State v. Gibson

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) ID Nos. 2107000514 A/B; 2107000202 A/B; ) 2106004632 A/B; 2106004704 A/B KEITH GIBSON, ) ) Defendant. )

Submitted: September 26, 2023 Decided: October 23, 2023

ORDER

Upon Defendant Keith Gibson’s Motion to Suppress Evidence Seized from Defendant’s iPhone DENIED.

Upon Defendant Keith Gibson’s Motion to Suppress Evidence Purportedly Seized from 2753 North Croskey Street, Philadelphia, Pennsylvania DENIED.

Upon the State of Delaware’s Motion in Limine to Admit Evidence of Prior Acts Pursuant to D.R.E. 404(b) GRANTED IN PART AND DENIED IN PART.

John W. Downs, Esquire, Ipek Kurul, Esquire, and Samuel B. Kenney, Esquire, Deputy Attorneys General, DEPARTMENT OF JUSTICE, 820 North French Street, Wilmington, Delaware 19801, Attorneys for the State.

Megan J. Davies, Esquire, 716 North Tatnall Street, Wilmington, Delaware 19801; Richard Sparaco, Esquire, LAW OFFICE OF RICHARD SPARACO, LLC, 1920 Fairfax Avenue, Cherry Hill, New Jersey 08003, and P.O. Box 371, Lewes, Delaware 19958, Attorneys for Defendant Keith Gibson.

WHARTON, J. This 23rd day of October 2023, upon consideration of Defendant Keith

Gibson’s (“Gibson”) Motion to Suppress Evidence Seized from Defendant’s iPhone

(“Motion to Suppress-iPhone”),1 and his Motion to Suppress Evidence Purportedly

Seized from 2753 North Croskey Street, Philadelphia, Pennsylvania (“Motion to

Suppress-Residence”),2 and the State’s Motion in Limine to Admit Evidence of Prior

Acts Pursuant to D.R.E. 404(b) (“Motion in Limine”), 3 the parties submissions,

argument, and the record in this case it appears to the Court that:

1. Gibson is facing forty-one charges stemming from five separate

criminal investigations for crimes that took place between May 15, 2021 and June

8, 2021.4 Throughout the pendency of this case, Gibson’s counsel has changed.

Eugene Mauer, Esquire and Elise Wolpert, Esquire (collectively “prior counsel”)

previously represented Gibson. Megan Davies, Esquire and Richard Sparaco,

Esquire (collectively “current counsel”) now represent Gibson. The Court has issued

1 D.I. 41. (Docket Item numbers are from ID No. 2106004632.) 2 D.I. 108. (Motion under Seal.) 3 This motion was filed under seal and does not have a docket item number. 4 Only the background specifically relevant to each motion is discussed here. For additional background, see State v. Gibson, 2022 WL 16642860, at *1 (Del. Super. Ct. Nov. 2, 2022) & State v. Gibson, 2022 WL 17430368, at *1-2 (Del. Super. Ct. Dec. 5, 2022).

2 several Opinions, deciding some issues and deferring others.5 The deferred issues

are now ripe for decision,6 as is the State’s Motion in Limine.

2. Gibson’s Motion to Suppress Evidence Seized from Defendant’s

iPhone. 7 The Court deferred ruling on this motion in order to give Gibson an

opportunity to address a search warrant issued on November 8, 2021 upon which the

State represents that it relies.8 When they filed their motion, prior counsel were

under the impression that the State was relying on a warrant issued on June 23,

2021. 9 Current counsel filed a supplemental briefing/position 10 and the State

responded.11 The motion was argued on September 26, 2023.

3. On June 8, 2021, Gibson was arrested in connection with the robbery

of the Rite Aid at Fourth and Adams Streets in Wilmington.12 Upon Gibson’s arrest,

Wilmington Police seized a black Apple iPhone that was located on the right side of

5 State v. Gibson, 2023 WL 2034444 (Del. Super. Ct. Feb. 15, 2023); State v. Gibson, 2023 WL 315332 (Del. Super. Ct. Jan. 19, 2023); State v. Gibson, 2022 WL 17430368 (Del. Super. Ct. Dec. 5, 2022); State v. Gibson, 2022 WL 16642860 (Del. Super. Ct. Nov. 2, 2022). 6 Gibson also filed a Motion for Disclosure of Non-Recorded Portions of Witness Statements, D.I. 42. The Court, in its November 2, 2022 decision, deferred ruling on that motion in order to allow the parties to confer. By letter dated May 15, 2023, Gibson withdrew that motion, D.I. 108. 7 D.I. 41. 8 Gibson, 2022 WL 16642860, at *6. 9 Id. 10 Def.’s Supplemental Briefing/Position, D.I. 108. 11 State’s Resp. to Mot. to Suppress-iPhone. (This document does not appear to have a docket item number.) 12 Mot. to Suppress-iPhone at ¶ 2, D.I. 41.

3 Gibson’s belt.13 On November 8, 2021, Det. Scot Sowden of the Elsmere Police

Department and Det. Joseph Wicks of the Wilmington Police Department obtained

a warrant to search the iPhone.14

4. Gibson requests that the Court suppress the evidence seized pursuant to

that warrant.15 Gibson asserts that there was insufficient probable cause to establish

a logical nexus between the alleged crimes and the iPhone;16 and the warrant is a

general warrant,17 lacking particularity due to its limitless scope and insufficiently

limited search timeframe.18

5. The State contends that the warrant was supported by probable cause

establishing a nexus between the criminal activity and the iPhone. 19 The State

submits that the warrant is not a general warrant because it properly limits the scope

of the search to a specific timeframe and to specific areas of the phone.20

6. Both the Federal Constitution and the Delaware Constitution mandate

that no warrants shall be issued without probable cause.21 The Court examines the

“four-corners” of the warrant to determine whether it is supported by probable cause,

13 Id. 14 State’s Resp. to Mot. to Suppress-iPhone at ¶ 5. 15 Def.’s Supplemental Briefing/Position at ¶ 22, D.I. 108. 16 Mot. to Suppress-iPhone at ¶ 12, D.I. 41. 17 Id. at ¶ 15. 18 Id. at ¶12-13, ¶15. 19 State’s Resp. to Mot. to Suppress-iPhone at ¶ 26. 20 Id. at ¶ 12. 21 U.S. Const. amend IV; Del. Const. art. I, § 6.

