. 43 Evans witnessed the shooting. She testified that the
shooter was wearing all black, but she could not see his face. She told police she
“assumed” Taylor was the shooter because the person she recognized in the front
passenger seat of the car was the same person she saw firing shots at Wingo.44 Evans
also identified Taylor in a photo line-up.45
Evans’s mother, Nadana Sullivan, was on Clifford Brown Walk waiting for
her daughter to return home from school at the time of the shooting. Sullivan saw
the shooter run down the street and turn onto Shearman Street with the gun still in
his hand. 46 Sullivan did not see the shooter’s face, but she testified that “the
41
Id. at A1022-23.
42
Id. at A0812.
43
Id.
44
Id. at A0898-99 (“I said it was Diamonte . . . . Because that’s who I seen in the car, and it’s the
same person who shot Brandon . . . . But I know what I seen. And I’m telling you what I seen. If
I actually seen his face, I’m like oh, yeah, that was actually him, but I didn’t see his face. And so
I can’t say that that was actually him, but I assumed it was him.”); id. at A0904-05.
45
Id. at A0918.
46
Id. at A0821.
8
children” told her that the shooter’s name was Diamonte.47 Sullivan also testified
that she had seen the person she now knew to be Taylor standing with another
individual “fiddling around with a gun” on the corner of Clifford Brown Walk and
Shearman Street three days before Wingo’s murder.48
Harris-Dickerson testified that he was with Taylor and Smith the day Wingo
was murdered. 49 He explained that Wingo had recently posted something
disrespectful about a deceased STK member on Facebook. Harris-Dickerson,
Taylor, and Smith agreed to shoot Wingo, or any other OMB member, on the spot.50
They knew where Wingo went to school and the routes he walked home.51
Pierce testified that Harris-Dickerson often borrowed her Ford Fusion and that
he and Taylor drove her to work in her car at 2:30 p.m. the day Wingo was shot.52
According to Harris-Dickerson, he and Taylor drove to Clifford Brown Walk after
dropping Pierce off at work.53 They saw Wingo walking with a group of classmates.
Taylor said that he wanted to shoot Wingo from the car.54 Harris-Dickerson said no
and stopped the car.55 Taylor got out of the car and took a gun and his winter coat
47
Id. at A0825-26.
48
Id. at A0826.
49
Id. at A1204.
50
Id.
51
Id.
52
Id. at A1057; A1059.
53
Id. at A1203.
54
Id.
55
Id.
9
with him.56 Harris-Dickerson drove away. Harris-Dickerson said he heard gunshots
a few moments later and began heading back toward Shearman Street.57
Video surveillance from moments after the shooting showed Taylor running
toward 508 Shearman Street just as Harris-Dickerson was parking the Ford Fusion.58
Harris-Dickerson testified that he met Taylor and Smith inside the house at 508
Shearman Street.59 There, Taylor announced that he shot Wingo. The three returned
to the Ford Fusion and drove down Clifford Brown Walk toward where Wingo was
shot. Harris-Dickerson said that Taylor laughed as they passed Wingo’s body lying
between two parked cars.60
Harris-Dickerson, Taylor, and Smith eventually met up with Pierce, and the
four traveled to North Carolina.61 Pierce returned to Delaware immediately, while
Harris-Dickerson, Taylor, and Smith stayed in North Carolina for a few days before
returning to Wilmington. 62 Harris-Dickerson testified that Taylor and Smith
“shared” possession of the 9mm Canik during that time.63
56
Id.
57
Id.
58
Id. at A1206.
59
Id. at A1203.
60
Id. at A1206.
61
Id.
62
Id. at A1060; A1206.
63
Id. at A1206.
10
Investigators collected Herter’s brand 9mm shell casings from the scene of
Wingo’s murder.64 Ballistics analysis revealed that the same gun was used to shoot
Miller, Overby, and Wingo.65
E.
