State of Delaware v. Jermaine Brinkley , 132 A.3d 839 ( 2016 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, :
: I.D. No. 1412017874
v. : Kent County
:
JERMAINE BRINKLEY, :
Defendant. :
Submitted: February 29, 2016
Decided: March 22, 2016
ORDER
Upon Defendant’s Motion for Reargument.
Denied.
Lindsay A. Taylor, Esquire of the Department of Justice, Dover, Delaware; attorney
for the State of Delaware.
John S. Malik, Esquire, Wilmington, Delaware; attorney for the Defendant.
WITHAM, R.J.
State v. Jermaine Brinkley
I.D. No. 1412017874
March 22, 2016
Defendant Jermaine Brinkley (“Brinkley”) requests this Court grant
reargument on his motion to suppress wiretap evidence. Brinkley claims the Court
did not consider all grounds asserted in the motion. Specifically, Brinkley
requests the Court reconsider its decision based on his challenge to the territorial
jurisdiction of the wiretap order and the denial of an evidentiary hearing.
I. FACTS AND PROCEDURAL HISTORY
In November 2015, this Court denied Brinkley’s motion to suppress evidence
derived from a wiretap order. Brinkley argued that the wiretap order authorized
law enforcement officers to unlawfully intercept communications outside the
territorial jurisdiction permitted under 11 Del. C. § 2407(c)(3). The State
adequately responded to Brinkley’s argument, but the Court deemed this argument
waived because it was not raised prior to the motions deadline. In his motion for
reargument, Brinkley contends that the State would not be prejudiced by the
Court’s reconsideration since the State devoted a significant portion of its brief to
the geographic issue. Furthermore, the issue raises important questions about
procedures to be followed by law enforcement when applying for a wiretap order,
and by trial courts in granting them.
Brinkley requested an evidentiary hearing in his initial motion to suppress
wiretap evidence, but failed to press the argument in his memorandum of law in
support of the motion. However, Brinkley’s reply memorandum of law in support
of motion to suppress wiretap evidence (“Defendant’s Reply Brief”) argued that an
evidentiary hearing was necessary because law enforcement misrepresented or
2
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recklessly disregarded the truth with regard to eight specific issues. The Court
denied Brinkley’s request for an evidentiary hearing because he failed to meet the
criteria required under Franks v. Delaware, and because the volume of information
submitted in the affidavits that had not been specifically challenged or that had been
dealt with in the discussions of stale information and the necessity requirements
was sufficient for a finding of probable cause. Brinkley now moves this Court to
grant reargument with respect to the geographic issue and the evidentiary hearing
issue.
II. STANDARD OF REVIEW
Where the Superior Court Rules of Criminal Procedure provide no rule
governing a particular practice, that practice is governed by the Superior Court
Rules of Civil Procedure.1 Thus, a motion for reargument in a criminal case is
governed by Super Court Rule of Civil Procedure 59(e). A motion for reargument
pursuant to Rule 59(e) will be granted only if “the Court has overlooked a
controlling precedent or legal principles, or the Court has misapprehended the law
or facts such as would have changed the outcome of the underlying decision.”2 A
motion for reargument is not an opportunity for a party to rehash arguments already
decided by the Court or to present new arguments not previously raised.3 In order
1
Super Ct. Crim. R. 57(d) ( “In all cases not provided for by rule or administrative order,
the court shall regulate its practice in accordance with the applicable Superior Court civil rule or
in any lawful manner not inconsistent with these rules or the rules of the Supreme Court.”).
2
Kennedy v. Invacare, Inc., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006).
3
Id.; Hennegan v. Cardiology Consultants, P.A., 2008 WL 4152678, at *1 (Del. Super.
Sept. 9, 2009) (citing Denison v. Redefer, 2006 WL 1679580, at *2 (Del. Super. Mar. 31, 2006)).
3
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I.D. No. 1412017874
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for the motion to be granted, the movant must “demonstrate newly discovered
evidence, a change in the law, or manifest injustice.”4
III. DISCUSSION
A. 11 Del. C. § 2407(c)(3) Allows for the Authorization of a Wiretap
When the Communication is Either Intercepted in the State or is Sent
or
Received in the State.
Brinkley contends that the geographic location issue should be considered
because it raises important questions about the procedures to be followed by law
enforcement when applying for a wiretap order and by the trial courts in granting
such orders. He further contends that the issue has been fully briefed by the State
and by defense counsel and is therefore ripe for decision. The Court agrees, and
will therefore reconsider the geographic issue.
