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

IN THE SUPREME COURT OF THE STATE OF DELAWARE
CHRISTOPHER WHEELER, §
§ No. 205, 2015
Defendant Below, §
Appellant, § Court Below:
§
v. § Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. I.D. No. 1310019248
Plaintiff Below, §
Appellee. §
Submitted: January 20, 2016
Decided: March 2, 2016
Before STRINE, Chief Justice; HOLLAND, VALIHURA, VAUGHN, and SEITZ,
Justices, constituting the Court en Banc.
Upon appeal from the Superior Court. REVERSED AND REMANDED.
Thomas A. Foley, Esquire, Wilmington, Delaware for Appellant.
Andrew J. Vella, Esquire, Department of Justice, Wilmington, Delaware for Appellee.
VALIHURA, Justice:
In this direct appeal, Christopher Wheeler (“Wheeler”) seeks to overturn his
conviction of Dealing in Child Pornography. He raises two issues. First, he challenges
a September 18, 2014 decision of the Superior Court denying his Amended and
Superseding Motion to Suppress (“Motion to Suppress”). The Motion to Suppress sought
to exclude evidence collected from Wheeler’s home and office during a search executed
pursuant to two warrants related to witness tampering. The challenged warrants covered
Wheeler’s entire digital universe and essentially had no limitations. In performing the
search, officers seized 19 electronic devices and other digital media. Despite the broad,
generalized language in the challenged warrants, the State found no evidence of witness
tampering on any of Wheeler’s devices. But when performing a cursory search of the
data on an iMac found in Wheeler’s piano room closet (the “iMac”), police discovered
files containing child pornography. Wheeler contends that the search warrants were in
the nature of “general warrants” and were overly broad in scope, in violation of the
Fourth Amendment to the United States Constitution and Article I, § 6 of the Delaware
Constitution.1
Second, Wheeler appeals from a December 22, 2014 decision of the Superior
Court denying his Motion to Dismiss and/or for Judgment of Acquittal (“Motion for
Judgment of Acquittal”). Wheeler was charged with 25 identical counts of Dealing in
Child Pornography based upon 25 images of child sexual exploitation—all of which were
found on the iMac. Wheeler argues that there was insufficient evidence to convict him
1
Wheeler is joined by amicus curiae, American Civil Liberties Union Foundation of Delaware
(the “ACLU”), which filed a brief in support of reversal.
1
because the State could not establish that he was aware of the existence of the offending
images in his “newsgroup cache.” The State admits it has no proof that Wheeler ever
viewed any of the images, which automatically “cached” on his computer, with no human
intervention, as a result of his subscription to certain “newsgroups.” Wheeler was
sentenced to 50 years at Level V.
Throughout these proceedings, Wheeler has asserted that the State utilized charges
of witness tampering stemming from his admission in 2013 that he had molested two
brothers in Pennsylvania in the 1980’s as a pretext to search broadly for child
pornography. The challenged warrants in this case are the witness tampering warrants—
not the later-obtained child pornography warrant. But the State admits that the
challenged witness tampering warrants were virtual copies of an off-the-shelf warrant for
child pornography.
Because we agree that the challenged witness tampering warrants were in the
nature of “general warrants” in violation of the United States and Delaware Constitutions,
we reverse the judgments of the Superior Court and remand this matter for further
proceedings in accordance with this Opinion.
I. FACTS
A. Christopher Wheeler
Christopher Wheeler is the former headmaster at the Tower Hill School (“Tower
Hill”) in Wilmington, Delaware. He has an adult son, NK,2 whom he adopted when NK
2
Because the victims in this matter were juveniles at the time they were subject to abuse, we
have assigned pseudonyms sua sponte.
2
was twelve or thirteen.3 In the 1980’s, Wheeler lived with the “W” family in West
Chester, Pennsylvania for months at a time. The Ws took in a number of students that
attended the Westtown School, where the three W brothers went to school.4 Wheeler was
one of these students. Wheeler was approximately 16 or 17 when he began living with
the Ws. Even after he left Westtown School, Wheeler maintained a relationship with the
W family.
Approximately 35 years ago, Wheeler sexually abused two of the W brothers. In
2005, Wheeler returned to the Delaware area after having spent time in Illinois with his
adopted son. Wheeler became the headmaster of Tower Hill. In 2008, Wheeler and NK
lived with the Ws before moving onto the Tower Hill campus.
B. In 2013, the W Brothers Confront Wheeler About the Abuse Wheeler Inflicted
on Them in the Early 1980’s
After the Jerry Sandusky scandal broke, one of the W brothers, MW, resolved to
tell his two adult brothers, SW and TW, that Wheeler had molested him when he was
approximately 11 to 13 years old, at a time when Wheeler was in his early-20’s. Upon
hearing this, SW told his brothers that Wheeler had also molested him when he was
approximately 13 to 15 years old. TW told MW and SW that, although Wheeler had
never physically or sexually abused him, Wheeler had inappropriate sexual conversations
with TW when TW was a boy.
After the W brothers told each other about their past experiences with Wheeler,
MW wrote Wheeler a letter. The letter read, in part: “I shudder at the notion that you, in
3
A27 (Affidavit 1 ¶ 6).
4
A135.
3
your career, have chosen an environment that brings you into daily contact with other
boys who are as old as I was when you molested me.”5 MW’s letter also provided that
MW “wants nothing to do with Chris Wheeler ever and wants him to stay away from him
and his family.”6 MW supplied Investigator Robert Schreiber (“Investigator Schreiber”)
of the Delaware Department of Justice with a copy of the letter.
On July 20, 2013, SW also wrote Wheeler. MW provided Investigator Schreiber
with a “draft” of SW’s letter. Unlike MW’s letter, SW’s three-page letter invited a
response from Wheeler. It read, in part:
If I had known the torment, pain, humiliation, and anger that your
molestation and abuse of me as a child would cause me these 35 years later,
I would have had greater strength to stand up to you and defend myself.
The fact that you preyed upon me in my own home, from the room next to
mine, is lewd and inexcusable. The reality that you continue to shirk any
responsibility for the harm that you caused, as if it never occurred, will
continue no longer.7
* * *
I will not keep quiet and hide from your abuses any longer. I have not yet
determined how or when to tell my parents of the harm, pain, and
humiliation that you have caused. . . . The real and full truth must be told
and brought to light; beginning now.
The only thing that I am sorry for is that it has taken me this long to gain
the fortitude to bring your past abuses to the surface, to move towards
holding you accountable for your predatory and abusive actions. Despite
my pain and anger, I am curious to return part of the burden to you; what
does justice look like for Chris Wheeler for the molestation you
perpetuated, culpability you willingly evade, and the harms that you
5
A27 (Affidavit 1 ¶ 10).
6
Id.
7
A130.
4
continue to cause? What role (if any) should you play in determining
appropriate resolution to and restitution for the abuses you have caused?8
On July 23, 2013, Wheeler responded to SW’s letter. In his reply letter, Wheeler
admits his wrongdoing. It reads, in part:
I will not compound your pain by attempting to deny or in any way deflect
responsibility for my actions 35 years ago. I did those things. I am the one
responsible.
I am profoundly sorry. Some things are unforgivable, so I don’t expect
forgiveness from any of you. Nevertheless, I ask for your forgiveness.
* * *
The truth is that I have carried inside of me a profound and loud
dissonance, an ever-present reminder that some evil has been done and it
cannot be undone. And I am responsible for it.
* * *
You hoped for proof of my conscience, my contrition, my sense of
accountability. Only you know if you see proof of those things in this
letter. Regarding my compunction to make right the many wrongs that I
have committed, perhaps this letter is evidence of at least a few steps in that
direction as well. I’ll wait to hear from you about further appropriate steps
towards resolution and restitution.9
MW provided the investigators with a copy of Wheeler’s response. SW told
investigators that he still had Wheeler’s original response letter and the corresponding
FedEx envelope in his possession.
Rather than writing a letter, TW held telephone conversations with Wheeler to
arrange a face-to-face meeting at Wheeler’s home on July 25, 2013. TW also exchanged
e-mails with Wheeler, who used his Tower Hill e-mail address. According to TW, at the
8
A130-32 (emphasis added).
9
A133 (emphasis added).
5
meeting, Wheeler apologized for his previous actions and told TW that he was going to
meet with NK to tell him about his abuse of the W brothers. Wheeler also told TW that
he had recently contemplated suicide.
C. The Witness Tampering Warrants Target Wheeler’s Entire Digital Universe and
are Cut-and-Pasted from Child Pornography Warrants
On October 22, 2013, the Wilmington Police Department, working in concert with
the State of Delaware, sought and obtained two search warrants from the Superior Court.
The first search warrant (“Warrant 1”) related to Wheeler’s residence in Wilmington,
Delaware and his 2011 Chevrolet Equinox. The second warrant (“Warrant 2” and jointly
with Warrant 1, the “Witness Tampering Warrants”) was for Wheeler’s office at Tower
Hill and for the same vehicle.
