IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) )
v. ) I.D. No. 1909016237 ) JEFFREY KING , ) ) Defendant. )

Date Submitted: November 9, 2020 Date Decided: January 21 , 2021
Upon Defendant’ s Motion to Suppress Evidence, Amended Motion to Suppress Buccal Swabbing and Motion to Suppress Statements GRANTED in Part and DENIED in Part

Eric H. Zubrow , Esquire, Erika R. Flas c h ner , Esquire, Delaware Department of Justice, Wilmington, Dela ware, Attorneys for the State

. Kevin J. O’Connell , Esquire, Christina L. Ruggiero, Esquire, Delaware Office of Defense Services , Wilmington, Delaware, Attorneys for J effrey King

. DAVIS, J.

I. INTRODUCTION

This is a criminal action. On September 30, 2019, the State of Delaware obtained an
indictment against Defendant Jeffrey King charging him with two counts of Unlawful Sexual
Intercourse First Degree.
Defendant Jeffrey King has filed three motions to suppress : ( i ) a Motion to Suppress
Evidence seized from Mr. King’s residence and vehicle (the “Search Warrant Motion”), ( ii ) an
Amended Motion to Suppress Buccal Swabbing (the “Buccal Swabbing Motion”) and ( iii ) a
Motion to Suppress Defendant’s Statements (the “ Miranda Motion”). Mr. King argues that the

search of his residence and vehicle violated the Fourth and Fourteenth Amendment of the United
States Constitution and Article I, § 6 of the Delaware Constitution Mr. King also contends that a2

buccal swab taken from him violated the Fourth Amendment of the United States Constitution,
Article I, § 6 of the Delaware Constitution and 11 D EL

. C. 23

. Finally, Mr. King claims that his

statements were obtained in violation of Miranda

. The State opposed, in part, the Search
Warrant Motion, the Bu ccal Swabbing Motion and the Miranda Motion.
On November 9, 2020, the Court held a hearing on the motions. At the conclusion of the
hearing, the Court took the motions under advisement. For the reasons set forth below, the

Search Warrant and Buccal Swabb ing Motions are DENIED, and the Miranda Motion is

DENIED in part and GRANTED in part

.
II. RELEVANT FACTS

A. T HE A UGUST 4, 1993 A SSAULT On August 4, 1993, a woman (the “Woman”) 1 was attacked in Newark, Delaware. 2 The
attacker took her clothing and her identification card. 3 The attacker penetrated her vaginally
with his penis. 4 The attacker then fled with her personal items including the Woman’s “North
Carolina driver’s license, University of Delaware ID, ‘Car olina’ t

- shirt, denim shorts and
pantie s .” 5 The Woman immediately reported the attack to police. 6 The police initiated an
investigation. 7 The Woman underwent a Sexual Assault Nurse Examination (“SANE”) during
which her vagina was swabbed for DNA. 8 The police were unable to solve th is c ase in 1993.

B. DNA EVIDE NCE LEADS POLICE TO SUSPECT M R . K ING OF THE 1993 ASSAULT . The police reopened and reassigned the case to Detective Gerasimov in November 2017. 9

1 The name is not relevant to the decision here. 2 Mot. to Suppress Evid. (hereafter “Search Warrant Mot.”) ¶ 4. 3 Id. 4 Id. 5 Id. ; Id. Ex. A (Search Warrant Affidavit of Probable Cause).
6 State’s Resp. to Def.’s Mot. to Suppress (hereafter “Search Warrant Mot. Resp.”) 1.
7 Id. 8 Id. 1

- 2. 9 Search Warrant Mot. Ex. A.3

Investigators identified Mr. King as a suspect. 10
In August 2019, Newark Police Department detectives conducted surveillance on Mr.
King, his residence and place of employment. 11 On August 14, 2019, Mr. King purchased a
Wawa iced tea in a plastic bottle, drank from the bottle and placed the bottle in a plastic Wawa
bag. 12 Mr. King subsequently discarded the plastic Wawa bag containing the empty plastic