On May 30, 2016, Shawn Garrett and his friend Tiheed Roane were walking
across the 11th Street Bridge in Wilmington. Garrett, who is Brandon Wingo’s first
cousin, noticed that a car had passed them more than once.66 Garrett told Roane to
run.67 As they were running, Roane looked back and saw two people getting out of
the car.68 During a police interview the next day, Roane said he saw Grimey pointing
a gun in their direction and D-Nice sitting in the passenger seat making a shooting
gesture with his hands.69
Also on May 30, 2016, police responded to a 9-1-1 call reporting a person
with a gun near 27th and North Tatnall Streets in Wilmington. The suspect was a
“black male wearing a gray baseball cap, black T-shirt, and blue jeans.”70 The first
officer to arrive observed someone matching that description walking on West 27 th
Street.71 When the responding officer made eye contact with the individual, the
64
Id. at A0779-80.
65
Id. at A0999.
66
Id. at A0965.
67
Id.
68
Id. at A0965; A0974.
69
Id. at A0948; A0974.
70
Id. at A0948.
71
Id.
11
individual grabbed his waistband and started walking quickly down West Street.72
The officer testified that she knew from her training and experience that clenching a
waistband is a characteristic of someone who is armed.73 The officer ordered the
suspect to stop and put his hands in the air.74 As the suspect raised his arms, the
officer noticed a firearm slip from the suspect’s waistband down his pantleg. The
suspect was arrested, and officers seized the gun. The suspect was later identified
as Smith.75
II.
On June 1, 2016, United States Marshals arrested Taylor while a passenger in
a car driven by Latasha Pierce’s sister, Corliss Pierce.76 In a search incident to the
arrest, the Marshals found two smartphones in Taylor’s pants pockets—a white
Samsung and a white Motorola.77 Wilmington Police obtained a search warrant for
the car and recovered two more smartphones—a black ZTE and a second white
Samsung with a pink cover.78 Latasha Pierce told investigators that the smartphone
with the pink cover was her smartphone.79 Wilmington Police executed a search
72
Id.
73
Id. at A0948-49.
74
Id. at A0949.
75
Id. at A0955.
76
Id.
77
Id. at A1043.
78
Id. at A0258.
79
Id.
12
warrant for 508 Shearman Street and found two black coats, a black Canik 9mm gun
case, and a box of Herter’s 9mm ammunition.80
Wilmington Police Detective MacKenzie Kirlin applied for a warrant to
search Taylor’s smartphones. In her supporting affidavit, the Detective recounted
the gang-related shooting incidents, the gang and personal connections among those
involved, the smartphones found in Taylor’s pockets, and the smartphones in Corliss
Pierce’s car. According to the Detective, her training, knowledge, and experience
led her to believe that people involved in criminal acts like those described in her
affidavit use smartphones to communicate about their illegal acts.81 On June 16,
2016, the Justice of the Peace Court approved a warrant to search for:
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.82
80
Id. at A1025-28.
81
Id. at A0256-60.
82
Id. at A0254-55.
13
Using Cellebrite 83 software, police extracted 4,645 pages from the white
Motorola smartphone—data from January 2005 to June 2016.84 This appears to be
the entire digital universe of the smartphone.85 The search yielded data from 23
areas of the phone, including 31 autofill fields, 12 user accounts, 5 passwords, 2,215
contacts, 514 call logs, 4,737 SMS messages, 63 MMS messages, 146 Facebook and
Google+ chats, 611 locations, and 26,792 web browsing entries.86 The search also
produced 17,672 individual audio, video, image, text, configuration, database and
application data files.87 Of the 17,672 data files retrieved, 17,395—or 98 percent—
were included in the final extraction report.88
A New Castle County grand jury indicted Taylor and Smith for Robbery First
Degree, Possession of a Firearm During the Commission of a Felony (“PFDCF”),
Aggravated Menacing, and Conspiracy Second Degree.89 A series of superseding
indictments modified the charges against Taylor and Smith and added Harris-
Dickerson and Pierce as co-defendants. Eventually, the State charged Taylor with
one count of Gang Participation supported by fifteen underlying offenses, one count
83
Id. at A1045-46; About, CELLEBRITE, https://www.cellebrite.com/en/about/.
84
App. to Opening Br. at A0295-96. The search of Taylor’s white Samsung (the other phone
mentioned in the warrant) yielded 388 pages of data. Id. at 0236. The extraction report from the
white Samsung was not admitted at trial.
85
Id. at A1094.
86
Id.
87
Id.
88
Id.
89
Id. at A0023-30.
