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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE STATE OF DELAWARE, ) ) v. ) ) C.A. No . 1904007242 ELGIN WILSON, ) ) Defendant. )
S ubmitted: December 3 , 2020 Decided: January 2 9 , 2021 Upon Defendant Elgin Wilson’s Motions to Suppress: DENIED The defendant, Elgin Wilson, is charged with f irst d egree m urder in
connection with a shooting that occurred in downtown Wilmington. During the course of their investigation into the murder, police obtained surveillance footage that suggested the defendant was present near the scene at the time of the shooting and fled the area immediately afterward . Police also spoke to w itnesses and were shown text messages that indicated the defendant was texting and calling witnesses immediately before and after the shooting. Police therefore sought and obtained warrants to search the defendant’s phone for data and digital information within six
enumerated categories, including text messages, call logs, and location information

. The warrants temporally limited the search to the day before, the day of, and the day
after the murder. The defendant argues the Court must suppress the evid ence obtained from
those warrant s because the warrants were unconstitutionally vague and overbroad.2

The pending motions to suppress require the Court to determine whether warrants that authorize police to search a specified phone for “data and digital inf ormation”
within six enumerated categories over a three

- day time period lack the requisite particularity to satisfy the United States and Delaware constitutions. The motions to suppress are denied because I conclude (i) the challenged warrants were partic ular as to the time period of the search and the items to be searched and seized, and (ii) the scope of the authorized search es did not exceed the probable cause on which they

were based

. FACTUAL & PROCEDURAL BACKGROUND
1. On October 25, 2018, police responded to reports of shots fired in the
999 block of Spruce Street . The re, they found the victim lying in the street with multiple gunshot wounds . Medical personnel pronounced the victim dead at the scene. On October 30, 2 018, Defendant Elgin Wilson was arrested on an unrelated drug charge . When Defendant was taken into custody, he possessed one gold and
one silver iPhone ; the police seized both phones.
2. On November 12, 2018, Detective Devon Jones applied for a search warrant on the gold phone (the “November 12 th Warrant”) . A Magistrate of the Justice of the Peace Court approved the application that same day. The November
12 th W arrant sought five categorie s of data: call logs, text messages, MMS, any applications (“ apps ”) used to send and receive text messages, and subscriber3

information. Detective Jones simultaneously obtained a nearly identical warrant on the silver phone. On November 24, 2018, Detective Jones applied for a second search warrant on the gold phone (the “November 24 th Warrant”). The November
24 th Warrant sought the same five categories of data as the November 12 th Warrant
but added a sixth category: GPS information and o ther locat ion information. Specifically, the State sought to use the iPhone’s “location services” function to
determine if Defendant (or at least his phone ) w as in the area of the shooting on October 25, 2018. 1 Once again, a Magistrate approved the application on the same day. Both Warrants limited the authorized search to the three

- day period between October 24, 2018 and October 26, 2018

. 3. Before obtaining the November 12 th Warrant, t he police developed
Defendan t as a suspect through video surveillance footage and witness statement s
. Video surveillance from local businesses showed that, minutes before the shooting,

a light

- colored Buick Lucerne parked close to the block where the victim was
murdered

. 2 Surve illance footage from a gas station approximately two hours earlier showed Defendant exiting the driver’s side of a silver Buick Lucern e, and t he police
later found a vehicle at Defendant’s address matching that description. 3

1 D.I. 28, Ex. A. (herein after cited as “ Nov. 24 th Aff. ”), at ¶ 2 0

. 2 D.I. 27, Ex. A. (hereinafter cited as “ Nov. 12 th Aff. ”), at ¶ 6. 3 Id . at ¶ 13.4

4. The police also gathered statements from t hree witnesses. One witness (“Witness 1”) reported hear ing Defendant saying he was going to get revenge for his
brother’s murder. 4 The victim in this case was the mother of the man who pleaded guilty to kill ing Def

endant’s brother. 5 The witness also viewed surveillance footage
that showed a person believed to be the gunman walking south on Spruce Street shortly before the shooting and later running away in the opposite direction. 6
Witness 1 identified the suspec t as Defendant. 7 A second witness (“Witness 2”)
report ed seeing a person with a mask over his face walking in the area shortly before the shooting. 8 That witness then heard several gunshots and saw the same person flee towards where the Buick Lucerne was parked. 9 Witness 2 insisted Defendant was not in the area at the time of the shooting and consented to a search of their cell phone

