IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, :

 :

 : ID No. 2203013232

 v. : 

: 

MARCUS BAILEY, :

 :

 :

 Defendant. :

Submitted: March 18, 2024

 Decided: March 27, 2024

ORDER

On this 27th day of March 2024, having heard and considered Defendant 

Marcus Bailey’s motion to suppress, his amended motion seeking an evidentiary

reverse-Franks hearing, and the State’s opposition to both, it appears that:

1. The State alleges that Mr. Bailey committed Murder First Degree

when he allegedly shot and killed Bruce Wright on March 24, 2022. Mr. Bailey 

allegedly entered the rear driver’s-side seat of Mr. Wright’s parked car, spoke to

Mr. Wright, demanded drugs, and then fatally shot him once in the head before 

exiting the vehicle. Presently, Mr. Bailey challenges the sufficiency of the warrant 

that authorized the seizure of his DNA to compare to samples that the police 

recovered during the State’s investigation. 

2. In Mr. Bailey’s initial filing, he focused primarily on the facts

contained within the four corners of the probable cause affidavit.

1

 At the outset, 

1 Def.’s Mot. to Suppress (Jan. 4, 2024).
2

he contended that the facts recited in the affidavit were insufficient to demonstrate 

the probable cause necessary to justify the seizure. His original motion also 

contested the veracity/completeness of a representation that the attesting detective

included in the affidavit. Namely, although the detective recited that the police 

recovered numerous DNA samples from the rear seat of the vehicle from which 

Mr. Bailey committed the murder, the detective failed to include the fact that Mr. 

Wright’s blood was heavily splattered about the vehicle. Mr. Bailey contends that 

this omission misled the magistrate who issued the warrant. 

3. At the oral argument on the initial motion, he did not contest that the 

warrant, taken at face value, justified seizing his DNA. After all, the affidavit 

specifically alleged that the police recovered numerous DNA samples from the 

vehicle’s back seat, where Mr. Bailey allegedly pulled the trigger. 2 Instead, Mr. 

Bailey focused on whether the detective recklessly misled the reviewing 

magistrate by omitting critical details that he should have included in the affidavit. 

4. Mr. Bailey’s original motion did not justify considering facts from 

outside of the warrant’s four corners. Superior Court Criminal Rule 41(f)

provides that: 

the court shall not receive evidence on motions challenging . . . 

the veracity of a sworn statement used to procure a search warrant 

unless the motions are supported by affidavits, or their absence is 

2

 The Court’s analysis in this case, whether it based upon the four corners of the affidavit or 

after the reverse-Franks hearing discussed infra, requires a showing of a nexus between the 

seized evidence (here, Mr. Bailey’s DNA) and samples or likely recovered samples from the 

crime scene. Namely, to demonstrate such a nexus, the warrant must demonstrate that either 

(1) the police recovered a DNA sample from a location or object occupied or used by the 

suspect, or (2) there is a fair probability that the seized sample of an individual’s DNA will be 

recovered and can be linked to a crime. State v. White, 2017 WL 1842784, at *5 (Del. Super. 

May 8, 2017). Here, the affidavit recites that the police recovered multiple DNA samples from 

the vehicle. Taking that at face value satisfied alternative (1) above and establishes the required 

nexus – that is a demonstration that there was something recovered to compare to Mr. Bailey’s 

DNA. 
3

satisfactorily explained in the motion and the allegedly false 

statement is necessary to the finding of probable cause. 

Mr. Bailey’s original motion included no affidavit. Nor did it satisfactorily 

explain the absence of one. Moreover, it did not request an evidentiary hearing. 

Accordingly, the Court declined to open the record to receive extrinsic evidence 

based upon Mr. Bailey’s original filing. 

5. Nevertheless, his original filing included pictures of the scene with 

his original motion and referenced facts that were not mentioned in the affidavit. 

In fairness, his motion drew attention to matters outside the four corners of the 

affidavit and raised at least a credible issue. Accordingly, the Court permitted him 

to file an amend motion to address his contentions. 