The Witness Tampering Warrants were substantially similar and were each
supported by a corresponding affidavit of probable cause.10 The Witness Tampering
Warrants and Affidavits together sought to gather evidence related to two witness
tampering crimes: (1) Tampering with a Witness under 11 Del. C. § 1263(3); and (2) Act
of Intimidation of a Witness under 11 Del. C. § 3532. The affiants were Detective
Cecilia E. Ashe (“Detective Ashe”) and Chief Investigator Robert J. Irwin (“Chief
Investigator Irwin”). On the date the Witness Tampering Warrants were issued,
Detective Ashe was an officer with the Wilmington Police Department. Chief
10
For purposes of this Opinion, Warrant 1’s affidavit of probable cause is referred to as
“Affidavit 1.” Warrant 2’s affidavit of probable cause is referred to as “Affidavit 2.”
Collectively, Affidavit 1 and Affidavit 2 are referred to as the “Affidavits.” Similarly, the
applications in support of the Witness Tampering Warrants are collectively referred to as the
“Applications.”
6
Investigator Irwin was with the Delaware Department of Justice and, at the time, was
assigned to the Child Predator Task Force. Investigator Schreiber is also mentioned
throughout the Affidavits, as he provided information to Detective Ashe and Chief
Investigator Irwin.
The Affidavits are based in large part on interviews with the W brothers, and
incorporate the brothers’ statements regarding communications they had with Wheeler in
July 2013. The police also interviewed MW’s wife and the W brothers’ parents. As to
NK, the sum of the witness tampering allegations contained in the Affidavits is that an
officer of the Bluffton Police Department in Bluffton, South Carolina told Investigator
Schreiber that, while investigating an incident at NK’s South Carolina residence, NK
informed him that Wheeler would “penetrate his anus and that [NK] never previously
reported this to the authorities because [Wheeler] would pay him off.”11 The Affidavits
suggest that this took place in Illinois, but provide no other details regarding Wheeler’s
alleged tampering with NK.
The Affidavits state that MW spoke with authorities during the week of October
14, 2013. MW told personnel in the Department of Justice that approximately 35 years
ago, when he was 12 or 13 years old, Wheeler molested him. At the time, Wheeler was
22 or 23 years old. MW also stated that Wheeler molested SW when SW was a boy.12
11
A28 (Affidavit 1 ¶ 20).
12
A26 (Affidavit 1 ¶ 2). SW told Investigator Schreiber that Wheeler molested him when he
was approximately 13 to 15 years old. A28 (Affidavit 1 ¶ 15). SW stated that “the sexual abuse
took place multiple times over a period of months, possibly for a year.” A28 (Affidavit 1 ¶ 15).
7
MW advised that the sexual abuse took place when Wheeler lived at the W family
residence in West Chester, Pennsylvania.
The Affidavits refer to and quote from the italicized portions of the letters in the
previous section. The Affidavits also recount that the W brothers decided to confront
Wheeler about the abuse he had inflicted upon them. The first communication from the
W brothers to Wheeler occurred in July 2013.
According to the Affidavits, in July 2013, MW sent a letter to Wheeler,
confronting him about what had happened. TW also confronted Wheeler in a face-to-
face meeting in Wilmington, Delaware. On October 22, 2013, TW told Investigator
Schreiber, according to the Affidavits, that he and Wheeler “communicated via telephone
and e-mail using [Wheeler’s] Tower Hill [e]-[m]ail address to coordinate a meeting in
Wilmington and then to communicate since.”
The Affidavits provide that NK complained about Wheeler to MW’s mother when
visiting her home in West Chester, Pennsylvania. During a visit, NK “stated that his
father had abused him[,]” according to the Affidavits. When MW’s mother asked NK
what he meant, NK responded: “You know. You know.”
According to the Affidavits, on October 22, 2013, Investigator Schreiber contacted
Officer Anson Singleton of the Bluffton Police Department. The Affidavits then recite
the following: “Officer Singleton stated that while investigating the incident at [NK’s]
residence, [NK] told him that his dad would penetrate his anus and that he never
previously reported this to the authorities because his father would pay him off. When
the officer asked [NK] where this occurred, [NK] said it occurred when they lived in
8
Illinois.” The Affidavits did not provide a time frame as to when these events allegedly
occurred.
The first three sections of the Affidavits set forth the background of the affiants
(“Section A”), “Terms and Definitions” (“Section B”), and “Issues of Staleness
Associated with [C]omputer [I]nvestigations” (“Section C”). Sections A and B highlight
the extensive background of Chief Investigator Irwin in the area of crimes against
children, and generally describe electronic data, electronic filing systems, hard drives,
storage media, and Internet and local networks. The broad, sweeping “staleness” section,
comprised of five paragraphs, emphasizes that digital data can often be forensically
recovered “years after it [i]s written.”13
Against the backdrop of this boilerplate language, which underscores technology’s
capacity to preserve digital data for lengthy periods of time and the ability of forensic
experts to recover it, the concluding paragraphs of the Affidavits recite the history and
facts underlying the complaint (“Section D”). The concluding paragraphs of Section D
refer to documents, e-mails, and “other electronically stored communications,” and state
that cellular phones may contain evidence, including text messages and e-mails.
Although the investigators had copies of the letters referenced above, the Affidavits state
that “there may be evidence of written communications at the residence and the personal
work place [sic] of the subject” and that “[w]ritten communications were sent to the
13
Section C also states that, “[w]ith the advent of larger capacity hard-drives, removable media,
and CD/DVD burners over the past several years, the retention and therefore recovery of, data
from digital media has greatly increased.” A25. With respect to DVDs and CDs, Section C
observes that “[t]he data stored on them is highly stable and not usually subject to corruption
barring physical damage to the media itself.” A25-26.
9
victims . . . .” The affiant averred that “evidence of this correspondence may be envelope
[sic], letters, address books and handwritten notes.”
Later on October 22, 2013, the Wilmington Police Department and the State of
Delaware obtained the Witness Tampering Warrants.14
Despite mention of written communications in the Affidavits, the Witness
Tampering Warrants listed, under “ITEMS TO BE SEARCHED FOR AND SEIZED[,]”
the following broad categories of items:
2. Search the following location within the residence described herein the
application and affidavit [sic] to include but not limited to: locked or unlocked
safes, boxes, bags, compartments, storage areas or things in the nature thereof,
found in or upon said residence that could be used to contain evidence[.]
3. Any personal computer, computer system, device or component to include
desktop(s), laptop(s), notebook(s), PDA(s), or tower style systems capable of
storing, retrieving, and/or processing magnetic, digital or optical data and in
particular any such devices capable of connecting to or communicating with
the Internet or Internet Service Providers by any means including dial-up,
broadband, or wireless services.
4. Any digital or optical data storage device connected to, capable of being
connected to, read by, or capable of being read by, any item described in
paragraph 4, to include: internal or external hard drives (found within or
without any item seized pursuant to paragraph 4), mass storage devices, pen
drives, smart cards, compact disks(CD), compact disk – recordable (CD R) or
re-writable (CD RW), floppy diskettes, DVD+/- R or RW, or any other such
device that stores digital data optically, electronically, or magnetically.
5. Any cellular telephone, to include the registry entries, call logs, pictures, video
recordings[,] text messages, user names, buddy lists, screen names, telephone
numbers, writings or other digital material as it relates to this investigation.
14
The Applications, with respect to the items to be searched for and seized, are substantially
similar to the Witness Tampering Warrants. Compare A19, with A21-22. Compare A31, with
A33-34.
10
6. Any digital camera, digital video camera, optical camera, optical video camera,
cell phone, or other device capable of capturing and storing to any media,
photographs or images and the associated media there from [sic].
7. Any and all data, and the forensic examination thereof, stored by whatever
means on any items seized pursuant to paragraphs 4, 5, and 6, as described
above 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.
8. Any file, writing, log, artifact, paper, document, billing record or other
instrument, stored electronically or in printed form, which relates to or
references the owner of items seized pursuant to paragraphs [] 2, 3, 4, 5, 6, 7
and 8, as described above.15
After reviewing the Affidavits, a Superior Court judge (the “Issuing Judge”)
determined that there was probable cause for a search and seizure of Wheeler’s property.
The Witness Tampering Warrants were then issued.
D. The Search and Seizure
During the evening of October 22, 2013, law enforcement officers executed the
warrants for Wheeler’s home and office at Tower Hill. The team seized several
computers and other electronic devices, including: (1) two iMacs; (2) a Mac PowerBook
G4; (3) two external hard drives; (4) two iPhones; (5) a Tungsten Palm; (6) an iPad; (7) a
MacBook Pro; (8) 26 CDs; and (9) 23 DVDs.
After the Witness Tampering Warrants were executed, Sergeant Kevin Perna of
the Delaware State Police Department (“Sergeant Perna”)—a forensic examiner who, at
the time, had performed nearly 500 forensic examinations and taught classes related to
the subject at a local law school and the Delaware police academy—conducted a forensic
15
A19 (Warrant 1 ¶¶ 2-8) (emphasis added); A31 (Warrant 2 ¶¶ 2-8) (emphasis added).