14
of Robbery First Degree, one count of Attempted Robbery First Degree, four counts
of PFDCF, one count of Assault First Degree, two counts of Reckless Endangering
First Degree, two counts of Aggravated Menacing, one count of Conspiracy Second
Degree, one count of Possession of a Firearm by a Person Prohibited (“PFBPP”),
one count of Conspiracy First Degree, and one count of Murder First Degree.90
Taylor filed a motion to suppress all evidence obtained from a search of his
smartphones.91 He argued that the search warrant was not supported by probable
cause and was an unconstitutional general warrant because it lacked particularity by
failing to specify the places on the smartphone to be searched and a time frame for
the search.92 The Superior Court denied Taylor’s motion. In a transcript ruling, the
court found there was sufficient information for the Magistrate to find probable
cause because Harris-Dickerson communicated with Taylor about gang activity
using smartphones. This fact, according to the court, established a logical nexus
between the alleged criminal activity and the contents of Taylor’s smartphones. The
court further found that the warrant was not a general warrant. As the court
explained, the warrant “specifically limited the officer’s search to the cellphones and
to certain types of data, media and was pertinent to this investigation . . . .” 93 Finally,
90
Id. at A0124-42.
91
Taylor also moved to suppress his June 1, 2016 custodial statement to police. Id. at A0109-23.
The Superior Court granted the motion as unopposed after the State agreed not to admit the
statement during its case-in-chief. Id. at A0013-14; A0276.
92
Id. at A0230-65.
93
Id. at A0302-03.
15
the court found that references in the Detective’s affidavit to the May 16, 2016
shooting, the May 19, 2016 murder, and Taylor’s arrest on June 1, 2016,
demonstrated that the warrant “limit[ed] the search to a narrow time frame.”94 The
court reasoned that “whatever incriminating text messages and photos were found
were within the narrow scope of the digital search that was requested in the
affidavit.”95
Before trial, Harris-Dickerson pled guilty and agreed to testify at trial against
the other defendants.96 The Superior Court granted Taylor’s motion to sever his case
from the other defendants. At trial, the State offered into evidence 95 pages from
the 4,645-page extraction report of Taylor’s white Motorola smartphone.97 The 95-
page excerpt included: 31 autofill fields, 12 user accounts, 82 contacts, 184 call log
entries, 32 thumbnail images, 16 MMS messages and accompanying thumbnail
images, over 200 SMS messages, over 100 Facebook Messenger chats and
attachments, and hundreds of web browsing entries. 98 Full-size versions of 15
thumbnail images from various areas of the phone were introduced as separate
exhibits. 99 The information introduced included photos of Taylor with the gun
94
Id. at A0303.
95
Id. at A0302.
96
Id. at A0448.
97
Id. at A1092-1187.
98
Id. at A1095-1187; A1227-37.
99
Id. at A1104; A1113; A1128; A1130; A1133-34; A1137; A1143; A1167-68; A1170; A1172-
73; A1175-76.
16
linked to the murder, text messages, connections to social media posts, and
statements by Taylor in which he implied he had killed Wingo.
After a ten-day trial, a jury convicted Taylor of Murder First Degree, Gang
Participation, two counts of Reckless Endangerment, two counts of PFDCF, two
counts of Aggravated Menacing, and Assault First Degree. Taylor was found not
guilty of Robbery First Degree, Attempted Robbery First Degree, and the associated
counts of PFDCF. The Conspiracy First Degree, Conspiracy Second Degree, and
the severed PFBPP charges were dismissed.100 The Superior Court denied Taylor’s
motion for a new trial. On January 31, 2020, the Superior Court sentenced Taylor
to a mandatory life sentence for Murder First Degree. The court also sentenced
Taylor to an additional eleven years at Level V incarceration for the remaining
charges.
III.
Although Taylor raises several arguments on appeal, we focus on one
argument that is dispositive—whether the warrant to search his smartphones was a
general warrant, prohibited by the Fourth Amendment of the United States
Constitution, Article I, Section 6 of the Delaware Constitution, and statutory law.
Taylor argues that the warrant was a general warrant, as it authorized a search for
“any/all data” stored on his two smartphones and was not limited to specific files or
100
App. to Opening Br. at A0017.