6. In Mr. Bailey’s amended motion, he contends that he has no ability 

to provide an affidavit to support his request for an evidentiary hearing. Instead, 

he relies on photographs of the murder scene, DNA sample cataloging, and DNA 

testing results to demonstrate the prevalence of Mr. Wright’s DNA, as opposed to 

Mr. Bailey’s DNA, throughout the car. 

7. In response, the State concedes that Mr. Bailey’s amended motion 

satisfies Rule 41(f)’s specificity requirements. The State focuses its opposition 

on the latter part of Rule 41(f): which requires that “the allegedly [omitted fact] 

is necessary to the finding of probable cause.” Regarding this requirement, the 

State maintains that if the Court were to accept everything that Mr. Bailey alleges 

to be true, he is still not due an evidentiary hearing. According to the State, even 

if the affiant had recited that Mr. Wright’s blood was some, most, or all the DNA 

recovered from the back seat, the seizure of Mr. Bailey’s DNA pursuant to the 

warrant remained lawful. The State also stresses that the detective’s recitation 

that the police found a 9mm casing in the rear seat should end the analysis.
4

8. In Franks v. Delaware,

3

the United States Supreme Court examined 

how to evaluate challenges to allegedly false recitations offered in a probable 

cause affidavit filed in support of a warrant application. Here, Mr. Bailey’s 

amended motion implicates what is described as a reverse-Franks, as opposed to 

a Franks, situation. It falls in the reverse-Franks category because it alleges a 

material omission of fact rather than a falsely stated fact.4 As a baseline for his 

argument, he focuses on the detective’s recitation that the police “processed the 

interior/exterior of the vehicle and obtained numerous DNA samples from the rear 

seat where the accused/Marcus Bailey was positioned at the time of the murder.”

5

 

Mr. Bailey contends that when the detective failed to disclose that Mr. Wright’s 

blood was spread throughout the vehicle’s rear seats, the affidavit recklessly 

misled the magistrate into approving a warrant to seize Mr. Bailey’s DNA.

9. Typically, the sufficiency of a search warrant rises or falls on the facts 

presented within the four corners of the probable cause affidavit that supports the 

warrant application.

6

 There are limited exceptions to a four corners analyses, 

however. They include challenges to the manner of warrant execution.

7

 Other 

limited exceptions include challenges such as those raised by Mr. Bailey’s motion

– where a defendant contends that the police obtained a warrant by making false 

recitations or by recklessly withholding important facts.8In such limited 

3

438 U.S. 154 (1978).

4

See State v. Hackendorn, 2016 WL 266360, at *3 (Del. Super. Jan. 13, 2016) (explaining that 

a reverse-Franks situation arises when omitted information, which is material to a finding of 

probable cause, is the basis of a challenge to a warrant).

5 Aff. of Probable Cause ¶ 11.

6

See State v. Leonard, 2023 WL 2595729, at *2 (Del. Super Mar. 22, 2023) (“[I]t is well settled 

that a challenge to the sufficiency of a warrant for lack of probable cause to support the warrant 

permits only a four-corners review of the affidavit of probable cause....”) (citations omitted). 

7

 Id.

8 Hackendorn, 2016 WL 266360, at *3.
5

circumstances, the Court may expand the record and hold an evidentiary hearing 

to determine whether a warrant-authorized search was lawful.

9

10. The Court does not automatically conduct an evidentiary hearing

merely because a defendant alleges a falsity or a material omission, however.

10

 

The defendant bears the burden of persuading the Court to hold an evidentiary 

hearing.11 In the context of both Franks and reverse-Franks challenges, the 

defendant must provide a substantial showing that such a hearing is appropriate.12

When doing so, the Court must determine whether the alleged falsity or omission 

would have made a difference to the reviewing magistrate.

13

 In a Franks

challenge, the Court excises the allegedly false facts to determine if they would 

make a difference.

