Dorsey v. State
Dorsey v. State
Opinion of the Court
for the majority.
The defendant-appellant, James Dorsey, was charged with Murder in the First Degree, Possession of a Firearm During the Commission of a Felony and Possession of a Firearm by a Person Prohibited. Following a jury trial in the Superior Court, Dorsey was convicted on all charges. Dorsey filed a Motion for a New Trial on the grounds of prosecutorial misconduct and inadmissible evidence. The Superior Court granted Dorsey’s motion with respect to two convictions: Murder in the First Degree and Possession of a Firearm During Commission of a Felony.
This is Dorsey’s direct appeal from the final judgment of conviction on the charge of Possession of a Firearm by a Person Prohibited. Dorsey contends that the Superior Court erroneously denied his Motion to Suppress the State’s use of the firearms as evidence. According to Dorsey, the warrant that authorized a search of his automobiles for those weapons was not supported by probable cause in violation of his rights under the Delaware Constitution and applicable statutes.
This Court has concluded that the warrant to search Dorsey’s automobiles was issued without a demonstration of probable cause. The protection against unreasonable searches that is afforded to all persons by the Delaware Constitution requires the suppression of illegally seized items as evidence. Accordingly, Dorsey’s conviction for Possession of a Firearm by a Person Prohibited must be reversed.
Facts
On August 14, 1996, at 4:05 p.m., Dorsey called 911 to request police and ambulance assistance at 615 W. 5th Street, Wilmington. City of Wilmington police officers responded and found the body of Frank Williams in an upstairs bedroom. It appeared that Williams had suffered a single gun shot wound to the head. Police searched the immediate area but failed to
Later that same day, police applied for and received a search warrant for the premises known as 615 W. 5th Street. The application for that search warrant indicated that the items the police wanted to search for were “an unknown caliber handgun and ammunition” and “any clothing or items that appeared to have the presence of blood.” The warrant also indicated the police would be “processing ... the house for physical evidence, to include but not limited to: videotaping, photo’s [sic], latent prints, and any other evidence which may assist in the investigation of the death of Frankie Williams.” The police executed the search warrant for the premises at approximately 6:00 p.m. That search warrant is not an issue in this appeal.
While still executing the search warrant for the premises described as 615 W. 5th Street, the police applied for and obtained a second warrant to search two automobiles, a 1986 Dodge 600 and a 1989 Cadillac DeVille. The two automobiles were owned by and registered to Dorsey. That search warrant is the subject matter of this appeal.
In the affidavit for the warrant to search Dorsey’s vehicles, the police alleged the following facts in. support of probable cause:
1. On 14 Aug 96 at 1604 hours the Wilmington Police were summoned to a shooting scene at 615 W. 5th Street, Wilmington, DE. This incident is documented under Wilmington Police Case # 96-19754.
2. Upon arrival officers were approached by a subject who identified himself as the owner of the property, James Dorsey. Dorsey related that this afternoon he had returned from an out of state trip. He related that he houses multiple people in his property as borders [sic]. Upon checking the residence he related that he found one of the borders [sic] prone in his room bleeding from head.
3. Police checked the crime scene and it appeared the victim, tentatively ID’d as Frankie Williams, suffered a single gun shot wound to the head, killing him.
4. A check of the immediate crime scene did not locate the weapon, believed to be an unknown caliber handgun.
5. Police are still attempting to identify and interview all present tenants of the residence which according to the landlord houses 4-5 tenants.
6. In a statement to police James Dorsey related that he attempted to contact Williams numerous times in the past two days, without success. He then related that he forced entry through an adjacent room to find the victim.
7. A search warrant was executed at the crime scene on this date and as of this writing a firearm can not be located.
8. James Dorsey was asked to consent to gunshot/metal residue testing and consented. He was then asked that his vehicles be checked for any evidence of this crime and refused.
9. Police now wish to process two vehicles registered to James Dorsey located in close proximity to the crime scene, in the 400 block of Montgomery. Police wish to secure potential physical evidence of this crime.
The application indicated the police wanted to search for “any clothing or items that appeared to have the presence of blood” and “an unknown caliber handgun.”
The police executed the search warrant for the two vehicles-at approximately 7:50 p.m. Seized from the 1989 Cadillac De-Ville were the following items: (1) a Smith and Wesson .38 Special; (2) a Harrington and Richardson Arms .38 Special; (3) a box of .38 Special ammunition and (4) photos of the vehicle.