Wawa iced tea bottle in a Walmart trash can

. 13
Investigators seized the plastic Wawa bag from the Walmart trash can and sent the Wawa
iced tea bottle to the Delaware Division of Forensic Science to process for DNA evidence. 14 The
Division of Forensic Science prepared a report co mparing swabs from the Wawa iced tea bottle
to the vaginal swabs from the SANE kit. 15 The report indicated that the vaginal swab matched
the bottle sample. 16 The probability of randomly selecting an unrelated individual with a
matching DNA profile was on e in > 7,000,000,000,000 (7 trillion). 17
Using this information , the Newark Police Department obtained a search warrant
permitting them to obtain DNA from Mr. King by buccal swab or blood draw

. 18

C. T HE POLICE SEARCH M R . K ING ’ S R ESIDENCE AND V EHICLE .
On Octob er 3, 2019, a Pennsylvania court issued search warrants (the “Pennsylvania
Search Warrants”) for Mr. King’s residence at 123 Wesley Lane, Coatesville PA, 19320 and Mr.
King’s vehicle, a 2013 Chevrolet Silverado. 19 The Pennsylvania Search Warrant applicati ons

10 Id. 11 Amend. Mot. to Suppress Buccal Swabbing (hereafter “Amend. Buccal Swabbing Mot.”) ¶ 2. 12 Id

. 13 Id. 14 Id. 15 State’ s Resp. to Def.’s Amend Mot. to Suppress Buccal Swabbing (hereafter “Amend. Buccal Swabbing Mot. Resp.”) Ex. A. 16 Id. 17 Id. 18 Amend. Buccal Swab bing Mot. ¶ 1. 19 Search Warrant Mot. Ex. A; Search Warrant Mot. Ex. B (Search warrants for Mr. King’s vehicle and residence).4

were identical except for the search location. The supporting probable cause affidavits

contain ed , among other facts, the information about the investigation leading to Mr. King’s DNA
match with the vaginal swabs from the 1993 assault.

The search war rants sought:
a) Any items (letters, notes, papers, documents, identifications, etc.) in whatever form they may be found, that are associated with the identified victim, to include but not limited to items containing personal identifying information of the i dentified victim. Personal identifying information is to include but is not limited to name, date of birth, driver’s license number(s), address(es), etc.;
b) Any items (letters, notes, papers, documents, etc.) in whatever form they may be found, that would show Jeffrey KING’s travel plans, destinations, family relations, and/or other information related to Newark, DE and elsewhere.
c) Any items (letters, notes papers, documents, contact books, etc.) in whatever form they may be found, containing any iden tifying information (names, phone numbers, etc.) that would lead to identifying any friends or associates of Jeffrey King;
d) Any and all photo albums and loose photographs depicting Jeffrey KING;
e) Journals, dairies [sic], newspaper articles in whatever form they may be found, and/or any other records that are related to the incident described in this affidavit or any other serious crimes;
f) All electronic devices that can easily be used to connect to the internet for accessing and using web

- based services or strong digital data, which includes but is not limited the accessing and viewing web pages, submitting online form [sic], conducting electronic communications, etc. These electronic devices include but are not limited to computers, mobile phones, tablets, iPads, PDAs, etc.;
g) All external memory devices that can easily be used to store electronic data, including but not limited to hard drives, external hard drives, SIM cards, USB drives, floppy disks, cassette tapes, compact disks, RAM or ROM units, SIM cads , cellular phones, computers, etc.;
h) “Carolina” t

- shirt, denim shorts, and panties;
i) Receipts and other paperwork related to rental of storage unit(s) and/or offsite storage locations. 20

20 Search Warrant Mot. Ex. A.5

The Pennsylvania S earch W arrant applications also describe how Detective Gerasimov
knows, “[f]rom a combination of education, training, experience discussions with other law
enforcement officers, and study of legal documents,” that sexual offenders keep items they’ve
taken from victims as trophies; and also keep writt en journals, diaries and other records in easily
accessible locations such as homes, vehicles, storage sheds and storage containers. 21 On the
same basis, the Pennsylvania Search Warrant applications provide that Detective Gerasimov
knows that suspects conduct research and attempt to access updated information about crimes
they committed using electronic devices with internet access; and that those devices a re in easily

accessible locations. 22 In addition, the Pennsylvania Search Warrant applications state that
Detective Gerasimov knows that suspects use storage facilities to store items. 23 Finally, on the
same basis, Detective Gerasimov knows that people k eep photos of themselves, family and
friends; as well as contact information thereof in easily accessible locations. 24

