State v. Brinkley

• Decision Date: 22 March 2016
• Docket Number: I.D. No. 1412017874
• Citation: 132 A.3d 839
• Parties: State of Delaware, v. Jermaine Brinkley, Defendant.
• Court: Delaware Superior Court

132 A.3d 839

State of Delaware,

v.Jermaine Brinkley, Defendant.

I.D. No. 1412017874

Superior Court of Delaware, Kent County.

Submitted: February 29, 2016

Decided: March 22, 2016

Lindsay A. Taylor, Esquire of the Department of Justice, Dover, Delaware; attorney for the State of Delaware.

John S. Malik, Esquire, Wilmington, Delaware; attorney for the Defendant.

OPINION

WITHAM, R.J.

Defendant Jermaine Brinkley ("Brinkley") requests this Court grant reargument on his motion to suppress wiretap evidence. Brinkley claims the Court did not consider all grounds asserted in the motion. Specifically, Brinkley requests the Court reconsider its decision based on his challenge to the territorial jurisdiction of the wiretap order and the denial of an evidentiary hearing.

I. FACTS AND PROCEDURAL HISTORY

In November 2015, this Court denied Brinkley's motion to suppress evidence derived from a wiretap order. Brinkley argued that the wiretap order authorized law enforcement officers to unlawfully intercept communications outside the territorial jurisdiction permitted under 11 Del. C. § 2407(c)(3). The State adequately responded to Brinkley's argument, but the Court deemed this argument waived because it was not raised prior to the motions deadline. In his motion for reargument, Brinkley contends that the State would not be prejudiced by the Court's reconsideration since the State devoted a significant portion of its brief to the geographic issue. Furthermore, the issue raises important questions about procedures to be followed by law enforcement when applying for a wiretap order, and by trial courts in granting them.

Brinkley requested an evidentiary hearing in his initial motion to suppress wiretap evidence, but failed to press the argument in his memorandum of law in support of the motion. However, Brinkley's reply memorandum of law in support of motion to suppress wiretap evidence ("Defendant's Reply Brief") argued that an evidentiary hearing was necessary because law enforcement misrepresented or recklessly disregarded the truth with regard to eight specific issues. The Court denied Brinkley's request for an evidentiary hearing because he failed to meet the criteria required under Franks v. Delaware, and because the volume of information submitted in the affidavits that had not been specifically challenged or that had been dealt with in the discussions of stale information and the necessity requirements was sufficient for a finding of probable cause. Brinkley now moves this Court to grant reargument with respect to the geographic issue and the evidentiary hearing issue.

II. STANDARD OF REVIEW

Where the Superior Court Rules of Criminal Procedure provide no rule governing a particular practice, that practice is governed by the Superior Court Rules of Civil Procedure.¹ Thus, a motion for reargument in a criminal case is governed by Super Court Rule of Civil Procedure 59(e). A motion for reargument pursuant to Rule 59(e) will be granted only if "the Court has overlooked a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision."² A motion for reargument is not an opportunity for a party to rehash arguments already decided by the Court or to present new arguments not previously raised.³ In order for the motion to be granted, the movant must "demonstrate newly discovered evidence, a change in the law, or manifest injustice."⁴

III. DISCUSSION

A. 11 Del. C. § 2407(c)(3)Allows for the Authorization of a Wiretap When the Communication is Either Intercepted in the State or is Sent or Received in the State.

Brinkley contends that the geographic location issue should be considered because it raises important questions about the procedures to be followed by law enforcement when applying for a wiretap order and by the trial courts in granting such orders. He further contends that the issue has been fully briefed by the State and by defense counsel and is therefore ripe for decision. The Court agrees, and will therefore reconsider the geographic issue.

