IN THE SUPREME COURT OF THE STATE OF DELAWARE

DEVIN COLEMAN,

Defendant Below,

Appellant,

v.

STATE OF DELAWARE,

Appellee.

§

§ No. 192, 2021

§

§ Court Below—Superior Court

§ of the State of Delaware

§ 

§ Cr. ID Nos. 1303012706 (K), 

§ 1303004663 (K)

§ 

§

§

Submitted: October 19, 2022

Decided: January 3, 2023

Before SEITZ, Chief Justice; VALIHURA and TRAYNOR, Justices.

ORDER

After consideration of the parties’ briefs and the record on appeal, it appears 

to the Court that: 

(1) The appellant, Devin Coleman, filed this appeal from a Superior Court 

order finding that he violated the terms of his probation and conditional release. The 

primary issue on appeal is whether the Superior Court erred in denying Coleman’s 

motion to suppress. For the reasons set forth below, we affirm the Superior Court’s 

judgment.

(2) In June 2020, Coleman began serving conditional release for a 

possession of a firearm by a person prohibited (“PFBPP”) conviction in Criminal ID 

No. 1303012706 and Level III probation for disregarding a police signal, second-
2

degree conspiracy, and second-degree reckless endangering convictions in Criminal 

ID No. 1303004663. 

(3) Coleman, along with others, became the subject of an investigation that 

included a wiretap of his phone. Probation Officer Ricky Porter was a member of 

the task force conducting the investigation. 

(4) On July 21, 2020, another member of the task force investigating 

Coleman, Dover Police Officer Robert Cunningham, advised Porter that Coleman 

had made incriminating statements on a monitored phone call. Cunningham told 

Porter that he recognized Coleman’s voice on the call and that the monitored phone

number belonged to Coleman. According to Porter, Cunningham also told him that, 

during the monitored call, Coleman said that he had purchased firearms and 

possessed those firearms in his hotel room, Room 117 at the Capital Inn. Coleman 

was a person prohibited from possessing a firearm. 

(5) Porter confirmed that Room 117 was the address Coleman had 

identified to Probation & Parole as his address. Porter had also seen Coleman in the 

doorway of Room 117 a few days earlier. Porter wanted to act on the information 

provided by Cunningham immediately, but Coleman was in transit and there was not 

a safe opportunity to contact him. 

(6) On the morning of July 22, 2020, law enforcement officers conducting 

surveillance observed Coleman, carrying a backpack, enter Room 117. Porter 
3

promptly contacted his supervisor, Joel Duquette, to obtain permission to conduct 

an administrative search of Coleman’s hotel room. After Duquette and Porter went 

through the checklist factors in Probation and Parole Procedure 7.19, Duquette 

verbally authorized the search. 

(7) Porter, another probation officer, and a Dover police officer then 

approached Room 117. Porter smelled marijuana. After Porter knocked on the 

door, Coleman looked out the window, closed the curtain, and took a long time to 

open the door. The odor of marijuana became stronger when Coleman opened the 

door. In addition to Coleman, two women and a man were in the room. Two bundles 

of what appeared to be heroin were in plain view on the bed. 

(8) The probation officers conducted an administrative search of the room. 

Porter found two firearms—a .40 caliber Smith & Wesson and a 9mm Ruger—in a 

backpack on the floor next to the television stand. There was also mail with 

Coleman’s name on it in the room. Following the search, Porter electronically filed 

the Procedure 7.19 checklist, which Duquette electronically signed. 

(9) Coleman’s probation officer, Christopher Nichols, filed administrative 

warrants for Coleman’s violation of conditional release and probation. Nichols 

alleged that Coleman had violated his conditional release and probation by 

committing new criminal offenses (PFBPP and Possession of Ammunition by a 
4

Person Prohibited)1and possessing a firearm without Nichols’ permission. After 

several continuances of a hearing on the violations, Coleman’s counsel filed a 

motion to suppress on November 23, 2020. Coleman sought suppression of the 

firearms and other evidence found in the hotel room based on the probation officers’ 

failure to comply with Procedure 7.19. In its response to the motion to suppress, the 

State included the administrative checklist. The State explained that the use of 

“confidential source” in the checklist was a temporary means of preventing the 

wiretap from becoming public. 

(10) During a December 8, 2020 conference, the Superior Court discussed 

with counsel the logistics of a combined hearing on the motion to suppress and the 

violations of conditional release and probation. At the December 11, 2020 hearing, 

Coleman’s counsel advised that Coleman wished to represent himself. The Superior 

Court conducted a limited colloquy with Coleman, found that Coleman had waived 

his right to proceed with counsel on the motion to suppress and the violations of 

conditional release and probation, and continued the hearing so that Coleman could 

receive the exhibits to the State’s response to the motion to suppress. 