11
search of the seized devices using EnCase. This was his first forensic examination using
EnCase, a software program utilized by law enforcement to forensically examine
computers and other electronics. Using this software, a forensic examiner can perform
keyword searches, access files that a standard computer search would not uncover, and
view “all the contents on [a] hard drive . . . .”16
Despite orders from Chief Investigator Irwin that directed Sergeant Perna to
search for “text-type” documents, Sergeant Perna’s forensic evaluation of Wheeler’s data
captured “image files” and “video files.”17 Sergeant Perna acknowledged that video and
image files were not implicated in the context of this case and were not subsumed within
his “more restrictive” marching orders from Chief Investigator Irwin.18
Sergeant Perna also acknowledged that the EnCase software enabled him to filter
Wheeler’s data by limiting the search results to certain file extensions, such as .doc, .text,
.pdf, which were among the items he was seeking, and that he could have removed image
and movie video files. He testified as follows:
Q. . . . So had you put those kind of conditions [sic] in, it would have
restricted the files that would have popped up and you would not have seen
video or image files; correct?
A. Yes.19
Instead of restricting his search, Sergeant Perna performed a review of the “folder
structure” on the iMac, including the “Desktop” folder, which enabled him to review all
16
A185 (Tr. 14:3-6).
17
See A194 (Tr. 47:6-8).
18
A193 (Tr. 43:10-13); A194 (Tr. 47:16-23).
19
A194 (Tr. 48:10-14).
12
of Wheeler’s digital files. He stated that he prefers to “see all of the files, . . . [so that he
can] find the ones that are pertinent and things that are not pertinent.”20 This cursory
search of the files on the hard drive of the iMac occurred while Sergeant Perna ran a
keyword search using the terms “witness intimidation” and “witness tampering.” During
this cursory review, he found files that appeared to be video files. Because these files—
labeled “GERBYS II” and “hippodrome boys large”—seemed suspicious, Sergeant Perna
asked Detective Scott Garland (“Detective Garland”) if he was familiar with them.
Detective Garland explained that these titles were related to child pornography.
Based upon Sergeant Perna’s discovery of these two files, on October 29, 2013,
the State obtained an additional search warrant from the Kent County Superior Court to
search previously seized devices for child pornography (the “Child Pornography
Warrant”).21 The Child Pornography Warrant authorized the search and seizure of digital
devices the investigators already had in their custody.22 The State did not open the video
files until it obtained the Child Pornography Warrant.23 After viewing the files, the State
sought and obtained an indictment against Wheeler on charges of Dealing in Child
Pornography under 11 Del. C. § 1109(4).
E. The Indictment
20
A197 (Tr. 62:19-21).
21
On October 23, 2013, a separate search warrant was obtained for Wheeler’s 2011 Chevrolet
Tahoe. On October 25, 2013, the State also obtained a search warrant for Wheeler’s airplane.
22
The application for the Child Pornography Warrant contained a broad “catch-all” provision
that was nearly identical to the catch-all provision in the Witness Tampering Warrants, all of
which permitted the search, seizure, and forensic examination of “[a]ny and all data” on
Wheeler’s devices.
23
Wheeler correctly maintains that, if his challenge to the Witness Tampering Warrants is
successful, all evidence seized and recovered thereafter represents “fruit of the poisonous tree.”
13
On December 9, 2013, a Grand Jury returned an indictment against Wheeler. The
indictment charged Wheeler with 25 counts of Dealing in Child Pornography in violation
of 11 Del. C. § 1109(4). In relevant part, the statute provides:
A person is guilty of dealing in child pornography when: . . . (4) The
person, intentionally compiles, enters, accesses, transmits, receives,
exchanges, disseminates, stores, makes, prints, reproduces or otherwise
possesses any photograph, image, file, data or other visual depiction of a
child engaging in a prohibited sexual act or in the simulation of such an
act.24
Of the 19 devices seized from Wheeler’s home and office, three contained images
of child pornography. The indictment was based upon 25 images recovered from the
newsgroup cache on Wheeler’s iMac. The iMac itself had not been turned on since
September 29, 2012.25 Of the 25 images of child pornography, only one was cached after
2009. Specifically, one image was cached on September 2, 2005, one image was cached
on January 1, 2010, and the remaining images were cached between July and September
2009.
F. The Motion to Suppress
On May 5, 2014, Wheeler filed the Motion to Suppress. On May 23, 2014, the
Superior Court held a hearing on the Motion to Suppress. The State presented the
testimony of Sergeant Perna. Wheeler presented testimony from his expert witness, Tami
L. Loehrs (“Loehrs”). Sergeant Perna testified that he was looking for evidence of
witness tampering and witness intimidation, particularly in the form of “text-type”
24
11 Del. C. § 1109(4).
25
A245 (Tr. 49:5-10). As Sergeant Perna testified, the forensic significance of the date of last
access merely signified the date on which the computer was last powered on, and it did not
reflect that any newsgroup or newsreader was accessed on that date. A245 (Tr. 49:11-17).
14
documents. On cross-examination, he agreed that the Witness Tampering Warrants’ lists
of items to be searched for and seized were “almost virtually identical to exactly the list
[one] would see in a child pornography case.” He also agreed that the Witness
Tampering Warrants essentially had no limitations and that the warrants, on their face,
were “wide open.”
The Superior Court heard final arguments from the parties on the Motion to
Suppress on July 11, 2014. The State, again, conceded that the substance of the Witness
Tampering Warrants “could be viewed as a cut-and-paste from a [warrant related to]
child porn[.]”26 Further, at oral argument before this Court, the State conceded that the
Witness Tampering Warrants did not contain “anything particularized from the evidence
that they were . . . searching.”27
On September 18, 2014, the Superior Court issued its Opinion denying Wheeler’s
Motion to Suppress.28 The Superior Court did not explicitly address the issue of whether
the Witness Tampering Warrants were general warrants in violation of the Fourth
Amendment to the United States Constitution, Article I, § 6 of the Delaware Constitution,
and 11 Del. C. § 2307(a).
G. The Bench Trial
26
A230 (Tr. 34:16-19) (The Superior Court: “How do you address the issue that this could be
viewed as a cut-and-paste from a child porn [warrant]?” Prosecutor: “Well, [Y]our Honor, I
don’t -- the State concedes that.”).
27
Videotape: Oral Argument before the Delaware Supreme Court, at 43:35 (Christopher
Wheeler v. State of Delaware, No. 205, 2015, Jan. 20, 2016), archived at
http://livestream.com/accounts/5969852/events/4710274/videos/109946633/player?autoPlay=fal
se&height=360&mute=false&width=640 [hereinafter, “Oral Argument at __”].
28
See generally State v. Wheeler, 2014 WL 4735126 (Del. Super. Sept. 18, 2014) [hereinafter,
“Wheeler I, 2014 WL 4735126, at __”].
15
On October 7, 2014, the Superior Court held a bench trial. The parties stipulated
to the facts that Wheeler was the sole user of each of the seized devices and that each of
the 25 images at issue constituted child pornography under Delaware law. Wheeler did
not take the stand in his defense, and the sole witness at trial was Sergeant Perna.
However, since becoming EnCase certified in 2013, Sergeant Perna had never performed
a child pornography-related forensic examination before his evaluation of Wheeler’s
digital universe.29
At trial, it was undisputed that the charged images came to be on each of
Wheeler’s devices through his subscription to newsgroups. Newsgroups are Internet
discussion groups in which people exchange, browse, upload, and download files, which
can be documents, photos, or videos. It was also undisputed that there is nothing illegal
about newsgroups as a general matter, and that they exist on a variety of legitimate
topics. Because the 25 indicted images were found in the newsgroup cache, the State
agreed throughout the proceedings that this was not an Internet case. Nor was an
indictment obtained with respect to Wheeler’s Internet activity.
Sergeant Perna testified that the 25 charged images were found in two newsgroups
that Wheeler subscribed to: “alt.binaries.pictures.asparagus” and “alt.fan.air.”30
However, Sergeant Perna acknowledged that there is no way to forensically determine
whether a newsreader user has viewed any particular file. Accordingly, at oral argument
29
Sergeant Perna’s testimony in this case represented the first time that he had ever testified as
an expert in a child pornography trial.
30
A240 (Tr. 29:8-31:6). Sergeant Perna found four newsgroups related to child pornography
that Wheeler subscribed to on the PowerBook: “alt.binaries.pictures.asparagus,”
“alt.fan.prettyboy,” “alt.fan.rdm,” and “alt.fan.snuffles.” Id. at Tr. 31:11-32:6.
16
before this Court, the State conceded that it could not conclusively prove that Wheeler
ever viewed the 25 charged images at issue.31
At trial, Sergeant Perna acknowledged that he had no expertise concerning
newsgroups or newsreaders.32 He explained that information from newsgroups
automatically caches on the subscriber’s computer, regardless of whether the user
accesses that information. But if Wheeler had downloaded the images of child
pornography from the newsgroups, Sergeant Perna agreed that such images should have
appeared somewhere other than the cache on Wheeler’s computer. Here, the 25 charged
images appeared only in the cache. Accordingly, Sergeant Perna conceded that the
government could not forensically establish that Wheeler ever viewed the 25 indicted
images:
Q. Fair to say that the 25 charged images here found in the cache, you cannot
forensically say whether or not they were ever viewed, correct, you can simply say
they cached?