Police executed the Pennsylvania Search Warrants on October 3, 2019. 25 Investigators
located older photos of Mr. King in the residence. 26 Investigators recovered nothing else of
evidentiary value from the residence or vehicle. 27

D. M R . K ING ’ S O CTOBER 3, 2019 A RREST AND I NTERROGATION . Coatesville Police arrested Mr. King and transported him to the Coatesville Police
Department station on Oc tober 3, 2019. 28 During booking, the booking officer asked Mr. King

21 Id. 22 Id. 23 Id. 24 Id. 25 Search Warrant Mot. Resp. 2. 26 Id. 27 Id. 28 Id. ; State’s Resp. to Mot. to Suppress Def.’s Statement (hereafter “ Miranda Mot. Resp.”) 2.6

for pedigree information. 29 An officer also asked for his cellphone passcode. 30 While escorting
Mr. King to an interrogation room, an officer explained that Mr. King might have to wait for

someone to interview him. 31 Mr. King asked , “Do I need my lawyer?” 32 The officer responded , “No, I’m just telling you this is our interview room.” 33
At 3:20 PM, officers entered the room to interview Mr. King. 34 One of the officers read
Mr. King’s Miranda rights. 35 Mr. King read and signed a Miranda form. 36 The officer asked if
Mr. King would make a statement and Mr. King responded , “Sure, why not.” 37

At 4:19 PM, the officers informed Mr. King that they had evi dence linking him to a

sexua l assault and Mr. King stated, “I think I need to call a lawyer.” 38 The officers told him that
this was the only chance he would have to respond to allegations and Mr. King asked, “Or what?
What happens?” 39 For the next two minutes, the officers talked about how Mr. King had the
opportunity to tell the police the “full story

. ” 40 The officers also warned him that staying silent
may not be in his best interest. 41 Then, during an additional two minutes, the offic ers described
potential consequences that a victim might feel. 42 Finally, the officers referenced Mr. King’s
earlier statement, saying, “You said it out of your own mouth, you’re a person that tries to make
things right.” 43

29 Miranda Mot. Resp. Ex. A at 7:00 (Arresting officer body camera footage). 30 Id. Ex. A at 7:30. 31 Id. Ex. A at 11:50. 32 Id. Ex. A at 12:05. 33 Id. Ex. A at 12:07. 34 Id. Ex. B at 3:20 PM (Interrogation room footage). 35 Id. Ex. B at 3:27 PM. 36 Id. Ex. B at 3:28 PM. 37 Id. Ex. B at 3:28 PM. 38 Id. Ex. B at 4:19 PM. 39 Id. Ex. B at 4:20 PM. 40 Id. Ex. B at 4:20

- 4:22 PM. 41 Id

. 42 Id. Ex. B at 4:22

- 4:24 PM. 43 Id. Ex. B at 4:24 PM.7

At this point , Mr . King reiterated that he thought that he “better call an attorney.” 44 An
interrogating officer said, “you have those rights and I’m willing to go over those rights again
with you.” 45 Mr. King said, “I guess I’m going to jail.” 46 The officer then said, “Yes, y ou have
the right to an attorney but think about doing the right thing.” 47 Mr. King said, “I guess I’m
going to jail aren’t I? I need an attorney.” 48 The officer then responded, “That’s clear at this
point,” and ended the interview. 49

III. PARTIES’ CONTENTIONS

A. T HE S EARCH W ARRANT M OTION Mr. King argues that the Pennsylvania S earch W arrant ’s supporting affidavits were

invalid because there is an insufficient factual nexus between the alleged crime and Mr. King’s

residence and vehicle . As such, Mr. King claims th at these affidavits do not support a finding of
probable cause and the issuance of the Pennsylvania Search Warrants

.
The State contends that the affidavit s sufficient ly set out facts supporting a finding of
probable cause for searching Mr. King’s residence or vehicle. The State additionally argues that
there is nothing suggesting that evidence related to the crime would not be at his residence or

vehicle.