The question raised by Brinkley’s challenge asks whether 11 Del. C. §
2407(c)(3) grants jurisdiction to intercept cellular communications when an entire
conversation that has been conducted on a cellular device both originates and is
received outside of the court’s jurisdiction. Chapter 24 of title 11 is titled
Wiretapping, Electronic Surveillance and Interception of Communications.
Subchapter I of Chapter 24 is titled Electronic Surveillance and Interception of
Communications. Section 2407, which is found in Subchapter I, is titled Ex parte
order authorizing interception. As illustrated by these titles, the thrust of Chapter
4
Brenner v. Village Green, Inc., 2000 WL 972649, at *1 (Del. Super. May 23, 2000)
(citing E.I. duPont de Nemours Co. v. Admiral Ins. Co., 711 A.2d 45, 55 (Del. Super. 1995)).
4
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I.D. No. 1412017874
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24, Subchapter I, and Section 2407 is the interception of electronic
communications. Thus, the proper question is whether Section 2407 allows for the
interception of a cellular communication when that communication is intercepted in
the State, but has neither been sent nor received by a portable communication
device that is located in the State. This question is one of first impression in
Delaware. To answer this question, the Court will read the statute with the
objective of giving effect to the intent of the legislature.
The United States Congress’ enactment of Title III of the Omnibus Crime
Control and Safe Streets Act of 1968 set minimum standards for the interception of
oral, wire, and electronic communications during criminal investigations.5 States
were subsequently required to enact legislation that was at least as protective of
citizen’s rights as Title III.6 The federal wiretap statute is found at 18 U.S.C. §§
2510-2520. Delaware’s responsive statute was patterned on the federal statute and
originally codified at 11 Del. C. § 1336.7 Section 1336 was repealed in 1999 and
replaced by 11 Del. C. §§ 2401-2434.8 The 1999 changes were necessary “to
become current with the emerging technology,”9 and were “based upon federal and
other states’ wiretap and interception laws.”10 In 1990, the court in State v. Perry
5
Mustafa v. State, 591 A.2d 481, 483 (Md. 1991).
6
State v. Seigel, 292 A.2d 86, 94 (Md. 1972); See also, 18 U.S.C. § 2516(2).
7
State v. Marine, 464 A.2d 872, 874 (Del. 1983).
8
72 Del. Laws ch. 232, § 1 (1999).
9
Del. S.B. 208 syn., 140th Gen. Assem. (1999).
10
Id.
5
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noted that the federal wiretap statute and Delaware’s wiretap statute were “in all
material respects virtually identical.”11 Despite amendments to both the federal
statute and the Delaware statute, this remains true today. Noting the absence of
Delaware case law, the Perry court used federal case law to interpret similar
language in the Delaware statute. This Court is also faced with an absence of case
law relating to the issue of territorial jurisdiction under Section 2407, and will
therefore rely in part on federal case law.
11
State v. Perry, 599 A.2d 759, 761 (Del. Super. 1990) (citing United States v. Swan, 545
F. Supp. 799, 804 (D. Del. 1982)).
6
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I.D. No. 1412017874
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To determine the statutory limitations on the interception of cellular
communications, it is necessary to understand the terms used in Section 2407 as
defined by the statute. Section 2401 defines “intercept” to mean “the aural or other
acquisition of the contents of any wire, oral or electronic communication through
the use of any electronic, mechanical or other device.”12 An “aural transfer” is
defined as “a transfer containing the human voice at any point between and
including the point of origin and the point of reception.” 13 An “electronic
communication” is defined as “any transfer of signs, signals, writing, images,
sounds, data or intelligence of any electromagnetic, photoelectronic or photooptical
system.” 14 The definitions of “intercept” and “aural transfer” are identical
verbatim, and the definition of “electronic communication” is materially identical,
to the definitions found in the federal statute.15
12
11 Del. C. § 2401(10).
13
11 Del. C. § 2401(2).
14
11 Del. C. § 2401(5).
15
Compare 18 U.S.C. § 2510(4), (12), (18) with 11 Del. C. § 2401(2), (5), (10).
7
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These definitions apply to all subsequent sections of Delaware’s wiretap
statute. The specific language governing the issuance of an ex parte order
authorizing interception is contained in Section 2407(c)16 and is analogous to the
relevant Title III language found at 18 U.S.C. § 2518(3).17 The only substantive
differences between the federal statute and the Delaware statute concern
jurisdictional boundaries. A federal judge may approve an interception “within the
16
Section 2407(c)states:
(c) Issuance of order.--
(1) Upon the application a judge may enter an ex parte order, as requested
or as modified, authorizing interception of wire, oral or electronic
communications within the territorial jurisdiction permitted under
paragraph (c)(2) or (3) of this section, . . .