Dorsey filed a Motion to Suppress the evidence that was seized pursuant to the warrant issued to search his two vehicles. The Superior Court held a hearing on the Suppression Motion over the course of three different days. At the initial Suppression Hearing, the State argued that probable cause to search Dorsey’s vehicles was established within the four corners of the affidavit or, in the alternative, if the search warrant failed, a warrantless search of Dorsey’s vehicles was valid pursuant to the automobile exception. When the Suppression Hearing resumed a few weeks later, the State withdrew the argument that probable cause to search Dorsey’s vehicles existed outside of the affidavit. Accordingly, the Superior Court considered and ruled on the sole issue of whether the affidavit in support of the search warrant established probable cause.
The Superior Court issued a written decision denying Dorsey’s Motion to Suppress. The rationale for the Superior Court’s ruling was as follows:
Although the affidavit supporting the search warrant for Dorsey’s two automobiles does not specifically state that Dorsey was a suspect in the death of Williams, there are sufficient facts in the warrant to infer that such was the case. Police stated in the affidavit that Dorsey told Police he had discovered the body by forcing entry into Williams’ room. Dorsey told Police he had been out of town and since returning had been trying to contact Williams.
The Court also finds that, although the affidavit does not specifically state facts to support a belief that the gun used in the shooting or bloody items of clothing would be found in Dorsey’s car, it is reasonable to infer probable cause, given the nature of the crime and the items sought by Police. The very proximity of the automobiles to the residence provided opportunity for concealment, regardless of whether Dorsey had driven either automobile that day. It is also reasonable to infer that Dorsey, had he shot Williams, might then have hidden the murder weapon in an automobile located nearby to which he had access.2
Based on the foregoing analysis, the Superior Court concluded that the warrant to search Dorsey’s automobiles was supported by an affidavit establishing probable cause. Therefore, the Superior Court denied Dorsey’s Motion to Suppress the evidence seized during the execution of that warrant.
Delaware Search Warrants
The Delaware Constitution provides that a search warrant cannot be issued “unless there be probable cause supported by oath or affirmation.”
Section 6. 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 describing them as particularly as may be; nor then, unless there be probable cause supported by oath or affirmation.4
Section 2306 of Title 11 of the Delaware Code prescribes specific statutory requirements that were promulgated by the General Assembly in furtherance of the Delaware Constitution’s probable cause provision:
The application or complaint for a search warrant shall be in writing, signed by the complainant and verified by his oath or affirmation. It shall designate the house, place, conveyance or person to be searched and the owner or occupant thereof (if any), and shall describe the things or persons sought as particularly as may be, and shall substantially allege the cause for which the search is made or the offense committed*811 by or in relation to the persons or things searched for, and shall state that the complainant suspects that such persons or things are concealed in the house, place, conveyance or person designated and shall recite the facts upon which such suspicion is founded.5
Section 2307 authorizes a judicial officer to issue a warrant:
If the judge, justice of the peace or other magistrate finds that the facts recited in the complaint constitute probable cause for the search, that person may direct a warrant to any proper officer or to any other person by name for service. The warrant shall designate the house, place, conveyance or person to be searched, and shall describe the things or persons sought as particularly as possible, and may be made returnable before any judge, justice of the peace or magistrate before whom it shall also direct to be brought the person or thing searched for if found, and the person in whose custody or possession such person or thing is found, to be dealt with according to law.6
This Court has consistently held that Sections 2306 and 2307 contemplate a “four-corners” test for probable cause.
Consequently, the affidavit in support of a search warrant must set forth facts adequate for a neutral judicial officer to form a reasonable belief that an offense has been committed and that seizable property would be found in a particular place or on a particular person.
Affidavits Defícient
Probable cause to search Dorsey’s two automobiles exists if the affidavit sets forth facts that would permit an impartial judicial officer to reasonably conclude that the items sought would be found in those locations.
In Dorsey’s case, the four corners of the affidavit do not comport with Section 2306’s requirement that the complaint “recite the facts” why the items sought would be found in Dorsey’s vehicles.
The Superior Court’s written decision concluded that “the affidavit does not specifically state facts to support a belief that the gun used in the shooting or bloody items of clothing would be in Dorsey’s car.”
Probable cause to search and probable cause to arrest are not fungible legal concepts, and each involves a distinctly separate inquiry. The focus of probable cause to search is upon a “place”, i.e., whether contraband or evidence will be found in a particular location. The focus of probable cause to arrest is upon a “person”, i.e., whether a criminal offense has been or is being committed by the person to be arrested.
Earlier this year in Whitner, the Third Circuit reiterated that “probable cause to arrest does not automatically provide probable cause to search the arrestee’s home.”
The affidavit in support of the application to search Dorsey’s vehicles does not state Dorsey had been arrested or even that he was suspected of committing any crime. The Superior Court inferred the police thought that Dorsey was a criminal suspect because they “wished” to search his vehicles. Assuming arguendo that the police “suspected” Dorsey, both the United States Constitution and Delaware Constitution require an impartial judicial officer to assess whether there is probable cause to conduct a search.