17
file types. 101 The warrant also placed no time limit on the data searched and
collected.102 Given the importance of the smartphone data to the prosecution’s trial
strategy, Taylor claims that the Superior Court’s error was not harmless. 103 He
points to the prosecutor’s closing argument, which contained many references to
evidence taken from one of the smartphones, including photographs, text messages,
and other admissions of criminal activity.104
The State responds that the warrant was not a general warrant because the
search warrant application contained the dates of events relevant to the investigation
which could be used as time limitations.105 Although the State concedes the warrant
was “not as specific as it could have been,” it also claims that this shortcoming was
“remedied by limiting the State’s evidence to the timeframe for which the warrant
provided probable cause.”106 Finally, the State claims that any error in admitting the
evidence seized from Taylor’s smartphones was harmless because the other
admissible evidence of his guilt was “overwhelming,” citing Facebook posts,
witnesses, and ballistics reports, among other evidence.107
101
Opening Br. at 35-36; App. to Opening Br. at A0254.
102
Opening Br. at 38-39.
103
Reply Br. at 14-19.
104
Id.
105
Answering Br. at 34.
106
Oral Argument at 23:57 (June 16, 2021), https://livestream.com/delawaresupremecourt/events
/9697320/videos/222453600; Answering Br. at 36-37.
107
Id. at 42-43; Oral Argument at 31:55 (June 16, 2021), https://livestream.com/delaware
18
This Court reviews alleged constitutional violations de novo. 108 We also
apply a de novo standard of review to the Superior Court’s legal conclusions
regarding the denial of a motion to suppress.109 “We review the trial judge’s factual
findings [on a motion to suppress] to determine whether there was sufficient
evidence to support the findings and whether those findings were clearly
erroneous.”110
A.
The Fourth Amendment to the United States Constitution provides:
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.
Article I, Section 6 of the Delaware Constitution also protects individuals
from unreasonable searches and seizures:
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.
supremecourt/events/9697320/videos/222453600 (“There was video, there was [sic] 911 calls,
there was [sic] guns, there were ballistics, palm prints, there were witnesses that placed Taylor at
various crime scenes.”).
108
Bradley v. State, 51 A.3d 421, 433 (Del. 2012).
109
Id. (citing Lopez-Vazquez v. State, 956 A.2d 1280, 1284-85 (Del. 2008)).
110
West v. State, 143 A.3d 712, 715 (Del. 2016) (citing Lopez-Vazquez, 956 A.2d at 1285).
19
Under Delaware statutory law, which sets forth the specific requirements for
warrant applications,111 the search warrant must state with particularity the person
or place to be searched and the items sought in as much detail as possible:
If the judge, justice of the peace or other magistrate finds that the facts
recited in the complaint constitute probable cause for the search, that
person may direct a warrant to any proper officer or to any other person
by name for service. The warrant shall designate the house, place,
conveyance or person to be searched, and shall describe the things or
persons sought as particularly as possible.112
As is apparent from the foregoing constitutional and statutory requirements, a
search warrant must be supported by probable cause, and be as particular as possible.
In our recent decision in Buckham v. State,113 we summarized the constitutional and
statutory standards governing search warrants:
For a search warrant to issue, there must be more than just probable
cause that a crime has been committed; there must also be, “within the
four corners of the affidavit, . . . facts adequate for a judicial officer to
form a reasonable belief that . . . the property to be seized will be found
in a particular place.” The constitutional requirement that there be a
nexus between the crime and the place to be searched is also enshrined
in Delaware law, which requires the warrant application to not only
“describe the things . . . sought as particularly as may be,” but also to
“state that . . . such things are concealed in the house, place,
conveyance or person designated and . . . recite the facts upon which
such suspicion is founded.”114
111
11 Del. C. § 2306.
112
Id. at § 2307(a).
113
185 A.3d 1 (Del. 2018).
114
Id. at 16 (internal citations omitted) (first quoting Sisson v. State, 903 A.2d 288, 296 (Del.
2006), then quoting 11 Del. C. § 2306).