. 10 In Witness 2’s cell phone, the police found text messages and voicemails
from Defendant stat ing he left the area earlier that evening

. 11 Defendant also called the witness immediately following the shooting, asking what happened and declaring that he was at home at the time

. 12 A third witness (“Witness 3”) was

4 Id . at ¶ 7. 5 Id . at ¶ ¶ 7, 10. 6 Id . at ¶ 6. 7 Id . at ¶ 8. 8 Id . at ¶ 9. 9 Id

. 10 Id . at ¶ ¶ 10, 11. 11 Id

. at ¶ 11 12 Id . at ¶ 12.5

present during this phone call and heard Defendant say he was home at the time of the shooting. 13
5. On April 15, 2019, a grand jury indicted Defendant o n charges of Murder First Degree, Possession of a Firearm d uring the Commission of a Felony,
and Possession of a Firearm by a Person Prohibited

. On June 2, 2020, Defendant
filed two Motions to Suppress challenging the constitutionality of the November 12 th
and November 24 th Wa rrants for the gold iPhone

. 14 The State filed an omnibus opposition , and the Court held oral argument. During argument, the parties requested an opportunity t o submit supplemental briefing. On November 6, 2020, Defendant filed a sup plemental letter regarding the location information sought by
the November 24 th W arrant , and o n December 3, 2020, the State filed its supplemental response on that issue.
PARTIES’ CONTENTIONS
6. Defendant argues the Warrants 15 did not establish a sufficient nexus
between the murder and the phon e because the State’s allegations are based on

13 Id. 14 Defendant also filed a third motion to suppress evidence retrieved from the silver phone. T he State , however, did not find anything responsive on the silver phone , and that motion therefore is moot. See D.I. 29, 3 6

. 15 Defendant’s two Motions contain language and arguments that virtua lly are identical. Unless otherwise specified, the November 12 th Warrant and the November 24 th Warrant will be referred t o collectively as “the Warrants.”6

generalized suspicion and speculation

. 16 Specifically , D efendant takes issue with
the Warrants’ assertion that “it is common for individuals to use their cellular devices to take pictures/videos of themselves with friends and associates .” De fendant
contends this statement is too general to establish a nexus between his phone and the
murder investigation. 17 Defendant also asserts the Warrants were unconstitutionally
broad because they s ought “data and digital information , ” without stating the specific types of data and digital information the State believed were pertinent to the
investi gation

. According to Defendant, this broad language cover ed “in essence everything on the phone” during the relevant time period and authorize d an
unconstitutional top

- to

- bottom search of the phone

. 18 With respect to the November
24 th Warrant , Defendant further argues the term “location information” lack ed particularity as to how the information was created within t he phone

. 19 Defendant
asserts the location services function of an iPhone accesses numerous applications (“apps”), thereby effectively permitting the State to gather digital information from an unlimited number of apps

. 20 Accordingly, D efendant contends the November

16 Def. Mot. 1, D.I. 27, at 8

- 9 (Nov. 12 th Warrant); see also Def. Mot. 2 , D.I. 28 , at 8

- 9 (Nov . 24 th Warrant). 17 Def. Mot. 1, at 9 ; see also Def. Mot. 2 at 9

. 18 Def.’s Mot. 1, at 9

- 10; see also Def.’s Mot. 2, at 9

- 10. 19 Def.’s Supp. Letter, D.I. 43, at 2. 20 Id

.7

24 th Warrant was overly broad and fail ed to specif y with particularity what evidence
the State was seeking within the phone. 21
7. The State maintains the a verments in the affidavit of probable cause supporting the November 12 th Warrant sufficiently establish a nexus between the
murder and Defendant’s phone because the November 12 th Warrant outlines specific facts linking Defendant and his phone to the victim’s murde r. 22 The State points to
several witness statements that it contends support the inference that Defendant used his phone to communicate his whereabouts and form an alibi on the night of the
murder. 23 T he State asserts the November 12 th Warrant also sufficiently was particular because it sought five specifi ed categories of data. 24 The State contends that, contrary to Defendant’s allegations, the November 12 th Warrant did not contain language that would authorize an impermissible top