If probable cause to arrest does not automatically provide probable cause to search the arrestee’s home, then a fortiori the inference that someone is a suspect does not constitute probable cause to search that suspect’s home or automobiles. Nevertheless, the State argues that even if Dorsey was not an arrestee and even if Dorsey was not a suspect, “the Superior Court reasonably inferred that a murder weapon missing from a crime is likely to be concealed in an automobile parked in close proximity to the scene and registered to the person who first located the decedent.” The State’s argument is not the product of an orderly and logical deductive process.
This Court has held firsthand knowledge that the items identified in a warrant application are actually located in the place to be searched is not always required in an affidavit to establish probable cause.
No Probable Cause
In Dorsey’s case, the four corners of the search warrant affidavit contained no information from which an impartial judicial officer could reasonably conclude or logically infer that there was probable cause to believe that evidence related to Williams’ death inside of the boarding
Dual Sovereignty
This Court has consistently held that exclusion of evidence is the required remedy for a violation of the Delaware Constitution’s protection against searches and seizures without probable cause.
“The United States Constitution establishes á system of dual sovereignty: a federal government and state governments.”
In Sanders, this Court stated that it was untenable for the State to argue that the Delaware Constitution must mean exactly the same thing as the United States Constitution.
Although Delaware is bound together with the forty-nine other States in an indivisible federal union, it remains a sovereign State, governed by its own laws and shaped by its own unique heritage. An examination of those laws and that heritage may, from time to time, lead to the conclusion that Delaware’s citizens enjoy more rights, more constitutional protections, than the Federal Constitution extends to them. If we were to hold that our Constitution is simply a mirror image of the Federal Constitution, we would be relinquishing an important incident of this State’s sovereignty. In a very real sense, Dela*815 ware would become less of a State than its sister States who recognize the independent significance of their Constitutions. Subject to the limits of the Supremacy Clause, no one would argue that our General Assembly should not legislate on subjects such as environmental protection merely because Congress has done so. Similarly, this State’s judicial branch should not be foreclosed from interpreting our Constitution merely because the United States Supreme Court has interpreted similar provisions of the Federal Constitution.39
Until the adoption of the Fourteenth Amendment in 1868, the federal Bill of Rights protected individual rights solely against encroachment by the federal government.
Delaware Constitutional History
Within the last year, in Jones, this Court has had to decide whether the search and seizure language in the Delaware Constitution means the same thing as the United States Supreme Court’s construction of similar language in Fourth Amendment of the United States Constitution.
The original Delaware Constitution and Declaration of Rights were adopted in September 1776 — approximately two months after the Declaration of Independence and fifteen years before the federal Bill of Rights. The primary and repeated concern expressed in the Declaration of Independence was that the King had either denied or violated the American rights as English citizens. Consequently, virtually all of the first state constitutions contained explicit provisions
Prior to the American Revolution, many aspiring colonial attorneys traveled to London to study law at the Middle Temple or one of the other English Inns of Court.
This book contains proof of the instilling in all the communities of the Colonies of the principles of the Common Law as taught in the Inns of Court and by the decision of the English Judges.... Many of the law officers of the Colonies ... [had studied in London] at either the Middle Temple, the Inner Temple, Gray’s Inn or Lincoln’s Inn. When the [American] Revolution came on, the legal atmosphere of every community was permeated with the principles and the methods of the Common Law. So it was that the lawyers of the [American] Revolution who told part in the formation of the new Government brought to that great task — a deep' respect for, and a close knowledge of, the Common Law.49
Article 25 of Delaware’s 1776 Constitution provided:
The common law of England, as well as so much of the statute law as have been heretofore adopted in practice in this state, shall remain in force, unless they shall be altered by a future law of the Legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution and the declaration of rights, & c. agreed to by this convention.50
Delaware adopted the first search and seizure protections for its citizens in September of 1776 as part of the Declaration of Rights and Fundamental Rules of the Delaware State:
That all warrants without oath to search suspected places or to seize any person or his property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend all persons suspected, without naming or describing the place or any person in special, are illegal and ought not to be granted.51
The primary authorship of Delaware’s 1776 Constitution and Declaration of Rights is traditionally ascribed to Thomas McKean, a Delaware lawyer and signatory to the Declaration of Independence.
Likewise, in our view, the framers of Delaware’s first Declaration of Rights and Constitution did not contemplate excusing violations of the search and seizure right if the police acted in “good faith.” Article 30 of Delaware’s first constitution provided: “No article of the declaration of rights and fundamental rules of this state ... ought ever to be violated on any pretence whatever ...”