4 meaning that the facts on the face of the affidavit must establish the existence of

probable cause.22 “In determining whether probable cause has been demonstrated,

there must be a logical nexus between the items sought and the place to be

searched.”23

7. Search warrants seeking information stored on electronic devices, such

as cell phones, “call for particular sensitivity given the ‘enormous potential for

privacy violations’ that ‘unconstrained searches of cell phones’ pose.”24 The places

or things to be searched or seized must be stated with particularity in the warrant

affidavit.25 To satisfy the particularity requirement for cell phones, search warrants

“must describe what the investigating officers believe will be found on electronic

devices with as much specificity as possible under the circumstances.” 26 As to the

timeframe of the warrant, “the search and seizure should be appropriately narrowed

to the relevant time period so as to mitigate the potential for unconstitutional

rummaging.”27

22 Dorsey v. State, 761 A.2d 807, 811 (Del. 2000). 23 Id. (emphasis omitted). 24 Buckham v. State, 185 A.3d 1, 18 (Del. 2018) (quoting Wheeler v. State, 135 A.3d 282, 299 (Del. 2016)). 25 Taylor v. State, 260 A.3d 602, 612 (Del. 2021). 26 Wheeler, 135 A.3d at 304. 27 Id. at 305.

5 8. The defendant has the burden to establish by a preponderance of the

evidence that the search warrant was not supported by probable cause. 28 The

reviewing court simply needs to ensure that there was a basis for probable cause in

the warrant affidavit.29 Courts “review a magistrate's probable cause determination

with great deference, considering it as a whole in a practical, commonsense manner,

and not on the basis of a hypertechnical analysis of its separate allegations.”30

9. “[A]n overly broad warrant can be redacted to strike out those portions

of the warrant that are invalid for lack of probable cause, maintaining the remainder

of the warrant that satisfies the Fourth Amendment. “When a warrant is broader than

the probable cause that supports it . . . the Court may limit the scope of permissible

evidence to that for which probable cause is present in the warrant.”31 In contrast,

the only remedy for a general warrant is to suppress all evidence obtained thereby.”32

10. The warrant issued on November 8, 2021 authorized:

A forensic examination for the digital contents of a black in color Apple iPhone with phone number xxx-xxx-xxxx, that is currently in the custody of the Wilmington Police Department, the digital contents of any attached storage device for the following dates: May 10, 2021 to June 8, 2021 (all dates are for 0001 hours EDT to 2359 hours

28 See State v. Sisson, 883 A.2d 868, 875 (Del. Super. Ct. 2005), aff’d, 903 A.2d 288 (Del. 2006); cf. McAllister v. State, 807 A.2d 1119, 1123 (Del. 2002). 29 Illinois v. Gates, 462 U.S. 213, 238-39 (1983). 30 See Sisson, 903 A.2d at 296. 31 Waters v. State, 2020 WL 507703, at *4 (Del. Super. Ct. Jan. 30, 2020). 32 Taylor, 260 A.3d at 617 (quoting United States v. Yusuf, 461 F.3d 374, 393 n.19 (3d Cir. 2006) (internal citations omitted)).

6 EDT); specifically for call logs, GPS or other location- based data, SMS (text) messages and MMS (Multimedia) messages, internet & browser history, address book and contact list, images and/or videos, and information that may identify the owner of said phone, as that information is used or intended to be used for [various crimes including murder first degree, attempted murder first degree and robbery first degree].33

11. Gibson does not contest that the affidavit in support of the search

warrant sets out facts sufficient to establish probable cause that Gibson committed a

series of crimes beginning on May 15, 2021 and ending on June 8, 2021, nor does

he contest that the iPhone is his. Rather, he contends that the warrant is defective

because the affidavit only states why law enforcement believes the defendant carried

the iPhone during the search dates, but fails to show that it was used to commit the

crimes or contain evidence of the crimes.34

12. The warrant affidavit indicates that Gibson had a cell phone with a

particular number, on or about the dates of the crimes. When Gibson was released

from prison, he provided his iPhone number to probation and parole.35 This number

links Gibson to the iPhone after his prison release date, April 27, 2021, 36 and before

the warrant’s start date of May 10, 2021. 37 Within hours of the Metro PCS

33 Search Warrant (Nov. 8, 2021), Ex. A, Def.’s Supplemental Briefing/Position, D.I. 108. 34 Id. at ¶ 13. 35 State’s Resp. to Mot. to Suppress-iPhone at ¶ 27. 36 Id. at ¶ 5. 37 Id. at ¶ 13.

7 robbery/murder, video surveillance captured images of a suspect matching Gibson’s

description exiting the victim’s vehicle in Philadelphia while using a cell phone.38 A

witness told the Wilmington Police that Gibson would often call the witness on the

dates of the crimes.39 That witness showed the police the witness’ phone showing a

text message from Gibson 37 minutes before the Metro PCS robbery/murder,

another text six minutes after a shooting at 322 W. 9 th Street in Wilmington, a call

eight minutes after that same incident, calls bracketing by several hours a homicide

at 1200 W. 3rd Street, and texts less than an hour before the Rite Aid robbery.40 The

affidavit seeks location information associated with these and possibly other

communications which would be useful in identifying the location of the iPhone

when the communications occurred.41 Finally, one of the 23 Metro PCS phones that

were stolen was activated and included Gibson’s phone number it’s contact list.42

The affidavit seeks information from the iPhone to “track individuals who Gibson

was contacting in order to sell the phones.”43

13. Based on the foregoing, the Court concludes that the affidavit establishes

probable cause that a logical nexus exists between the iPhone and the specified

38 Id. at ¶ 29. 39 Id. 40 Id. 41 Id. 42 Id. at ¶ 30. 43 Id.

8 crimes. It is clear that the affidavit establishes that Gibson possessed the iPhone at

or near the times of the various crimes identified in the affidavit and communicated

with at least one person in close temporal proximity to those crimes. The warrant

authorizes a forensic examination of the iPhone for “GPS or other location-based

data.” 44 Obviously, location data has significant evidentiary value. Further,

information about other potential recipients of the stolen cell phones, including

communications with such individuals, would have significant evidentiary value as

well. It requires no leap of logic to conclude that if one recipient documented his

association with Gibson in his cell phone, others might have done so too. It is also

reasonable to conclude that Gibson, a person prohibited from possessing firearms or

ammunition, used the iPhone to communicate with people illegally selling firearms.