- to

- bottom search of Defendant’s phone

. 25
8. The State argues the November 24 th Warrant nearly was identical to the
November 12 th Warrant, except that the November 24 th Warrant add ed “location information” as a category of data to be searched

. 26 The State reasons the November
24 th Warrant adequately establish ed a ne xus between Defendant, the crime, and the

21 Id . at 3. 22 State’s Resp. , D.I. 36, at 8, 1 0. 23 Id. at 10

- 13. 24 Id. at 16. 25 Id. at 15. 26 Id . at 19.8

evidence sought by (i) detailing witness statements and surveillance video tha t pieced together Defendant’s suspected travel path around the time of the murder , and (ii) explaining how Defendant’s location could be ascertained by re viewing the
location services function on his phone. 27 As to particularity, th e State maintains
that the November 24 th Warrant contain ed substantially the same language as the
November 12 th Warrant and similarly lack ed language authorizing a top

- to

- bottom
search of the phone

. 28 The State asserts that the November 24 th Warrant specifically sought access to the iPhone’s “location services” func tion . The State contends that
function c an be access ed without reviewing other apps, contrary to Defendant’s
assertion that the search allowed the State access an unlimited number of apps. 29
DISCUSSION
9. The United States Constitution’s Fo u rth Amendment guarantee s “[t]he right of the people to be secure in thei r persons, houses, papers, and effects, against unreasonable searches and seizures[.]” 30 A defendant who challenges the validity of a search warrant bears the burden of establishing by a preponderance of the evidence

27 Id. at 19

- 21. 28 Id. at 22. 29 State’s Supp. Letter, D.I. 48 , at 2. 30 U.S. Cost. Amend. IV. Similarly, Article I, § 6 of the Delaware Constitution provides: “The people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and no warrant to search any place, or to seize any person or thing, shall issue without describi ng them as particularly as may be; nor then, unless there be probable cause supported by oath or affirmation. ”9

that the search violated his Constitutional rights. 31 A search warrant only may be issued upon a showing of probable cause, which is determined based on a totality of
the circumstances. 32 A warrant is valid if its supporting affida vit contains facts adequate for a judicial officer t o form a reasonable belief that the items to be seized will be found in a particular place. In other words, there must be a “ logical nexus between the items being sought and the place to be searched.” 33 Additionally, the
warrant must describe with suffic ient particularity the things to be searched and the

persons or items to be seized. 34 The warrant must be no broader than the probable
cause on which it is based. 35
A. T he Warrants were s upported by p robable c ause . 36
10. In assessing probable cause, a reviewing court considers only the information contained in the application’s four corners and gives great deference to the magistrate’s initial finding that there was probable cause to issue the warrant. 37

31 State v. Jones , 2016 WL 10998979, at *3 (Del. Super. June 2, 2016) (citing State v. Holton , 2011 WL 46387 8 1, at *2 (Del. Super. Sept. 22, 2011)). 32 Fink v. State , 817 A.2d 781, 786

- 87 (Del. 2003); U.S. Const. Amend. IV ; Del. Const. art. 1, § 6. 33 State v. Reese , 2019 WL 1277390, at * 2 (Del. Super. March 18, 2019) (quoting State v. Westcott , 2017 WL 283390, at *2 (Del. Super. Jan. 23 , 20 1 7 )). 34 U.S. v. Grubbs , 547 U.S. 90, 97 (2006). 35 Wheeler v. State , 135 A.3d 282, 299 (Del. 2016) (citing United States v. Zimmerman , 277 F.3d 426, 432 (3d Cir.2002)). 36 Defendant challenged probable cause in his Motions but effectively conceded the issue at oral argument. Because it is relevant to the particularity analysis, however, the Court nonetheless will address the issue of probable cause. Defendant confirmed th e mootness of the third motion (relating to the silver iPhone) at oral argument. 37 Illinois v. Gates, 462 U.S. 213, 23 6 (1983).10

