IN THE SUPREME COURT OF THE STATE OF DELAWARE

RICHARD LEWIS,
Defendant Below, Appellant,

v. STATE OF DELAWARE
Plaintiff Below, Appellee. § § § § § § § § § § § No. 117, 2021
Court Below

— Superior Court of the State of Delaware

ID. No. 1510009348 (N)

Submitted: December 1, 2021 Decided: January 20 , 202 2
Before SEITZ , Chief Justice; VALIHURA , and VAUGHN , Justices. O R D E R
This 20 th day of January 202 2 , upon consideration of the parties’ briefs and the record of the case, it appears that: (1 ) The D efendant

- A ppellant, Richard Lewis, appeals from the Superior Court’s denial of his Amended Motion for Postconviction Relief. Lewis was convicted by a jury of two counts of Burglary Second Degree , one count of Attempted Burglary Second Degree, two counts of Theft, two counts of Criminal Mischief, and one c ount of Receiving Stolen Property. The Superior Court declared
Lewis a n habitual offender and sentenced him to an aggregate 26

- year term of2

inc arceration. Lewis’s conviction was affirmed by this Court on direct appeal. 1 (2) In the course of investigating the crimes that led to Lewis’s arrest, the New Castle County police applied for an d obtained warrants to attach GPS devices

to cars that he owned and used

. During the GPS moni toring, police tracked Lewis’s vehicles as they traveled within the State of Delaware and also while in Pennsylvania, New Jersey , and New York. (3) Lewis makes two claims on appeal. First, h e argues that his trial counsel was ineffective by not presenting a meaningful argument that Delaware police may not track someone outside the S tate of Delaware with a GPS device , even if the police have a valid GPS warrant and the GPS is attached in Dela ware (the

“ continued monitoring argument ” ). As part of this argument, h e also argues that trial counsel failed to argue effectively that the attenuation and independent source
doctrine s , which the trial court relied upon in rejecting the continued monitoring argument, were not applicable. His second argument is that appellate counsel was
ineffective because appellate counsel did not raise the continued monitoring argument on appeal. ( 4 ) The facts can be summarized as follows. The first G SP warrant was issued on J une 25, 2015 , giving the police authority to attach a GPS tracking device

to Lewis’s 19 99 Lexus GS400

. Although the affi davit in support of the June 25,

1 Lewis v. State , 2018 WL 61970 6 (Del. Jan. 29, 2018) (ORDER).3

2015 , warrant requested that the w arrant “authorize members of the New Castl e County Police to monitor the data provided by the GPS unit both within and outside the State of Delaware,” 2 the warrant did not expressly authorize monitoring outside the State of Delaware. Rather, the Superior Court's warrant read: “The Mobile
Trackin g Device is to be installed within the State of Delaware.” 3 The authorization
was for a 30

- day period beginning upon installation of the device, and the order specified that the device be removed at the end of the period. ( 5 ) After GPS surveillance began , the police gained additional information from tracking Lewis inside the State of Delaware that helped support probable cause

to apply for a new warrant extending the June 25, 2015 , warrant for an additional 30 days. ( 6 ) On August 10, 2015, the New Castle County police applied for a third

warrant to attach a GPS device to a Ford Explorer

. The application for that warrant recites that after the Lexus remained in one location for several days, the police learned that on July 30, 2015, Lewis purchased a brown 2003 Ford Explorer. Based upon the information from the two previous warrants and this new information, the Superior Court issued a warrant on August 10, 2015, authorizing a GPS device to be installed on the Ford Explorer. On September 11, 2015, the police applied for a

2 App. to Opening Br. at A48 (June 25 Affidavit) [hereinafter “A_ ” ]. 3 June 25 Warrant , at A41.4

fourth warrant extending the August 10, 2015 , warrant for an additional 30 days.
The warrant was iss ued authorizing that a t racking d evice to “be installed within the State of Delaware” 4 on Lewis’s brown 2003 Ford Explorer. ( 7 ) Of particular relevance to th is appeal is an occasion where the police
tracked Lewis’s Lexus to Radnor, Pennsylvania on July 4 , 2015. Subsequent