Such communications, which often include “photographs, videos, written

descriptions, and price negotiations exchanged between buyer and seller” are

consistent with the affiants’ training and experience.45

14. Next, the Court turns to Gibson’s contention that the warrant was a

general warrant lacking in particularity, as opposed to being merely overbroad. On

this point, Gibson states that the warrant permitted a “limitless[,]” “top-to-bottom[,]”

44 Search Warrant (Nov. 8, 2021), Ex. A, Def.’s Supplemental Briefing/Position, D.I. 108. 45 Id. at ¶ 30.

9 “lifetime[,]” search of the iPhone, with “blanket authority[.]”46 Gibson argues that

the June 23rd warrant lacked particularity because its language allowed for the search

of ‘“any and all storage devices”’ for inter alia ‘“any information that might identify

a possible owner of said phones”’ and ‘“any and all information [,] used[,] or

intended to be used for ‘Murder First Degree and Robbery First Degree.’”47 The

language of the November 8th warrant is less broad than the June 23rd warrant. It

allows for the search of the iPhone and “any attached storage device” but does not

include the phrases “any and all,” “any information”, or “any and all information.”48

15. The language in the affidavit needs to be considered in a common sense

way and as a whole.49 The words “any storage devices” are not considered alone. In

Thomas v. State,50 the Delaware Supreme Court discussed several cases - Wheeler v.

State, 51 Buckham v. State,52 and Taylor v. State,53 - where it invalidated warrants

“because investigators had a more precise description of the places to be searched

than was provided in the warrant, and there was nothing in those cases to support an

46 Mot. to Suppress-iPhone at ¶ 13, ¶ 15, D.I. 41. 47 Id. at ¶ 14, D.I. 41. 48 Search Warrant (Nov. 8, 2021), Ex. A, Def.’s Supplemental Briefing/Position, D.I. 108. 49 Taylor, 260 A.3d at 617 (quoting United States v. Yusuf, 461 F.3d 374, 393 n.19 (3d Cir. 2006) (internal citations omitted)). 50 2023 WL 6379829 (Del. Oct. 2, 2023). 51 135 A.3d 282 (Del. 2016). 52 185 A.3d 1 (Del. 2018). 53 260 A.3d 602 (Del. 2021).

10 inference that evidence would have been found in the less precise locations which

the warrants authorized law enforcement to search.”54 In Gibson’s case, there are no

facts in the warrant affidavit to suggest that police had a more precise description of

the places to be searched in the iPhone. The warrant authorizes a search of the

iPhone for communications, location data, internet browsing history, images and

videos, and iPhone ownership information. There are sufficient facts in the warrant

affidavit to establish probable cause to believe that evidence might be found in each

of those locations.55 The Court does not find that the warrant is broader than the

probable cause that supports it.56

16. Further, “there was no temporal limitation in Wheeler, Buckham, and

Taylor.”57 The warrant in Gibson’s case had a temporal limit, with its timeframe

listed as May 10, 2021, through June 8, 2021.58 The search warrant’s timeframe was

appropriately narrowed to a relevant time period. Gibson asserts that the search is a

lifetime search, but this claim loses much of its force when the Court considers that

the lifetime of the iPhone was only six weeks – from April 27th to June 8th and the

crimes described in the affidavit began only 18 days into that lifetime and continued

through the last day the police were authorized to search. Effectively, the crime

54 Thomas, 2023 WL 6379829, at *14. 55 See ¶ ¶ 12,13, supra. 56 See State v. Waters, 2020 WL 507703, at *4 (Del. Super. Ct. Jan. 30, 2020). 57 Thomas, 2023 WL 6379829, at *15. 58 State’s Resp. to Mot. to Suppress-iPhone at ¶ 5.

11 spree encompassed nearly the lifetime of the iPhone. Even that brief timeframe is

limited to a specified date range of only about four weeks, beginning just five days

before the first crime alleged. 59 The warrant authorized a search of the iPhone

beginning on May 10th. At most, Gibson can claim that the warrant was temporally

overbroad by five days so that any information seized during the period from May

10th through the 14th would be subject to suppression. But, it is certainly reasonable

to conclude that preparation for the first charged crime could have begun five days

in advance of its commission. In any event, the Court is unaware that there was

anything of evidentiary value seized during that period.

17. Lastly, Gibson contends that the State cannot justify the warrant on the

basis of a need to obtain cell site location information (“CSLI”).60 Gibson states that

a previous warrant included this same request and that there was no reason to believe

that additional CLSI information would be recovered. 61 This contention is

insufficient to invalidate the warrant inasmuch as the State has represented that it is

not relying on information obtained in the previous June 23, 2021 warrant.

18. The Court concludes that the affidavit established probable cause to

believe that Gibson committed the crimes described, that he had the iPhone on the

59 Mot. to Suppress-iPhone at ¶ 13, D.I. 41. On May 15, 2021, Gibson is alleged to have committed the robbery/murder at Metro PCS. Apparently the iPhone was activated on May 10th. 60 Def.’s Supplemental Briefing/Position at ¶ 18, D.I. 108. 61 Id.

12 dates the crimes were committed, and that there was a logical nexus between the

crimes and the iPhone. Further, the Court finds that the warrant was not overbroad,

either as to the timeframe or to the locations within the iPhone to be searched.

Accordingly, Gibson’s Motion to Suppress Evidence Seized from the Defendant’s

iPhone is DENIED.

19. Gibson’s Motion to Suppress Evidence Purportedly Seized from

2753 North Croskey Street, Philadelphia, Pennsylvania.62 The Court initially

deferred resolution of Gibson’s pro se motion to suppress items seized from his

Philadelphia residence until defense counsel had received and reviewed the two

Philadelphia search warrants. 63 Defense counsel, now having reviewed the

warrants, filed a Motion to Suppress Evidence under seal on May 15, 2023.64 The

State responded on June 15th,65 and the motion was argued on September 26th.