Generalized suspicions, however, do not form a substantial basis for finding probable cause. 38 The Supreme Court has found unpersuasive general statements to
the effect that “ criminals often communicate through cell phones. ” 39
11. Here, t he affidavits of probable cause supporting the W arrants
established a nexus between Defendant, the alleged crime , and Defendant’s cell phone. The a ffidavit s contain statements by several witnesses linking Defendant and his phone to the shooting and indicating Defendant was using his phone around the time of the shooting

. 12. First, the affidavit contained specific facts supporting the Magistrate’s determination that there was probable cause to believe Defendant committed the
crime. Witness 1 told the police that Defendant was in t he area near the crime and
Defendant stated he was “going to get revenge for his brother’s murder.” 40 D uring the homicide investigation, the police also obtained video surveillance that allowed them to piece together the suspect’s path to and from the scene of the shooting

. The
video surveillance showed a light

- colored Buick Lucerne driving northbound and ultimately parking on 10 th and Church Streets

. 41 Defendant was linked to a vehicle of the same make and color and was seen driving that vehicle on the day of the

38 State v. Johnson , 2019 WL 6903997, at *7 (Del. Super. Dec. 18, 2019). 39 Id

. 40 Nov. 12 th Aff. at ¶ 7. 41 Id . at ¶ 6.11

shooting. 42 Witness 2 reported seeing the suspected gunman wearing a mask and walking from Church Street onto 10 th Street and then down an alleyway. 43 Moments later, Witness 2 reported hearing gunshots coming from the alleyway and seeing the suspect fleeing back down 10 th Street toward Church Street

. 44 When the police
showed the surveillance footage to Witness 1, the witness said with absolute certainty that the suspect in the video was Defendant. 45
13. Second, the affidavit s supported the Magistrate’s determi nation that
there was a nexus between the murder and Defendant’s iPhone. The affidavit s averred that Wit ness 2 texted Defendant throughout the day of the murder. 46 With consent, De tective Jones searched Witness 2 ’s cell phone and reviewed the text messages from the da y of the crime. The messages included Defendant texting Witness 2 at approximately 3 am and placing several calls to Witness 2 within ten
minutes after the murder

. 47 Witness 3 was with Witness 2 near the crime scene when
Defendant cal led and asked what happened. 48 According to Witness 3, Defendant told Witness 2 he was home at the time of the shooting. 49 The State alleges t his statement was Defendant’s attempt to create an alibi. Witness 3 also identified

42 Id . at ¶ 13. 43 Id. at ¶ 9. 44 Id

. 45 Id . at ¶ 8. 46 Id . at ¶ 11. 47 Id

. 48 Id

. at ¶ 12. 49 Id

.12

Defendant when shown a six

- photograph lineup by the police. 50 Based on these witness statements and the evidence on Witness 2’s phone, the reviewing Magistrate reasonably could infer that the evidence the police sought could be found on
Defenda nt’s phone.
14. With regards t o the location information sought in the November 24 th
Warrant , the police averred that the cell phone ’s location services function may have
collected data from Defendant’s communications and could pin down Defendant ’s movements around the time of the shooting

. 51 The affidavit supporting the
November 24 th Warrant set out locations where Defendant may have been that evening, the existence of video surveillance, and communications made from his phone during the time of the shooting, including Defendant’s statements shortly after the shooting regarding where he had been when the crime occurred . T hese allegations did more than “a minimal amount of work” and went beyond the vague, general statemen ts previously ruled insufficient

. 52 A magistrate presented with the
affidavit r easonably could have found a basis to believe that data reflecting
Defendant’s location durin g the shooting would be on the phone. Accordingly, the
Warrants we re supported by probable cause.