(2) Except as provided in paragraph (c)(3) of this section, an ex parte order
issued under paragraph (c)(1) of this section may authorize the
interception of wire, oral or electronic communications only within the
territorial jurisdiction of the court in which the application was filed.
(3) If an application for an ex parte order is made by the Attorney General
or other designee, an order issued under paragraph (c)(1) of this section
may authorize the interception of communications sent or received by a
mobile telephone anywhere within the State so as to permit the
interception of the communications regardless of whether the mobile
telephone is physically located within the jurisdiction of the court in which
the application was filed at the time of the interception; however, the
application must allege that the offense being investigated may transpire in
the jurisdiction of the court in which the application is filed.
17
18 U.S.C. § 2518(3) states:
Upon such application the judge may enter an ex parte order, as requested or
as modified, authorizing or approving interception of wire, oral, or electronic
communications within the territorial jurisdiction of the court in which the
judge is sitting (and outside that jurisdiction but within the United States in
the case of a mobile interception device authorized by a Federal court within
such jurisdiction), . . .
8
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territorial jurisdiction of the court in which the judge is sitting (and outside that
jurisdiction but within the United States in the case of a mobile interception device
authorized by a Federal court within such jurisdiction).”18 The Delaware statute
substitutes this language with subsections 2407(c)(2) and (3). These subsections
allow a judge to approve an interception within the territorial jurisdiction of the
court, and in certain cases for interception anywhere within the State so long as the
offense being investigated transpired within the court’s jurisdiction.19 Thus, with
allowances for the jurisdictional range of a federal court versus the jurisdictional
range of a state court, the two statutes are materially identical.
The Delaware statute allows for the interception of electronic signals
When those signals are intercepted within the State without regard to
The location of the communication devices
18
18 U.S.C. § 2518(3).
19
11 Del. C. § 2407(c).
9
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I.D. No. 1412017874
March 22, 2016
Because the application for the wiretap order in the case sub judice was filed
by the Attorney General’s office, the specific subsection at issue is 11 Del. C. §
2407(c)(3). The language being challenged states that an order “may authorize the
interception of communications sent or received by a mobile telephone anywhere
within the State so as to permit the interception of the communications regardless of
whether the mobile telephone is physically located within the jurisdiction of the
court in which the application was filed at the time of the interception.” Brinkley
argued that this language was subject to only one interpretation. The words
“anywhere in the State” must modify the immediately preceding words, “mobile
20
telephone,” and not the words “interception of communications. Under
Brinkley’s interpretation, the statute would not allow for the interception of wireless
communications unless the communication was sent or received by a mobile
telephone that was located within the State. For reasons discussed below, this
interpretation defies as well as transmogrifies legislative intent, is contrary to
interpretations found in federal cases and in cases decided by our sister states with
similar statutes, and is fraught with unintended consequences.
The language of the statute is subject to more than one reasonable
interpretation. A reading of the phrase “anywhere within the State” as modifying
“the interception of communications” is also a plausible translation. Under this
reading, the statute would allow for the interception of wireless communications
20
Defendant Jermaine Brinkley’s Reply Memorandum of Law in Support of Motion to
Suppress Wiretap Evidence, ID No. 1412017874, at 18 (Del. Super. Jun. 16, 2015) [hereinafter
Defendant’s Reply Brief].
10
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I.D. No. 1412017874
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when the communication was sent, received, or intercepted in the State. This
interpretation places the emphasis on the point of interception rather than on where
the highly mobile cellular device was located at the time of interception.
Moreover, this interpretation is widely accepted and allows courts to give effect to
the intent of the legislature.
In 1999, Delaware passed an act to amend the portion of the Delaware Code
related to wiretapping, electronic surveillance, and interception of
communications.21 The act repealed the State’s existing wiretap law, which at that
time was codified at 11 Del. C. § 1336, and replaced it with Chapter 24 of title 11.
Chapter 24 is a more comprehensive regulation and was passed with the specific
intent of updating the existing wiretap statutes.22 The legislature realized the need
to become current with emerging technologies and made changes related to airwave
transmissions, and electronic devices such as pagers and cellphones. 23 These
changes were based upon similar changes to federal and other states’ wiretap laws.
Portions of the statute relating to electronic surveillance and interception of
communications were codified in sections 2401 through 2412. Among the
definitions added by the act were definitions for aural transfer, electronic
communication, and electronic storage.24 Verbiage relating to “intercepted wire or
oral communications” was changed to read “intercepted wire, oral, or electronic
21
Del. S.B. 208, 140th Gen. Assem., 72 Del. Laws ch. 232 (1999).
22
Del. S.B. 208 syn., 140th Gen. Assem. (1999).