20. Significantly, the Motion to Suppress only challenges the first search

warrant dated June 8, 2021.66 That search warrant was obtained by the Philadelphia

Police Department in connection with their investigation of the June 5 th

robbery/murder at Dunkin’ Donuts on W. Lehigh Avenue.67 Gibson argues that the

62 Def.’s Mot. to Suppress-Residence, D.I. 108. 63 Gibson, 2022 WL 17430368, at *5. 64 D.I. 108. 65 State’s Resp. to Mot. to Suppress-Residence. (This response does not appear in the docket.) 66 Id. 67 Def.’s Mot. to Suppress-Residence, Ex. A, D.I. 108.

13 affidavit in support of the warrant failed to establish probable cause that evidence

from the Dunkin’ Donuts robbery/murder would be found at 2753 N. Croskey

Street.68 He contends that other than sometimes inaccurate motor vehicle records

there is nothing in the affidavit to connect Gibson to the residence.69 Even so, there

is nothing in the affidavit to support probable cause that there would be any evidence

inside the residence since all observations of Gibson were made outside of it.70

Gibson also argues prophylactically that the “good faith exception,” which otherwise

might save a defective warrant, does not apply.71

21. In response, the State maintains that the affidavit established a nexus

between the Dunkin’ Donuts robbery/murder and the Croskey Street address.72 It

points out that the affidavit describes a route of travel from Dunkin’ Donuts to within

a block of Gibson’s residence where surveillance cameras lost sight of him at 5:47

a.m., minutes before the police were alerted to the crime.73 The State argues that it

would be logical for the judicial officer issuing the warrant to infer that immediately

following the commission of the crime, Gibson fled to his home to “secure the

68 Id. at 9-17. 69 Id. at 13. 70 Id. 71 Id. at 18-22. Delaware does not recognize a good faith exception under the Delaware Constitution and the State did not argue for one in its response. See Dorsey v. State, 761 A. 2d 807, 820 (Del. 2000). 72 State’s Resp. to Def.’s Mot. to Suppress-Residence. 73 Id. at 7.

14 proceeds of the crime and shed any identifying clothing.”74 Alternatively, the State

argues that anything recovered in the execution of the June 8 th warrant inevitably

would have been discovered when a second unchallenged warrant was executed at

2753 Croskey Street on June 11th by the Philadelphia Police.75 Finally, the State

argues that even if the first two warrants were defective, discovery still was

inevitable because Delaware police would have sought a warrant had not the

Philadelphia Police already done so.76

22. The June 8th warrant authorized a search of 2753 N. Croskey Street for

firearms, ammunition, ballistic evidence, clothing, electronic devices that store

electronic data, including GPS data, identification, proof of residency and any other

items of evidentiary value.77 The affidavit of probable cause stated that on June 5,

2021, surveillance video showed a suspect committing a robbery/murder at the

Dunkin’ Donuts at 532 W. Lehigh Ave. in Philadelphia. 78 Police and medics

responded to the scene at or before 5:51 a.m. and found the victim dead of a gunshot

wound to the head. 79 Video cameras inside the store captured the incident. 80

Multiple Real Time Cameras along with private cameras tracked the suspect’s route,

74 Id. at 8. 75 Id. at 9-11. 76 Id. at 11-12. 77 Def.’s Mot. to Suppress-Residence, Ex. A, D.I. 108. 78 Id. 79 Id. 80 Id.

15 described in detail in the affidavit, from Dunkin’ Donuts to northbound in the 2700

block of N. Hemberger Street, one block east of 2753 N. Croskey Street, an address

motor vehicle records indicate Gibson utilizes.81

23. Philadelphia Police also included facts from the investigation of the

June 8, 2021, Rite Aid robbery.82 On that date, Gibson was taken into custody after

the robbery of the Rite Aid at 800 W. Fourth Street in Wilmington.83 Soon after,

Gibson was arrested at 814 W. Fifth Street.84 The affidavit also stated that when

Gibson was taken into custody, he was in possession of a black .357 revolver and

that he was wearing a large faced wrist watch.85 Both the revolver and the watch

appear to match the revolver and watch possessed by the Philadelphia suspect.86

Further, Gibson’s facial features, including a “distinctive” mark on his forehead,

depicted in a photograph provided by the Wilmington Police, appear identical to the

suspect in Philadelphia.87 Later that afternoon, on their own accord, Philadelphia

81 Id. The affidavit described the suspect “fleeing west on Huntington St. as well as crossing Broad St. at Cumberland St. The suspect is then tracked on multiple cameras on foot SB 2400 N. Carlisle St, and then continuing WB on York St. to the area of 2400 W. York St. Real Time Crime Center Cameras and private cameras capture the suspect walking NB on 23rd St. at Huntington, crossing over Oakdale St. and crossing over 2200 Lehigh Avenue towards 2700 N. Hemberger St.” Id. 82 Id. 83 Id. 84 Id. 85 Id. 86 Id. 87 Id.

16 Police obtained a search warrant for 2753 N. Croskey Street and seized evidence.88

On June 11, 2021, the Philadelphia Police obtained a second warrant to search that

address and seized additional evidence.89

24. Just as with the search warrant for Gibson’s iPhone,90 the Court examines

the “four-corners” of the affidavit to determine if it establishes the existence of

probable cause.91 “Concrete firsthand evidence that the items sought are in the place

to be searched is not always required in a search warrant. The question is whether

one would normally expect to find those items in that place.”92 The defendant has

the burden to establish by a preponderance of the evidence that a search warrant was

not supported by probable cause.93 The reviewing court simply needs to ensure that

there was a basis for probable cause.94 The issuing judicial officer’s determination

of the existence of probable cause is owed great deference.95

25. Gibson contends that the warrant affidavit was not supported by

probable cause. He correctly points out that the warrant affidavits in both State v.

88 Mot. to Suppress-Residence at ¶ 2, D.I. 108. 89 Id. at ¶ 27. 90 See ¶ ¶ 6,8, supra. 91 Dorsey, 761 A.2d at 811. 92 Hooks v. State, 416 A.2d 189, 203 (Del. 1980). 93 See Sisson, 883 A.2d at 875, aff’d, 903 A.2d 299 (Del. 2006); cf. McAllister, at 1123 (Del. 2002). 94 Gates, 462 U.S. at 238-39. 95 Sisson, 903 A.2d at 296.

17 Ada96 and State v. Cannon97 failed in that they were rooted in the affiants’ opinions

regarding the likelihood that contraband would be found in the places to be searched.