50 Id

. 51 Nov. 24 th Aff. at ¶ 21. 52 Buckham v. State , 185 A.3d 1, 17 (Del. 2018).13

B. The Warrant s were s ufficiently p articular and were not constitutionally overbroad
. 15. Even when a warrant is supported by probable cause, it also must be sufficiently particular and narrow in scope to satisfy the Fourth Amendment

. 53
Th ese additional requirement s ensure that searches are as limited as possible and help guard against the authorities engaging in an “explorat ory rummaging in a person’s belongings .” 54 To meet th is standard, a warrant must describe the items to be searched with sufficient particularity and must be no broader than the probable
cause on which the warrant is based. 55 “ Warrants directed to digital information
present unique challenges in satisfying the particulari ty requirement, given the unprecedented volume of private information stored on devices containing such
data. ” 56 Accordingly, a warrant must describe with as much specificity as possible what the investigating officers believe w ill be found during the dig ital search

. 57
i. The November 12 th Warrant 16. Defendant argues the November 12 th Warrant was insufficiently particular and unconstitutionally overbroad, contending it was similar to the warrant rejected by the Delaware Supreme Court in Buckham v. State

. 58 But the November

53 Wheeler v. State , 135 A.3d 282, 298

- 99 (Del. 2016). 54 Id. at 298. 55 Id. at 299. 56 Id

. 57 Id

. at 304. 58 185 A.3d 1 (Del. 2018).14

12 th Warrant and the Buckham warrant differ in key respects

. In Buckham , the State sought a variety of data from the cell phone that was found in Buckham’s possession
when he was arrested several weeks after the crime

. 59 The warrant did not limit the search to any relevant time frame and used the broad term “including but no t limited to” when describing the categories of data sought. 60 The Delaware Suprem e Court
ruled that the broad language and lac k of temporal limitation made the warrant improperly va gue and broader than the probable cause on which it arguably was
based

. 61 Importantly, in Buckham , the only possible nexus between the phone and the crime was the possibility the phone would reveal GPS location data regarding
Buckham’s whereabouts during and after the crime. 62 Even that inference , however, was a stretch because the affidavit did not contain any specific facts indicating
Buckham had his phone in his possession at the time of the crime. 63 Given the nexus issue, the broad search authorized in Buckham could not satisfy the constitutional requirements for particularity and breadth.
17. Similarly, in Wheeler v. State , 64 another case on which Defendant relies, the police obtained warrants to search Wheeler ’s entire digital portfolio f ound

59 Id . at 15. 60 Id

. 61 Id . at 19

. 62 Id. at 4 , 19. 63 Id. at 1 7. 64 135 A.3d 282 (Del. 2016).15

on personal computers, cell phones, digital cameras, and video cameras

. 65 The

se arch also was not limited to any relevant time frame and permitted searches for data far beyond the written communications police were seeking to support their investigation into witness tampering

. 66 The Delaware Supreme Co urt ruled the

warrants permitted broad, exploratory searches and therefore failed the particularity requirement. 67
18. Unlike the Buckham and Wheeler warrant s , t he November 12 th Warrant
d id not seek any and all data or digital information; instead, it s ought only five enumerated categories of digital information. T he November 12 th Warrant did not contain language that wou ld suggest an impermissibly broad scope such as “any and all” or “including but not limited to

. ” The categories limi t ed the search to call logs,
subscriber information , and various forms of messaging

. The November 12 th
Warrant described what the officers believed would be found on the phone with specificity 68 and thereby satisfied an important metric in judging particularity. 69 Further, the November 12 th Warrant was limited to a three

- day period around the

65 Id . at 289

. 66 Id . at 30 4

- 0 5 , 307

. 67 Id . at 307. 68 See Nov. 12th Aff. at ¶¶ 17

- 18 (seeking call history, text messages, social media messages, photographs, and videos). 69 See Wheeler , 135 A.3d at 304 ( “ The guiding metric applied by the court [is] that ‘officers must describe what they believe will be found . . . with as much specificity as possible under the circumstances[,]’ and that ‘[t]his will enable the searcher to narrow his or her search to only t he items to be seized.’”) (quoting State v. Castagnola , 46 N.E.3d 638, 659 (Ohio 2015) ).16

shooting, unlike the warrants in Wheeler and Buckham that lacked any temporal
limitations. The affidavit supporting the November 12th Warrant contained probable cause to believe this particular evidence would be found in the phone. Accordingly, t he November 12 th Warrant des cribe d the items t o be searched with
sufficient particularity , and the scope of the search did not exceed the probable cause
on which it was based.
ii. The November 24 th Warrant 19. The November 24 th Warrant differ ed from the November 12 th Warrant
in only a few respects. First, in addition to the five categories of information previously authorized, the Warrant sought location data as a sixth category. Second,
the Warrant add ed two paragraphs providing background on the November 12 th
Warrant and some of the evidence obtained through that search