A. Cached.33
* * *
Q. But it is possible that not only was the image never viewed, but the
news[]group wasn’t even visited on those dates when they cached, correct?
A. Correct.34
* * *
31
See Oral Argument at 52:20.
32
See A243 (Tr. 43:6-8) (Q. [Newsreaders are] not something that you had a lot of expertise
about, correct? A. No, sir.).
33
A250 (Tr. 71:4-8).
34
A251 (Tr. 76:12-15).
17
Q. And you cannot say that Mr. Wheeler actually opened up and viewed the
news[]groups on the days in question?
A. No.
Q. And you cannot say that he ever viewed any of the images that he has been
charged for, correct?
A. No.35
* * *
Q. All you can tell is what news[]group the person has selected a box [sic],
correct?
A. Yes.
Q. You can never know if they ever even viewed that particular news box,
much less the contents within?
A. No.36
Based upon such testimony, Wheeler argued that the State had not adequately proved that
he possessed the indicted images because the State failed to establish that he even viewed
the images.
H. The Motion for Judgment of Acquittal
Between the close of evidence and closing arguments, Wheeler filed his Motion
for Judgment of Acquittal. On December 22, 2014, the Superior Court denied Wheeler’s
Motion for Judgment of Acquittal, finding Wheeler guilty of each of the 25 indicted
counts of Dealing in Child Pornography. The trial court concluded that the evidence
demonstrated that “Wheeler developed a pattern of Internet browsing for child
35
A252 (Tr. 80:7-13).
36
A253 (Tr. 82:22:-83:5).
18
pornography.”37 In part, the trial court reasoned that “[t]he sheer number of images . . .
supports the reasonable inference that Mr. Wheeler intentionally, as opposed to
inadvertently, possessed child pornography.”38
On April 24, 2015, Wheeler was sentenced to 50 years at Level V. Two days
later, on April 26, 2015, Wheeler filed his Notice of Appeal in this Court.
I. Proceedings Before this Court
Wheeler appeals from the Superior Court’s denial of both of his motions, although
he focuses primarily on the trial court’s denial of his Motion to Suppress. As to the
Motion to Suppress, he contends that the Superior Court erred because: (1) the Affidavits
failed to establish probable cause that he committed the alleged witness tampering
crimes; (2) the State deliberately and recklessly omitted information from the Affidavits
that was material to the Issuing Judge’s probable cause determination; (3) the Affidavits
failed to establish the required nexus between evidence of witness tampering and the
items to be searched for and seized; and (4) the Witness Tampering Warrants were
unconstitutionally overbroad.
37
State v. Wheeler, 2014 WL 7474234, at *13 (Del. Super. Dec. 22, 2014) [hereinafter, “Wheeler
II, 2014 WL 7474234, at __”]. Although the State filed no charges relating to 2,000 images of
child pornography and 3,000 images of child erotica discovered across Wheeler’s digital
universe, it argued that these images were evidence of Wheeler’s intentional possession, receipt,
and compilation of the 25 charged images. Further, although the record is not entirely clear, the
State contends that these images were downloaded from the Internet through the use of
newsgroups. Ans. Br. 5. The trial court relied upon the 2,000 images of child pornography as
evidence that Wheeler intentionally, as opposed to inadvertently, possessed the 25 charged
images. Wheeler II, 2014 WL 7474234, at *13. Sergeant Perna found a program called
“NetShred X” on certain of Wheeler’s devices. According to Sergeant Perna, NetShred X is a
program that erases a user’s Internet activity from the computer’s hard drive. See A242 (Tr.
37:10-14). Notably, the State agrees that this is not an Internet case.
38
Wheeler II, 2014 WL 7474234, at *13.
19
Because we conclude that the Witness Tampering Warrants are prohibited general
warrants, we do not reach Wheeler’s assertion that no probable cause existed to issue the
Witness Tampering Warrants. We briefly address it only insofar as it bears on the
constitutional analysis and provides useful context.
The witness tampering charges relate to three individuals: NK and two of the W
brothers. As to NK, the Affidavits suggest that he never reported Wheeler’s sexual abuse
to the police because “his father would pay him off.”39 But the State conceded during
oral argument before this Court that there was likely no evidence of the witness
tampering that allegedly occurred in Illinois present in Wheeler’s Delaware home or
office: according to the State, the police were “not going to find anything regarding
[NK], the son.”40
That leaves the W brothers’ allegations as a possible basis for justifying the search
and seizure of Wheeler’s property. As to the W brothers, the Affidavits establish that
they initiated communication with Wheeler beginning in July 2013. But Sergeant Perna
searched Wheeler’s iMac for evidence of witness tampering related to such
communication, despite the fact that the iMac had not been powered on since September
2012. Upon discovering that the iMac had last been turned on in 2012, Sergeant Perna
39
Wheeler argues that “the [A]ffidavits do not allege that any witness tampering of [NK]
occurred in Delaware or within 5 years to satisfy [Delaware’s] statute of limitations.” Op. Br.
20. The record evidence indicates that Wheeler’s alleged “pay offs” to NK occurred in Illinois,
years before the underlying search. Specifically, the Affidavits suggest that this conduct
occurred when Wheeler and NK lived in Illinois, but do not indicate whether NK provided the
Bluffton Police with particular dates as to when the pay offs were made. Nor was any evidence
presented to this Court showing that such payments were made.
40
Oral Argument at 40:25.
20
should have terminated his forensic examination of the device since it could not contain
information from the relevant time frame.
Further, Wheeler argues that none of the evidence presented creates a reasonable
inference that he acted “knowingly and with malice.”41 In his July 20, 2013 letter to
Wheeler, SW first raised the matter of restitution and Wheeler responded that he would
wait to hear from SW “about further appropriate steps towards resolution and restitution.”
Whether an offer of civil restitution forms a sufficient basis for witness tampering and
intimidation charges—such that it establishes that the offeror acts knowingly and with
malice in attempting to undermine any trial, proceeding, or inquiry—presents a question,
where, as here, the offer of restitution is responsive to a request from the potential
witness, is accompanied by an admission of guilt, and does not indicate an intention to
prevent the potential witness from contacting law enforcement. We do not address these
other important arguments, since we think it is clear that the challenged warrants were of
a kind which it was the purpose of the Fourth Amendment to forbid—general warrants.
Thus, even accepting for the sake of argument that the Witness Tampering Warrants were
issued upon probable cause, the order denying the Motion to Suppress must be reversed.
41
See 11 Del. C. § 1263 (“A person is guilty of tampering with a witness when: . . . (3) The
person knowingly intimidates a witness or victim under circumstances set forth in subchapter III
of Chapter 35 of this title.”). A person is guilty of the Act of Intimidating a Witness when that
person “knowingly and with malice attempts to prevent another person who has been the victim
of a crime, or a witness to a crime (or any person acting on behalf of a victim or witness) from”
engaging in certain enumerated acts related to the administration or enforcement of the law. See
11 Del. C. § 3532.
Wheeler also raises a reverse-Franks claim pursuant to the United States Supreme
Court’s decision in Franks v. Delaware, 438 U.S. 154 (1978). He contends that the State
intentionally or recklessly omitted material information from the Affidavits. Because we find
that the Witness Tampering Warrants are unconstitutionally general, we also need not reach this
issue.
21
II. ANALYSIS
In assessing Wheeler’s challenge to the Witness Tampering Warrants on the
grounds that they violated the Fourth Amendment to the United States Constitution and
Article I, § 6 of the Delaware Constitution, we review such alleged constitutional
violations de novo.42 We also apply de novo review to the Superior Court’s legal
conclusions when reviewing the denial of a motion to suppress.43 “We review the
Superior Court’s factual findings to determine ‘whether there was sufficient evidence to
support the findings and whether those findings were clearly erroneous.’”44
A. The Fourth Amendment to the United States Constitution, Article I, § 6 of the
Delaware Constitution, and 11 Del. C. § 2307(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.”45 The United States Supreme Court
has observed that “the ultimate touchstone of the Fourth Amendment is
‘reasonableness[.]’”46
Similarly, Article I, § 6 of the Delaware Constitution provides: “The people shall
be secure in their persons, houses, papers and possessions, from unreasonable searches
42
Bradley v. State, 51 A.3d 423, 433 (Del. 2012) (citing Swan v. State, 28 A.3d 362, 382 (Del.
2011); LeGrande v. State, 947 A.2d 1103, 1107 (Del. 2008)).
43
Id. (citing Lopez-Vazquez v. State, 956 A.2d 1280, 1284-85 (Del. 2008)).
44
Id. (quoting Lopez-Vazquez, 956 A.2d at 1285).
45
U.S. Const. amend. IV.
46
Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (citations omitted).