14

 In a reverse-Franks challenge, the Court then hypothetically 

inserts the omitted facts into the affidavit.

15

 If one of those changes would 

provide for a different outcome, then the defendant meets the threshold necessary 

to obtain a hearing.16

9

Id.

10 See Franks, 438 U.S. at 171–172 (“[I]f, when material that is the subject of the alleged falsity 

or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit 

to support a finding of probable cause, no hearing is required.”); see also Hackendorn, 2016 

WL 266360, at *4 (“[A] Frank’s or reverse-Frank’s hearing is not automatically granted upon 

request.”).

11 Hackendorn, 2016 WL 266360, at *4 (providing that the defendant bears the burden of 

persuading the Court that an evidentiary hearing is warranted).

12 Franks, 438 U.S. at 155–156.

13 Id. at 156.

14 Id.

15 Sisson v. State, 903 A.2d 288, 300 (Del. 2006).

16 See Franks, 438 U.S. at 171–172 (holding that after removing the allegedly false facts, “if 

the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth 

Amendments, to his hearing.”); see also Hackendorn, 2016 WL 266360, at *5 (explaining that

the defendant had adequately supported his request for a hearing by specifically alleging 

material omissions which would have caused a magistrate to deny the warrant based on a lack 

of probable cause). 
6

11. In cases where a reverse-Franks challenge progresses to an 

evidentiary hearing, the burden of proof is by a preponderance of the evidence.17 

There, the defendant must demonstrate that the affiant intentionally, knowingly, 

or with reckless disregard for the truth, omitted information material to a finding 

of probable cause.18 

12. Whether or not to conduct a hearing is a close call in this case. On 

one hand, Mr. Bailey highlights what is an important omission that a reasonable 

person would think was material to a finding of probable cause: the alleged 

victim’s blood, and no identified bodily fluid sample of the suspect, was spread 

across the area from which the police recovered multiple unspecified DNA 

samples. If extrinsic evidence presented at a hearing were to demonstrate that 

the police collected only those blood samples, that could make a difference 

regarding the sufficiency of the warrant. On the other hand, the affidavit recites 

that the police recovered a 9mm casing from the scene. If the evidence presented 

at a hearing demonstrates that the State took a sample from the 9mm casing, the 

answer may be different. Here, the affidavit does not reference whether the police 

swabbed the casing, any other part of the vehicle, or merely the blood residue 

inside the car.19 Extrinsic evidence regarding the totality of the DNA recovery 

efforts prior to the issuance of the warrant on April 4, 2023, must be considered. 

17 Id. at *3.

18 Id.

19 The Court recognizes that the materials Mr. Bailey submitted include references to a swab 

taken from the 9mm casing. That the police swabbed the casing to attempt to recover DNA, 

however, is not included in the affidavit. The Court is no freer to assume that fact to 

dispositively deny Mr. Bailey a hearing, than it would be free to assume Mr. Bailey’s 

implications that the only DNA samples taken before the issuance of the warrant were from Mr. 

Wright’s blood. The hearing will cover the totality of the evidence relevant to police efforts to 

recover DNA from the vehicle. While the Court reserves decision on whether the scope of the 

hearing should also include the later recovery of the mask in the car allegedly driven by Mr. 

Bailey around the time of the murder, the parties must be prepared to present evidence regarding 
7

13. Importantly, during the upcoming hearing, the relevant inquires will 

track the two-part inquiry identified by the Delaware Supreme Court in Rivera v. 

State.

20

 The first inquiry requires the Court to determine if the alleged omissions 

were made with reckless disregard of what a reasonable magistrate or reviewing 

judge would find important.

21 Such “omissions are made with reckless disregard 

for the truth [if] an officer recklessly omits facts that any reasonable person would 

know that a judge would want to know in making a probable cause 

determination.”

22

 For that portion of the inquiry, recklessness may be inferred 

when the omitted information was “clearly critical to the probable cause 

determination.”