B. T HE B UCCAL S WAB M OTION Mr. King argues that the police violated his reasonable expectation of privacy under the
Fourth Amendment by (i) constantly surveilling him for several days and (ii) conducting a
warrantless search by seizing a Wawa iced tea bottle that he discarded in a public trashcan at

44 Id. Ex. B at 4:24 PM. 45 Id. Ex. B at 4:24 PM. 46 Id Ex. B at 4:24 PM. 47 Id. Ex. B at 4:24 PM. 48 Id. Ex. B at 4:25 PM. 49 Id. Ex. B at 4:25 PM.8

Walmart

. Alternatively, Mr. King contends that the Delaware C onstitution guarantees a higher
privacy expectation in one’s garbage than that guaranteed under the Fourth Amendment. Mr.
King claims that that State violated his Fourth Amendment rights by seizing his DNA from the

Wawa iced tea bottle in a warrantless search

. Mr. King argues that without the DNA sample
seized from the Wawa iced tea bottle, then there is insufficient evidence to make a probable

cause finding and to justify the buccal swab search warrant.
The State argues that Mr. Kin g had neither a subjective nor an objectively reasonable
expectation of privacy in the Wawa iced tea bottle. Furthermore, the State contends that
swabbing the Wawa iced tea bottle is not a search for Fourth Amendment purposes and required

no warrant.

C. T HE M

IRANDA M OTION Mr. King argues that the police officers obtained several statements in violation of

Miranda

. Mr. King contends that these officers misled him on whether he needed a lawyer,
therefore preventing him from voluntarily waiving his Miranda rights. Mr. King notes that the
police officers c ontinued asking questions even after Mr. King invoked his right to counsel.
Finally, even if Mr. King ambiguously invoke d h is right to counsel, Mr. King argues that the
police officers should have either reread the Miranda warnings or clarified the ambiguous

invocation.

T he State contends that Mr. King voluntarily and knowingly waived his Miranda rights;
and that the police stopped questioning Mr. King after he clearly invoked his right to counsel.

IV. DISCUSSION

A. T HE AFFIDAVIT ESTABLISHED A LOGICAL NEXUS BETWEEN THE EVIDENCE SOUGHT AND M R . K ING ’ S RESIDENCE AND VEHICLE . The Court finds that from the four corners of the probable cause affidavit, the police had9

probable cause to believe that Mr. King’s residence had evidence of the unlawful sexual

intercourse.

Under Delaware’s four

- corners test for probable cause, “sufficie nt facts must appear on
the face of the affidavit so . . . a reviewing Court can verify the existence of probable cause.” 50
The test for probable cause only requires “that a probability . . . of criminal activity be

established.” 51 To establish probable cause to search a location, “first, there must be probable
cause that a crime was committed, and second, there must be probable cause to believe that

evidence of such a crime can be found” at the location. 52 In other words, there must be a “logical

nexus between the items sought and the place to be searched.” 53 The nexus “can be inferred
from the type of crime, the nature of the items sought, the extent of an opportunity for
concealment and normal inferences to where a criminal would hide [evidence of the crime].” 54 If
there is no nexus between the items sought and the place to be searched, the evidence “will be

inadmissible at trial.” 55

First, t he Court finds that the affidavits established probable cause that a crime was

committed because both affidavit s included the Woman’s description of her sexual assault. 56
Second, the Court finds that the affidavits established a logical nexus between the items

soug ht and Mr. King’s vehicle and residence. The Pennsylvania Search Warrant supporting

affidavits includ ed statements, based on training and experience , that sexual assault offenders
keep evidence from their assaults in easily accessible places. The Court considers it logical to
infer that if Mr. King committed the sexual assault, and sexual offenders keep evidence from