c ommunications between the Radnor police and the New Castle County police revealed that the Radnor police investigated a burglary in their jurisdiction that was reported on July 5, 2015. Radnor police later notif i ed Detective DiNardo of the New Castle County police department that the victim of the Radnor burglary located two pieces of stolen jewelry on an eBay page associated with Metals NY. Detective
DiNa rdo reviewed the eBay page with the victim of one of the Delaware burglaries
and she identified two other pieces of j ewe lry as belonging to her. Detective DiNardo contacted Metals NY and recovered those two pieces of jewelry. The
owner of Metals NY id entified Lewis as the person who sold him the Delaware victim’s jewelry. On a later occasion, the New Castle County police tracked one of Lewis’s vehicles from Delaware to New York City and back. The police tracked the vehicle to a rest stop in New Jerse y, where officers were positioned to conduct surveillance. They identified Lewis as the driver. On another occasion the police
tracked one of Lewis’s vehicles to Pennsylvania, where officers conducting

4 September 11 Warrant , at A88.5

surveillance identified Lewis as the driver. ( 8 ) In pre
- trial proceedings, Lewis moved to suppress the evidence
obtained by use of the GPS devices

. He raised two arguments in connection with
his motion . One was that the warrants were not supported by probable cause. The
second was the continued monitoring argument. As to that contention, Lewis’s
counsel argued that the Superior Court did not have jurisdiction to approve tracking
of Lewis’s vehicles outside the State of Delawar e
. Counsel argued that out

- of

- state monitoring violated Lew is’s rights under the Fourth Amendment and 1 1 Del. C. § 2304, which authorizes Delaware judges to issue warrants “within the limits of their respective territorial jurisdictions [.] ” ( 9 ) The trial court denied the motion . It found that the warrants w ere supported by probable cause. Lewis does not challenge trial counsel’s effectiveness
as to that issue. The trial court also rejected Lewis’s continued monitoring argument
on the basis of the attenuation and independent source doctrines. 5 The continued monitoring argument had not been contained in the written motion and was raised for the first time at the hearing on the motion. ( 10 ) On direct appeal, Lewis again argued that the warrants were not supported by probable cause. This Court r ejected that argument, and appellate counsel’s effectiveness on that issue is not challenged in this proceeding. Appellate

5 The basis upon which we decide the appeal does not require us to address these doctrines.6

counsel also argued on direct appea l that the Superior Court lacked jurisdiction to authorize GPS tracking outside the S tate of Del aware. Appellate counsel , however, analogized the warrants issued in Lewis’s case to warrant s issued by a state court for
the search of property, such as a house owned by a suspect , in a different state. Appellate counsel did not make the continued monit oring argument as applied to a
GPS device attached to the car in Delaware pursuant to a valid warrant but monitored
when the vehicle was outside Delaware. In addition, counsel did not challenge the trial court’s reliance on the attenuation doctrine or the independent source doctrine. After noting that the continued monitoring issue was raised in the Superior Court but that no argument on that issue was made on appeal, t his Court concluded that the continued monitoring argument was waived and did not consi der it

. (1 1 ) In this proceeding, the Superior Court found both that Lewis failed to meet his burden of showing that either trial counsel or appellate counsel was ineffective and failed to show prejudice resulting from either counsel’s conduct. The

c ourt correctly noted that w hether out

- of

- state monitoring of a GPS device properly placed on a vehicle in Delaware pursuant to a Delaware warrant violates any

const itutional or statutory provision is an issue that has not been decided in this state.
This led the Superior Court to conclude that it would “not find trial counsel ineffective for failing to ‘effectively’ raise an issue of first impression.” 6 The c ourt

6 Opening Br. Ex. A at 5

.7

stated:
It is well

- established that defense counsel has no duty to

anticipate changes in the law. At the time of Lewis’ trial, the law was undecided as to whether Delaware police may track subjects beyond state borders pursuant to validly issued GPS warra nts. To overcome the deficient performance prong under Strickland , the movant bears the burden of proving that prior counsel knew or should have known that Delaware courts would rule that extra

territorial GPS signals are inadmissible. Mr. Lewis has not met this burden. Even today, the Supreme Court has not ruled on the issue.” 7 Turning to the prejudice prong of Strickland , the c ourt reasoned that case law establishing that a warrant is required for the attachment of a GPS device to a vehicle has focused on the placement of the device on the vehicle as being a common law trespass or a breach of the suspect’s reasonable expectation of privacy, not the
seizure of data emitted from the device. The c ourt was not persuaded that the data emitted from the device was protected by the F ourth A mendment, stating that “[i]t would seem, therefore, that the constitutional ‘harm,’ sought to be prevented by the warrant requirement is the placement of the tracker, not the data emitted as a result thereof from wherever it is generated.” 8 The c ourt concluded that:

Because the Court will not find trial counsel ineffective for failing to “effectivel y” raise an issue of first impression, and because the Court believes that even if he had done so effectively, the issue would not have been decided in his favor and he therefore suffered no prejudice, the Court

7 Id. at 4 (citations omitted). 8 Id. at 5.8 concludes that Defendant’s . . . claim for relief must be denied. 9

( 12 ) We review the Superior Court’s denial of a Rule 61 motion for postconviction relief for abuse of di s cretion. 10 We review legal and constitutional questions de novo

. 11 (1 3 ) To prevail on a claim of ineffective assistance of counsel, Lewis must satisfy the two

- prong standard of Strickland v. Washington

. 12 Lewis must prove that (1) his trial counsel’s performance was objectively unreasonable and (2) his defense was prejudiced as a result. 13 Under the first prong, judicial scrutiny is “highly deferential.” 14 Courts must ignore the “distorting effects of hindsight” and proceed with a “strong presumption” that counsel’s conduct was reasonable. 15 The
Stric kland c ourt explained that “a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.” 16

9 Id. 10 Ploof v. State , 75 A.3d 811, 820 (Del. 2013) (en banc). 11 Id. 12 466 U.S. 668, 687 (1984). 13 Id. at 687

- 88, 691

- 92. 14 Id. at 689. 15 Id. 16 Id. at 690.9

(1 4 ) Under the second prong, “[i] t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.” 17 In other words, “not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding.” 18 The movant “must make specific allegations of actual prejudice and substantiate them.” 19 These allegations must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 20 “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” 21 “The ‘reasonable probability’ standard is less strict than the ‘more likely than not’ standard, but it requires more than a showing of a theoretical possibility that the outcome was affected.” 22 In sum, Lewis must prove actual prejudice. 23 ( 15 ) Lewis contends that trial and appellate counsel were on notice of the relevant constitutional and statutory issues , that they failed to raise and argue them

17 Id. at 693. 18 Id. 19 Outten v. State , 720 A.2d 547, 552 (Del. 1998) (en banc) (quoting Wright v. State , 671 A.2d 1353, 1356 (Del. 1996 ) (en banc), cert. denied , 517 U.S. 1249 (1996)). 20 Albury v. State , 551 A.2d 53, 58 (Del. 1988) (quoting Strickland , 466 U.S. at 694). 21 Strickland , 466 U.S. at 6 94. 22 Frey v. Fulcomer , 974 F.2d 348, 358 (3d Cir. 1992), cert. denied , 507 U.S. 954 (1993) (citing Strickland , 466 U.S. at 693

- 94). 23 Strickland , 466 U.S. at 693 (“[A]ctual ineffectiveness claims alleging a deficiency in attorney performance are subject t o a general requirement that the defendant affirmatively prove prejudice.”).10

effectively , and that he was prejudiced thereby. He contends that the Superior Court erred by denying his motion. ( 16 ) We do not believe that trial and appellate counsel’s failure to make the continued monitoring a rgument “more effectively” renders their performance
ineffective under Srickland . T his Court has declined to rule on the admissibility of extraterritorial GPS signals several times. As recently as 2018 in Metelus v. State , 24 this Court explicitly decline d to answer this question. Therefore, at the time of Lewis’s trial and appeal, there was no precedential guidance on the “continued monitoring” issue from this Court or the United States Supreme Court. As correctly noted by the Superior Court in this case , it is well

- established that counsel has no duty to anticipate changes in the law. Nor does counsel have a duty to foresee new developments in the law which lie in the future. Lewis’s argument that appellate
counsel was ineffective for fail ing to challenge the Superior Court’s reliance on the
attenuation and independent source doctrine s must be rejected for the same reason. ( 1 7 ) Finally, Lewis’s argument that he suffered prejudice as a result of the
conduct of his trial and appellate coun sel must also be rejected. In order to show prejudice, Lewis would have to show that continued GPS monitoring outside
Delaware violate d his constitutional or statutory rights. But since neither this Court nor the U.S. Supreme Court has ruled on the issue , no such showing can be made.

24 200 A.3d 227, 2018 WL 6523215 (Del. Dec. 10, 2018).11

NOW, THEREFORE, IT IS THE ORDER of the Court that the judgment of the Superior Court is AFFIRMED.
BY THE COURT: /s/ James T. Vaughn, Jr. Justice