The President of the 1792 Delaware Constitutional Convention was John Dickinson, who had studied the common law of England at the Middle Temple in London with Thomas McKean and, thus, was also a contemporary of William Blackstone.
It is logical to infer, in the absence of any provisions to the contrary, that John Dickinson and the other framers of Delaware’s 1792 Constitution intended to continue the common law principle that there must be a remedy for the violation of any vested right.
In Jones, this Court concluded that the history of the search and seizure provisions in the Delaware Constitution reflected different and broader protections than those guaranteed by the Fourth Amendment.
“The exclusionary rule acts as a remedy for a violation of a defendant’s right to be free of illegal searches and seizures. It provides for the exclusion from trial of any evidence recovered or derived from an illegal search and seizure.”
Fifty years ago, in Rickards, the State also argued to this Court that the guarantees in Delaware’s Constitution against unreasonable searches and seizures “does not require evidence obtained in violation of them to be excluded.”
We conceive it the duty of the courts to protect constitutional guarantees. The most effective way to protect the guar- . antees against unreasonable search and seizure and compulsory self-incrimination is to exclude from evidence any matter obtained by a violation of them.
We believe that as long as the [Delaware] Constitution contains the [search and seizure] guarantees to the citizen referred to, we have no choice but to use every means at our disposal to preserve those guarantees. Since it is obvious that the exclusion of such matters from evidence is the most practical protection, we adopt that means. It is no answer to say that the rule hampers the task of the prosecuting officer. If forced to choose between convenience to the prosecutor and a deprivation of constitutional guarantees to the citizen, we in fact have no choice.72
Consequently, in construing the Delaware Constitution, this Court held that there are state constitutional dimensions to the enforcement of the exclusionary rule.
Leon Distinguished
Ten years after' Rickards, the United States Court held the federal exclusionary rule applicable to the States. “Since the Fourth Amendment’s right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as is used against, the Federal Government.”
The United States Supreme Court has characterized its recognition of the federal exclusionary rule as a “judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.”
The minority contends that this Court should overrule Rickards and adopt the Leon “good faith” exception in “construing” the unambiguous mandate in Delaware’s Constitution that no search warrant shall issue without probable cause.
Our decision in Mason explained how the history of search and seizure in Delaware is different from that of the Fourth Amendment to the United States Constitution. “Delaware’s independent interest in protecting its citizens against unreasonable searches and seizures did not diminish after the adoption of the Fourth Amendment....”
If this Court were to find a “good faith exception,” under the circumstances of this case, it would be doing so in a situation where the police did not have exigent circumstances justifying a warrantless entry, failed to allege sufficient facts to satisfy the statutory requirements for a nighttime search of a residence and then failed to receive a search warrant that concluded its nighttime execution was necessary. To render such a decision would not only be an unprecedented break with more than two hundred years of history in this area of the law, but also would be tantamount to a judicial repeal of a specific Delaware statute that for more than one hundred years has set the standards by which applications for nighttime searches of a residence are to be judged by impartial magistrates.84
The Delaware Constitution requires actual probable cause for the issuance of a search warrant not “a good faith belief in probable cause.” This Court cannot disregard the probable cause requirement explicitly set forth in the Delaware Constitution. The entire purpose of having a police officer present his or her belief in probable cause to a neutral magistrate is to protect Delaware’s citizens against the issuance of search warrants without probable cause.
“The preservation of diversity in the legal and governmental systems of each state was expressly contemplated when the United States Constitution was framed and adopted.”
Rights Require Remedies
The issue on appeal relates to very specific language in the Delaware Constitution: “no warrant to search any place ... shall issue ... unless there be probable cause supported by oath or affirmation.”
That question is not an issue of first impression. Fifty years ago, in Rickards, this Court held that a violation of the Delaware Constitution’s right not to be searched pursuant to a warrant that was issued without probable cause required a constitutional remedy. — exclusion of the illegally seized items from evidence at trial.
' The minority concludes that when there is a good faith violation of the probable cause requirement in Delaware’s Constitution, there is no constitutional remedy. Blackstone’s Commentaries were cited by Chief Justice John Marshall “several times in support of the proposition that the law must furnish a remedy for the violation of a vested legal right.”
Evidence Excluded
Both before and after Leon, in construing the Delaware Constitution, this Court held that there are state constitutional dimensions to the enforcement of the exclusionary rule.
Conclusion
Dorsey’s judgment of conviction in the Superior Court for Possession of a Firearm by a Person Prohibited is reversed. This matter is remanded for further proceedings in accordance with this opinion.
. State v. Dorsey, Del.Super., I.D. No. 9609013822, 1997 WL 528273 (Aug. 1, 1997) (Op. and Order).
. Del. Const, art. 1, § 6.