Gibson’s case is different in that the police listed certain facts, but expressed no

opinion about the likelihood of evidence being found at 2753 Croskey Street. The

question is whether those facts and any legitimate inferences drawn from those facts,

support the issuing judicial officer’s determination that probable cause existed to

search the residence.

26. On surveillance video, police observed a suspect committing the

Dunkin’ Donuts robbery/murder.98 Gibson is identified as that suspect based on the

photograph of him and other information provided by the Wilmington Police.99 Also

on surveillance video, police observed Gibson walking north on 2700 N. Hemberger

Street in Philadelphia, a considerable distance from Dunkin’ Donuts at 532 Lehigh

Avenue.100 Moreover, as described in the affidavit, the route Gibson took is not

direct.101 The 2700 Hemberger Street location is only one block west of 2753 N.

Croskey Street. 102 Motor vehicle records tied Gibson to the N. Croskey Street

96 2001 WL 660227 (Del. Super. Ct. June 8, 2001). 97 2007 WL 1849022 (Del. Super. Ct. June 21, 2007). 98 Def.’s Mot. Suppress-Residence, Ex. A, D.I. 108. 99 Id. 100 Id. 101 Id. 102 Id.

18 address.103 Given Gibson’s identification in the Dunkin’ Donuts robbery/murder,

the distance and route of his travel afterwards, the time of day, and, when last seen,

his proximity to an address he utilizes, the Court is convinced that the affidavit

establishes probable cause that Gibson fled to 2753 Croskey Street, and further, once

he reached that destination, he went inside. Although there might be other

explanations why Gibson travelled that indirect route to his house, going inside is

the most logical. An obvious inference is that most, if not all of the items for which

the warrant authorized the Philadelphia Police to search, might be found in Gibson’s

home.

27. Alternatively, the State asserts, even if the June 8th warrant was

defective, any evidence recovered pursuant to the warrant would inevitably been

discovered in a warrant executed on June 11th.104 Inevitable discovery “provides

[that] evidence, obtained in the course of illegal police conduct, will not be

suppressed if the prosecution can prove that the incriminating evidence ‘would have

been discovered through legitimate means in the absence of official misconduct.’”105

“One of the rationales for the exclusionary rule—deterrence of police misconduct—

103 Id. 104 See State’s Resp. to Mot. to Suppress-Residence at ¶ 25. 105 Cook v. State, 374 A.2d 264, 267-68 (Del. 1977).

19 is of diminished concern when police can demonstrate that they would have

inevitably discovered the evidence through lawful conduct.”106

28. The Court finds this argument persuasive for two reasons. First, Gibson

does not challenge the June 11th warrant. Second, it is supported by probable cause.

This second warrant authorized the Philadelphia Police to “Process 2753 N. Croskey

Street as a crime scene recover any pertinent evidence relating to these incidents

including any matching clothing and keys to a Cadillac, and any other items of

evidentiary value, pertinent to this homicide investigation.” 107 In addition to

repeating details of the Dunkin’ Donuts robbery/murder and the Rite Aid robbery,

the June 11th search warrant affidavit states that the Metro PCS victim’s vehicle was

recovered in the 2400 block of N. 19th Street in Philadelphia, where Gibson was

observed exiting from it.108

29. The State’s final argument opposing suppression is another inevitable

discovery argument based on Martin v. State,109 In that case, a Delaware State Police

detective travelled to Cincinnati, Ohio as part of a homicide investigation.110 The

Cincinnati Police conducted a warrantless search of the defendant’s motel room.111

106 Roy v. State, 62 A.3d 1183, 1189 (Del. 2012). 107 State’s Resp. to Def.’s Mot. to Suppress-Residence, Ex. A. 108 Id. 109 433 A.2d 1025, 1031 (Del. 1981). 110 Id. 111 Id.

20 During this illegal search, the Cincinnati Police discovered a firearm. 112 The

Delaware Supreme Court found that this evidence would have been discovered by

Delaware State Police because they would have sought a search warrant had the

illegal search not been conducted.113 The State argues that even if both warrants are

found to be invalid, the evidence still would have been legally discovered because

Delaware police would have sought a search warrant if the Philadelphia Police had

not done so first. Perhaps, but unlike Martin where a Delaware detective testified

that he intended to seek a search warrant,114 and the motel manager testified that he

would have given the police consent to search if asked,115 the State’s assertion here

is conjecture, unsupported by any such testimony.

30. The Court determines that the June 8th Philadelphia search warrant was

supported by probable cause. Further, it is plain to the Court that any items of

evidentiary value recovered on June 8th inevitably would have been recovered on

June 11th. Accordingly, the Defendant’s Motion to Suppress Evidence Purportedly

Seized from 2753 North Croskey Street, Philadelphia, Pennsylvania on June 8, 2021

is DENIED.

112 Id. 113 Id. 114 Martin, 433 A.2d, at 1031. 115 Id, at 1031-32.

21 31. The State’s Motion in Limine to Admit Evidence of Prior Acts

Pursuant to D.R.E. 404(b). The Court deferred ruling on the State’s motion until

the State disclosed the evidence it anticipated introducing at trial.116 This delay was

necessary because the Court had just ruled on Gibson’s Motion to Sever.117 The

Court noted that its decision potentially would “affect how the parties prepare for

trial and the admissibility of evidence at each trial.” 118 In its motion, the State

originally identified three items it sought to admit under D.R.E. 404(b). They are a

video of the Dunkin’ Donuts robbery/murder in Philadelphia, a video of a shooting

on June 8, 2021 at approximately 3:00 a.m. in which Secret Harris is alleged to be

the victim,119 and a prison video of Gibson taken on September 30, 2020 in which

he identifies himself as “the Beast” and expresses his intention to “kill people” when

he is released.120 The State has provided copies of the videos it seeks to introduce,

as well as the video of the Metro PCS incident, to the Court as exhibits to its motion.

Gibson opposes the admission of all three.121 After argument on September 26th, the

State advised the Court and counsel by email on October 18th that, “After meeting

with the State’s ballistics experts this morning, the State has decided to withdraw a

116 Gibson, 2022 WL 16642860, at *7. 117 Id. 118 Id. 119 Charges related to this incident have been severed for trial. Gibson, 2022 WL 16642860, at *4. 120 State’s Mot. in Limine. 121 Def.’s Resp. to State’s Mot. in Limine, D.I. 117.