23
Id.
24
11 Del. C. § 2401.
11
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communication.” In summary, the changes to the Delaware wiretap law were
drafted to govern emerging technologies such as cellular communications. The
changes illustrate a clear intent to evolve the statute in response to emerging
technologies, and supports an interpretation that places the emphasis on the point of
interception.
Adopting the interpretation urged by Brinkley would frustrate the intent of
the legislature. Such a narrow reading would render the law ineffectual by
requiring police officers operating under a valid wiretap warrant to cease
interception efforts whenever parties subject to the intercept crossed state lines.
Cellular telephones are now ubiquitous and by their nature are highly mobile.
These attributes create unique challenges for law enforcement that were not present
when the wiretap statutes were first passed decades ago. Law makers have
attempted to compensate for the developmental speed and widespread use of these
emerging technologies, and it is with this intent that the statute must be interpreted.
Under Brinkley’s proposed interpretation, foiling law enforcement efforts to gather
evidence under a wiretap order would simply require suspects operating in
Delaware to simply cross into Maryland, Pennsylvania, or New Jersey to
communicate before returning to Delaware to perform a criminal act. Requiring
law enforcement to obtain warrants from each state would place an undue burden
upon agencies seeking to infiltrate organizations that may cross state lines on a
regular basis. The logistical problems and costs involved in maintaining multiple
12
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listening posts,25 each operating under the supervision of a different judge, would
render the wiretap statute impotent.
25
A “listening post” is a physical location where law enforcement officers are located
and first hear the intercepted communications. See Davis v. State, 43 A.3d 1044, 1046, 1047
(Md. 2012).
13
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In addition, multiple wiretap orders would have an impact on the individual
privacy rights that Title III and Chapter 24 seek to protect. It is worth noting that
Title III and Chapter 24 generally prohibit wiretapping without the express consent
of the courts. The interception of private communications is as much an invasion
of a citizen’s privacy as is the search of their house. Thus, a warrant must issue
from a court before proceeding with the interception of communications just as a
warrant must issue from a court before a home can be searched. The court’s role is
to ensure the warrant is necessary, that the warrant complies with constitutionally
guaranteed rights, and that the scope of the warrant is limited to the greatest extent
possible. Requiring wiretap orders in each jurisdiction where a cellular
communication device might travel would diffuse oversight responsibilities. “[B]y
diffusing oversight responsibilities, it might weaken the courts’ ability to protect
citizens’ privacy by monitoring the wiretap process.” 26 Minimization and
durational requirements would be better tracked by a single court, thus avoiding
unnecessary or unnecessarily long interceptions. Individual privacy rights are
better preserved when a wiretap order for a cellular device is issued and monitored
by one judge.
The legislative history of Delaware’s wiretap statutes, as well as analogous
federal and state cases discussed infra, demand a broader reading of the statute than
that urged by Brinkley. Based on the foregoing, the proper interpretation of 11
Del. C. § 2407(c) would be that the interception of any electronic signal within the
26
United States v. Cano-Flores, 796 F.3d 83, 87 (D.C. Cir. 2015).
14
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State, without regard to where the signal originated or where it was received, is
lawful under the statute. By definition, an interception is the aural acquisition of
an electronic communication, and an aural transfer is “a transfer containing the
human voice at any point between and including the point of origin and the point of
reception.” Thus, as long as the aural acquisition of the electronic communication
occurs within the State, the interception is valid.
Federal case law supports the interception of signals within the State
Regardless of where the signal originated or where it was received
A definition allowing the interception of any electronic signal within the
State, without regard to where the signal originated or where it was received, is
supported by federal case law. Although made prior to the 1999 changes to the
Delaware statute, the federal wiretap statutes also underwent changes to account for
emerging technologies. In 1986, the statutes were amended to account for
electronic communications. 27 Several federal courts, including all courts of
appeals to have addressed the issue, have interpreted the amended federal statute as
allowing interception when the interception occurs in the jurisdiction of the court
issuing the wiretap order without regard for where the call originated or where it
27
The Electronic Communications Privacy Act of 1986, 100 Stat. 1848 (1986). The Act
amended, inter alia, most instances of oral and wire communication to read oral, wire, and
electronic communication, and inserted the jurisdictional limitation found in Section 2518(3).
The jurisdictional language, “(and outside that jurisdiction but within the United States in the
case of a mobile interception device authorized by a Federal court within such jurisdiction),” is
similar to the jurisdictional language in Delaware’s statute in that it allows for interception
anywhere within the court’s jurisdiction.
