State v. Risper, Jr. ( 2019 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR SUSSEX COUNTY
STATE OF DELAWARE : m
: I.D. NO. 1805007714 § ~,:
_° m
v. >_ cg
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MCARTHUR M. RISPER, JR., - :>Id. at 9-10.
4Ia'. at 10.
5 Id.
6 Id. at 12.
7 State’s Resp. at l.
8 Ia'. at 6.
confined to the date of the homicide through the date Defendant turned himself in to the
Delaware State Police. The State further contends that these facts establish the necessary
nexus that Verizon Wireless records would yield relevant information as to his
whereabouts just prior to the crime, at the time of the crime, and after the crime, up until
the date he turned himself in.9
When dealing with search warrants concerning cellular phone information calls for
“particular sensitivity” and a carefully designed scope needs to be set forth in the warrant
itself.10 This is because when the Government tracks the location of a cell phone it achieves
near perfect surveillance.11 A search of such information would invade a defendant’s
reasonable expectation of privacy in the whole of his physical movements as apart from
disconnecting the phone from the network, and there is no way to avoid leaving behind a
trail of location data.12 Therefore, the Government must generally obtain a warrant
supported by probable cause before acquiring such [GPS location] records.13 “[T]he items
to be searched and search (sic) for must be described ‘as particularly as possible.”’14
The issuing judge or magistrate will initially determine whether probable cause exists for
a search warrant. This determination “will be paid great deference by a reviewing court.”15
This Court will review the decision of the judge or magistrate issuing the search warrant to
9Ia'. at 9.
1° Bradley v. State, 2019 WL 446548, at *6 Del. Super Ct. February 4, 2019) (citing Buckham v. State, 185 A.3d l,
18-19(De1.2018)).
11 Carpenter v. US, 138 S. Ct. 2206, 2218 (2018).
12 Id. at 2219-2220.
13 1d.at2221.
14 State v
. Anderson, 2018 WL 6177176 at *4 (Del. Super. Ct. November 5, 2018) (quoting Wheeler v. State, 135 A.
3d 282, 296 (Del. 2016).
15 Jensen
v. State, 482 A.2d 105, 11 (Del. Super. Ct. 1984).
4
insure, looking at the “totality of the circumstances,” that a substantial basis for issuance
of the warrant existed.16
10. When determining the sufficiency of a search warrant, the Court is limited in its analysis
to the information provided “within the four-corners of the affidavit[.]”17 Thus, “sufficient
facts must appear on the face of the affidavit so that an appellate court can verify the factual
basis for the [Superior Court Judge or magistrate’s] determination regarding the existence
of probable cause.”18 The Court must also consider the information in the affidavit under
a totality of the circumstances.19 “[R]easonable inferences [may be drawn] from the factual
allegations in the affidavit.”20 Defendant bears the burden of establishing that the warrant
was unlawful.21
ll. The Court finds that issuance of the search warrant was improper because, assuming
arguendo that the search warrant contained probable cause and a logical nexus to the crime,
the search warrant was far broader than any possible probable cause finding on which the
warrant was based.
12. Here, the search warrant provides, at best, probable cause for the search of RTT location
information. However, the search warrant authorizes a search and seizure of information
broader than GPS location information. Specifically, the search warrant allows the State
to search “numbers dialed, incoming numbers/chip numbers/direct connects/walkie talkie
if needed, subscribers electronic serial number, and all billing information/accounts notes,
16 Illinois v. Gates, 462 U.S. 213, 238 (1983).
17 LeGrande v. State, 947 A.2d 1103, 1107 (Del. 2008).
111 Dorsey v. State, 761 A.2d 807, 811 (Del. 2000).
19 LeGrande, 947 A.2d at 1107-08.
20 State v. Westcotl, 2017 WL 283390, at *2 (Del. Super. Ct. January 23, 2017) (quoting Braa'ley v. State, 51 A.3d
423, 431 (Dei. 2012)).