20
Like the appeal in Buckham, we are again confronted with a warrant to search
a smartphone. We use the word smartphone, as the term “cell phone” does not
describe adequately the scope and intimacy of the information contained in these
devices. As the United States Supreme Court observed in Riley v. California,115 a
smartphone search “typically expose[s] to the government far more than the most
exhaustive search of a house,”116 including “a broad array of private information
never found in a home in any form.”117 People now “keep on their person a digital
record of nearly every aspect of their lives—from the mundane to the intimate.”118
Smartphones “have become [a] pervasive and insistent . . . part of daily life” and “an
important feature of human anatomy.”119 They “collect[] in one place many distinct
types of information—an address, a note, a prescription, a bank statement, a video—
that reveal much more in combination than any isolated record.” 120 Smartphone
searches “implicate privacy concerns far beyond those implicated” by other searches
121
and, accordingly, receive heightened constitutional scrutiny. Given the
“substantial” risk that “warrants for digital and electronic devices [may] take on the
character of ‘general warrants,’” “[t]his reality necessitates heightened vigilance, at
115
573 U.S. 373 (2014).
116
Id. at 396-397 (emphasis in original).
117
Id. at 397.
118
Id. at 386, 395 (citing Ontario v. Quon, 560 U.S. 746, 760 (2010)).
119
Id. at 385.
120
Id. at 394.
121
Id. at 393.
21
the outset, on the part of judicial officers to guard against unjustified invasions of
privacy.”122
In Buckham, the police obtained a search warrant for smartphone data to track
the defendant’s whereabouts in the six weeks prior to his arrest.123 The Buckham
search warrant, however, went beyond that specific need, and authorized the police
to search the smartphone for not just GPS data, but “[a]ny and all store[d] data
contained within the internal memory of the cellular phones [sic], including but not
limited to, incoming/outgoing calls, missed calls, contact history, images,
photographs and SMS (text) messages” for evidence of “Attempted Murder 1 st
Degree.” 124 At trial, prosecutors introduced incriminating Facebook exchanges
recovered from the search. We held, as a matter of plain error, that the warrant
application allegations were “too vague and too general to connect [Buckham’s] cell
phone to the shooting,” undermining the finding of probable cause by the trial
court.125
We also held that a warrant must “describe the items to be searched for and
seized with as much particularity as the circumstances reasonably allow” and be “no
122
Wheeler, 135 A.3d at 307.
123
185 A.3d at 6.
124
Id. at 15 (alterations in original).
125
Id. at 17.
22
broader than the probable cause on which it is based.” 126 The search warrant in
Buckham failed both requirements because:
the warrant did not limit the search of Buckham’s cell phone to any
relevant time frame and authorized the search of any data on the phone.
Worse still, it authorized law enforcement to search categories of data
that had nothing to do with GPS location information, like
“incoming/outgoing calls, missed calls, contact history, images,
photographs and SMS (text) messages.” So this warrant was both
vague about the information sought—despite the fact that a far more
particularized description could have been provided—and expressly
authorized the search of materials there was no probable cause to
search, like the contents of all of the Facebook messages Buckham
sent.127
Our ruling in Buckham relied on another of our recent search warrant
decisions, Wheeler v. State. 128 In Wheeler we recognized that, after Riley v.
California, electronic devices require greater protections than other forms of
property, given the “enormous potential for privacy violations” that “unconstrained
searches” of these devices pose.129 We again held that a warrant has to “describe the
things to be searched with sufficient particularity and be no broader than the probable
cause on which it is based.”130 Those requirements serve the Fourth Amendment’s
particularity and narrowness objectives—ensuring that “those searches deemed
126
Id. at 18 (quoting Wheeler, 135 A.3d at 299).
127
Id. at 19.
128
135 A.3d 282.
129
Id. at 299.
130
Id.
23
necessary [are] as limited as possible” and eliminating “exploratory rummaging in a
person’s belongings.”131
The warrants in Wheeler failed to limit the search to any time frame, when the
relevant dates were available to police. And the police had a more precise
description of where evidence of criminal activity might be found that could have
been included in the warrants. We determined the Wheeler search warrants were
general warrants and violated the particularity requirement of constitutional and state
law. It was also apparent from the language cut and pasted from a child pornography
warrant into the Wheeler warrant that the State was interested in finding evidence of
child pornography and not evidence of witness tampering. Although the State
claimed it was searching for “evidence of written communications” related to
witness tampering, the places it searched—DVDs and optical cameras—were
unlikely to contain those types of communications. 132 In the end, the Wheeler
warrants’ lack of particularity “permitted the species of wide-ranging, exploratory
searches the Framers intended to prohibit.”133
B.