15
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I.D. No. 1412017874
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was eventually received.28
28
See Cano-Flores, 796 F.3d at 86-87 (upholding a district court ruling that an
interception of a conversation that originated and was received in Mexico, but was intercepted in
Texas, was lawful); United States v. Henley, 766 F.3d 893, 911-12 (8th Cir. 2014) (agreeing with
the Second and Fifth Circuits’ holdings that “interception includes both the location of a tapped
telephone and the original listening post, and that judges in either jurisdiction have authority
under Title III to issue wiretap orders.”); United States v. Luong, 471 F.3d 1107, 1109-10 (9th
Cir. 2006) (“The most reasonable interpretation of the statutory definition of interception is that
an interception occurs where the tapped phone is located and where law enforcement officers
first overhear the call.”); United States v. Jackson, 207 F.3d 910, 914-15 (7th Cir. 2000), vacated
on other grounds, 531 U.S. 953 (2000) (upholding a wiretap order where a judge for the Northern
District of Illinois authorized the interception of calls made and received in the Southern District
of Illinois); United States v. Denman, 100 F.3d 399, 402-03 (5th Cir. 1996) (“We agree with the
reasoning of the Second Circuit and now hold that interception includes both the location of a
tapped telephone and the original listening post, and that judges in either jurisdiction have
authority under Title III to issue wiretap orders.”); United States v. Tavarez, 40 F.3d 1136, 1138
(10th Cir. 1994) (“[T]he location of an ‘interception’ . . . includes the place where the intercepted
communication is heard.”).
16
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The seminal case involving wiretaps under Title III is United States v.
Rodriguez. 29 In Rodriguez, a wiretap authorized by the United States District
Court for the Southern District of New York allowed for the interception of calls
30
involving a New Jersey phone. Although Rodriguez pled guilty, his
co-defendants were convicted of crimes related to the manufacture and distribution
of crack cocaine based on evidence derived from the wiretap.31 The co-defendants
challenged the conviction by arguing that the Southern District of New York court
did not have jurisdiction to authorize the wiretaps on New Jersey phone numbers
and therefore any evidence derived from the wiretaps should have been
suppressed. 32 The district court ruled that the interception was within its
jurisdiction because “the telephone communications were actually heard and
recorded at United States Drug Enforcement Administration (“DEA”) headquarters
in Manhattan, which is within the Southern District of New York.” 33 Title III
authorizes a judge to intercept “electronic communications within the territorial
jurisdiction of the court in which the judge is sitting.”34 On appeal, the Second
Circuit noted that because “the definition of interception includes the ‘aural’
acquisition of the contents of the communication, the interception must also be
29
United States v. Rodriguez, 968 F.2d 130 (2d Cir. 1992).
30
Id. at 134-35.
31
Id. at 134.
32
Id. at 135.
33
Id.
34
18 U.S.C. § 2518(3).
17
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considered to occur at the place where the redirected contents are first heard.”35
Because the place where the calls were first heard was a listening post in
Manhattan, and thus within the jurisdiction of the Southern District of New York,
the Second Circuit Court of Appeals determined that the defendant’s motion to
suppress the evidence obtained through the wiretaps was properly denied.36
35
Rodriguez, 968 F.2d at 136.
36
Id.
18
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Perhaps more analogous to the case sub judice is the United States Court of
Appeals, District of Columbia Circuit, case of United States v. Cano-Flores.37 In
Cano-Flores, the defendant appealed his conviction for conspiring to manufacture
and distribute cocaine and marijuana for importation to the United States.38 The
evidence used in securing the defendant’s conviction was gathered by the DEA
through the use of wiretaps authorized by various federal judges in the United
States District Court for Southern District of Texas. The defendant argued that the
wiretap orders exceeded the jurisdiction of the district court because the orders
targeted calls that originated and were received in Mexico. The district court
found the interceptions lawful because “they had taken place not in Mexico, but in
the DEA wire room located in Houston, Texas (a location within the Southern
District of Texas) after they had been accessed by cellular towers located in the
United States.”39 Noting the Rodriguez court finding “that besides occurring at the
site of the telephone, an interception ‘must also be considered to occur at the place
where the redirected contents are first heard,’” 40 and further noting that every
appellate court to rule on the issue has followed Rodriguez, the D.C. Court of
37
United States v. Cano-Flores, 796 F.3d 83 (D.C. Cir. 2015).
38
Id. at 86.
39
Id. (internal quotations omitted). Although the communications could not be
intercepted unless the cellular signals accessed cellular towers located within the United States,
the case is significant because the interception was allowed despite the fact that the entire
intercepted conversation originated and was received in a foreign country.
40
Id. (quoting Rodriguez, 968 F.2d at 136).