50 Pierson v. State , 338 A.2d 571, 573 (Del. 1975). 51 Jensen v. State , 482 A.2d 105, 112 (Del. 1984) (citing Spinelli v. United States , 393 U.S. 410, 419 (1969)). 52 State v. Cannon , 2007 WL 1849022, at *4 (Del. Super. June 27, 2007). 53 Dorsey v. State , 761 A.2d 807, 811 (Del. 2000). 54 State v. Ivins , 2004 WL 1172351, at *4 (Del. Super. May 21, 2004). 55 Id. 56 Search Warrant Mot. Ex. A ; Search Warrant Mot. Ex. B.10

sexual assaults in easily accessible places such as their homes and vehicles, then Mr. King would
keep such evidence in his home and vehi cle. The Pennsylvania Search Warrants were limited to
a search for specific types of evidence

— e.g ., the Carolina t

- shirt, information kept about the
Woman, possible off

- site storage, old photographs that would assist in identification The
Pennsylvania Search Warrants were not general warrants but were tailored for the circumstances
surrounding the alleged o ffenses. Therefore, the Court DENIES the Search Warrant Motion.

B. T HE BUCCAL SWABBING DID NOT VIOLATE M R . K ING ’ S RIGHTS UNDER THE U.S. C ONSTITUTION OR D ELAWARE LAW . On a motion to suppress evidence seized during a warrantl ess search, the state must
show, by a preponderance, of evidence that the challenged search did not violate a defendant’s
rights under the U.S. Constitution or Delaware law. 57 To raise a claim that a warrantless search
was illegal, the defendant “must have a reasonable expectation of privacy.” 58 Under the Katz
test, a defendant has a reasonable expectation of privacy when (1) a person exhibits an actual
(subjective) expectation of privacy and (2) the expectation is one that society is prepared to
recognize as objectively reasonable. 59 Government action that in vades on an area where a
person has an objectively reasonable expectation of privacy is “an unconstitutional search.” 60

i. The police did not violate Mr. King’s reasonable expectation of privacy by surveilling him, his residence and his place of employment.
The Court finds that the police surveillanc e of Mr. King was not an illegal search. “It is

well

- established that ‘[w]hat a person knowingly exposes to the public . . . is not a subject of
Fourth Amendment protection.’” 61 The police surveillance of Mr. Ki ng only extended to what

57 See State v. Coursey , 136 A.3d 316, 321 (Del. Super. 2016). 58 Rodriguez v. State , 2013 WL 5494720, at *1 (Del. Sept. 30, 2013) (citing Katz v. United States , 389 U.S. 347, 361 (1967)). 59 State v. Guaradarrama , 2016 WL 7235694, at *6 (Del. Super. Dec. 14, 2016) 60 State v. Holden , 54 A.3d 1123, 1132 (Del. Super. 2010). 61 Kowalski v. Scott , 2005 WL 703757, at *1 (3d. Cir. Mar. 29, 2005) (citing Katz , 389 U.S. at 351).11

would have been visible to the public, from a distance and in a manner that did not obstruct his
activities. These facts put the case “outside the purview of the Fourth Amendment

. ” 62
Mr. King argues that the surveillance violated the Delaware constitution under State v.

Holden

. 63 Holden held that surreptitiously placing a GPS unit on a car and tracking a location 24
hours a day for multiple weeks “violated the Defendant’s reasonable expectation of privacy and

state Constitutional rights.” 64 GPS surveillance that exposes “the whole of one’s movement over
a prolonged period of time tells a vastly different story than movement over a day as may be
completed by manned surveillance.” 65 In this case, t he Newark Police Department’s manned

surveil lance does not violate Mr. King’s expectation of privacy in the same way prolonged GPS

surveillance would. The Newark Police Department only observed Mr. King in public locations
and did not surreptitiously observe Mr. King inside his home or in other pri vate locations as was

done with the GPS device.