We pass over the probable cause requirement and go straight to whether the
Taylor search warrant satisfies the constitutional and statutory requirements that it
131
Id. (alteration in original) (citations omitted) (quoting Coolidge, 403 U.S. at 467); id. at 296.
132
Wheeler, 135 A.3d at 306.
133
Id. at 307.
24
describe the items to be searched for and seized with as much particularity as the
circumstances reasonably allow and is no broader than the probable cause on which
it is based.134 It does not. Like the warrant struck down in Buckham, the Taylor
warrant authorized “a top-to-bottom search” of “[a]ny and all store[d] data” of the
digital contents of the devices.135 The Taylor warrant also “did not limit the search
of [the] cell phone to any relevant time frame . . . .” 136 And like the warrants in
Buckham and Wheeler, the Taylor warrant used the open-ended language “including
but not limited to” to describe the places to be searched. 137 The Taylor search
warrant 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.
134
The Superior Court found that there was a logical nexus between the items sought and the place
to be searched based on the two incidents identified in the Kirlin affidavit, a gang rivalry motive,
the smartphones found in Taylor’s pockets, and Taylor and Harris-Dickerson’s likely
communication by smartphone. App. to Opening Br. at A0302. Given our conclusion that the
warrant fails the particularity requirement, we need not address whether the search warrant
satisfied the probable cause requirement.
135
Buckham, 185 A.3d at 18; see also Wheeler, 135 A.3d at 289 (authorizing a search of “[a]ny
and all data, and the forensic examination thereof, stored by whatever means on any [electronic
device] seized . . . .” (emphasis omitted)).
136
Buckham, 185 A.3d at 19; see also Wheeler, 135 A.3d at 304 (describing the warrant’s
shortcomings under the particularity requirement and noting “the failure to limit the search to the
relevant time frame.”).
137
Buckham, 185 A.3d at 15; see also Wheeler, 135 A.3d at 289 (listing the areas of the phone to
be searched “to include but not limited to: registry entries, pictures, images, temporary internet
files, internet history files, chat logs, writings, passwords, user names, buddy names, screen names,
email, connection logs, or other evidence.”).
25
The Superior Court found that the Taylor warrant was not a general warrant
for several reasons:
--the warrant “specifically limited the officer’s search to the
cellphones and to certain types of data, media and was pertinent to this
investigation;”
--“the State’s response was that the -- whatever incriminating
text messages and photos were found were within the narrow scope of
the digital search that was requested in the affidavit;” and
--“the warrant here does limit the search to a relevant time
frame,” “a narrow time frame,” and it was limited to “the evidence that
will be requested to be presented in this case.”138
None of these reasons withstand scrutiny. 139 First, the fact that the
investigator identified the smartphones as the object of the search and the data on
the smartphones as the things to be searched does not satisfy the particularity
requirement. The warrant was not limited. It authorized a search of “any and all
data” on the smartphones. The search could have been limited to smartphone data
tied specifically to the probable cause supporting the warrant. We held in Buckham
that the warrant failed constitutional review because it “did not limit the search of
Buckham’s cell phone to any relevant time frame and authorized the search of any
138
App. to Opening Br. at A302-03.
139
We appreciate that the Superior Court did not have the benefit of our Buckham decision at the
time it decided the motion to suppress. Wheeler and Buckham were our Court’s first opportunity
to consider the United States Supreme Court’s Riley decision and the evolving jurisprudence for
search warrants and electronic information. See State v. Reese, 2019 WL 1277390 at *5-7 (Del.
Super. Ct. Mar. 18, 2019) (recognizing that search warrants for electronic devices are held to a
higher standard after Wheeler and Buckham).
