State v. Lovell

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) I.D. No. 1905009346
)
ISAAC LOVELL, )
)
Defendant. )
Submitted: December 11, 2019
Decided: December 17, 2019
Upon Defendant’s Motion to Suppress
GRANTED
MEMORANDUM OPINION
Michael W. Modica, Esquire, Wilmington, Delaware, Attorney for Defendant.
Stephen McDonald, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State of Delaware.
Rocanelli, J.
Defendant Isaac Lovell (“Defendant”) has moved to suppress all evidence
obtained through a search of a residence conducted pursuant to a search warrant.
Defendant claims that the warrant was legally invalid and that the search therefore
violated Defendant’s rights under the Fourth Amendment to the United States
Constitution, the Delaware Constitution, and the Delaware Code. The State opposes
Defendant’s motion.
FACTUAL BACKGROUND
On December 28, 2018, a special investigator (“Investigator”) of the
Delaware Department of Justice (“DOJ”) obtained a search warrant for a residence
at 430 Ranee Loop, Bear, Delaware (“Ranee Loop Residence”) in connection with
an investigation of Defendant for tax evasion and/or fraud and false statements. The
warrant authorized the search of the Ranee Loop Residence for the following
property: photographs and/or video images of the Ranee Loop Residence;
documents related to business conducted in the name of Defendant, Phire-Fly
Contracting (“Phire-Fly”), I Lovell Contracting, or any related entity; financial
records that establish income for and are related to Defendant, Phire-Fly, I Lovell
Contracting, or any related entity; United States currency; and electronic devices
capable of storing/transmitting information.
In support of the warrant, Investigator attached an affidavit of probable cause
which set forth the following facts regarding the State’s investigation:
1
 In September 2016, WSFS Bank informed the DOJ of suspected financial
exploitation of a WSFS Bank customer (“Alleged Victim”). Alleged
Victim had written several checks payable to Defendant and Phire-Fly.
The checks were endorsed by “I Lovell” and reflected the endorser’s
Delaware driver’s license number (“DDL”) and street address, which was
509 Caledonia Way, Bear, Delaware (“Caledonia Way Address”).
 A query of the DDL revealed that the DDL was assigned to Defendant at
the Caledonia Way Address. Further investigation revealed that Elizabeth
Riley Lovell (“Elizabeth”) was Defendant’s spouse and also identified the
Caledonia Way Address as her residence.
 In March 2017, Investigator observed a red truck bearing advertisements
for Phire-Fly traveling on Interstate 95. Investigator later learned that the
truck was registered to Defendant at the Caledonia Way Address.
 Months later, Investigator learned that a utility service connection had been
established in Elizabeth’s name at the Ranee Loop Residence.
 Investigator surveilled the Ranee Loop Residence on two occasions. On
both occasions, Investigator observed Defendant’s Phire-Fly truck parked
in the driveway.
The affidavit of probable cause also sets forth the following information
regarding Defendant’s businesses and tax returns:
 In 2015, Defendant applied for a license to conduct business as a contractor
as Phire-Fly. The application indicated that Defendant began operating
Phire-Fly in Delaware in 2015.
 Alleged Victim paid Defendant and/or Phire-Fly over $575,000 from
January 2015 to December 2017.
 Defendant’s 2015 tax returns indicate that Defendant’s business, I Lovell
Contracting, claimed $125,000 in gross receipts.
2
 Defendant did not file tax returns for the 2016 or 2017 tax years. Alleged
Victim’s payments to Defendant during 2016 and 2017 exceeded the
amounts required to file tax returns for the 2016 and 2017 tax years.
 United States tax law requires retention of tax records and documents for
a minimum of three years and longer if a person files either a fraudulent
return or no return at all.
Finally, the affidavit of probable cause includes the following statements
regarding Investigator’s knowledge, training, and experience:
Affiant knows, through training and experience, that persons who
commit fraud-related crimes may maintain documents germane to the
crime. These records may be stored on the person, in the person’s
residence, the person’s office, or in the person’s vehicles.
...
Affiant knows, through training and experience, that persons who
conduct business may keep United States Currency on their person, in
their home, or in their vehicle(s).
...
Affiant knows, through training and experience, that persons who
conduct business commonly utilize electronic devices to: communicate
via email/text messages/telephone calls with customers/co-
workers/sub-contractors/suppliers, etc.; store/maintain records related
to their business; take photographs related to their business.
LEGAL STANDARD
A defendant moving to suppress evidence bears the burden of establishing that
the challenged search or seizure violated the defendant’s rights under the United
3
States Constitution, the Delaware Constitution, or the Delaware Code.1 “[O]nce the
defendant has established a basis for [the] motion, the burden shifts to the
government to show that the search or seizure was reasonable.”2 The defendant
nevertheless bears the ultimate burden of proving entitlement to relief by a
preponderance of the evidence.3
DISCUSSION
The Delaware Constitution protects against unreasonable searches and
seizures and provides that no search warrant may issue “unless there be probable
cause supported by oath or affirmation.”4 In furtherance of the Delaware
Constitution’s probable cause provision, the General Assembly promulgated
specific requirements for warrant applications in Section 2306 of Title 11 of the
Delaware Code.5 Specifically, Section 2306 provides:
The application or complaint for a search warrant shall be in writing,
signed by the complainant and verified by oath or affirmation. It shall
designate the house, place, conveyance or person to be searched and the
owner or occupant thereof (if any), and shall describe the things or
persons sought as particularly as may be, and shall substantially allege
the cause for which the search is made or the offense committed by or
in relation to the persons or things searched for, and shall state that the
1
State v. Cannon, 2007 WL 1849022, at *2 (Del. Super. June 27, 2007).