22 portion of the proffered evidence in our 404B motion. Specifically, the State will

not be using the ballistic match in the Secret Harris case as we had previously

proffered in our motion as well as the hearing.”122

32. On May 15, 2021 at approximately 5:15 p.m., video surveillance

captured a masked suspect robbing a Metro PCS store in Elsmere, Delaware and

killing an employee, Leslie Basilio.123 The suspect, a black male, was carrying a

black revolver in his right hand, wearing a gray hooded sweatshirt, blue jeans, a

mask, gloves, a tactical-style belt, and white sneakers.124 After forcing Basilio to

collect phones, cash, and other items from the store, he had her put them in a white

plastic bag.125 He then took her to the rear of the store, out of public view, and fired

one NYCLAD bullet into her head with a black revolver, killing her.126 Basilio’s

car was stolen and later found in Philadelphia.127 It was found five blocks from a

residence that was determined to be Gibson’s.128

33. On June 5, 2021, at approximately 5:00 a.m., video surveillance

captured a suspect robbing a Dunkin’ Donuts in Philadelphia, shooting and killing

122 Email (Oct. 18, 2023) from Deputy Attorney General Ipek Kurul. 123 State’s Mot. in Limine, at ¶ 8. 124 Id. 125 Id. 126 Id. 127 Id. at ¶ 8-9. 128 Id. at ¶ 9.

23 its manager, Christine Lugo.129 Video surveillance showed Gibson, who is a black

male, without a mask, accosting Lugo as he entered the store carrying a black

revolver in his right hand.130 He was wearing a dark gray hooded sweatshirt, pants,

and gloves.131 He took her to a back room where she emptied several cash register

drawers before he fired a single shot into her head, killing her. The projectile

recovered from the victim is a ballistic match to the gun recovered during Gibson’s

arrest.132

34. Also on June 5, 2021, at approximately 11:45 p.m., video surveillance

captured a suspect in connection with the robbery and killing of Ronald Wright in

Wilmington.133 The man was wearing dark clothes and carrying a backpack.134 No

identification could be made, but the projectile used in the shooting of Ronald

Wright was a .38 caliber class frangible bullet. 135 The three examined bullets

indicated eight lands and eight grooves with a right twist. 136 Additionally,

witness(es) determined that Ronald Wright’s black sling bag was missing from the

residence.137

129 State’s Mot. in Limine at ¶ 10. 130 Id. 131 Id. 132 Id. 133 Id. at ¶ 11. 134 Id. 135 Id. 136 Id. 137 Id.

24 35. On June 6, 2021, at approximately 10:45 p.m., video surveillance

captured the robbery of the Good Deli at Ninth and West Streets in Wilmington and

the attempted murder of Belal Almansoori. 138 The suspect was a black male,

wearing a black hooded jacket, black baseball hat, black gloves , black pants, black

sneakers, and what appears to be a black sling bag under his jacket.139 The suspect

shot Almansoori, removed several items from the store, and shot Almansoori

again.140 A projectile used to shoot Almansoori was a .38 caliber class frangible

bullet.141 The examined bullets indicated eight lands and eight grooves with a right

twist.142

36. On June 8, 2021, at approximately 3:00 a.m., video surveillance

captured Secret Harris awaking after sleeping in her car at Fifth and Tatnall Streets

in Wilmington. 143 Harris believed that her cell phone had been stolen. 144 She

approached the suspect, who hit Harris on the head with a pistol.145 Harris fell, stood

up, stumbled to her car, and began to drive away.146 The suspect shot an estimated

138 Id. at ¶ 12. 139 Id. 140 Id. 141 Id. 142 Id. 143 Id. at ¶ 13. 144 Id. 145 Id. 146 Id

25 four to six times at Harris.147 At least some of the bullets hit Harris’ car.148 High

definition video show the suspect to be Gibson who was wearing a black hooded

jacket, a black baseball hat, black gloves, black pants, black sneakers with shiny

black soles, and carrying a black sling bag.149 The projectiles used in the shooting

were .38 caliber class frangible bullets. 150 The examined bullets indicated eight

lands and eight grooves with a right twist.151 The Secret Harris shooting projectiles

were a ballistic match to the projectile in the Dunkin’ Donuts robbery/murder, and

the revolver recovered during Gibson’s arrest.152

37. Later that morning, at 8:20 a.m., the Rite Aid at Fourth and Adams

Streets in Wilmington was robbed by two male suspects, one black and one white.153

The black male wore a gray hooded sweatshirt cut off at the elbows, a black long

sleeve undergarment, black gloves, black pants, and black sneakers with shiny black

soles and displaying a black revolver.154 His face was concealed.155 A GPS tracking

device was included with the money that the black suspect took.156 The device

147 Id. 148 Id. 149 Id. 150 Id. 151 Id. 152 Id. at ¶ 10. 153 Id. at ¶ 14. 154 Id. 155 Id. 156 Id.

26 tracked the suspect to the 800 block of West Fifth Street, a few blocks away from

the Rite Aid.157

38. Gibson was arrested hiding in the backyard of 812 West Fifth Street.158

Gibson had an empty gun holster on his person. 159 In his pockets, Gibson had

multiple live rounds of .357 ammunition.160 Police also found a .357 revolver near

Gibson’s hiding spot. 161 The .357 revolver had live ammunition in the chamber

including one .38 caliber class NYCLAD bullet, one .357 caliber frangible bullet,

and four .357 caliber lead bullets.162 The .357 revolver’s barrel had eight lands and

eight grooves with a right twist.163 Gibson also had a black sling bag.164

39. Upon motion of Gibson’s prior counsel, the Court severed Gibson’s

charges into three categories.165 The category designated ‘“business robberies’ and

threats of bodily harm/death” is the first category to be tried.166 The crimes in this

category are the robbery of the Metro PCS and murder of Leslie Basilio, the

157 Id. 158 Id. 159 Id. 160 Id. 161 Id. 162 Id. 163 Id. 164 Id. 165 Id. at ¶ 1. 166 Id.

27 robbery/murder of Ronald Wright, the robbery of Good Deli and the attempted

murder of Belal Almansoori, and the robbery of Right Aid.167

40. Pursuant to D.R.E. 404(b), the State seeks to admit evidence of the

Dunkin’ Donuts robbery/murder for the purpose of identification. 168 It has

withdrawn its request to introduce ballistics evidence from the Secret Harris

shooting. 169 The State alleges that Gibson committed the Dunkin’ Donuts

robbery/murder, and that the evidence from that case will identify him in the Metro

PCS incident. 170 The State alleges that Gibson otherwise cannot be adequately

identified in that incident because he was masked.171 The State believes that there

are commonalities linking the Dunkin’ Donuts case with the Metro PCS case that

will assist in identifying Gibson in the latter.172

41. Gibson argues that the evidence should not be admitted because it does

not prove identity.173 Gibson also argues that the admission of the Secret Harris

evidence would rejoin the trial groups and cause Gibson to have to defend against

these crimes twice.174

167 Id. 168 Id. 169 See n. 130, supra. 170 State’s Mot. in Limine. 171 Id. 172 Id. 173 Def.’s Reply to State’s Mot. in Limine at ¶ 9, D.I. 117. 174 Id. at 8.