26
data on the phone.”140 The same is true here. While we are reluctant to make specific
pronouncements about what is required in a search warrant for electronic devices for
fear that we might tie the hands of investigators, we can say for certain that more
specificity was possible and required than simply identifying the smartphones to be
searched and all of their data.141
Second, a warrant that allows investigators to search for “any and all data”
“pertinent to the criminal investigation” is unlimited in scope. To find information
pertinent to the investigation, investigators were authorized, in general warrant
fashion, to rummage through all of the smartphones’ contents. The free-ranging
search for anything “pertinent to the investigation” undermines the essential
protections of the Fourth Amendment—that a neutral magistrate approve in advance,
based on probable cause, the places to be searched and the parameters of the search.
Although the record is not entirely clear, 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.
Third, the Superior Court erred when it found that investigators searched for
and found evidence “within the narrow scope of the search requested in the
140
185 A.3d at 19.
141
See Wheeler, 135 A.3d at 306-07 (pointing out the warrants did not restrict the search to places
likely to contain evidence of written witness tampering); Buckham, 185 A.3d at 19 (holding a
warrant was not particular in part because it “authorized law enforcement to search categories of
data that had nothing to do with GPS location information.”).
27
affidavit.” This finding is circular. The affidavit contains essentially the same all-
encompassing language of the search warrant, with the “any and all data” and
“including but not limited to” language.142
The Superior Court relied on our decision in Starkey v. State.143 In Starkey,
we upheld two cellphone warrants that used language similar to the warrant at issue
here.144 We found that the Starkey warrants “limit[ed] the officer’s search of the cell
phones to certain types of data, media, and files that were ‘pertinent to th[e]
investigation.’”145 That language, we reasoned, “effectively limited the scope of the
warrants, and prevented a boundless search of the cell phones.”146
Our Starkey decision predates Riley, Wheeler, and Buckham. The
constitutional landscape—as well as the technological one—has changed. Starkey
does not reflect the United States Supreme Court’s or this Court’s current view on
142
App. to Opening Br. at A0259, ¶ 25.
143
2013 WL 4858988 (Del. Sept. 10, 2013).
144
Id. at *4. In Starkey, the warrant for the defendant’s LG cell phone read as follows:
[A]ny and all data stored by whatever means, or through normal course of business
of Verizon Wireless services, and/or through the forensic examination of said
telephone, to include but not limited to registry entries, pictures, photographs,
images, audio/visual recordings, multi-media messages, web user names,
subscriber identifiers, buddy names, screen names, calendar information, call logs,
electronic mail, telephone numbers, any similar information/data indicia of
communication, any other information/data [sic] pertinent to this investigation
within said scope.
Id. The warrant for the second cell phone was almost identical, but it reflected a different cell
phone carrier and listed two additional categories of data. Id.
145
Id.
146
Id.
28
warrants seeking evidence from electronic devices. After our recent decisions, a
search warrant for electronic devices must contain more than a general authorization
to search all the contents of electronic devices for evidence of criminal conduct.
Finally, even though the search warrant was, in the State’s words, “not as
specific as it could have been,” the State claims that the Superior Court held correctly
that defects in the warrant “could be remedied by limiting the State’s evidence to the
timeframe for which the warrant provided probable cause.”147
There is no room, however, for limited suppression of evidence seized under
a general warrant. As the Third Circuit has explained:
There is a legal distinction between a general warrant, which is
invalid because it vests the executing officers with unbridled discretion
to conduct an exploratory rummaging through [the defendant’s] papers
in search of criminal evidence, and an overly broad warrant, which
“‘describe[s] in both specific and inclusive general terms what is to be
seized,’ but ‘authorizes the seizure of items as to which there is no
probable cause . . . .’” [A]n overly broad warrant can be redacted 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. In contrast, the only remedy for a general
warrant is to suppress all evidence obtained thereby.148
The Taylor warrant and its supporting affidavit did not describe “in both
specific and inclusive general terms what is to be seized.” Instead, it “vest[ed] the
147
Oral Argument at 23:57 (June 16, 2021), https://livestream.com/delawaresupremecourt/events/
9697320/videos/222453600; Answering Br. at 36-37.
148
United States v. Yusuf, 461 F.3d 374, 393 n.19 (3rd Cir. 2006) (internal citations omitted). See
also Coolidge v. New Hampshire, 403 U.S. 443 (1971) (a general warrant permits “a general
exploratory rummaging in a person’s belongings.”).