22
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.”47 In addition to the Delaware
Constitution, 11 Del. C. § 2307(a), in part, provides: “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.”48
1. Our Founding Fathers Rejected “General Warrants”
Our nation’s constitutional history and jurisprudence reflects a long-standing
hostility towards general warrants. General warrants, when employed by the
government, afford officials “blanket authority” to indiscriminately search persons,
houses, papers, and effects.49 The United States Supreme Court has characterized “the
specific evil” of the general warrant abhorred by the colonists as “a general, exploratory
rummaging in a person’s belongings.”50 By contrast, a warrant that is simply overly
47
Del. Const. art. I, § 6.
48
11 Del. C. § 2307(a) (emphasis added).
49
Stanford v. Texas, 379 U.S. 476, 481 (1965); see also United States v. Tracey, 597 F.3d 140,
154 (3d Cir. 2010) (“Examples of general warrants are those authorizing searches for and
seizures of such vague categories of items as ‘smuggled goods,’ ‘obscene materials,’ ‘books,
records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written
instruments . . .,’ ‘illegally obtained films,’ and ‘stolen property.’”) (internal quotation marks
omitted) (citation omitted).
50
Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971) (citing Boyd v. United States, 116 U.S.
616, 624-30 (1886); Marron v. United States, 275 U.S. 192, 195-96 (1927); Stanford, 379 U.S.
476).
23
broad “‘describe[s] in both specific and inclusive generic terms what is to be seized,’ but
it authorizes the seizure of items as to which there is no probable cause.”51
The aversion to general warrants stems from the founding generation’s pre-
revolutionary experiences with England.52 As early as 1685, the English Parliament
objected to the Crown’s use of broad searches to limit freedom of the press.53 In 1765, an
English court denounced this practice in the well-known Entick v. Carrington54 case,
where a London publisher successfully sued for trespass after his home was searched
pursuant to a general warrant.55
During the colonial era, the English issued writs of assistance upon mere suspicion
and gave customs officials blanket authority to search where they pleased for smuggled
goods and evidence of libel in the homes of colonists.56 In 1761, a group of Boston
merchants, represented by James Otis, Jr., unsuccessfully contested the issuance of new
51
United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars & Fifty-Seven
Cents ($92,422.57), 307 F.3d 137, 149 (3d Cir. 2002) (Alito, J.) (alteration in original) (quoting
United States v. Christine, 687 F.2d 749, 753-54 (3d Cir. 1982)).
52
The roots of this aversion are far more extensive. It stems from “a struggle against oppression
which had endured for centuries.” Stanford, 379 U.S. at 482 (“[I]t would be a needless exercise
in pedantry to review again the detailed history of the use of general warrants as instruments of
oppression from the time of the Tudors, through the Star Chamber, the Long Parliament, the
Restoration, and beyond.”).
53
1 WAYNE R. LAFAVE, SEARCH & SEIZURE § 1.1(a) (5th ed.) (citing F. SIEBERT, FREEDOM OF
THE PRESS IN ENGLAND: 1476-1776 48, 84-85, 173-76 (1952); N. LASSON, THE HISTORY AND
DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 38–39
(1937) (noting that Parliament recognized “the idea that general warrants were an arbitrary
exercise of governmental authority against which the public had a right to be safeguarded”)).
54
19 Howell’s St. Tr. 1029 (1765).
55
See Boyd, 116 U.S. at 625-26 (discussing Carrington and a similar case, Wilkes v. Wood);
LAFAVE, § 1.1(a) (citing Carrington, 19 Howell’s St. Tr. 1029).
56
Boyd, 116 U.S. at 625-26 (noting the English government’s practice of “searching private
houses for the discovery and seizure of books and papers that might be used to convict their
owner of the charge of libel”).
24
writs.57 John Adams witnessed Otis’s arguments at the Old State House in Boston.58 As
Adams later reported, the crowd departed “ready to take arms against writs of assistance.
. . . Then and there the Child Independence was born.”59 The United States Supreme
Court has characterized Otis’s denunciation of the Crown’s search power as “perhaps the
most prominent event which inaugurated the resistance of the colonies to the oppressions
of the mother country.”60
The Fourth Amendment “‘grew directly out of the events which immediately
preceded the revolutionary struggle with England.’”61 Its passage “was the founding
generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the
colonial era, which allowed British officers to rummage through homes in an
unrestrained search for evidence of criminal activity.”62 Indeed, initial efforts at crafting
a Federal Constitution met strong opposition due, in part, to the drafters’ failure to
impose limits on the government’s power to search.63 These objections ultimately led to
the inclusion of the Fourth Amendment in the Federal Bill of Rights.64
57
LAFAVE, § 1.1(a).
58
Id.
59
Id. (quoting 10 C. ADAMS, THE LIFE AND WORKS OF JOHN ADAMS 247–48 (1856)) (alteration
in original) (internal quotation marks omitted).
60
Boyd, 116 U.S. at 625.
61
LAFAVE, § 1.1(a) (quoting J. LANDYNSKI, SEARCH AND SEIZURE AND THE SUPREME COURT 19
(1966)).
62
Riley v. California, 134 S. Ct. 2473, 2494 (2014).
63
LAFAVE, § 1.1(a) (citing LASSON, at 92–96).
64
Cf. Mason v. State, 534 A.2d 242, 246-47 n.10 (Del. 1987) (“The amendment in the Bill of
Rights concerning searches and seizure was framed and adopted with the fresh recollection of the
debates on writs of assistance and the Revolution which followed.”) (citing Davis v. United
States, 328 U.S. 582, 605 (1946) (Frankfurter, J., dissenting)); id. at 246 (“The Framers were
aware of the attempts that had been made by representatives of the King of England, both in
25
2. Delaware’s Search and Seizure Protections
The search and seizure protections in the Delaware Constitution preceded the
adoption of the Fourth Amendment.65 In 1776, Delaware adopted its own constitutional
protections against general warrants66 and embraced the first search and seize safeguards
for its citizens.67 The Declaration of Rights and Fundamental Rules of the Delaware
State provided:
Sect. 17. That all warrants without oath to search suspected places, or to
seize any person or his property, are grievous and oppressive; and all
general warrants to search suspected places, or to apprehend all persons
suspected, without naming or describing the place or any person in special,
are illegal and ought not to be granted.68
This provision was the antecedent to the provision now found in Article I, § 6 of the
present Delaware Constitution.
On January 28, 1790, Delaware ratified the Bill of Rights to the United States
Constitution.69 But when Delaware subsequently adopted a new State Constitution in
1792, it closely tracked the language of the Pennsylvania Constitution of 1790.70 In
previous cases, this Court has held that our Constitution affords our citizens protections
England and in the American colonies, to exceed laws which confined governmental powers to
search.”).
65
Id. at 247 (“Delaware’s protections against unreasonable searches and seizures predate those
which are provided for in the Fourth Amendment.”); see also Jones v. State, 745 A.2d 856, 865
(Del. 1999).
66
See Dorsey v. State, 761 A.2d 807, 815-16 (Del. 2000).
67
See Jones, 745 A.2d at 865.
68
Id.
69
Id. (citation omitted).
70
Id. at 865-66.
26
somewhat greater than those of the Fourth Amendment.71 Here, the challenged Witness
Tampering Warrants violate both the United States and Delaware Constitutions.
The warrant requirement addresses the Framers’ concerns in two ways. “First, the
magistrate’s scrutiny is intended to eliminate altogether searches not based on probable
cause.”72 Second, the warrant requirement ensures that “those searches deemed necessary
[are] as limited as possible[,]” as the evil of unrestrained searches “is not that of intrusion
per se, but of a general, exploratory rummaging in a person’s belongings.”73
The second objective is achieved by enforcing the particularity requirement of the
Fourth Amendment. The warrant must describe the things to be searched with sufficient
particularity and be no broader than the probable cause on which it is based.74 “The
manifest purpose of this particularity requirement [i]s to prevent general searches. By
limiting the authorization to search to the specific areas and things for which there is
probable cause to search, the requirement ensures that the search will be carefully tailored
71
For instance, we note three cases in which this Court held that our State Constitution provides
somewhat broader constitutional protections. First, despite observing that the language of the
Fourth Amendment and Article I, § 6 is “nearly identical,” we have held that “the Delaware
Constitution provides a greater protection for the individual than the United States Constitution
in the determination of whether a seizure by the State has occurred.” Flonnory v. State, 805
A.2d 854, 857 (Del. 2001) (citing Jones, 745 A.2d at 863-64). Second, in Dorsey v. State, this
Court held that the “good faith” exception to the exclusionary rule did not apply in Delaware
because “exclusion is the constitutional remedy for a violation of the search and seizure
protections set forth in Article I[,] Section 6 of the Delaware Constitution.” Dorsey, 761 A.2d at
821 (citing Jones, 745 A.2d at 873-74) (citation omitted). Third, for more than 150 years, “a
Delaware statute has required more than probable cause for the issuance of a nighttime search
warrant.” Id. at 819 (citing Mason, 534 A.2d at 248) (emphasis in original).
72
Coolidge, 403 U.S. at 467 (emphasis added).