i. Mr. King did not have a reasonable expectation of privacy in the Wawa iced tea bottle.
The Court finds that Mr. King did not have a reasonable expectation of privacy in items
that he deposited in a publicly accessible trash can. First, Mr. King took no action showing that
he sought to preserve the Wawa iced tea bottle as private when he discarded the bottle in a public
trashcan. Therefore, he did not exhibit an actual expectation of privacy in the Wawa ice d tea

bottle. 66

62 See i d. (“The video surveillance of [the defendant] was taken only while [he] was in full view of many strangers, in public areas . . . . It was also taken from a distance, and in a manner that did not obstruct [his] activities. Together these facts put the video surveillance in this case outside the purview of the Fourth Amendment”). 63 54 A.3d 1123 (Del. Super. 2010). 64 Id. at 1134. 65 Id at 1132. 66 See Bond v. U.S. , 529 U.S. 334, 334 (2000) ( “ First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that ‘he [sought] to preserve [something] as private.’” ) (citing Smith v. Maryland , 442 U.S. 735, 740 (1979)).12

Second, even if Mr. King had a subjective expectation of privacy when he discarded the
Wawa iced tea bottle, that expectation of privacy would not be objectively reasonable. The
Fourth Amendment does not require warrants to search trash le ft outside the curtilage of the

home. 67 States, however, “may surely construe their own constitutions as imposing more
stringent constraints on police conduct that does the Federal Constitution.” 68 Noneth eless,

Delaware courts have held that there is no expectation of privacy in trash outside the curtilage of
the home nor in public trash containers

. 69 Under Delaware law, throwing away trash in a public
trash container is “tantamount to ‘throwing away’ a subjective expectation of privacy in it that

societ y accepts as reasonably acceptable.” 70
Mr. King exhibited no actual expectation of privacy nor would such an expectation be

reasonable. Therefore, seizing the Wawa iced tea bottle was not an illegal search under the

Fourth Amendment or the Delaware Consti tution.

ii. Mr. King did not have a reasonable expectation of privacy in the DNA collected from the Wawa iced tea bottle.

The Court also finds that Mr. King did not have a reasonable expectation of privacy in his

DNA collected from the Wawa iced tea bottle. DNA analysis that only provides identification is
“no more a search than an analysis of latent fingerprints.” 71 Such analysis of physical
characteristics “‘involves none of the probing into an individual’s private life and thoughts that

67 See United States v. Edwards , 717 Fed. Appx. 166, 168 (3d Cir. 2017) (citing California v. Greenwood , 486 U.S. 35, 40

- 42 (1988)). 68 Greenwood , 486 U.S. at 43 (1988). 69 See State v. Ranken , 25 A.3d 845, 852 (Del. Super. 2010) (holding, under Greenwood , that a defendant did not have a reasonable expectation to privacy in trash left outside the curtilage of his property under the Fourth Amendment); State v. Grossberg , 1998 WL 283491, at *4 (Del. Super. Mar. 18, 1998) (holding that the defendant did not have a reasonable expectation of privacy under the Fourth Amendment in trash thrown away in a public trash container). 70 Grossberg , 1998 WL 283491, at *4 (Del. Super. Mar. 18, 1998). 71 Commonwealth v. Arzola , 26 N..3d 185, 191 (Mass. 2015); see also Maryland v. King , 569 U.S. 435, 469 ( 2013) (holding that DNA sample analysis used for identification and did not reveal genetic traits is constitutional ).13

marks’ a Fourth Amendment search.” 72 The DNA laboratory report only reported that Mr.
King’s DNA sample matched the one previous ly taken from the victim. 73 There was no
additional information that violated a protected privacy interest, such as private medical

information. 74 Therefore, the Court finds that the State did not violate Mr. King’s reasonable
expectation of privacy by t esting his DNA for identification purposes.

iii. The buccal swabbing search warrant affidavit set forth sufficient facts to find probable cause.
“The affidavit in support of a search warrant must set forth facts adequate to warrant a

reasonable man in the bel ief that an offense has been committed and that seizable property would
be found in a particular place or on a particular person.” 75 The Buccal Swab Search Warrant

affidavit set forth sufficient facts to believe that an offense was committed because it de scribed

the sexual assault. 76 T his affidavit also set forth how the Newark Police Department obtained the
DNA sample and that the Delaware Division of Fore nsic Science matc hed the DNA sample to

the one taken from the victim

. 77 The Court finds that t he af fidavit set forth sufficient facts to
find probable cause for the search warrant authorizing a DNA sample collection from Mr. King

.
The Court therefore DENIES the Buccal Swabbing Motion.