19
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Appeals upheld the district court ruling.41
41
Id. at 95.
20
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Rodriguez provided the seminal interpretation of jurisdictional limits under
the federal wiretap statute as codified at 18 U.S.C. § 2518(3). All seven courts of
appeals that have considered these jurisdictional limits have adopted the Rodriguez
interpretation. Courts in Cano-Flores and United States v. Cosme42 each found
that the interception of phone calls that originated in Mexico and were received in
Mexico were lawfully intercepted in the United States when the listening post was
located within the jurisdiction of the judge issuing the wiretap order. This vast
body of federal case law rejects the narrow reading of the statute urged by Brinkley.
Courts in other states follow Rodriguez and allow the interception of
Signals within the state regardless of where the signal originated or
Where it was received
42
United States v. Cosme, 2011 WL 3740337, at *1 (S.D. Cal. Aug. 24, 2011) (refusing
to suppress evidence derived from a wiretap where the communication was intercepted in San
Diego even though the entire duration of the intercepted conversation took place between two
cellular phones located in Mexico).
21
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Numerous courts from our sister states have also adopted the Rodriguez
interpretation. The Maryland wiretap statute uses jurisdictional language that is
substantially identical to the language found in the Delaware statute.43 In Davis v.
State, the Court of Appeals of Maryland adopted the federal gloss when it
determined the proper jurisdiction for an ex parte wiretap order. 44 In Davis, a
defendant’s phone call that originated in Virginia and was received in Virginia was
intercepted in Montgomery County in Maryland.45 The court noted the Maryland
wiretap statute had been evolving to keep pace with emerging technologies, and that
legislative history as well as developed federal case law provided a persuasive
approach for interpreting the Maryland statute in a manner similar to that in
Rodriguez.46 In a well reasoned and lengthy opinion, the Davis court held that the
interception of the Virginia phone call at a listening post in Montgomery County
was lawful and the denial of the motion to suppress evidence derived from the
interception was proper.47 Other states have also allowed jurisdiction based
43
Md. Code Ann., Cts. & Jud. Proc. § 10-408 (West 2016) states in pertinent part:
[M]ay authorize the interception of communications received or sent by a
communication device anywhere within the State so as to permit the
interception of the communications regardless of whether the communication
device is physically located within the jurisdiction of the court in which the
application was filed at the time of the interception. The application must
allege that the offense being investigated may transpire in the jurisdiction of
the court in which the application is filed.
44
Davis v. State, 43 A.3d 1044, 1046 (Md. 2012).
45
Id. at 1047.
46
Id. at 1051.
47
Id. at 1055.
22
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upon the point of interception. The Tenth Circuit interpreted the Oklahoma
wiretap statute to allow a district attorney for Judicial District 21, where the
listening post was located, to apply for a wiretap order for telephones in District
19.48 The Supreme Court of New Jersey stated that “a wiretap order signed by a
New Jersey judge can empower investigators located in New Jersey to monitor
intercepted conversations here, even if both parties to the call are outside the
State.”49 The Supreme Court of Georgia held that state law vested in the superior
courts the authority to issue wiretap warrants when the tapped phones or listening
post were located in the courts’ jurisdiction. 50 The Court of Appeals of South
Carolina found that “a judge has the power to order interception within South
Carolina on the basis of either the phone being located in South Carolina or law
enforcement officers listening to the call in South Carolina.”51
Brinkley points to the Texas Criminal Court of Appeals case of Castillo v.
State to support his contention that other states have adopted his interpretation of
the wiretap statute.52 Both the Davis case from Maryland and the Ates case from
New Jersey cite Castillo as an example of a state not adopting an interpretation
48
Tavarez, 40 F.3d at 1138.
49
State v. Ates, 86 A.3d 710, 718 (N.J. 2014).
50
Luangkhot v. State, 736 S.E.2d 397, 401 (Ga. 2013). The Supreme Court of Georgia
held that a superior court did not have the authority to grant a wiretap order when the interception
took place outside of the court’s jurisdiction, but stated that “current state law vests the authority
to issue wiretap warrants only in those superior courts of the judicial circuits in which the tapped
phones or listening post are located.” Id.
51
State v. Guerrero-Flores, 741 S.E.2d 577, 580 (S.C. Ct. App. 2013).
52
Defendant’s Reply Brief, supra note 20, at 22.