73
Id. (citing Boyd, 116 U.S. at 624-30; Marron, 275 U.S. at 195-96; Stanford, 379 U.S. 476).
74
United States v. Zimmerman, 277 F.3d 426, 432 (3d Cir. 2002) (citation omitted).
27
to its justifications, and will not take on the character of the wide-ranging exploratory
searches the Framers intended to prohibit.”75
B. The Particularity Requirement Presents Difficult Challenges in the Context of
Computer Searches
Warrants directed to digital information present unique challenges in satisfying the
particularity requirement, given the unprecedented volume of private information stored
on devices containing such data.76 The expansive universe of digital and electronic
information, and the intermingling data, complicates balancing the privacy interests of
our citizens and the legitimate efforts of law enforcement in investigating criminal
activity.77
The United States Supreme Court, in Riley v. California,78 recognized the
enormous potential for privacy violations flowing from unconstrained searches of cell
phones.79 The Riley Court, in considering a warrantless search of a cell phone, observed
that, much like a computer search, “[a cell] phone not only contains in digital form many
75
Md. v. Garrison, 480 U.S. 79, 84 (1987) (citations omitted); see also Arizona v. Gant,
556 U.S. 332, 345 (2009) (“[T]he central concern underlying the Fourth Amendment [is] the
concern about giving police officers unbridled discretion to rummage at will among a person’s
private effects.”) (citations omitted).
76
See Riley, 134 S. Ct. at 2494-95 (“Modern cell phones are not just another technological
convenience. With all they contain and all they may reveal, they hold for many Americans ‘the
privacies of life[.]’”) (quoting Boyd, 116 U.S. at 630).
77
Cf. Kyllo v. United States, 533 U.S. 27, 33-34 (2001) (Scalia, J.) (“It would be foolish to
contend that the degree of privacy secured to citizens by the Fourth Amendment has been
entirely unaffected by the advance of technology.”).
78
134 S. Ct. 2473 (2014).
79
See id. at 2489 (“Cell phones differ in both a quantitative and a qualitative sense from other
objects that might be kept on an arrestee’s person. The term ‘cell phone’ is itself misleading
shorthand; many of these devices are in fact minicomputers that also happen to have the capacity
to be used as a telephone. They could just as easily be called cameras, video players, rolodexes,
calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”).
28
sensitive records previously found in the home; it also contains a broad array of private
information never found in a home in any form . . . .”80 As the Supreme Court
acknowledged in Riley, digital searches permit the government access to “far more than
the most exhaustive search of a house . . . .”81
The United States Constitution “specifies only two matters that must be
‘particularly describ[ed]’ in the warrant: ‘the place to be searched’ and ‘the persons or
things to be seized.’”82 Satisfying 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. As the United
States Court of Appeals for the Third Circuit observed, “it would be ‘folly for a search
warrant to structure the mechanics of the search’ because ‘imposing such limits would
unduly restrict legitimate search objectives . . . .’”83 Nonetheless, in an oft-quoted
passage of Marron v. United States,84 the United States Supreme Court observed that
“[t]he requirement that warrants shall particularly describe the things to be seized makes
general searches under them impossible and prevents the seizure of one thing under a
warrant describing another. As to what is to be taken, nothing is left to the discretion of
the officer executing the warrant.”85 Accordingly, the United States Supreme Court has
80
Id. at 2491.
81
Id. (emphasis in original).
82
United States v. Grubbs, 547 U.S. 90, 97 (2006) (alteration in original).
83
United States v. Stabile, 633 F.3d 219, 238 (3d Cir. 2011) (quoting United States v. Burgess,
576 F.3d 1078, 1094 (10th Cir. 2009), cert. denied, 558 U.S. 1097 (2009)), cert. denied, 132 S.
Ct. 399 (2011).
84
275 U.S. 192 (1927).
85
Id. at 196.
29
suggested that warrants that fail to describe the specific crime that has been or is being
committed do not satisfy the particularity requirement.86
Warrants “must be tested by courts in a commonsense and realistic fashion,” and
reviewing courts should avoid a “hypertechnical approach.”87 The majority of Federal
Courts of Appeals have rejected the suggestion of requiring specific computer search
protocols. For example, in United States v. Richards,88 the Court of Appeals for the Sixth
Circuit observed that:
[G]iven the unique problem encountered in computer searches, and the
practical difficulties inherent in implementing universal search
methodologies, the majority of federal courts have eschewed the use of a
specific search protocol and, instead, have employed the Fourth
Amendment’s bedrock principle of reasonableness on a case-by-case basis:
While officers must be clear as to what it is they are seeking on the
computer and conduct the search in a way that avoids searching files of
types not identified in the warrant, . . . a computer search may be as
extensive as reasonably required to locate the items described in the warrant
based on probable cause.89
86
See, e.g., Berger v. New York, 388 U.S. 41, 55-56 (1967) (“The Fourth Amendment commands
that a warrant issue not only upon probable cause supported by oath or affirmation, but also
‘particularly describing the place to be searched, and the persons or things to be seized.’ [The
scrutinized] statute lacks this particularization. . . . It lays down no requirement for particularity
in the warrant as to what specific crime has been or is being committed, nor ‘the place to be
searched,’ or ‘the persons or things to be seized’ as specifically required by the Fourth
Amendment.”). Here, while the Applications and Affidavits refer to the crimes alleged, the
Witness Tampering Warrants do not.
87
Christine, 687 F.2d at 760 (citations omitted) (internal quotation marks omitted).
88
659 F.3d 527 (6th Cir. 2011), cert. denied, 132 S. Ct. 2726 (2012).
89
Id. at 538 (citations omitted) (internal quotation marks omitted). But see In re Search
Warrant, 71 A.3d 1158 (Vt. 2012) (drawing from the guidelines set forth in United States v.
Comprehensive Drug Testing, Inc. (CDT I), 579 F.3d 989 (9th Cir. 2009) and the concurring
Opinion in United States v. Comprehensive Drug Testing, Inc. (CDT II), 621 F.3d 1162 (9th Cir.
2010) (en Banc) (per curiam) (Kozinski, C.J., concurring) regarding imposing ex ante limitations
on computer searches)), cert. denied, 133 S. Ct. 2391 (2013).
30
Some irrelevant files may have to be at least cursorily perused to determine whether they
are within the authorized search ambit. Accordingly, the proper metric of sufficient
specificity is whether it was reasonable to provide a more specific description of the
items at that juncture of the investigation.90
Further, the propensity of criminals to disguise files must be balanced against the
competing interest of avoiding unrestrained general searches: “It is unrealistic to expect
a warrant to prospectively restrict the scope of a search by directory, filename or
extension or to attempt to structure search methods—that process must remain
dynamic.”91 “[I]t is clear that because criminals can—and often do—hide, mislabel, or
manipulate files to conceal criminal activity, a broad, expansive search of the hard drive
may be required.”92 Consequently, it would likely unduly restrict law enforcement to
require the crafting of specific keyword searches or identification of file names and
extensions ex ante. In some instances, the technological reality may be that, “in the end,
there may be no practical substitute for actually looking in many (perhaps all) folders and
sometimes at the documents contained within those folders, and that is true whether the
90
See, e.g., Christine, 687 F.2d at 760 (“[T]he use of generic classifications in a warrant is
acceptable when a more precise description is not feasible.”) (citations omitted).
91
Burgess, 576 F.3d at 1093 (“While file or directory names may sometimes alert one to the
contents . . ., illegal activity may not be advertised even in the privacy of one’s personal
computer—it could well be coded or otherwise disguised.” (footnote omitted)).
92
Stabile, 633 F.3d at 237 (citing Burgess, 576 F.3d at 1092-94).
31
search is of computer files or physical files.”93 “[N]o tenet of the Fourth Amendment
prohibits a search merely because it cannot be performed with surgical precision.”94
This Court has addressed Fourth Amendment challenges in the digital context on
two occasions. But in neither case did we confront directly a challenge that a warrant
seeking digital information failed to satisfy the particularity requirement in the United
States and Delaware Constitutions.
In the more recent of the cases, Bradley v. State,95 we considered whether the
search exceeded the scope of the warrants, but not whether the warrants were
unconstitutionally general. Bradley argued, among other things, that the police exceeded
the scope of the warrant in executing the instrument and that the supporting affidavit
failed to establish probable cause that patient files would be found in digital format. This
Court concluded that “the computers and digital storage devices could reasonably contain
the patient files described in the warrant, whether in text or image form.”96 Thus, in
Bradley, there was no basis for segregating text files from other types of files because
probable cause allowed for the search of both.
Likewise, in the earlier case of Fink v. State,97 the State obtained a warrant to
search the residence and automobile of the defendant, who was an attorney, for “client
files including but not limited to” specifically listed clients and the personal banking
93
Burgess, 576 F.3d at 1094; see also Ninety-Two Thousand, 307 F.3d at 150 (suggesting that, in
some instances, it may be “necessary to search for and seize all” files when executing a search
warrant).
94
Christine, 687 F.2d at 760.
95
51 A.3d 423 (Del. 2012).
96
Id. at 435.