2
State v. Babb, 2012 WL 2152080, at *2 (Del. Super. June 13, 2012).
3
See id.; Cannon, 2007 WL 1849022, at *2; State v. Jones, 1997 WL 528274, at *3
(Del. Super. Aug. 1, 1997).
4
Del. Const. art. I, § 6.
5
See Dorsey v. State, 761 A.2d 807, 810 (Del. 2000) (explaining that the General
Assembly promulgates Section 2306 in furtherance of the Delaware Constitution’s
probable cause provision).
4
complainant suspects that such persons or things are concealed in the
house, place, conveyance or person designated and shall recite the facts
upon which such suspicion is founded.6
In addition, Section 2307 prescribes procedural and substantive requirements to
which a judicial officer authorizing a warrant must adhere:
If the judge, justice of the peace or other magistrate finds that the facts
recited in the complaint constitute probable cause for the search, that
person may direct a warrant to any proper officer or to any other person
by name for service. The warrant shall designate the house, place,
conveyance or person to be searched, and shall describe the things or
persons sought as particularly as possible.7
Delaware courts have found that these constitutional and statutory provisions
establish a four-corners test for probable cause.8 In other words, for a search warrant
to issue, the four corners of the warrant application “must present adequate facts to
allow a reasonable person to conclude that an offense has been committed and that
seizable property would be found in a particular place or on a particular person.”9
The reviewing court’s task in evaluating a warrant’s validity is to determine whether
6
11 Del. C. § 2306.
7
Id. § 2307.
8
See Buckham v. State, 185 A.3d 1, 16 (Del. 2018); Dorsey, 761 A.2d at 811–12;
Cannon, 2007 WL 1849022, at *3.
9
Cannon, 2007 WL 1849022, at *3; see also Dorsey, 761 A.2d at 811–12 (“[T]he
information set forth within the affidavit’s four corners, and any logical inference
from the specific facts alleged, must demonstrate why it is objectively reasonable
for the police to expect to find the items sought in those locations.”).
5
the warrant application provided the issuing judicial officer with a “substantial
basis” to conclude that probable cause existed.10
I. The Warrant Was Not Based on a Logical Nexus Between the Items
Sought and the Location Searched
Defendant argues that the facts set forth in the warrant application do not
establish a logical nexus between the items sought and the Ranee Loop Residence.
While probable cause is the touchstone of both arrests and searches, probable cause
to arrest is alone insufficient to conduct a search.11 An arrest warrant is directed at
a particular person and requires police to establish probable cause “that the
defendant has committed a crime.”12 A search warrant, on the other hand, is directed
at a particular place where police have probable cause to believe that evidence of a
crime is located.13 “For a search warrant to issue, there must be more than just
probable cause that a crime has been committed; there must also be, ‘within the four
corners of the affidavit, facts adequate for a judicial officer to form a reasonable
10
See, e.g., Buckham, 185 A.3d at 16; Cannon, 2007 WL 1849022, at *3.
11
See Dorsey, 761 A.2d at 812–13 (“Probable cause to search and probable cause to
arrest are not fungible legal concepts, and each involves a distinctly separate
inquiry.”); Cannon, 2007 WL 1849022, at *4 (“[P]robable cause to believe that a
suspect has committed a crime will support an arrest, but not necessarily a search
warrant for the suspect’s home.”).
12
State v. Maxwell, 624 A.2d 926, 930 (Del. 1993); see also Dorsey, 761 A.2d at
812 (“The focus of probable cause to arrest is upon a ‘person’, i.e., whether a
criminal offense has been or is being committed by the person to be arrested.”).
13
See Dorsey, 761 A.2d at 812 (“The focus of probable cause to search is upon a
‘place’, i.e., whether contraband or evidence will be found in a particular location.”);
6
belief that the property to be seized will be found in a particular place.’”14 Delaware
courts have found that this four-corners inquiry requires “a logical nexus between
the items sought and the place to be searched.”15 The nexus need not be based on
direct observations or specific facts placing the items at the location but may be
inferred from the circumstances.16 The ultimate question that Delaware courts must
answer is “whether, based upon the specific facts alleged within the four corners of
the affidavit, one would normally expect to find . . . items [sought] at [the] place”
searched.17
The facts set forth in the warrant application do not establish a sufficient
logical nexus between the items sought and the Ranee Loop Residence. The only
links between Defendant and the Ranee Loop Residence set forth in the four corners
of the warrant application are: (1) Defendant’s wife established a utility service
connection at that address; and (2) Investigator observed Defendant’s truck parked
in the driveway on two occasions. On the other hand, the warrant application sets
14
Buckham, 185 A.3d at 16 (quoting Sisson v. State, 903 A.2d 288, 296 (Del. 2006))
(alterations omitted) (emphasis added).