(11) The suppression and violations hearing was scheduled for January 

2021, but then rescheduled for February 2021 because Coleman was unavailable due 

to COVID-19 protocols at the prison. A pre-hearing conference was scheduled for 

1 Those charges are the subject of another appeal, Coleman v. State, No. 83, 2022.
5

January 27, 2021. On January 19, 2021, the Superior Court advised the parties that 

Coleman’s counsel for the new criminal case should attend the pre-hearing 

conference because the suppression decision could affect that case. The court 

advised that if Coleman still wished to represent himself in the combined 

suppression and violations hearing, the court would conduct a more detailed pro se 

colloquy. The pre-hearing was rescheduled for February 22, 2021.

(12) On February 22, 2021, the Superior Court discussed with the parties 

and Coleman’s counsel for the new charges the possibility that the suppression 

motion could have an impact on the new charges. Coleman’s counsel indicated that 

Coleman still wanted to represent himself in connection with the suppression motion 

and violations hearing. After conducting a colloquy with Coleman, the Superior 

Court found that he had knowingly, intelligently, and voluntarily waived his right to 

counsel in the violation of conditional release and probation proceeding. The court 

then went over the procedures for the combined suppression and violations hearing, 

which would start with the suppression motion and then proceed to the violations of 

conditional release and probation. Coleman’s counsel for the new charges received 

permission to attend the hearing if he was available.

(13) On March 16, 2021, April 6, 2021, and April 13, 2021, the parties 

presented evidence regarding the motion to suppress. On April 13, 2021 and April 

29, 2021, the parties presented evidence regarding the violations of conditional 
6

release and probation. The Superior Court invited the parties to submit supplemental 

arguments within fourteen days if they wished to do so. Coleman submitted 

supplemental arguments. The State did not.

(14) On May 27, 2021, the Superior Court issued its decision on the motion 

to suppress and the violations of conditional release and probation.

2

 The Superior 

Court denied the motion to suppress, concluding that Probation and Parole (“P & 

P”) had substantially complied with Procedure 7.19.3 As to the violations of 

conditional release and probation, the Superior Court held that the State had shown 

by a preponderance of the evidence that Coleman had violated his conditional release 

and probation.4 

(15) On June 10, 2021, the Superior Court sentenced Coleman for his 

violations. As to the PFBPP conviction, the Superior Court revoked Coleman’s 

conditional release and noted that the maximum expiration date of that sentence was 

March 14, 2021. As to the other convictions, the Superior Court sentenced Coleman 

as follows: (i) for disregarding a police signal, two years of Level V incarceration, 

suspended after one year served under 11 Del. C. § 4204(k) for decreasing levels of 

supervision; (ii) for second-degree conspiracy, two years of Level V incarceration, 

suspended after six months for decreasing levels of supervision; and (iii) for 

2

State v. Coleman, 2021 WL 2181428 (Del. Super. Ct. May 27, 2021).

3

Id. at *5-7.

4

Id. at *8-9.
7

disregarding a police signal, two years of Level V incarceration, suspended for 

decreasing levels of supervision. The Superior Court discharged Coleman from 

probation as unimproved for the second-degree reckless endangering conviction. 

This appeal followed. 

(16) Coleman’s arguments on appeal may be summarized as follows: (i) the 

State violated 11 Del. C. § 2407 by failing to provide an inventory notice of the 

wiretap order and by failing to provide the wiretap order and application; (ii) the 

Superior Court erred in denying Coleman’s request to subpoena his former VOP 

counsel, the former prosecutor for the State, and Cunningham; (iii) the Superior 

Court erred in holding that P & P complied with Procedure 7.19 in conducting the 

administrative search of Coleman’s hotel room; and (iv) the State violated Superior 

Court Criminal Rule 32.1 by failing to produce the audio recording of the call in 

which Coleman indicated he was buying firearms.

(17) We review the denial of a motion suppress evidence after an evidentiary 

hearing for abuse of discretion.5 To the extent the claim of error implicates questions 

of law, we review de novo.

6

 We review the Superior Court’s revocation of probation 

for abuse of discretion.7 Unlike a criminal trial, the State is only required to prove a 

5 Culver v. State, 956 A.2d 5, 10 (Del. 2008).

6

Id.

7 Kurzmann v. State, 903 A.2d 702, 716 (Del. 2006).
8

violation of probation by a preponderance of the evidence.8 The same standards 

apply to a violation of conditional release. 