. Id.
. 11 Del.C. § 2306.
. 11 Del.C. § 2307.
. Pierson v. State, Del.Supr., 338 A.2d 571, 573 (1975).
. Id.
. Id. at 574 (quoting United States v. Acosta, 5th Cir., 501 F.2d 1330 (1974)). Accord Henry v. State, Del.Supr., 373 A.2d 575, 577 (1977).
. 11 Del.C. § 2306; Edwards v. State, Del. Supr., 320 A.2d 701, 703 (1974); Wilson v. State, Del.Supr., 314 A.2d 905, 906-07 (1973).
. Gardner v. State, Del.Supr., 567 A.2d 404, 409 (1989); Jensen v. State, Del.Supr., 482 A.2d 105, 111 (1984).
. Gardner v. State, 567 A.2d at 409 (quoting Jensen v. State, 482 A.2d at 111). See Dunfee v. State, Del.Supr., 346 A.2d 173, 175 (1975); Edwards v. State, 320 A.2d at 703; Rossitto v. State, Del.Supr., 234 A.2d 438, 439-40 (1967).
. Hooks v. State, Del.Supr., 416 A.2d 189, 203 (1980).
. Id.
. Gardner v. State, 567 A.2d at 409; Hooks v. State, 416 A.2d at 203; Jensen v. State, 482 A.2d at 110-11; Henry v. State, Del.Supr., 373 A.2d 575, 577 (1977).
. 11 Del.C. § 2306.
. State v. Dorsey, I.D. No. 9609013822, 1997 WL 528273 (Aug. 1, 1997) (Op. and Order).
. Id.
. United States v. Whitner, 3d Cir., 219 F.3d 289, 297 (2000) (quoting United States v. Jones, 3d Cir., 994 F.2d 1051, 1055 (1993)).
. Id. (quoting United States v. Conley, 3d Cir., 4 F.3d 1200, 1207 (1993)).
. United States v. Jones, 994 F.2d at 1055-56.
. See Warden v. Hayden, 387 U.S. 294, 301-02, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
. Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948).
. Hooks v. State, Del.Supr., 416 A.2d 189, 203 (1980).
. Boardley v. State, Del.Supr., 612 A.2d 150, 154 (1992) (citing Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978)).
. Hooks v. State, 416 A.2d at 203.
. Id.
. 11 Del.C. §§ 2306 and 2307.
. Rickards v. State, Del.Supr., 77 A.2d 199 (1950); Jones v. State, Del.Supr., 745 A.2d 856 (1999).
. United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
. Id.
. See, e.g., Rickards v. State, 77 A.2d at 204; Jones v. State, Del.Supr., 745 A.2d 856 (1999).
. Jones v. State, 745 A.2d at 866.
. Del. Const, art. XIV, § 1.
. Claudio v. State, Del.Supr., 585 A.2d 1278, 1289 (1991).
. "Under the lockstep formulation, changes or clarification of federal law by the United States Supreme Court lead to parallel changes in state constitutional law.” Earl M. Maltz, False Prophet — Justice Brennan and the Theory of State Constitutional Law, 15 Hastings Const.L.Q., 429, 437-38 (1988).
. Sanders v. State, Del.Supr., 585 A.2d 117, 144 (1990).
. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990).
. Sanders v. State, 585 A.2d at 145 (citations omitted).
. Barron v. Baltimore, 32 U.S. (7 Pet.) 243, 8 L.Ed. 672 (1833). See Gerald Gunther, Constitutional Law 422-40 (11th ed. 1985); see also Shirley S. Abrahamson, Divided We Stand: State Constitutions in a More Perfect Union, 18 Hastings Const.L.Q. 723, 727-38 (1991); Stanley Mosk, State Constitutionalism: Both Liberal and Conservative, 63 Tex. L.Rev. 1081, 1081-82 (1985); Stewart G. Pollock, Adequate and Independent Grounds as a Means of Balancing the Relationship Between State and Federal Courts, 63 Tex.L.Rev. 977, 979 (1985).
. U.S. Const, amend. XIV ("... nor shall any State deprive any person of life, liberty, or property, without due process of law”). For discussions regarding the incorporation of the federal Bill of Rights into the Due Process Clause of the Fourteenth Amendment, thereby making them applicable to the states, see Richard C. Cortner, The Supreme Court and the Second Bill of Rights: The Fourteenth Amendment and the Nationalization of Civil Liberties (1981); Akhil R. Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L.J. 1193 (1992); Michael K. Curtis, The Fourteenth Amendment and the Bill of Rights, 14 Conn.L.Rev. 237 (1982); Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan.L.Rev. 5 (1949); Louis Henkin, “Selective Incorporation” in the Fourteenth Amendment, 73 Yale L.J. 74 (1963).