15
Dorsey, 761 A.2d at 811; see also, e.g., Buckham, 185 A.3d at 16 (“The
constitutional requirement that there be a nexus between the crime and the place to
be searched is also enshrined in Delaware law . . . .”); Jones, 1997 WL 528274, at
*4 (“Intrinsic in the scheme set forth above is that there must be a nexus between the
items which are sought and the place in which the police wish to search for them.”).
16
Morgan v. State, 962 A.2d 248, 253 (Del. 2008) (quoting United States v. Feliz,
182 F.3d 82, 88 (1st Cir.1999)).
17
Dorsey, 761 A.2d at 813.
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forth several links between Defendant and the Caledonia Way Address. That
Defendant’s wife set up utility service and that Defendant’s Phire-Fly truck was
observed on two occasions is not sufficient to establish the Ranee Loop Residence
as Defendant’s residence such that probable cause could be established to support a
search for the items sought.
Moreover, while courts may consider an officer’s training and experience in
determining probable cause,18 the statements regarding Investigator’s knowledge,
training, and experience do not rescue the warrant from its other deficiencies. While
it may be reasonable to conclude that a person who has committed fraud-related
crimes may have documents, currency, or other items in the person’s residence, the
warrant application does not set forth sufficient facts establishing that Defendant
actually resided at the Ranee Loop Residence. The four-corners test requires a
“logical nexus.”19 The warrant does not set forth a reasonable probability that
evidence of Defendant’s alleged offenses might be located at the Ranee Loop
Residence because the warrant does not set forth sufficient facts to support a finding
that Defendant resided at the Ranee Loop Residence.
18
See State v. Jones, 2000 WL 33114361, at *4 (Del. Super. Dec. 5, 2000) (“[A]
police officer’s training and experience may be taken into consideration in
determining probable cause when combined with other facts.”).
19
See Dorsey, 761 A.2d at 811.
8
Accordingly, the warrant application fails to establish a logical nexus between
evidence of Defendant’s alleged offenses and the place searched for that evidence.
There was no substantial basis to conclude that probable cause to execute a search
of the Ranee Loop Residence existed. The search therefore violated Defendant’s
rights under the Delaware Constitution’s search and seizure provisions.
II. The Evidence Seized During the Search Must Be Suppressed
Exclusion of evidence seized is the remedy for violations of the search and
seizure protections set forth in the Delaware Constitution.20 The Delaware
Constitution leaves no room for exceptions to the probable cause requirement;21
therefore, it is the duty of Delaware courts to strictly apply the exclusionary rule
when violations of that requirement occur.22 The search of the Ranee Loop
Residence was conducted pursuant to a warrant that was not based on probable
cause. Accordingly, the evidence seized during the search of Defendant’s residence
must be suppressed.23
20
Dorsey, 761 A.2d at 814–21.
21
See State v. Henderson, 906 A.2d 232, 244 (Del. Super. 2005) (“[T]here [is] no
room in the Delaware Constitution for an exception to the requirement of probable
cause to obtain a search warrant.”).
22
See Rickards v. State, 77 A.2d 199, 205 (Del. 1950) (“We conceive it the duty of
the courts to protect constitutional guarantees. The most effective way to protect the
guarantees against unreasonable search and seizure and compulsory self-
incrimination is to exclude from evidence any matter obtained by a violation of
them.”).
23
While the warrant does not state whether the Ranee Loop Residence was
Defendant’s home, the State does not contest Defendant’s standing to challenge the
9
CONCLUSION
Standing alone, probable cause adequate to support an arrest is
constitutionally insufficient to justify a search of a person’s home. The warrant
application did not provide facts demonstrating a logical nexus between the items
sought and the location searched and was therefore not based on probable cause.
The search and seizure of property at the Ranee Loop Residence violated
Defendant’s rights under the Delaware Constitution. Accordingly, Defendant’s
motion to suppress is hereby GRANTED and evidence seized from the Ranee Loop
Residence is hereby suppressed.
IT IS SO ORDERED.
Andrea L. Rocanelli
________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____
The Honorable Andrea L. Rocanelli
legality of the search. Moreover, to establish standing, Defendant concedes in his
motion that he resided at the Ranee Loop Residence at the time of the search.
Defendant’s concession does not impact the Court’s analysis, however, because the
Court’s inquiry is limited to the four corners of the warrant application. See, e.g.,
Buckham, 185 A.3d at 16 (“For a search warrant to issue, there must be more than
just probable cause that a crime has been committed; there must also be, ‘within the
four corners of the affidavit, facts adequate for a judicial officer to form a reasonable
belief that the property to be seized will be found in a particular place.’” (quoting
Sisson, 903 A.2d at 296) (alterations omitted)).
10