C. T HE POLICE VIOLATED M R . K ING ’ S M IRANDA RIGHTS BY CONTINUING TO QUES TION HIM AFTER HE INVOKED HIS RIGHT TO COUNSEL . Mr. King alleges that the police violated his Miranda rights by (1 ) deceiving him about
his need for an attorney at the ou tset of the interrogation and (2 ) failing to stop questioning him
after he invoked his right to counsel. The Court agrees that the police violated his Miranda

72 Raynor v. State , 99 A.3d 753, 761 (Md. 2014) (citing United States v. Dionisio , 410 U.S. 1, 15 (1973)). 73 Amend. Buccal Swabbing Mot. Resp. Ex. A (Supplemental DNA Laboratory Report). 74 See King , 569 U.S. at 464 (2013). 75 Jensen , 482 A.2d at 110

- 11 (Del. 1984). 76 Amend. Buccal Swabbing Mot. Ex. A (Probable Cause Affidavit). 77 Id.14

rights by failing to stop questioning after Mr. King invoked his right to counsel.

Under Miranda v. Arizona , the prosecution is barred from using statements obtained
during a “custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards to secure the privilege against self

- incrimination.” 78 A custodial interrogation is
“questioning initiated by law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way. 79 Interrogation refers not
only to express questioning but also to its functional equivalent i.e. any practice “that the police
should know is reasonably likely to evoke an incriminating response from a suspect.” 80

i. Statements made after Mr. King signed the Miranda form but before he invoked his right to counsel are admissible.
Delaware determines whether a suspect waives his Miranda rights under a two

- part test. First, the suspect must voluntarily waive his Miranda rights and the waiver cannot result from

“intimid ation, coercion or deception.” 81 Second, the suspect must be fully aware of the nature of

the Miranda rights and the consequences of waiver. 82 The Court may only find Miranda waiver
if “‘the totality of the circumstances surrounding the interrogation’ re veal both an uncoerced
choice and the requisite level of comprehension.” 83
Mr. King argues that he did not waive his Miranda rights because the police deceived
him by answering “no” when he asked if he needed a lawyer. 84 The police officer escorting Mr.
King was explaining that Mr. King would have to wait for someone to speak with him for a
period, and that he would be on camera when Mr. King as ked if he needed a lawyer. 85 The

78 Miranda v. Arizona , 38 4 U.S. 436, 444 (1966). 79 Id. 80 Rhode Island v. Innis , 446 U.S. 291, 301 (1980). 81 Bennett v. State , 2010 WL 987025, at *3 (Del. Mar. 18, 2010). 82 See id. 83 Id. 84 Miranda Mot. ¶ 14. 85 Miranda Mot. Resp. Ex. A 11:55

- 12:05.15

officer responded, “No, I’m just telling you that this room right here is our interview room.” 86
Before the interrogation began, the interrogating officer read the Miranda rights to Mr. King. 87
Mr. King subsequently read and signed the Miranda form. 88 Under the totality of the
circumstances, the Court finds that Mr. King’s waiver was not coerced by deception and he
understood the consequences of waiver. Therefore, the Court finds that Mr. King ’s statements

made after he signed the Miranda form through when he invoked his right to counsel are

admissible.

ii. Mr. King’s statements made after 4:19 PM on October 3, 2019 are inadmissible.
Whether to suppress a defendant’s statements under Miranda “ embodies two distinct
inquiries .” 89 First, the Court determines whether the defendant “actually invoked his right to

counsel.” 90 Second, if the defendant invoked his right to counsel, courts may admit his responses
to further questioning if he “ (a) initiated further discussions with the police, and (b) knowingly
and intelligently waived the right he had invoked.” 91
The Court finds that Mr. King invoked his right to counsel. An explicit request for
counsel is an unequivocal assertion of the right to counsel. 92 If the request for counsel is
ambiguous, however, Delaware has adopted “the clarification approach.” 93 Under the
clarification approach, the interrogating officer must limit questions after the ambiguous
assertion of the right to counsel “to those desig ned to elicit definitive indications of intent.” 94