28 42. “[A] party who intends to introduce evidence pursuant to D.R.E. …

404(b) should first seek a ruling from the trial judge as to the admissibility of the

evidence.”175 “Evidence of a person’s character or character trait is not admissible

to prove that on a particular occasion the person acted in accordance with the

character or trait.”176 However, “[t]his evidence may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.”177

43. In Getz v. State,178 the Delaware Supreme Court identified six factors a

trial court should take into account when considering the admissibility of evidence

from other crimes under D.R.E. 404(b):

(1) The evidence of other crimes must be material to an issue or ultimate fact in dispute in the case. If the State elects to present such evidence in its case-in-chief it must demonstrate the existence, or reasonable anticipation, of such a material issue. (2) The evidence of other crimes must be introduced for a purpose sanctioned by Rule 404(b) or any other purpose not inconsistent with the basic assumption against evidence of bad character of criminal disposition. (3) The other crimes must be proved by evidence which is plain, clear and conclusive. (4) The other crimes must not be too remote in time from the charged offense. (5) The Court must balance the probative value of such evidence against its unfairly prejudicial effect, as required by D.R.E. 403. (6) Because such evidence is admitted for a limited purpose, the jury should

175 D.R.E. 404, Comment. 176 D.R.E. 404(a)(1). 177 D.R.E. 404(b)(2). 178 538 A.2d 726 (Del. 1988).

29 be instructed concerning the purpose for admission as required by D.R.E. 105.179

Regarding Getz’s fifth factor, Deshields v. State180 identified the following nine

considerations for the D.R.E. 403 balancing test:

(1) the extent to which the point to be proved is disputed; (2) the adequacy of proof of the prior conduct; (3) the probative force of the evidence; (4) the proponent's need for the evidence; (5) the availability of less prejudicial proof; (6) the inflammatory or prejudicial effect of the evidence; (7) the similarity of the prior wrong to the charged offense; (8) the effectiveness of limiting instructions; and (9) the extent to which prior act evidence would prolong the proceedings.181

44. The first Getz factor requires that the evidence of other crimes must be

material to an issue or ultimate fact in dispute. Here, due to video surveillance, there

appears to be little, if any, dispute about what happened in each of the incidents to

be tried. What is vigorously disputed is the identity of the person who committed

the charged crimes. In each incident the perpetrator was masked, making facial

identification difficult, if not impossible. Therefore, the Court must consider

whether the other crimes evidence is material to the issue of identification. In other

words, the Court must consider whether the evidence is relevant, meaning that the

179 Id. at 734 (internal citations and quotations omitted). 180 706 A.2d 502 (Del. 1998). 181 Id. at 506.

30 evidence “has any logical tendency to make an ultimate fact in consequence more or

less probable.”182

45. The Court first turns to the Dunkin’ Donuts robbery/murder evidence.

The State argues that the near identical modus operandi in both the Dunkin’ Donuts

robbery/murder, where it asserts there is plain, clear, and conclusive evidence of

Gibson’s guilt, and the Metro PCS robbery/murder makes Gibson’s identity in the

latter more probable. In truth, the two incidents are nearly identical, save for the

location and the fact that the suspect in the Metro PCS incident was masked and the

suspect in the Dunkin’ Donuts incident was not. The incidents occurred three weeks

apart. In both incidents, a single black male accosted a lone female employee of a

small business at a time when there were no other employees or customers present.

The men were armed with a black revolver which they carried in their right hand.

They wore hooded sweatshirts, pants, and gloves. The men appeared to be of the

same height and build. The perpetrators had each victim collect property/cash for

them and executed each victim in a back room of the store by firing a single shot

from a revolver into their heads. The Court finds these commonalities sufficient to

make it more probable that the perpetrator of the Dunkin’ Donuts robbery/murder

also committed the Metro PCS robbery/murder. But these commonalities become

182 Ward v. State, 2020 WL 5785338, at *5 (Del. Sept. 28, 2020) (citing Getz, 538 A.2d 734; D.R.E. 401).

31 even more compelling when one observes the video depiction of the perpetrators in

each incident. The videos allow the viewer to compare, over an extended period of

time, other characteristics of the men, including their mannerisms, gait, demeanor,

and overall bearing. Those comparisons also support the conclusion that a single

perpetrator committed both robbery/murders. The Court finds the first Getz factor

to be met.

46. The second Getz factor is met as well. Identity is a purpose specifically

sanctioned by Rule 404(b).

47. The third Getz factor requires that the evidence to be introduced be

“plain, clear, and conclusive.” 183 In the Dunkin’ Donuts robbery/murder, video

surveillance shows the face of the suspect. In that case, the perpetrator fled to within

a block of Gibson’s Philadelphia residence. Ballistics evidence matches the revolver

recovered when Gibson was arrested. The Court finds the facial identification, 184

the flight of the Dunkin’ Donuts shooter to within a block of Gibson’s Philadelphia

residence, and the ballistics matches to be evidence that is “plain, clear, and

conclusive” that Gibson committed the robbery/murder at Dunkin’ Donuts,

satisfying the third Getz factor.

183 Getz, 538 A.2d at 734. See, June 8, 2021 search warrant affidavit in which Gibson is identified, Def.’s 184

Mot. to Suppress-Residence, Ex. A, D.I. 108.

32 48. The other crimes and the crimes in the case here occurred within a

three-week period. Moreover, the other crimes were interspersed between the

crimes to be tried here. Thus, under Getz’s fourth factor, the crimes are not too

remote from the charged crimes.