21 See State v. Sisson, 883 A.2d 868, 875 (Del. Super. Ct. 2005); State v. Dick, 2004 WL 1172883 at *3 (Del. Super.
ci. 2004).
for the specified cellular/wireless telephones, or any telephone numbers revealed the
original records.”22
13. Defendant relies on the Delaware Supreme Court rulings in Buckham v. State23 and
Wheeler v. State24 to assert that the search warrant is overly broad and must be suppressed
ln Buckham, the Court struck down a warrant on the grounds that the “warrant was both
vague about the information sought . . . and expressly authorized the search of materials
there was no was no probable cause to search.”25 The Court found it particularly troubling
that the warrant allowed law enforcement officers to search information that had nothing
to do with GPS location information such as incoming/outgoing calls, missed calls, contact
history images, photographs and SMS (text) messages.26
14. In Verelei/, the Court struck down a search warrant that allowed investigating officers to
search through all of the files on a defendant’s computer.27 Defendant had not powered on
his computer since 2012 and probable cause in the warrant did not arise until 2013.28 The
Court held that the warrant failed to limit the search to the relevant time frame, and was
therefore overbroad.29 Specifically, the Court noted that the State unsystematically sifted
through defendant’s digital universe, even though [the computer] logically could not have
contained material created or recorded during the relevant time period.30
15. Despite the holdings of Wheeler and Buckham the State maintains that the warrant is
sufficiently particular because Defendant’s entire digital universe was not searched and
22 Search Warrant at l.
23 Buckham v. State, 185 A.3d l, 18 (Del. 2018).
24 Wheeler v. State, 135 A. 3d 282 (Del. 2016).
25 Buckham, 185 A. 3d at l7.
26 Id. at 19.
27 Wheeler, 135 A. 3d at 304.
28 Id. at 305.
22 Id. at 304.
20 Id. at 305.
that the search warrant seeks records in the possession of Verizon Wireless and not directly
from Defendant’s phone.31 The State relies on Starkey v. State 32 to assert that the Delaware
Supreme Court has upheld a warrant with less specificity than in the present case. In
Starkey, the search warrant provided for the search of “any and all data stored by whatever
means . . . to include but not limited to registry entries, pictures . . . call logs, electronic
mail, telephone numbers . . . any other information/data pertinent to this investigation.”33
The Court held that the warrant was not vague as it specifically limited the officer’s search
of the cell phones to certain types of data, media and files that were “pertinent to this
investigation.”34
16. However, Starkey is distinguishable The defendant in Starkey only raised one claim on
appeal, and that is whether the search warrant was defective because it failed to set forth
sufficient facts necessary to establish probable cause within the “four corners” of the
document.35 Also, this case was decided before both Wheeler and Buckham, and does not
touch on the issue of whether or not the warrant was broader than the probable cause on
which it was based. Furtheimore, the United States Supreme Court has held that Fourth
Amendment protection extends to GPS/RTT location information held by wireless cell
phone providers36
17. This Court need not rule on the issue of temporal scope because Defendant demonstrated
that even if the State had probable cause to search the Verizon Wireless records for RTT
31 State’s Resp. at 4.
32 74 A.3d 655 (TABLE) (Del. 2013).
33 Id. at *4.
34 See id,; Fink v. State, 817 A.2d 781 (Del. Super. Ct. February 21, 2003).
35 Starkey, 74 A. 3d at *1.
36 See Carpenter, 138 S. Ct. 2206, 2484 (2018)(holding that “given the unique nature of cell phone location
information, the fact that the Government obtained the information from a third party does not overcome
[defendant’s] claim to Fourth Amendment protection.”).
location information the scope of the warrant was broader than the probable cause in which
it was based.
18. Therefore, considering the totality of the circumstances, evidence found relating to the two
search warrants relating to Defendant’s cell phone numbers must be suppressed
Defendant’s Motion to Suppress is GRANTED.
IT IS SO ORDERED.
Richard F. Stokes, Resident Judge
cc: Prothonotary
Tasha Marie Stevens, Esq.
Caroline C. Brittingham, Esq.
Michael Tipton, Esq.