97
817 A.2d 781 (Del. 2003).
32
records of the defendant. During the execution of the third of three search warrants, the
police recovered a computer compact disk and three zip disks, each of which contained
child pornography. The defendant argued that the warrant lacked sufficient particularity
and that the words, “client files including but not limited to,” were overly broad and
failed to adequately limit the search to those items for which probable cause had been
established. This Court rejected the overbreadth claim, since the defendant’s financial
dealings at issue “effectively opened all his financial records to potential scrutiny by the
police.”98 Accordingly, we held that “the warrant’s authorized search did not
unreasonably exceed a logical scope of inquiry.”99 However, this Court did not more
directly address the permissible scope of warrants seeking digital information.100
Thus, we consider more directly, 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. We have considered how other courts have addressed similar claims. In
98
Id. at 787.
99
Id.; see also United States v. Am. Investors of Pittsburgh, Inc., 879 F.2d 1087, 1105-06 (3d
Cir. 1989) (“The fact that the warrant authorized a search for a large amount of documents and
records does not necessarily render the search invalid so long as there exists a sufficient nexus
between the evidence to be seized and the alleged offenses.”).
100
In Starkey v. State, 2013 WL 4858988 (Del. Sept. 10, 2013), this Court addressed a claim that
the search warrants at issue were overbroad, ambiguous, and failed to provide the relevance of
the defendant’s “cell phone files” to the alleged crimes. This Court rejected the claim that the
warrants were vague since “they specifically limited the officer’s search of the cell phones to
certain types of data, media, and files that were ‘pertinent to th[e] investigation.’” Id. at *4. We
held that “[t]his language effectively limited the scope of the warrants, and prevented a
boundless search of the cell phones.” Id. (citing Fink, 817 A.2d at 786).
33
United States v. Riccardi,101 for example, the United States Court of Appeals for the
Tenth Circuit considered whether a warrant to seize and examine a defendant’s computer
failed to satisfy the Fourth Amendment’s particularity requirement. There, the defendant
was convicted of two counts of possession of child pornography and two counts of use of
an instrumentality of interstate commerce to entice a minor to engage in a prohibited sex
act.
The Tenth Circuit held that the challenged warrant failed to satisfy the Fourth
Amendment’s particularity requirement. It stated that the warrant “was not limited to any
particular files, or to any particular federal crime. The warrant authorized the ‘seizure’ of
[the defendant’s] computer”
and all electronic and magnetic media stored therein, together with all
storage devises [sic], internal or external to the computer or computer
system, including but not limited to floppy disks, diskettes, hard disks,
magnetic tapes, removable media drives, optical media such as CD–ROM,
printers, modems, and any other electronic or magnetic devises [sic] used
as a peripheral to the computer or computer system, and all electronic
media stored within such devises [sic].102
The Tenth Circuit observed that, “[b]y its terms, the warrant thus permitted the officers to
search for anything—from child pornography to tax returns to private correspondence. It
seemed to authorize precisely the kind of ‘wide-ranging exploratory search[] that the
Framers intended to prohibit.’”103 Ultimately, however, the Tenth Circuit affirmed the
101
405 F.3d 852 (10th Cir. 2005), cert. denied, 546 U.S. 919 (2005), petition for reh’g denied,
546 U.S. 1083 (2005); see also United States v. Galpin, 720 F.3d 436, 448 (2d Cir. 2013)
(finding that an electronic search warrant related to a registration offense was facially overbroad,
in part, because it “authorized a search for images depicting child sexual activity”).
102
Riccardi, 405 F.3d at 862.
103
Id. at 863 (quoting Garrison, 480 U.S. at 84).
34
trial court’s decision that the evidence seized pursuant to the invalid warrant need not be
suppressed, on the basis of the good faith exception to the exclusionary rule.104
Recently, in State v. Castagnola,105 the Supreme Court of Ohio considered the
application of the particularity requirement of the Fourth Amendment to the search of a
computer. There, the initial search warrant related to the crimes of retaliation, criminal
trespassing, criminal damaging, and possession of criminal tools.106 The warrant sought
the following:
Records and documents either stored on computers, ledgers, or any other
electronic recording device to include hard drives and external portable
hard drives, cell phones, printers, storage devices of any kind, printed out
copies of text messages or emails, cameras, video recorders or any photo
imaging devices and their storage media to include tapes, compact discs, or
flash drives.107
Looking for “evidence of intimidation” on the defendant’s computer, the forensic
examiner used a software program that “go[es] through documents, images, videos on the
hard drive.”108 The examiner also performed a keyword search that did not yield any
responsive results, before proceeding to open a tab that maintained “all the images
associated with the drive being examined.”109 After accessing the tab, the examiner
discovered images that she thought were child pornography, stopped her investigation,
and applied for another warrant. When performing a search based on the second search
104
Id. at 863-64.
105
2015 WL 1934723 (Ohio Apr. 28, 2015).
106
Id. at *2. The forensic examiner in Castagnola testified that the defendant’s computer “was
brought in for [a case involving] menacing, threatening, and intimidation.” Id. at *3 (alteration
in original).
107
Id. at *16.
108
Id. at *3 (internal quotation marks omitted) (alteration in original).
109
Id. (internal quotation marks omitted).
35
warrant, the forensic examiner discovered “over a thousand videos and images of
suspected child pornography.”110
In considering the defendant’s motion to suppress,111 the Supreme Court of Ohio
scrutinized the instrument’s grant of authority to search and seize “[r]ecords and
documents . . . stored on computers,” finding that its plain language “demonstrate[d] that
there [wa]s no limitation on what records and documents were to be searched for in [the
defendant’s] computer.”112 The court held that the challenged search warrant failed to
satisfy the particularity requirement for two reasons. First, “the language of the search
warrant did not ‘guide and control’ [the forensic examiner’s] judgment as to what was to
be seized on the computer[,]” leaving the determination as to what to seize within the
discretion of the examiner.113 Second, “the broad language of th[e] search warrant clearly
included items that were not subject to seizure[,]” such that the instrument was not as
specific as “the circumstances and the nature of the activity under investigation permitted
. . . .”114
The Ohio Supreme Court rejected the idea that the Fourth Amendment required a
search warrant to specify restrictive search protocols. But it also recognized “that the
Fourth Amendment does prohibit a ‘sweeping comprehensive search of a computer’s
110
Id.
111
Notably, Castagnola involved a single warrant that was first used to search the defendant’s
house in order to seize the computers. Id. at *15. The warrant was obtained a second time to
search the contents of the defendant’s computers for evidence relating to child pornography. Id.
at *3.
112
Id. at *16.
113
Id. at *17.
114
Id. (citing Guest v. Leis, 255 F.3d 325, 336 (6th Cir. 2001)).
36
hard drive.’”115 The guiding metric applied by the court was that “officers must describe
what they believe will be found on a computer with as much specificity as possible under
the circumstances[,]” and that “[t]his will enable the searcher to narrow his or her search
to only the items to be seized.”116 With this guidance, we turn to the warrants at issue
here.
C. The Witness Tampering Warrants Were General Warrants and Violated the
Particularity Requirement
1. The Witness Tampering Warrants Have No Temporal Limitations, Despite
Relevant Dates Being Available to the Police
A key principle distilled from the jurisprudence in this area is that warrants, in
order to satisfy the particularity requirement, must describe what investigating officers
believe will be found on electronic devices with as much specificity as possible under the
circumstances. That principle simply was not followed here in several respects. One
obvious respect was the failure to limit the search to the relevant time frame. Federal
Courts of Appeals have concluded that warrants lacking temporal constraints, where
relevant dates are available to the police, are insufficiently particular.117 Our sister courts
115
Id. at *18 (citation omitted).
116
Id.
117
See, e.g., United States v. Abboud, 438 F.3d 554, 576 (6th Cir. 2006) (citation omitted)
(stating that a warrant was overbroad because it “[f]ail[ed] to limit broad descriptive terms by
relevant dates, when such dates [were] available to the police”); United States v. Ford, 184 F.3d
566, 576 (6th Cir. 1999) (citations omitted) (“Failure to limit broad descriptive terms by relevant
dates, when such dates are available to the police, will render a warrant overbroad.”), cert.
denied, 528 U.S. 1161 (2000); United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995)
(admonishing the government for failing to “limit the scope of the seizure to a time frame within
which the suspected criminal activity took place, even though . . . [the supporting] affidavit
indicate[d] that the alleged criminal activity began” at a specified point in time). Cf. United
States v. Karrer, 460 F. App’x 157, 161 (3d Cir. 2012) (citing United States v. Yusuf, 461 F.3d
374, 395 (3d Cir. 2006)) (concluding that a warrant was not a general warrant, as it “sufficiently
37
have similarly considered temporal restrictions in the context of the particularity
requirement.118 Ultimately, “[i]t is settled law that generic classifications in a warrant are
acceptable only when a more precise description is not possible.”119
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 and seizure should be
identified a time period during which the suspected offenses occurred”). But compare Ninety-
Two Thousand, 307 F.3d at 151 (Alito, J.) (“At most, the lack of time restrictions meant that the
warrant was overly broad, not general. . . . In any event, the absence from the warrant of a
provision limiting the search and seizure to documents pertaining to the time period of the
scheme did not make the warrant ‘so facially deficient’ ‘as to render official belief in its
[legality] entirely unreasonable.’”) (internal citation omitted) (alteration in original), with id. at
156 (Ambro, J., dissenting) (arguing that failure to limit the temporal scope of a warrant, when
relevant dates are available to the police, is a “deficiency” that underlies an “unconstitutionally
broad warrant”) (citing Ford, 184 F.3d at 576).