. Robert F. Utter & Sanford E. Pitler, Presenting a State Constitutional Argument: Comment on Theory and Technique, 20 Ind.L .Rev. 635, 641 (1987).
. Jones v. State, Del.Supr., 745 A.2d 856, 864 (1999).
. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 137, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (Souter, J., dissenting).
. Id. at 162 n. 55, 116 S.Ct. 1114.
. Ellen A. Peters, Common Law Antecedents of Constitutional Law in Connecticut, 53 Alb. L.Rev. 259, 261 (1989).
. Timothy Tyndale Daniell, The Lawyers 304 (1976). See also Sir Lyden Macarrey, Middle Templars' Association with America 27 (1998).
. Chief Justice William H. Taft, Foreword to E. Alfred Jones, American Members of the Inns of Court (1924).
. Del. Const, of 1776, art. XXV. See also Jonathan F. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 74 Or.L.Rev. 1279, 1308 (1995).
. Declaration of Rights and Fundamental Rules of the Delaware State § 17 (1776).
. Randy J. Holland, Introduction to The Delaware Bar in the Twentieth Century xxviii (Helen L. Winslow et al., eds., 1994).
. Id. at xxv. Sir Lyden Macarrey, Middle Templars’ Association with America 27 (1998).
. 3 William Blackstone, Commentaries *109 cited in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803).
. 3 William Blackstone, Commentaries *109 cited in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803). See also Chief Justice William H. Taft Foreword to E. Alfred Jones American Members of the Inns of Court (1924).
. Del. Const, of 1776, art. XXX.
. Johnson v. State, Del.Supr., 711 A.2d 18, 24 (1998). See also Dennis R. Nolan, Sir William Blackstone and the New Republic: A Study of Intellectual Impact. 51 N.Y.U.L.Rev. 731, 743 n. 63 (1976).
. Dennis R. Nolan, Sir William Blackstone and the New Republic: A Study of Intellectual Impact. 51 N.Y.U.L.Rev. 731, 745 n. 57 (1976).
. Claudio v. State, Del.Supr., 585 A.2d 1278, 1296 (1991).
. 3 William Blackstone, Commentaries *109 cited in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803).
. Jones v. State, Del.Supr., 745 A.2d 856, 865-66 (1999).
. Jones v. State, 745 A.2d at 865-66.
. Id.
. Id.
. Id. at 872 (citing Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).
. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Prior to Mapp, the federal exclusionary rule was applicable only in federal proceedings. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).
. Rickards v. State, Del.Supr., 77 A.2d 199 (1950); Jones v. State, Del.Supr., 745 A.2d 856, 865 (1999).
. Rickards v. State, 77 A.2d at 204.
. Id. at 205.
. Id.
. Id.
. Mapp v. Ohio, 367 U.S. 643, 645, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).
. United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).
. United States v. Leon, 468 U.S. 897, 913, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
. Id.
. Mason v. State, Del.Supr., 534 A.2d 242 (1987).
. Id. at 248.
. Id.
. 11 Del.C. § 2308.
. Mason v. State, 534 A.2d at 254-55.
. Id.
. Jones v. State, Del.Supr., 745 A.2d 856, 874 (1999). See Randy J. Holland, State Constitutions: Purpose and Function, 69 Temp.L.Rev. 989, 998-99 (1996).
. See Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).
. State v. Cline, 617 N.W.2d 277, 2000 Iowa Sup. LEXIS 152 (2000) (In footnote 3 noting that the good faith exception has been rejected under the state constitutions of Alaska, Connecticut, Idaho, Michigan, New Hampshire, New Jersey, New Mexico, Nevada, North Carolina, Pennsylvania and Vermont.).
. Jones v. State, 745 A.2d at 873. See John E. Theuman, Annotation, State Constitutional Requirements as to Exclusion of Evidence Unlawfully Seized — Post-Leon Cases, 19 A.L.R.5Ü1 470 (1994). See also Jennifer Fries-en, State Constitutional Law § 11 — 5(b) (2d ed. 1996 & Supp. 1999).
. Jones v. State, 745 A.2d at 873.
. Del. Const, art. I, § 6.
. Id.; Rickards v. State, Del.Supr., 77 A.2d 199 (1950).
. Dennis R. Nolan, Sir William Blackstone and the New Republic: A Study of Intellectual Impact. 51 N.Y.U.L.Rev. 731, 732 (1976).
. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803).
. Jones v. State, Del.Supr., 745 A.2d 856 (1999); Rickards v. State, Del.Supr., 77 A.2d 199 (1950).
. Jones v. State, 745 A.2d at 873-74; Rickards v. State, Del.Supr., 77 A.2d 199 (1950).