The question raised by Brinkley's challenge asks whether 11 Del. C. § 2407(c)(3) grants jurisdiction to intercept cellular communications when an entire conversation that has been conducted on a cellular device both originates and is received outside of the court's jurisdiction. Chapter 24 of title 11 is titled Wiretapping, Electronic Surveillance and Interception of Communications. Subchapter I of Chapter 24 is titled Electronic Surveillance and Interception of Communications. Section 2407, which is found in Subchapter I, is titled Ex parte order authorizing interception. As illustrated by these titles, the thrust of Chapter 24, Subchapter I, and Section 2407 is the interception of electronic communications. Thus, the proper question is whether Section 2407 allows for the interception of a cellular communication when that communication is intercepted in the State, but has neither been sent nor received by a portable communication device that is located in the State. This question is one of first impression in Delaware. To answer this question, the Court will read the statute with the objective of giving effect to the intent of the legislature.

The United States Congress' enactment of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 set minimum standards for the interception of oral, wire, and electronic communications during criminal investigations.⁵ States were subsequently required to enact legislation that was at least as protective of citizen's rights as Title III.⁶ The federal wiretap statute is found at 18 U.S.C. §§ 2510 –2520. Delaware's responsive statute was patterned on the federal statute and originally codified at 11 Del. C. § 1336.⁷ Section 1336 was repealed in 1999 and replaced by 11 Del. C. §§ 2401 –2434.⁸ The 1999 changes were necessary "to become current with the emerging technology,"⁹ and were "based upon federal and other states' wiretap and interception laws."¹⁰ In 1990, the court in State v. Perry noted that the federal wiretap statute and Delaware's wiretap statute were "in all material respects virtually identical."¹¹ Despite amendments to both the federal statute and the Delaware statute, this remains true today. Noting the absence of Delaware case law, the Perry court used federal case law to interpret similar language in the Delaware statute. This Court is also faced with an absence of case law relating to the issue of territorial jurisdiction under Section 2407, and will therefore rely in part on federal case law.

To determine the statutory limitations on the interception of cellular communications, it is necessary to understand the terms used in Section 2407 as defined by the statute. Section 2401 defines "intercept" to mean "the aural or other acquisition of the contents of any wire, oral or electronic communication through the use of any electronic, mechanical or other device."¹² An "aural transfer" is defined as "a transfer containing the human voice at any point between and including the point of origin and the point of reception."¹³ An "electronic communication" is defined as "any transfer of signs, signals, writing, images, sounds, data or intelligence of any electromagnetic, photoelectronic or photooptical system."¹⁴ The definitions of "intercept" and "aural transfer" are identical verbatim, and the definition of "electronic communication" is materially identical, to the definitions found in the federal statute.¹⁵

These definitions apply to all subsequent sections of Delaware's wiretap statute. The specific language governing the issuance of an ex parte order authorizing interception is contained in Section 2407(c)¹⁶ and is analogous to the relevant Title III language found at 18 U.S.C. § 2518(3).¹⁷ The only substantive differences between the federal statute and the Delaware statute concern jurisdictional boundaries. A federal judge may approve an interception "within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction)."¹⁸ The Delaware statute substitutes this language with subsections 2407(c)(2) and (3). These subsections allow a judge to approve an interception within the territorial jurisdiction of the court, and in certain cases for interception anywhere within the State so long as the offense being investigated transpired within the court's jurisdiction.¹⁹ Thus, with allowances for the jurisdictional range of a federal court versus the jurisdictional range of a state court, the two statutes are materially identical.

The Delaware statute allows for the interception of electronic signals When those signals are intercepted within the State without regard to The location of the communication devices

Because the application for the wiretap order in the case sub judice was filed by the Attorney General's office, the specific subsection at issue is 11 Del. C. § 2407(c)(3). The language being challenged states that an order "may authorize the interception of communications sent or received by a mobile telephone anywhere within the State so as to permit the interception of the communications regardless of whether the mobile telephone is physically located within the jurisdiction of the court in which the application was filed at the time of the interception." Brinkley argued that this language was subject to only one interpretation. The words "anywhere in the State" must modify the immediately preceding words, "mobile telephone," and not the words "interception of communications."²⁰ Under Brinkley's interpretation, the statute would not allow for the interception of wireless communications unless the communication was sent or received by a mobile telephone that was located within the State. For reasons discussed below, this interpretation defies as well as transmogrifies ...