49. Getz’s fifth factor requires the Court to assess whether the probative

value of the evidence is substantially outweighed by its prejudicial effect under

D.R.E. 403,185 considering the Deshields factors.186 The Court concludes: 1) the

identity of the suspect is wholly disputed; (2) clear video surveillance and reliable

ballistics evidence are adequate means of proving the prior conduct; (3) the evidence

is strongly probative of Gibson’s identity, making it more probable that Gibson

committed the charged crimes; (4) the State has a strong need for this evidence to

connect Gibson to the charged crimes since the suspect’s face is covered in the

charged crimes and the ballistics evidence in the charged crimes is less probative

than that in the proposed evidence; (5) neither party cites the availability of less

prejudicial proof; (6) video evidence of the murder of Christine Lugo is

inflammatory and difficult to watch, but its inflammatory character is mitigated

somewhat by the fact that the jury will be exposed to videos of the other shootings

of Leslie Basilio and Belal Almansoori and by the State’s offer to redact the actual

185 Getz, 538 A.2d at 534. 186 Deshields, 706 A.2d at 506.

33 shooting of Christine Lugo from the video the jury watches; (7) the Dunkin’ Donuts

robbery/murder is similar in character to the charged crimes; (8) limiting instructions

are likely to be effective because the proffered evidence is no more inflammatory,

and possibly less inflammatory when redacted, than the charged crimes; and (9) the

State believes that the introduction of the proffered evidence will take no more than

one day, which will not unduly prolong what is estimated to be a four-week trial.

50. As to the sixth Getz factor, the Court will give a limiting instruction

upon admission of the other crimes’ evidence.187 That instruction will adhere to the

requirements in Milligan v. State188 by defining the specific purpose for which the

admitted evidence may be used, i.e., identification, and specifying that the evidence

shall not be considered for any other purpose.189

51. The Court finds that both the Getz factors and the Deshields factors

weigh in favor of including the identification evidence, as redacted, from the

Dunkin’ Donuts robbery/murder. The State shall redact the actual shooting of

Christine Lugo from the video it plays for the jury at trial. The Court will allow

testimonial evidence of the shooting and the collection of the projectile, however.

Accordingly, the State’s motion to admit the video evidence of the Dunkin’ Donuts

robbery/murder is GRANTED.

187 Getz, 538 A.2d at 734. 188 761 A.2d 6 (Del. 2000). 189 Id. at 10.

34 52. The State has withdrawn its request to admit ballistic evidence from

the Secret Harris shooting under D.R.E. 404(b). To the extent the State seeks to

admit video or still photographs from that incident that do not depict criminal

conduct for another purpose, such as identifying Gibson in the charged crimes by

his clothing, D.R.E. 404(b) is not implicated.

53. Department of Corrections Video Statements. On September 30,

2020, while incarcerated, Gibson was videotaped by Department of Corrections

(“DOC”) staff during a cell relocation. 190 During the recording, Gibson makes

multiple statements that the State seeks to introduce into evidence.191 The State has

provided the Court and defense counsel with a transcript of the statement

highlighting the specific comments it seeks to admit. It seeks to use the DOC

statements to establish Gibson’s state of mind and future intent to “kill people”.192

54. Gibson objects to admitting the video based both on its optics and

substance.193 The optics are unduly prejudicial because the video depicts Gibson

inside a prison.194 Substantively, Gibson contends that his statement, “do what I do,”

190 State’s Mot. in Limine at ¶ 6. 191 The State’s motion included some of the statements that it wishes to introduce, as well as a copy of the DOC video. The State’s reply included part of the of the transcript. After argument, the State submitted a transcript identifying all of the comments it seeks to admit. 192 Id. at ¶ 7. During oral argument the State withdrew its request to present statements where Gibson identifies himself as “the Beast” to establish identity. 193 Def.’ Reply to State’s Mot. in Limine, D.I. 117. 194 Id. at 3.

35 i.e., kill people, is improper propensity evidence.195 The statement that he will “kill

people” is insufficiently specific to show Gibson’s future intent to kill the victims

here.196 Further, the prejudicial effect of Gibson’s general statement that he will

“kill people” substantially outweighs it probative value as to the victims in this

case,197

55. The State concedes that there is no Delaware precedent directly on

point.198 Instead, it cites cases where Delaware Courts have admitted into evidence

rap videos and songs. In Taylor v. State,199 a rap video identified the defendant with

a certain gang, and in Llyod v. State,200 a rap video identified the defendant with a

crime that had already occurred. These gang cases did not involve questions of

admissibility based on state of mind or future intent to commit a crime, since the

crimes had already happened or were in the process of happening.

56. Gibson understates the concerns about the optics of the prison video.

Not only was it recorded in prison, but when Gibson is speaking, he is surrounded

by correctional officers in full riot gear. Perhaps some of that very substantial

prejudice could be alleviated if the State were to play an audio recording of Gibson

195 Id. at 4. 196 Id. at 4-6. 197 Id. at 6. 198 State’s Mot. in Limine at n.5. 199 76 A.3d 791 (Del. 2013). 200 249 A.3d 768 (Del. 2021).

36 rather than a video, but the statement still must be tethered to some foundational

context. Any such context would be unduly prejudicial.

57. Substantively, the Court concludes that Gibson’s statements are not

specific enough to show intent.201 They have limited probative value because they

do not express a future intent to kill any of the specific victims or even a class of

victims to which they might belong. They are simply statements declaring a

propensity to kill and are offered to show that Gibson acted in conformity with that

character trait, and not a purpose sanctioned by D.R.E. 404(b). Accordingly the

State’s motion to admit the DOC video is DENIED.

THEREFORE, Defendant Keith Gibson’s Motion to Suppress Evidence

Seized from Defendant’s iPhone is DENIED. His Motion to Suppress Evidence

Purportedly Seized from 2753 North Croskey Street, Philadelphia, Pennsylvania is

DENIED. The State’s Motion in Limine to Admit Evidence of Prior Acts Pursuant

to D.R.E. 404(b) is GRANTED as to the Dunkin’ Donuts video and DENIED as to

the Department of Corrections video. The State’s withdrew its request to admit

ballistic evidence based on the Secret Harris video.

IT IS SO ORDERED.

/s/ Ferris W. Wharton Ferris W. Wharton. J.

201 Id. at 160.