Dissenting Opinion
dissenting.
The majority holds that there is no “good faith” exception to the exclusionary rule under the Delaware Constitution. But it does not rest its conclusion on any analysis of the exception or its impact on the rights sought to be protected by the exclusionary rule. Instead, the majority says that: (i) Delaware’s constitutional safeguard against unreasonable searches and seizures is different from and broader than the similar protection found in the Fourth Amendment; and (ii) this Court could not adopt a good faith exception to the exclusionary rule without overruling precedents spanning 50 years. In fact, this is a case of first impression, and even if the State and Federal Constitutions are to be interpreted differently, the good faith exception to the exclusionary rule should be recognized under Delaware law.
As the majority points out, a prior version of Article I, Section 6 of the Delaware Constitution does predate the Fourth Amendment to the United States Constitution. That said, the language of the two provisions is “substantially identical”
Until last year, this Court had “never decided whether, and in what situations, Article I, § 6 of the Delaware Constitution should be interpreted to provide protections that are greater than the rights accorded citizens by the Fourteenth Amendment as it has been interpreted by the United States Supreme Court.”
The majority now finds another difference between our State and Federal Constitutions. Under federal law, evidence obtained with a search warrant that is later held to be invalid will not be suppressed as long as the police officer “[acted] with objective good faith ... obtained a search warrant from a judge or magistrate and acted within its scope.”
The majority suggests that its conclusion is the only one permitted under existing case law, and that the dissenters would force the Court to reverse ancient and respected precedent to rule otherwise. That is not so. Neither Rickards nor Mason addressed this issue. Rickards was decided long before Leon and simply adopted the federal exclusionary rule. Mason, which was decided after Leon, expressly stated that “Leon is not applicable to the questions presented in this appeal.”
When the exclusionary rule was adopted by this Court, it was considered the most practical remedy for an invasion of a person’s right to. be free from unreasonable searches and seizures. The Rickards court noted that police efforts to thwart crime cannot justify a “deliberate invasion” of a citizen’s constitutional rights.
There are several reasons why the good faith exception should be adopted in Delaware. First, to the extent that the exclusionary rule is intended to deter police misconduct, it serves no purpose in the circumstances that would give rise to the good faith exception. A police officer who (i) prepares an affidavit of probable cause, which the officer reasonably believes is sufficient to obtain a warrant, and (ii) presents it to an independent magistrate, who also concludes that the affidavit supports
The majority suggests that suppression is not intended to deter police abuses, but to remedy the unconstitutional invasion of an individual’s privacy. If that is so, then why is there an exception for evidence obtained through intentional police misconduct just because the evidence would have been discovered lawfully at some later time? The individual’s constitutional rights are violated, but we provide no suppression remedy. And since we countenance knowing constitutional violations where the police make no effort to comply with the law, certainly we should condone unknowing constitutional violations where the police are attempting to fully comply with the law.
Finally, it is good public policy to promote consistency in our laws. The majority’s suggestion that judges would be violating their oaths of office if they interpret the State and Federal Constitutions uniformly is wrong. Where, as here, the two constitutional provisions are virtually identical, and there is a long history of interpreting them consistently, this Court should deviate from federal interpretations only if there are compelling reasons to do so. The majority has offered no compelling reasons and I find none. Accordingly, I respectfully dissent.
. Rickards v. State, Del.Supr., 77 A.2d 199, 204 (1950).
. Ibid.
. Id. at 205.
. Del.Supr., 374 A.2d 264 (1977).
. Del.Supr., 534 A.2d 242 (1987).
. Jones v. State, 745 A.2d 856, 861 (1999).
. 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).
. United States v. Leon, 468 U.S. 897, 920, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
. Mason v. State, 534 A.2d at 254.
Dissenting Opinion
dissenting:
I respectfully dissent and agree with Justice Berger that we should affirm. I would affirm because, in my opinion, the totality of the circumstances support a finding that there was sufficient probable cause for the issuance of the search warrant and therefore there was no violation of 11 Del.C. § 2306 or the Delaware or-federal Constitutions. If there was any question whether the search warrant was properly issued, the record shows that the police acted in good faith in reliance on the warrant in accordance with the rule adopted by the United States Supreme Court in United States v. Leon.
I find no Delaware Constitutional impediment to the adoption by us of the good faith exception to the evidentiary exclusionary rule as set forth in Leon and I agree with Justice Berger that, as a matter of public policy, it should be adopted in Delaware. In my opinion, in a murder investigation, the good faith exception rule represents a reasonable balance between the right of an owner of a motor vehicle that might contain a weapon to be free from an unreasonable search and the right of an individual to be safe from harm. There is, therefore, in my opinion, no legal bar to the introduction into evidence of the weapon that was found in Dorsey’s motor vehicle.