29
executing officers with unbridled discretion to conduct an exploratory rummaging
through [the defendant’s] papers in search of criminal evidence.” Thus, the
constitutional violation cannot be cured by limited suppression.149
C.
As a final matter, we turn to whether the admission of the illegally obtained
evidence was harmless error. When evidence has been admitted erroneously, we
first distinguish between ordinary evidentiary missteps and errors of constitutional
magnitude. When the error does not implicate constitutional rights, “[t]he well-
established rule is that where the evidence exclusive of the improperly admitted
evidence is sufficient to sustain a conviction, error in admitting the evidence is
harmless.”150 But when, as here, the error violated the defendant’s constitutional
rights, an error is harmless only if the State proves “beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained.”151
149
Because the Taylor warrant is a general warrant not subject to limited suppression, the State’s
reliance on State v. Rizzo, 2018 WL 566794 (Del. Super. Ct. Jan. 26, 2018) and State v. Anderson,
2018 WL 6177176 (Del. Super. Ct. Nov. 5, 2018) is misplaced. In Rizzo, the court relied on our
decision in Starkey, which after Buckham and Wheeler no longer reflects our Court’s stance on
search warrants for electronic devices. In Anderson, the court relied upon the Superior Court’s
decision in this case, which we reverse. We note that, in State v. Waters, 2020 WL 507703 (Del.
Super. Ct. Jan. 30, 2020), another case cited by the State, the Superior Court distinguished between
an overbroad warrant (where limited suppression can be used) and a general one (which is facially
invalid).
150
Johnson v. State, 587 A.2d 444, 451 (Del. 1991).
151
Dawson v. State, 608 A.2d 1201, 1204 (Del. 1992); Johnson, 587 A.2d at 451; Delaware v.
Van Arsdall, 475 U.S. 673 (1986).
30
We cannot conclude beyond a reasonable doubt that the jury’s verdict would
have been the same without illegally seized smartphone evidence. The State charged
Taylor with crimes related to four separate incidents: the armed robbery of Rivera
and McDonald, Miller’s shooting, Wingo’s murder, and the aggravated menacing of
Garrett and Roane. The evidence introduced from the cell phone extraction report
implicated Taylor in the shooting, murder, and aggravated menacing, but not the
armed robbery. Specifically, the State offered several text messages where Taylor
insinuated that he shot Miller and Wingo.152 The State also introduced text messages
where Taylor wrote that he and Smith were tailing Garrett and Roane the night that
the aggravated menacing occurred.153 Finally, the State admitted photos of Taylor
with a gun and photos showing Taylor wearing a hat matching one visible in the
security camera footage of some of the incidents.154 The jury convicted Taylor on
all charges related to the crimes where the State presented evidence from the
extraction report. Taylor was acquitted on all charges stemming from the incidents
absent from the extraction report, namely the armed robbery of Rivera and
McDonald.155 The smartphone evidence was critical to the State’s case and Taylor’s
convictions, and its admission was not harmless error beyond a reasonable doubt.
152
App. to Opening Br. at A1236.
153
Id.154
Id. at A1278.
155
Opening Br. at 5-6; Reply Br. at 14-19.
31
IV.
“[T]he warrant requirement is ‘an important working part of our machinery of
government,’ not merely ‘an inconvenience to be somehow “weighed” against the
claims of police efficiency.’”156 Indeed, “[t]he occasional suppression of illegally
obtained yet probative evidence has long been considered a necessary cost of
preserving overriding constitutional values.” 157 The Superior Court should have
granted Taylor’s motion to suppress all evidence from the search of his smartphones.
We reverse the Superior Court’s judgment, vacate Taylor’s convictions, and remand
for a new trial consistent with this opinion.
156
Riley, 573 U.S. at 401 (quoting Coolidge, 403 U.S. at 481).
157
James v. Illinois, 493 U.S. 307, 311 (1990) (citing Arizona v. Hicks, 480 U.S. 321, 329 (1987)).
32
VAUGHN, Justice, concurring:
I agree that the warrant here, which authorizes a seizure of “any/all . . .
information pertinent to the investigation within said scope,” does not limit itself to
the seizure of things which have been described with particularity. I concur in the
judgment of the Court.
33