(18) Coleman first argues that the Superior Court should have excluded all 

evidence derived from the wiretap because the State violated 11 Del. C. § 2407(g)(4)

and (h). Section 2407(g)(4) provides:

Within a reasonable time but not later than 90 days after the termination 

of the period of an order or extensions thereof, the issuing judge shall 

cause to be served, on the persons named in the order and the other 

parties to intercepted communications as the judge may determine in 

that judge’s discretion that is in the interest of justice, an inventory that 

shall include notice of:

a. The fact of the entry of the order;

b. The date of the entry of the order and the period of authorized 

interception; and,

c. The fact that during the period, wire, oral or electronic 

communications were or were not intercepted.

The judge, upon the filing of a motion, shall make available to the 

person or the person’s counsel for inspection, portions of the 

intercepted communications, applications and orders pertaining to that 

person and the alleged crime.

Section 2407(h) provides:

Prerequisites to use of contents of communication as evidence.—The 

contents of any intercepted wire, oral or electronic communication or 

evidence derived therefrom may not be received in evidence or 

otherwise disclosed in any trial, hearing or other proceeding in the 

courts of this State unless each party, not less than 10 days before the 

trial, hearing or proceeding, has been furnished with a copy of the court 

order and accompanying application under which the interception was 

authorized. 

8

Id.
9

(19) Coleman did not raise either of these provisions until the last day of the 

combined suppression and violations hearing. The Superior Court did not address 

Coleman’s reliance on Section 2407(g), but rejected his reliance on Section 2407(h)

because the motion to suppress did not put the court or State on fair notice of the 

wiretap issue.9 The court also found that Coleman waived receipt of the wiretapderived evidence by not invoking Section 2407(h) until the last day of the hearing.10

 

Finally, the Superior Court relied on the prosecutor’s representation that he had 

provided the wiretap application and order to defense counsel (which included

Coleman’s counsel) in the new criminal case on April 12, 2021.11 

(20) We agree that Coleman did not raise Section 2407 in a timely manner. 

As Coleman points out, he could not include Section 2407 in his November 23, 2020 

motion to suppress if he was not aware of the wiretap at that time. But Coleman and 

his counsel were aware of the wiretap by December 2020. The State referred to the 

wiretap in its December 7, 2020 response. Coleman sent correspondence to the court 

with references to the wiretap by the end of December 2020. 

9 Coleman, 2021 WL 2181428, at *7.

10 Id. at *8.

11 Id. In that criminal case, Coleman joined in a co-defendant’s motion to suppress arguing that 

the probable cause affidavits supporting the wiretap warrants did not demonstrate the necessity of 

the warrants. State v. Mack, 2021 WL 4848230, at *1 (Del. Super. Ct. Oct. 18, 2021). The Superior 

Court denied the motion. Id. at *5-9. The motion to suppress conceded that the affidavits provided 

probable cause to support the wiretaps. Id. at *5. 
10

(21) Yet Coleman did not file an amended motion to suppress based on the 

wiretap. Coleman did not, as he suggests, need a Section 2407(g) inventory to do 

so. By December 2020, Coleman had sufficient information—that there was a 

wiretap of his phone in effect on July 21, 2020, and that his July 21, 2020 call 

discussing his purchase of weapons was intercepted—to challenge the wiretap and 

the admissibility of evidence derived from it. He did not invoke Section 2407 until 

the last day of the combined suppression and violations hearing, more than a month 

after Porter had testified about the search of his hotel room. Coleman’s references 

to the wiretap in his numerous letters to the Superior Court about access to the prison 

law library, scheduling, and other matters did not put the Superior Court or the State 

on fair notice of his Section 2407 claims. The Superior Court did not err in finding 

that Coleman had waived those claims. 

(22) Coleman next contends that the Superior Court erred in denying his 

request to subpoena his former VOP counsel, the former State prosecutor involved

in his VOP, and Cunningham. Coleman requested seven additional witnesses in the 

trial court, but does not make any arguments concerning those witnesses in his 

opening brief. He is deemed to have waived any arguments as to those witnesses.12 

12 Del. Supr. Ct. R. 14(b)(vi)(3) (“The merits of any argument that is not raised in the body of the 

opening brief shall be deemed waived and will not be considered by the Court on appeal.”).
11

(23) As to his former VOP counsel and the former State prosecutor, 

Coleman argues, as he did below, that their testimony would be relevant because a 

transcript of a November 12, 2020 office conference reflects that the prosecutor told 

Coleman’s counsel that there was no Procedure 7.19 documentation or checklist for 

the administrative search of his hotel room. Coleman claims that this means the 

testimony of these witnesses would be relevant to his theory that the Procedure 7.19 

checklist was created long after the administrative search. After reviewing the 

November 12, 2020 transcript, the Superior Court denied Coleman’s request, finding 

that the prosecutor made it clear at the hearing that he was not at liberty at that time 

to discuss certain items, which included sealed indictments. Coleman had therefore 

not shown that the testimony of either witness would be relevant to the proceedings 

or necessary to his defense.