118
See, e.g., In re Search Warrant, 71 A.3d at 1183-84 (observing that a magistrate may properly
restrict law enforcement’s search to items that meet certain parameters based on, inter alia, dates
and “the known details of the suspected crime such as the time-period”); Commonwealth v.
McDermott, 864 N.E.2d 471, 487 (Mass. 2007) (rejecting an argument that a warrant was
overbroad where the challenged category of items was limited both in time frame and in the
nature of the items that could be seized), cert. denied, 552 U.S. 910 (2007).
119
United States v. Bright, 630 F.2d 804, 812 (5th Cir. 1980) (citing James v. United States, 416
F.2d 467, 473 (5th Cir. 1969), cert. denied, 397 U.S. 907 (1970)).
38
appropriately narrowed to the relevant time period so as to mitigate the potential for
unconstitutional exploratory rummaging.120
The State conceded that nothing relating to NK would be found on Wheeler’s
property identified in the Witness Tampering Warrants. And the Affidavits do not
suggest otherwise. As to the only other potential victims, the W brothers, the Affidavits
indicate that the alleged witness tampering occurred, if it did, in or after July 2013, since
that was when the W brothers renewed contact with Wheeler.121 The Affidavits contain
no facts suggesting that any tampering might have occurred prior to July 2013. Yet, the
Witness Tampering Warrants were boundless as to time. Sergeant Perna testified that
one of the first things he did in executing the search was determine when the iMac was
last used. Proceeding under the Witness Tampering Warrants, he determined that the
computer had last been powered on in September 2012. However, the State
unsystematically sifted through Wheeler’s digital universe, even though the iMac
logically could not have contained material created or recorded during the relevant time
period.
A failure to describe the items to be searched for and seized with as much
particularity as the circumstances reasonably allow offends the constitutional protections
against unreasonable searches and seizures. Because the State was able to more precisely
describe the items to be searched and seized, the Witness Tampering Warrants violated
the particularity requirement.
120
See id.; Ford, 184 F.3d at 576.
121
The State also conceded at oral argument before this Court that the relevant time period
commenced in 2013. See Oral Argument at 40:37.
39
2. The Witness Tampering Warrants Likely Fail the Particularity Requirement for
Other Reasons
The Witness Tampering Warrants likely fail the particularity requirement in other
respects. For example, nothing in the Affidavits supports an inference that evidence may
be found on DVDs or optical cameras. The Affidavits do not allege that Wheeler was
communicating with NK or any of the W brothers through videos or pictures. Nor do the
Affidavits link witness tampering to these types of media. The likely reason that the
Witness Tampering Warrants sought the search for and seizure of devices and items that
cannot lead to evidence of witness tampering based on the Affidavits is that, as the State
conceded, the language was essentially copied and pasted from a search warrant for child
pornography. Although the parties agree that cutting and pasting search warrant
language does not automatically invalidate the resulting instrument, that technique has
led, in the context of this case, to search warrants that do not satisfy the particularity
requirement.122
Further, the Affidavits recite that the State was searching for “evidence of written
communications,” which it believed were relevant to the alleged witness tampering.
Sergeant Perna wrote in his forensic report and testified that he was “looking for any files
created and/or saved as word documents, emails, text messages, pdf [sic] or any other
122
Cf. Massachusetts v. Sheppard, 468 U.S. 981, 986-91 (1984) (scrutinizing police use of a
form warrant pertaining to an unrelated crime and indicating that it might be insufficiently
particular, but ultimately upholding the search based upon the good faith exception to the
exclusionary rule notwithstanding the defect). As noted above, the good faith exception to the
exclusionary rule is not recognized in Delaware. See Dorsey, 761 A.2d at 820-21.
40
related file format.”123 The portions of the Affidavits discussing the items sought refer to
written communications.124 These observations suggest that the items for which there
was probable cause to search and seize were written communications—not DVDs and
123
A191 (Tr. 38:10-19).
124
At oral argument before this Court, the State asserted that it was not relying on incorporation
of the Affidavits into the Witness Tampering Warrants for the latter to satisfy the particularity
requirement. Oral Argument at 31:50. In Groh v. Ramirez, 540 U.S. 551 (2004), the United
States Supreme Court observed that, although supporting documentation adequately describes
the things to be searched for and seized, such description does not necessarily save a warrant
from its facial invalidity. Id. at 557. The Supreme Court noted that: “The Fourth Amendment
by its terms requires particularity in the warrant, not in the supporting documents.” Id. (citations
omitted) (emphasis added). It also stated the following: “We do not say that the Fourth
Amendment prohibits a warrant from cross-referencing other documents. Indeed, most [Federal]
Courts of Appeals have held that a court may construe a warrant with reference to a supporting
application or affidavit if the warrant uses appropriate words of incorporation, and if the
supporting document accompanies the warrant.” Id. at 557-58 (citations omitted).
Some Federal Courts of Appeals have limited Groh’s import to establishing that an
unconstitutional warrant can be saved by its supporting documentation only if the warrant
appropriately references the supporting document through “clear” language of incorporation and
the supporting document accompanies the warrant. See, e.g., United States v. Perez, 2015 WL
6405695, at *3 (6th Cir. Oct. 23, 2015) (citing Groh, 540 U.S. at 557-58); Tracey, 597 F.3d at
146-48 (citations omitted) (“Along with other Courts of Appeals, we have held that an affidavit
may be used in determining the scope of a warrant that lacks particularity if the warrant is
‘accompanied by an affidavit that is incorporated by reference.’”); United States v. Waker, 534
F.3d 168, 172-73 (2d Cir. 2008). Others have held that, for an unconstitutional warrant to be
cured through incorporation by reference to an affidavit, the affidavit must not be filed under
seal. See, e.g., Bartholomew v. Pennsylvania, 221 F.3d 425, 429-30 (3d Cir. 2000) (“We now
make clear . . . and hold that, generally speaking, where the list of items to be seized does not
appear on the face of the warrant, sealing that list, even though it is ‘incorporated’ in the warrant,
would violate the Fourth Amendment.”). Here, the Applications and Affidavits indicate that they
were filed under seal.
Although the Witness Tampering Warrants, under “ITEMS TO BE SEARCHED FOR
AND SEIZED[,]” state in paragraph 1, “[e]nter and search the residence [or office] as
completely described herein [sic] the application and affidavit for evidence of the
aforementioned crime(s)[,]” it is not clear that the broad lists of items in the Witness Tampering
Warrants are necessarily limited by the Affidavits and, if so, in what fashion. A19 (Warrant 1 ¶
1); A31 (Warrant 2 ¶ 1). This is true particularly in view of the fact that the Affidavits contain
sweeping, boilerplate language concerning digital data and the ability of forensic experts to
recover it for lengthy periods of time, including “years after it [i]s written.” Thus, even
assuming, arguendo, that the Affidavits are fairly incorporated, they fail to cure the
constitutional defects, as they lack temporal restraints as to all potential victims and fail to guide
the executing officers as to the limits of the search and seizure.
41
optical cameras. Yet, by their terms, the Witness Tampering Warrants permitted the
State to search for anything—from child pornography to medical records to consumer
information to tax returns. In short, they permitted the species of wide-ranging,
exploratory searches the Framers intended to prohibit. Because the lack of temporal
limitations is sufficient to invalidate the Witness Tampering Warrants, we need not reach
these other potential substantive challenges. Instead, we caution that the risk that
warrants for digital and electronic devices take on the character of “general warrants” is
substantial. This reality necessitates heightened vigilance, at the outset, on the part of
judicial officers to guard against unjustified invasions of privacy.
III. CONCLUSION
The subject of this prosecution is an unsympathetic figure. And the sexual
exploitation of children is a dreadful scourge in our society. But “[t]he principles laid
down in this [O]pinion affect the very essence of constitutional liberty and security.
They reach further than the concrete form of the case before the court . . .; they apply to
all invasions on the part of the government and its employe[e]s of the sanctity of a
[person’s] home and the privacies of life.”125 “There is always a temptation in criminal
cases to let the end justify the means, but as guardians of the Constitution, we must resist
that temptation.”126
The United States Constitution and the Delaware Constitution both mandate that
the decision of the Superior Court with respect to the Motion to Suppress be reversed.
125
Boyd, 116 U.S. at 630.
126
Castagnola, 2015 WL 1934723, at *20 (citation omitted) (internal quotation marks omitted).
42
Accordingly, the judgments of conviction are REVERSED. This matter is remanded for
further proceedings in accordance with this Opinion.
43