I.
The majority relies, in part, on Jones v. State,
II.
I also find nothing in our case law nor in the Delaware Constitution of 1897 (or in its predecessors) that precludes our adopting the good faith exception rule adopted by the United States Supreme Court in Leon.
In 1914 in Weeks v. United States,
In 1984 in Leon, the United States Supreme Court held that the Fourth Amendment to the Federal Constitution, itself, does not expressly preclude the use of evidence obtained by officers acting in reasonable reliance on a search warrant, that is later found to be defective. This is now known as “the good faith exception rule .” Since then, some states have not considered the rule, while others have either adopted it or rejected it. 19 ALR 5th 470, 487. In State v. Bolt,
III.
Because the good.faith exception to the exclusionary rule is not precluded by the Delaware Constitution, or any statute or precedent, the issue before us is whether, as a matter of public policy, the good faith exception rule should be adopted in Delaware. I believe it should be.
The first Delaware Constitution, in 1776, incorporated a Declaration of Rights and Fundamental Rules of the Delaware State. Section 17 stated:
That all warrants without oath to search suspected places, or to seize any person or his property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend all persons suspected, without naming or describing the place or an person in special, are illegal and ought not to be granted.116
I find nothing in that language that precludes a good faith exception to any later judicially-created exclusionary rule and there is no evidence that the delegates to that Convention considered an exclusionary rule or any good faith exception thereto.
In any case, the 1776 Constitution with its Declaration of Rights ceased to be the Constitution of Delaware or to have any force when it was replaced (not amended) by the Delaware Constitution of 1792 that was promulgated by the delegates on June 12, 1792. The Delaware Constitutional Convention of 1792 was convened, in large part, because of the adoption of the United States Constitution in 1789 and its Bill of Rights (the first ten amendments) in 1791.
In Rickards v. State,
In my opinion, the cases relied on by the majority are not persuasive. In Mason v. State
Because no stenographic record of the debates of the Delaware Constitutional Conventions prior to the 1897 Convention exists, it is virtually impossible to find any valid aid to construction other than the primary one: the text itself. In 1897, the delegates to the Constitutional Convention
IV.
In summary, I agree with Justice Berger that the judgment of the Superior Court be affirmed. There is, in my opinion, no binding Delaware Constitutional provision or precedent that either adopts the Leon good faith exception to the exclusionary rule or precludes its adoption by us. If the Leon good faith exception is to be rejected, it must- be done so on the basis of public policy, not dicta, statutes or historical speculation.
. 468 U.S. 897, 104 S.Ct. 3405 (1984).
. DeLSupr., 745 A.2d 856 (1999).
.Id. at 874 (Hartnett, J., concurring).
. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct 2317, 76 L.Ed.2d 527 (1983).
. 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).
. 367 U.S. 643, 81 S.Ct 1684, 6 L.Ed.2d 1081 (1961).
. Del.Supr., 77 A.2d 199 (1950).
. 142 Ariz. 260, 689 P.2d 519 (1984).
. Declaration of Rights and Fundamental Rules of the Delaware State § 17 (1776).
. See Jeannete Eckman, Constitutional Development 1776-1897 in Delaware: A History of the First State, 284-85 (H. Clay Reed, ed., 1947).
. Del.Supr., 77 A.2d 199 (1950).
. Id. at 204 (emphasis added).
. See also Cook v. State, Del.Supr., 374 A.2d 264 (1977); Gamer v. State, Del.Supr., 314 A.2d 908 (1973).
. Del.Supr., 534 A.2d 242 (1987).
. The Court stated "We find that Leon is not applicable to the questions presented in this appeal.” 534 A.2d at 254.
. Sanders v. State, Del.Supr., 585 A.2d 117 (1990). Sanders involved the issue of the effect of a jury verdict of "guilty but mentally ill” and not search and seizure.
. Turnbull v. Fink, Del.Supr., 668 A.2d 1370, 1378 n. 7 (1995).
. Alfieri v. Martelli, Del.Supr., 647 A.2d 52, 54 n. 1 (1994).
. 526 Pa. 374, 586 A.2d 887, 901 (1991).
. 91 NJ. 338, 450 A.2d 952, 955 (1982).
. Rodman Ward, Jr. and Paul J. Lockwood, in The Delaware Constitution of 1897, 78-79 (Randy J. Holland, ed., 1997).
. Jeannete Eckman, Constitutional Development 1776-1786 in Delaware: A History of the First State, 284-85 (H. Clay Reed, ed., 1947).
. "History never embraces more than a small part of reality.” La Rochefoucauld.
Reference
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- James DORSEY, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee
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