(24) We agree. At the November 12, 2020 conference, the prosecutor 

requested a 48-hour continuance of the VOP hearing scheduled for November 16, 

2020.13 The prosecutor stated that one of the reasons for the request was the 

existence of “compartmentalized information” he could not use and things he could 

not say on the 16th (but could say on the 18th) because “it would risk lives.”14 After 

13 The hearing was ultimately rescheduled for December 11, 2020.

14 November 12, 2020 Transcript at 3. The Superior Court docket for Coleman’s new criminal 

case reflects that the indictment and warrant application were filed on November 17, 2020. State 

v. Coleman, Cr. ID No. 2010012644A&B, D.I. 1. The Court may take judicial notice of the records 

of any State court. D.R.E. 202(d)(1)(C).
12

Coleman’s counsel stated that he understood that there was no Procedure 7.19 

checklist and a motion on the administrative search might be necessary, the 

prosecutor indicated that some of the issues would be clarified when he could release 

“some of the compartmentalized information.”

15

 With the December 7, 2020 

response to the motion to suppress, the State attached the Procedure 7.19 checklist 

and stated that the phrase “confidential informant” had been used to temporarily 

prevent the wiretap from becoming public. 

(25) Contrary to Coleman’s contentions, the statements of his former VOP 

and the former prosecutor at the November 12, 2020 hearing do not support his 

theory that the Procedure 7.19 checklist was created long after the administrative 

search. The statements only reflect that the State, for a period of time, was trying to 

prevent the existence of the wiretap from becoming public. Coleman has not shown 

that his former VOP counsel or the former prosecutor would have any testimony 

relevant to the proceedings. The Superior Court did not err therefore in denying his 

request to subpoena those witnesses. 

(26) As to Cunningham, Coleman argued below that all the police officers 

identified in a police report as necessary witnesses, including Cunningham, were 

likely to have relevant information. He did not otherwise explain why Cunningham 

was a relevant witness. The Superior Court denied Coleman’s request, finding that 

15 Id. at 6.
13

none of the witnesses were necessary based on Coleman’s limited proffer. On 

appeal, Coleman describes Cunningham as a material witness, who would have 

relevant information about the monitored phone call that led to the administrative 

search. 

(27) The Superior Court did not err in denying Coleman’s request to 

subpoena Cunningham. Coleman offered almost no explanation for why 

Cunningham was a relevant witness in the proceedings below. He now emphasizes 

that Cunningham heard the phone call leading to the administrative search, but 

Porter testified as to what hold Cunningham told him. Hearsay is admissible in 

suppression hearings and VOP hearings.16 Coleman had the opportunity to crossexamine, and did cross-examine, Porter about what Cunningham told him. The 

central issue during the motion to suppress hearing was whether Porter had a 

reasonable articulable suspicion of illegal activity,17 not Cunningham’s actions or 

beliefs. Coleman has not shown any error in the Superior Court’s handling of his 

request for subpoenas directed to his former VOP counsel, the former prosecutor, 

and Cunningham. 

(28) Coleman next argues that the Superior Court erred in concluding that P 

& P substantially complied with Procedure 7.19 in conducting the administrative 

16 Houston v. State, 251 A.3d 102, 113-14 (Del. 2021); Kurzmann, 903 A.2d at 716-17.

17 Pendleton v. State, 990 A.2d 417, 419 (Del. 2010).
14

search of his hotel room. A probation officer may conduct an administrative search 

as long as he has reasonable articulable suspicion of criminal activity.18 Procedure 

7.19, promulgated under 11 Del. C. § 4321, sets out the procedural requirements for 

administrative searches.19 Under Rule 7.19, a probation officer must have a 

conference with his supervisor before the search and gain his supervisor’s approval 

for the search.20 The officer must discuss the following factors with his supervisor:

1. The officer has knowledge or sufficient reason to believe the offender 

possesses contraband;

2. The officer has knowledge or sufficient reason to believe the offender 

is in violation of probation or parole;

3. There is information from a reliable informant indicating the offender 

possesses contraband or is violating the law;