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I.D. No. 1412017874
March 22, 2016
holding that “interception” occurs where the communication is captured or
redirected and where the contents of the communication was originally heard. 53
However, Castillo was decided prior to the Second Circuit’s decision in Rodriguez,
and although it is true that in 1990 the Castillo court interpreted the existing wiretap
statute to mean that “a communication is ‘intercepted’ where the wiretap device is
physically placed,”54 the statute was amended in 1997 so that a judge of competent
jurisdiction may authorize a wiretap when the communication is intercepted in the
judicial district. 55 Thus, the proposition in Castillo that a communication is
intercepted where the wiretap device is physically placed as opposed to where the
interception is monitored has been overturned by the Texas legislature.56
53
Davis, 43 A.3d at 1053; Ates, 86 A.3d at 721.
54
Castillo v. State, 810 S.W.2d 180, 183 (Tex. Crim. App. 1990).
55
Wiretapping-Civil and Criminal Consequences, 1997 Tex. Sess. Law Serv. Ch. 1051
(S.B. 1120) (Vernon’s).
56
Tex. Crim. Proc. Code Ann. art. 18.20, § 3(b) reads in pertinent part:
(b) Except as provided by Subsection (c), a judge appointed under Subsection
(a) may act on an application for authorization to intercept wire, oral, or
electronic communications if the judge is appointed as the judge of competent
jurisdiction within the administrative judicial district in which the following is
located:
(1) the site of:
(A) the proposed interception; or
(B) the interception device to be installed or monitored;
(2) the communication device to be intercepted;
(3) the billing, residential, or business address of the subscriber to the
electronic communications service to be intercepted;
(4) the headquarters of the law enforcement agency that makes a request
for or executes an order authorizing an interception; or
(5) the headquarters of the service provider.
24
State v. Jermaine Brinkley
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Brinkley also points to the California Penal Code in support of his
interpretation. Although Brinkley correctly notes that the code states that “the
judge may enter an ex parte order, as requested or modified, authorizing
interception of wire or electronic communications initially intercepted within the
territorial jurisdiction of the court in which the judge is sitting,”57 this language has
yet to be interpreted by the California courts. The words “initially intercepted”
were added to the statute in 2000.58 This indicates an attempt by the California
legislature to update the existing code to contend with electronic communications
just as the federal government made changes in 1986 and Delaware made changes
in 1999. When the California courts do interpret this provision, they may well
follow the vast majority of courts that have considered the issue before them and
adopt the federal gloss.
In summary, the consideration of legislative intent, the consequences of
different particular constructions of the statute, and abundant persuasive case law
lead this Court to adopt the same federal gloss that has been adopted by so many
other courts. The pertinent language in 11 Del C. § 2407(c)(3) should read so that
“anywhere within the State” modifies “interception.” This Court holds that a
wiretap order is lawful when it authorizes the interception of signals within the
State without regard to the location of the communication devices. Thus, the
wiretap order issued in the instant case was lawful, and Brinkley’s motion to
57
Cal. Penal Code § 629.52 (West 2015).
58
Crimes-Juveniles-Gang Violence, 2000 Cal. Legis. Serv. Prop. 21 (WEST).
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suppress evidence based upon a reconsideration of this issue is DENIED.
B. Brinkley has Failed to Show Newly Discovered Evidence, a
Change in the Law, or Manifest Injustice and Thus is Not
Entitled to an Evidentiary Hearing.
Brinkley also requests that this Court reevaluate its denial of his right to an
evidentiary hearing. “[A] defendant in a criminal proceeding, subsequent to the ex
parte issuance of a search warrant, has a constitutional right to an evidentiary
hearing to challenge the veracity of supporting affidavits if the defendant makes a
‘substantial preliminary showing’ that (1) the affiant included a false statement in
the affidavit knowingly and intentionally, or with reckless disregard for the truth,
and (2) the false statement is necessary to the finding of probable cause.” 59
Brinkley claims he had made the required “substantial preliminary showing” that
the police knowingly and intentionally or with reckless disregard for the truth relied
on false statements to establish probable cause.60 However, even if Brinkley had
made this showing, the right to an evidentiary hearing under Franks v. Delaware61
requires more. Not only was Brinkley required to show that the challenged
statements, if false, were made knowingly, intentionally, or with reckless disregard,
but he was also required to show the challenged statements were necessary for a
finding of probable cause. Brinkley failed to meet that burden.
59
Lampkins v. State, 465 A.2d 785, 791 (Del. 1983) (citing Franks v. Delaware, 438
U.S. 154, 155-56 (1978)).
60
Defendant’s Motion for Reargument, ID No. 14120178, at 5 n.8 (Del. Super. Nov 25,
2015).