23

14. The second part of the inquiry – materiality – is inextricably 

intertwined with the first. After hearing extrinsic evidence on the issue, the Court 

must determine whether the omissions were necessary for a finding of probable 

cause under the totality of the circumstances.

24

 Notably, the two inquiries can be 

undertaken in reverse order.25 Furthermore, they could just as easily and 

appropriately be combined into one inquiry because the subjective component of 

the first (i.e. knowledge or reckless disregard of what would be important to a 

that issue as well. If the totality of the evidence is the touchstone for any Fourth Amendment 

analysis, and the defense justifies opening the record to hear extrinsic evidence, it may be 

appropriate for the Court to consider all evidence bearing on DNA sampling prior to the warrant 

application when determining what to hypothetically insert into the warrant. The parties should 

be prepared to address that issue during the hearing.

20 7 A.3d 961, 968–969 (Del. 2010).

21 Id.

22 Id. (internal quotation marks omitted) (quoting Wilson v. Russo, 212 F.3d 781, 783).

23 Id. at 969.

24 See Id. at 969–970 (explaining that to evaluate the materiality of omitted facts, the Court must 

“reconstruct the affidavit” with the omitted information and consider whether probable cause 

still exists when viewed under the totality of the circumstances).

25 Id. at 969.
8

magistrate) becomes intertwined with the second.26 On balance, the scope of the 

hearing will examine the totality of the evidence regarding (1) the officer’s state 

of mind when applying for the warrant, and (2) the scope and timing of DNA 

sampling prior to the application for the warrant. After the Court makes relevant 

findings of fact, it will evaluate a reconstituted affidavit in light of those additional 

facts.27

15. Because of the limited time available between now and the start of 

trial, the evidentiary hearing in this matter will be held at 9:30 a.m. on Thursday, 

April 18, 2024. If either party has an irreconcilable conflict with that date, they 

must promptly notify the Court. In such an event, the Court will conduct the 

hearing after jury selection and before opening statements on the first day of trial, 

April 22, 2024, so the trial schedule will be left intact. 

WHEREFORE, after considering Mr. Bailey’s amended motion to 

suppress and the State’s response, the Court GRANTS Mr. Bailey’s motion for a 

26 After all, it is the reckless disregard of the materiality of the omission that is examined in the 

first inquiry. Subjective awareness of a known risk – here the risk being a material omission -

- can just as easily be recognized as blending the two inquiries into one because you cannot 

evaluate the first inquiry regarding the officer’s state of mind without considering the 

materiality of the omission examined in the second inquiry. See Rivera, 7 A.3d at 969

(recognizing the interrelationship of the inquiries). 

27 One important reason that the Court’s decision to conduct a reverse-Franks hearing is such a 

close call is the reference to the fact that a DNA sample was recovered from the 9-mm cartridge 

in the rear of the vehicle. The existing warrant merely mentions that the recovery of the 

cartridge’s casing (referred to as a “shell casing”). The swabbing and sampling of the casing 

is unrelated to blood spattering and would add relevant facts to the warrant that the Court will 

likely also consider. Another set of relevant facts may surround the recovery of the mask 

allegedly used by Mr. Bailey. The documents Mr. Bailey submitted indicated that the mask was 

recovered and swabbed before the detective applied for the warrant to seize Mr. Bailey’s DNA. 

The extent of the blood spattering, the potential swabbing and testing of the casing, and the 

testing of the mask all fall outside the current record notwithstanding the materials submitted 

by the defense as to all three. The Court will consider the totality of the detracting and 

enhancing evidence on the issue of sample recovery before it decides whether the reconstituted 

warrant meets the nexus requirement. 
9

reverse-Franks hearing. It is appropriate to conduct an evidentiary hearing to 

apply the two-part inquiry adopted in Rivera v. State so that the Court may 

determine if the seizure of Mr. Bailey’s DNA was lawful. 

IT IS SO ORDERED. 

 /s/Jeffrey J Clark

 Resident Judge

oc: Prothonotary

sc: Counsel of Record