86 Id. at 12:06

- 12:10. 87 Miranda Mot. Resp. Ex. B 3:27 PM. 88 Id. at 3:28 PM. 89 Smith v. Illinois , 469 U.S. 91, 95 (1981). 90 Id. 91 Id. 92 See Crawford v. State , 580 A.2d 571, 574 (Del. 1990) (“ Where a suspect has made an exp licit request for the assistance of counsel, the duty imposed upon the police is clear: no further questioning may occur until counsel is provided or the suspect himself initiates further conversation”). 93 Id. at 577. 94 Id. at 575.16

“[T]he clarifiying questions may not coerce or intimidate the suspect or otherwise discourage his

effort to secure counsel.” 95 Whether a statement is an ambiguous invocation of Miranda is

“determined on a case

- by

- case basis, analyzing the totality of the circumstances.” 96
A mere expression that the defendant thinks he needs counsel is not an explicit invocation
of the right to c ounsel. 97 It is, however, an ambiguous invocation of the right to counsel
requiring clarification by the interrogating officer

. 98 The Court thus finds that Mr. King
ambiguously invoked the right to counsel by saying, he “thinks” he needs a lawyer.

Instea d of clarifying Mr. King’s ambiguous invocation of Miranda , however, the police

officers discouraged Mr. King from securing counsel. The police officers told Mr. King that
speaking to them without counsel was his only chance to explain his side of the sto ry. 99 The
police also attempted to discouraged Mr. King from securing counsel by appealing to his sense
of morality. 100 Even after Mr. King reiterated that he “think[s] [he] better call an attorney,” 101
the interrogating officer continued to discourage Mr. King from seeking counsel. 102
The police officers had to know that these statements were “reasonably likely to evoke an
incriminating response” from Mr. King

. 103 This means that the statements were custodial
interrogation under Miranda

. 104 The police violated his rights under Delaware law by f ailing to

95 Id. at 577. 96 See S tate v. Pulliam , 2012 WL 6845693, at *5 (Del. Super. Dec. 13, 2012). 97 See Holmes v. State , 2016 WL 1055050, at *4

- *5 (Del. Mar. 14, 2016). 98 See id. at *5 ( “ Holmes did not unequivocally invoke his right to an attorney, but the officer still sought clarification by reminding Holmes of his right to counsel. Holmes cut the officer's reminder short and continued to talk. The totality of the circumstances clearly s how that Holmes knew of, and chose not to invoke, his Miranda rights. ” ) 99 Miranda Mot. Reply Ex. B 4:20 PM. 100 See e.g. Miranda Mot. Reply Ex. B 4:22

- 23 PM (“Just imagine for one second that’s your daughter, every day they wake up, every time they turn a c orner on the street, they have panic attacks . . . just for a second let that resonate”). 101 Miranda Mot. Reply Ex. B 4:24 PM. 102 See Miranda Mot. Reply Ex. B 4:24 PM (“Yes, you have the right to an attorney but think about doing the right thing”). 103 See Inn is , 446 U.S. at 301 (1980). 104 Id.17

limit their questioning to clarifying questions after Mr. King ambiguous ly invoked his right to

counsel. T he refore, the Court GRANTS the Miranda Moti on with respect to statements made
after 4:19 PM on October 3, 2019.

D. T HE C OURT WILL RESERVE RULING ON THE CELLPHONE EVIDENCE . Mr. King also sought to suppress evidence on his cellphone because the police obtained
his cellphone passcode in violation of Mir anda

. At the motions hearing, the State represented
that it would not use evidence obtained from Mr. King’s cellphone. The Court will consider Mr.
King’s motion to suppress cellphone evidence if the State indicates that it will use such evidence.

V. CONCLU SION
For the foregoing reasons, the Court will GRANT in Part and DENY in Part the

Miranda Motion, and will DENY the Search Warrant Motion and the Buccal Swabbing Motion.

Dated: January 21 , 2021 Wilmington, Delaware 

## /s/ Eric M. Davis Eric M. Davis, Judge

cc: Eric H. Zubrow, Esq. Erika R. Flaschner, Esq. Kevin J. O’Connell, Esq. Christina L. Ruggiero, Esq.