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State v. Jermaine Brinkley
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In his reply memorandum, Brinkley claimed law enforcement misrepresented
or recklessly disregarded the truth with regard to eight specific issues. These
issues were 1) the status of Brinkley’s charges in cases number 1403019846
relating to drug and weapon charges; 2) the ability to use pole cameras; 3) the
difficulty of conducting physical surveillance; 4) the length of the investigation; 5)
the existence of a single organized entity; 6) the alleged compartmentalized and
sophisticated nature of the organization; 7) the ability to attach a GPS device to
Geoboris White’s car; and 8) the reliability of the confidential informants.62
61
Franks v. Delaware, 438 U.S. 154 (1978).
62
Defendant’s Reply Brief, supra note 20, at 5.
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This Court’s decision on the motion to suppress wiretap evidence discussed a
number of these issues, and found demands for a Franks hearing to be unwarranted.
Disposing of each argument in turn, Brinkley first stated that the November 19
Affidavit misrepresented the status of drug and weapons charges against him. The
affiant claimed the charges were still pending, and failed to mention the charges
were going to be dismissed until forty-five pages further into affidavit. Brinkley
claims the failure to mention that the charges were going to be dismissed until later
in the affidavit was an attempt to “preserve the illusion of continuous criminality.”63
Brinkley acknowledged that “the Attorney General’s office had decided to dismiss
all charges against Brinkley prior to filing the November 19 Affidavit,” but does
not state that the charges were dismissed before the affidavit was filed. Thus, the
charges were still pending at the time, and the affiant’s statement was factually
accurate. This charge did not meet the required standard of including a false
statement in the affidavit knowingly and intentionally, or with reckless disregard for
the truth because there was no false statement.
63
Id. at 7
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Brinkley next argued that the State may have been able to use pole cameras,
and that if Delaware law enforcement agents did not possess the technology to
install a camera on a streetlight, then the DEA could have performed the
installation.64 Brinkley cites one case in support of his conclusion that the DEA
could install the pole camera.65 In determining the necessity for a wiretap, a court
will review the application and accompanying affidavits. “It is enough if the
affidavit explains the prospective or retroactive failure of several investigative
66
techniques that reasonably suggest themselves.” The State’s burden of
establishing compliance with the necessity requirement in 11 Del. C. § 2407(a)(3) is
not great. 67 “The purpose of the ‘necessity’ requirement is not to foreclose
electronic surveillance until ‘every other imaginable method of investigation has
been unsuccessfully attempted, but simply to inform the issuing judge of the
difficulties involved in the use of conventional techniques.’”68 If the utility pole
was not capable of supporting or powering a pole camera, then neither the State nor
the DEA could mount the camera. Thus, the argument that the DEA could install
the camera is conclusory. Moreover, the affiants claimed the pole camera would
64
Id. at 15.
65
Brinkley relies on United States v. Cordero to support his proposition that a streetlight
is suitable for use of a pole camera. 609 Fed. Appx. 73, 75 (3d Cir. 2015).
66
United States v. Hyde, 574 F.2d 856, 867 (5th Cir. 1978). See also State v. Miller, 449
A.2d 1065, 1068 (Del. Super. 1982).
67
State v. Perry, 599 A.2d 759, 764 (Del. Super. 1990) (citing United States v. Anderson,
542 F.2d 428, 431 (7th Cir. 1976)).
68
Id. (quoting United States v. Alfonso, 552 F.2d 605, 611 (5th Cir.1977)).
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be of little or no value. That the pole camera wasn’t installed, or that a tracking
device was not placed on a vehicle owned by Geoboris White, does not foreclose
the finding of probable cause. That these options were not vigorously pursued, or
that the State may have been mistaken in their conclusions, does not meet the
Franks criteria of “a false statement in the affidavit knowingly and intentionally, or
with reckless disregard for the truth.”
The remaining arguments were discussed in the decision denying the motion
to suppress. This Court found that the investigation had been ongoing for a long
period of time, discussed the organization as a single organized entity, described the
compartmentalization, and discussed the use of confidential informants. The
arguments offered challenged most every section in the affidavit, but there is no
showing of false statements that were made knowingly and intentionally, or with
reckless disregard for the truth. The arguments are conclusory allegations that the
affiants got the facts wrong. Brinkley has brought forth no evidence, cited a
change in the law, nor shown a manifest injustice, and his motion for reargument as
it relates to an evidentiary hearing is therefore DENIED.
IV. CONCLUSION
Based on the foregoing, the Court finds there was no basis for a reargument
of the need for an evidentiary hearing. The Court has reconsidered the argument
that the wiretap order exceeded its jurisdictional bounds and finds that it did not.
Following the Court’s reconsideration of the jurisdictional issue, the motion to
suppress the wiretap remains DENIED.
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IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge
WLW/dmh
oc: Prothonotary
xc: Lindsay A. Taylor, Esquire
John S. Malik, Esquire
32