. 70 Third, the
November 24 th Warrant add ed two paragraphs defining the term “location
information ” and identifying precisely what evidence police were seeking

. Specifically, the affidavit stated: Your affiant can truly state that Apple I

- Phones have “location services” on the cell phone that is used to track the users [sic] movements and determine your approximate location. Location services allow apps and we bsites (including Maps, Camera, Weather, and other apps) to use information from cellular, WiFi, Global Positioning System (GPS) networks . . . . “Location services” on the cell phone will show areas that are frequent destinations of the user . . . . By vi ewing the “location services , ” this investigator will be able to

70 See Nov. 2 4 th Aff. at ¶¶ 18

- 19.17

see if [Defendant] and the cell phone were in the area of the murder on October 25, 2018. 71
20. As to the first five categories in the warrant , the Court already has
concluded the particularity standard was met. The November 24 th Warrant neither
delete d nor alter ed any of the categories of information previously sought by the
November 12 th Warrant

. Defendant, however, argues the November 24 th Warrant only sought location data and therefore the inclusion of the other five categories impermissibly broaden ed the scope of the warrant beyond that for which there was probable cause to search. This argument falters because, as e xplained above, the
W arrant was supported by sufficient probable cause to search for the five previous categories

. The inclusion of previously authorized categories did not somehow taint the request for location information. 72
21. Defendant further asserts the location information request lack ed particularity because there are an unlimited number of applications (“ apps ”) on a cell phone from which location data c an be gathered. Defendant argues the term

71 Id

. at ¶ 20. 72 Even if, hypothetically, the November 24 th W arrant was unconstitutional, evidence obt a ined under the first five categories would survive under the independent source doctrine. Under this doctrine, evidence obtained without authorization does not become inaccessible if the evidence also was gained from an independent source. Johnson , 2019 WL 6903997, at *8. Accordingly, f acts obtained through an invalid warrant need not be suppressed if they also are obtained through a lawful warrant that did not rely on anything obtained in the tainted warrant. Id. As discussed above, the November 12 th W arrant was supported by probable cause, was sufficiently particular, and was not overbroad. Accordingly, any facts obtained through the November 12 th Warrant ( i.e. , the five categories of information) need not be suppressed even if the November 24 th W arrant was unconstitutional.18

“location information” is so broad t hat it wou ld allow the sort of top

- to

- bottom search that courts prohibit. 73 Defendant i s incorrect, however, because the
November 24 th Warrant limit ed the meaning of “location information” solely to data
that would use the phone’s location services function to identify the location of the cell phone at the time a given communication was made. 74 Additionally, t h e request
for location information ha d the same limitation in scope as the other five categories.
The authorization to search for location information wa s limited to the same thre e
day period , and th e te rm is not nearly as inclusive as phrases such as “any and all” or “including but not limited to , ” which typically run afoul of constitutional requirements regarding particularity and breadth. The fact that location services data is compiled when a user accesses various apps does not render the warrant overbroad or insufficiently particula r. The warrant described with as much specificity as possible what the police believed would be found on the phone. 75 Accordingly, the
November 24 th Warrant was constitutional.
CONCLUSION For the foregoing reasons, Defendant Elgin Wilson’s Motion s to Suppress are
DENIED

. IT IS SO ORDERED

.

73 See, e.g. , Buckham , 185 A.3d at 18. 74 Nov. 24th Warrant at ¶ 20 75 See Wheeler , 135 A.3d at 304 (“A key principle distilled from the jurisprudence in this area is that warrants, in order to satisfy the particularity requirement, must describe what investigating officers believe will be found on electronic devices with as much specificity as possible under the circumstances.”)

.19

Original to Prothonotary cc: Cynthia Hurlock , Deputy Attorney General Martin O ’ Connor, Deputy Attorney Genera l Brian J. Chapman , Esquire