4. The information from the informant is corroborated; and

5. Approval for the search has been obtained from a Supervisor, a 

Manager, or the Director. If approval is not obtained prior to the search, 

list the exigent circumstances on the Search Checklist requiring you to 

proceed with the search.21

P & P is not required to complete a physical copy of the pre-search checklist to 

satisfy Procedure 7.19.22

(29) The Superior Court carefully reviewed each factor and the relevant 

evidence. As to the first factor, Porter testified that he learned from Cunningham, a 

18 Id.

19 Culver, 956 A.2d at 7.

20 Coleman, 2021 WL 2181428, at *5 (citing Delaware Department of Corrections Bureau of 

Community Corrections Probation and Parole Procedure No. 7.19 (“DOC BCC 7.19”) § 

VII(A)(5)(a)).

21 Id. (citing DOC BCC 7.19 § VII (e)).

22 Pendleton, 990 A.2d at 420.
15

law enforcement member of the same task force investigating Coleman, that 

Coleman talked about buying firearms and having those firearms in his hotel room, 

Room 117 at the Capital Inn, on a phone number belonging to Coleman. As to the 

second factor, Porter knew that Coleman was on probation and was a convicted felon

who could not legally possess a firearm. 

(30) As to the third factor, the source of Porter’s information was a police 

officer who was a member of the same task force investigating Coleman. 

Cunningham was part of the team monitoring phone calls, while Porter was involved 

in surveillance. Contrary to Coleman’s suggestion, Duquette could approve the 

search without knowing that it was Cunningham who told Porter what Coleman said 

on the wiretap. Duquette understood that the source of the information Porter 

received was the ongoing wiretap of Coleman’s phone. As to the fourth factor, 

Porter confirmed that Coleman had identified the Room 117 address to P & P as his 

address. Porter had personally seen Coleman in the doorway of Room 117 several 

days earlier. 

(31) Coleman argues that the State failed to show that Porter and Duquette 

held a case conference before the July 22, 2020 search. His reliance on post-July 

22, 2020 dates that appear on P & P paperwork, including the completed Procedure 

7.19 checklist, to make this argument is misplaced. As both Porter and Duquette 

credibly testified: (i) they discussed each of the Procedure 7.19 factors on the phone 
16

the morning of July 22, 2020; (ii) Duquette approved the search on that call; (iii) 

Porter conducted the search; (iv) Porter prepared all of the paperwork, including the 

Procedure 7.19 checklist that he had previously reviewed with Duquette on the 

phone, after the search; and (v) Duquette electronically approved the checklist on 

July 23, 2020. Coleman has not shown that Porter and Duquette failed to hold a 

conference before Duquette approved the search. The Superior Court did not err in 

finding that P & P substantially complied with Procedure 7.19.

(32) Finally, Coleman argues that the State was required to produce the 

wiretap recordings under Rule 32.1(a)(1)(B). This rule provides that a person 

subject to revocation of probation shall receive “[d]isclosure of the evidence against 

him.”23 As the State notes, Coleman made various arguments concerning the 

recordings below, but did not argue that the State was required to produce the

recordings under Rule 32.1(a)(1)(B) until this appeal. We review this claim for plain 

error.24 “[P]lain error is limited to material defects which are apparent on the face 

of the record; which are basic, serious and fundamental in their character, and which 

clearly deprive an accused of a substantial right, or which clearly show manifest 

injustice.”25 

23 Super. Ct. Crim. R. 

24 Supr. Ct. R. 8.

25 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
17

(33) This Court reads “Rule 32.1 as requiring disclosure of the evidence the 

State plans to present at the hearing.”26 A “defendant is entitled to disclosure of the 

evidence to be used against him,” but “is not entitled to discovery in a VOP 

proceeding.27 The State’s response to the motion to suppress referred to the 

existence of recorded phone calls. In December 2020, the prosecutor and Coleman’s 

counsel discussed with the court whether the State would be offering the recordings 

at the hearing or relying on witness testimony about the June 21, 2020 call. The 

State ultimately chose to rely on witness testimony and did not present the recordings 

at the hearing. Under Rule 32.1(a)(1)(B), the State was not required to produce 

recordings that it did not present or use at the hearing. Coleman has not shown plain 

error. Having considered the parties’ positions on appeal and the record below, we 

conclude that the Superior Court did not err in denying the motion to suppress and 

finding that Coleman violated his conditional release and probation.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior 

Court is AFFIRMED.

BY THE COURT:

/s/ Gary F. Traynor

Justice

26 Thompson v. State, 192 A.3d 544, 550 (Del. 2018).

27 Id. at n.12.